                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           JANUARY 7, 2008
                            No. 07-12146                  THOMAS K. KAHN
                        Non-Argument Calendar                  CLERK
                      ________________________

                   D. C. Docket No. 06-00031-CR-02-1

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

HUBERT ARTIS, JR.,
TIMOTHY LESHON WORTHEN,


                                                  Defendants-Appellants.


                      ________________________

               Appeals from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                            (January 7, 2008)

Before ANDERSON, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Hubert Artis, Jr. and Timothy L. Worthen appeal their convictions for

conspiracy to possess with intent to distribute over 5 kilograms of cocaine

hydrochloride, 21 U.S.C. §§ 846, 841(a)(1), and 851, and possession with intent to

distribute over 500 grams of cocaine hydrochloride, 21 U.S.C. §§ 841(a)(1), and

851. We address each of their arguments in turn, and affirm their convictions.

                                          I.

      Worthen first argues the proffer agreement, which limits his rights under

Rule 410 of the Federal Rules of Evidence, should be strictly construed against the

Government. Worthen contends the district court erred by allowing the

introduction of the entire proffer, including portions of the proffer that did not

specifically contradict any portion of Worthen’s trial testimony. In particular, the

district court erred by allowing Agent Marbert, during the Government’s rebuttal,

to testify about statements Worthen had made regarding the 11 individuals from

whom he had purchased drugs. Worthen asserts that his trial testimony did not

contradict his proffer statements regarding individuals from whom he had

purchased drugs. Worthen also contends that his “general” statement during trial

that he did not sell cocaine was not sufficient to allow for the introduction of his

entire proffer, which was prejudicial. Finally, Worthen argues that the protections

accorded to a defendant by Federal Rule of Evidence 410 may not be waived by



                                           2
the defendant and, therefore, the district court erred by allowing the introduction of

any portion of the proffer statement.1

       “[A]ny statement made in the course of plea discussions with an attorney for

the prosecuting authority which do not result in a plea of guilty” is not admissible

as evidence in a criminal trial. Fed. R. Evid. 410. However, a defendant may

waive the rights he is accorded pursuant to Federal Rule of Evidence 410. United

States v. Mezzanatto, 115 S. Ct. 797, 805-06 (1995). “The construction of proffer

agreements, like plea agreements, is governed generally by the principles of

contract law, as we have adapted it for the purposes of criminal law.” United

States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998). “Any ambiguities in the

terms of a proffer agreement should be resolved in favor of the criminal

defendant.” Id. at 709-10.

       The district court did not err by allowing the introduction of statements

made by Worthen during the proffer. See United States v. Mahique, 150 F.3d

1330, 1332 (11th Cir. 1998) (“Whether the government has breached a plea

agreement is a question of law that this we review de novo.”). The proffer letter


       1
         Artis makes the same arguments in his brief. Artis never objected to the introduction of
the evidence during the trial, but only asked for a limiting instruction, which the court gave,
instructing the jury that the testimony regarding the proffer statements was only to be considered
with regard to Worthen, and not Artis. Artis’s argument on appeal regarding the proffer
statement testimony is rejected for the same reasons as Worthen’s argument and, also, because
Artis fails to explain how he was prejudiced by the introduction of the proffer statements.

                                                3
provided that all discussions would be governed by “Rule 410 of the Federal Rules

of Evidence, as modified herein.” The letter also provided that no statements made

by Worthen or his counsel could be used in the Government’s case-in-chief;

however, such statements could be used “for the purpose of cross-examination,

impeachment, and rebuttal should [Worthen] testify at any proceeding in any

manner contrary to this proffer.” All of the testimony by Agent Marbert that

Worthen points to as violating the terms of the proffer agreement plainly

impeached Worthen’s trial testimony. Worthen stated, while being cross-

examined, that he did not sell cocaine and, pursuant to the proffer agreement, the

Government was entitled to use statements made by Worthen during the proffer

“for the purpose of cross-examination, impeachment, and rebuttal” in the event that

statements made during the proffer were inconsistent with the statement “I don’t

sell cocaine.” The admission of Worthen’s proffer letter stating that he had

purchased large quantities of cocaine and from whom he had purchased the

cocaine, served to discredit, and therefore impeach, his trial testimony that he did

not sell cocaine. Worthen does not cite any law standing for the proposition that

statements used for impeachment must be of the same level of generality as the

testimonial statements they discredit.




                                           4
      As for Worthen’s argument that defendants should not be able to waive their

rights pursuant to Federal Rule of Evidence 410 and Federal Rule of

Criminal Procedure 11(e)(6)(D), the argument was not raised in the district court

and, therefore, is subject to review for plain error. See Pielago, 135 F.3d at 711

(reviewing for plain error whether the admission of certain testimony violated a

proffer agreement where no objection was raised in the district court). In any

event, the Supreme Court has held that a defendant may waive the rights he is

accorded pursuant to Federal Rule of Evidence 410. See Mezzanatto, 115 S. Ct. at

805-06. Therefore, the district court did not err by allowing testimony regarding

portions of Worthen’s proffer to impeach or rebut his trial testimony.

                                          II.

      Next, Worthen and Artis assert the Government did not present sufficient

evidence to support their convictions for conspiracy to possess with intent to

distribute cocaine hydrochloride. They contend the Government did not introduce

any evidence concerning drugs on their persons or at their residences, other than

the drugs involved in the sting operation at Tutt’s residence. There was no

evidence of any paraphernalia associated with distributing drugs at their homes or

on their persons, and the knife, scales, and baggies used on the day of the sting




                                          5
operation were provided by Tutt. There were no bank records, wire transfers, or

drug notes introduced as evidence.

      Worthen and Artis also assert that, even if there was sufficient evidence to

convict them of the conspiracy charged in Count One, there was not sufficient

evidence for the jury to find that the conspiracy involved more than five kilograms

of cocaine. Worthen’s and Artis’s arguments are based on their assertion that

Tutt’s testimony, standing alone, was insufficient because it did not establish that

Tutt had sold them a total amount of cocaine in excess of five kilograms. Their

argument is based on the position that we should give consideration to the original

trial transcripts, which were later amended by the court reporter to correct a

typographical error.

      “Sufficiency of the evidence is a question of law reviewed de novo. We,

however, view the evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor.”

United States v. Martinez, 83 F.3d 371, 373-74 (11th Cir. 1996) (internal citations

omitted). Credibility determinations are for the jury to make, and we typically will

not review such determinations. United States. v. Copeland, 20 F.3d 412, 413 (11th

Cir. 1994). Additionally, “when a defendant takes the stand in a criminal case and

exposes his demeanor to the jury, the jury may make adverse determinations about



                                           6
his credibility and reject his explanation as a complete fabrication.” United States

v. Vazquez, 53 F.3d 1216, 1225 (11th Cir. 1995). “At least where some

corroborative evidence of guilt exists for the charged offense . . . and the defendant

takes the stand in his own defense, the defendant’s testimony, denying guilt, may

establish, by itself, elements of the offense.” United States v. Brown, 53 F.3d 312,

314-15 (11th Cir. 1995). “This rule applies with special force where the elements

to be proved for a conviction include highly subjective elements: for example, the

defendant’s intent or knowledge . . . .” Id. at 315.

      We have stated that, “[t]o convict a defendant for conspiracy under 21

U.S.C. § 846, the evidence must show (1) that a conspiracy existed, (2) that the

defendant knew of it, and (3) that the defendant, with knowledge, voluntarily

joined it.” United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994).

“The test for sufficiency of evidence is identical regardless of whether the evidence

is direct or circumstantial, and ‘no distinction is to be made between the weight

given to either direct or circumstantial evidence.’” United States v. Mieres-Borges,

919 F.2d 652, 656-57 (11th Cir. 1990) (citation omitted). “[A]n agreement to

distribute drugs ‘may be inferred when the evidence shows a continuing

relationship that results in the repeated transfer of illegal drugs to a purchaser.’”




                                            7
United States v. Thompson, 422 F.3d 1285, 1292 (11th Cir. 2005) (citation

omitted).

      The evidence presented at trial was sufficient for the jury to find beyond a

reasonable doubt that Worthen and Artis participated in a conspiracy to possess

with the intent to distribute cocaine hydrochloride. Tutt, the Government’s

cooperating witness, testified he started selling cocaine to Worthen and Artis in

August 2005 and had numerous dealings with them involving substantial amounts

of cocaine. Once Tutt was cooperating with the Government, he contacted

Worthen and Artis on multiple occasions regarding the sale of drugs to them.

Some of the conversations that took place were played in open court. Those

conversations involved a drug deal, which ultimately occurred on January 12,

2006. On that day, Worthen and Artis arrived with money and consummated a

transaction involving approximately one kilogram of cocaine hydrochloride. The

drug transaction was videotaped and was viewed by law enforcement, including

Agent Ozden, through closed circuit television while it occurred. Agent Ozden

testified regarding the phone calls between Tutt and Worthen, leading up to the

drug transaction on January 12, 2006. Agent Ozden testified that he observed the

drug transaction and saw Worthen and Artis enter Tutt’s residence with money,

which was given to Tutt in exchange for approximately one kilogram of cocaine.



                                          8
Worthen and Artis cut, weighed, and repackaged the cocaine before leaving the

residence. The videotape of the transaction and corresponding audio were

introduced as evidence. Immediately after Worthen and Artis left Tutt’s residence,

law enforcement moved in to arrest them, and they both attempted to flee. They

were apprehended shortly thereafter.

       Agent Marbert of the DEA testified that the money used in the drug

transaction did not include old bills, indicating that it had not been saved over a

long period of time. He testified that a kilogram of cocaine contained

approximately 1,000 doses and is an amount that would be purchased for the

purpose of distribution, rather than for personal use. According to the DEA’s

expert in drug identification, Worthen and Artis purchased 994.8 grams of 78

percent pure cocaine hydrochloride from Tutt.

       Additionally, Worthen testified in his own defense, and the jury was free to

reject the testimony of Worthen as a fabrication and use it as substantive evidence

of his guilt.2 See Brown, 53 F.3d at 315. Portions of Worthen’s testimony were

consistent with a finding of guilt. For example, during cross-examination,



       2
         Artis testified on his own behalf as well. However, unlike Worthen, Artis moved for
judgment of acquittal after the Government’s case in chief and the court reserved ruling at that
point. Thus, our recent decision in United States v. Moore, __ F.3d __, 2007 WL 3121598 at *1
(11th Cir. Oct. 26, 2007) applies, and we review only the evidence from the Government’s case
in chief, which independently supports Artis’s convictions in any event.

                                                9
Worthen stated that he spent 40 minutes in the residence weighing the cocaine

because he “wanted to make sure the deal was square.” Worthen and Artis point

out that no drugs were found on them and that Tutt provided all of the

paraphernalia; nevertheless, the evidence adduced at trial was sufficient evidence

for a jury to find beyond a reasonable doubt that Worthen and Artis conspired to

possess cocaine hydrochloride with the intention of distributing it.

       Moreover, sufficient evidence supported the jury finding the conspiracy to

possess with intent to distribute cocaine charged in Count One involved more than

five kilograms. First, the trial transcript in the record on appeal reflects that Tutt

testified he sold Worthen and Artis “four whole kilograms,” rather than four

grams, in addition to other substantial quantities of cocaine that Tutt had sold to

Worthen and Artis on numerous occasions.3 Second, as noted by the Government,

it is obvious from context that Tutt said four kilograms, rather than four grams.

The transcript shows that Tutt testified that he sold Artis and Worthen “six to eight

half kilos which is eighteen ounces and I sold them four whole kilograms.” This

was immediately followed by the question “Did that include the one from the FBI,”

       3
          Worthen does not cite any law to support his argument that we must consider the
transcripts originally filed where the court reporter has filed amended transcripts to correct a
typographical error. Additionally, Worthen does not deny that the original transcripts contained
a typographical error or dispute the actual substance of Tutt’s testimony at issue. Rather, he
merely asserts the original trial transcript, which allegedly contained a typographical error
materially affecting the amount of cocaine Tutt testified he had sold to Worthen and Artis, did
not establish a conspiracy involving more than five kilograms of cocaine.

                                               10
to which Tutt responded “Yes.” Thus, Tutt testified that he sold Worthen and Artis

four and a half ounces “a couple times,” nine ounces “a couple of times,” “six to

eight half kilos which is eighteen ounces,” and “four whole kilograms.” Viewing

this testimony in the light most favorable to the jury’s verdict, Tutt’s testimony

established that he had sold Worthen and Artis an amount of cocaine the total

weight of which exceeded five kilograms. Thus, the record shows there was

sufficient evidence for the jury to find beyond a reasonable doubt that the

conspiracy charged in Count One of the superceding indictment involved more

than five kilograms of cocaine hydrochloride.

                                          III.

      Finally, Worthen contends the evidence contained in the record does not

support the district court’s decision to instruct the jury that it could draw an

inference of guilt from his flight. Worthen argues that an FBI agent had testified

that Worthen “began running toward the woods,” but Agent Marbert testified that

Worthen was arrested inside Tutt’s residence. Worthen argues that, in light of the

record, the charge was highly prejudicial and amounts to reversible error.

      Artis argues the record does not support giving a flight instruction because

the evidence in the record indicated that he had run inside the residence when law




                                           11
enforcement moved in to arrest him, he did not resist arrest, and he did not attempt

to flee from the agents located inside the residence.

       “Evidence of flight is admissible to demonstrate consciousness of guilt and

thereby guilt.” United States v. Blakey, 960 F.2d 996, 1000 (11th Cir. 1992). The

probative value of flight evidence is diminished if a significant amount of time

lapses from the time of the crime’s commission to the time of flight. Id. at 1000-

01. The probative value of flight evidence “as circumstantial evidence of guilt

depends upon the degree of confidence with which four inferences can be drawn:

(1) from the defendant’s behavior to flight; (2) from flight to consciousness of

guilt; (3) from consciousness of guilt to consciousness of guilt concerning the

crime charged; and (4) from consciousness of guilt concerning the crime charged

to actual guilt of the crime charged.” United States v. Myers, 550 F.2d 1036, 1049

(5th Cir. 1977).4

       The district court did not abuse its discretion by instructing the jury that it

could draw an inference of guilt from Artis’s and Worthen’s flight. See United

States v. Dean, 487 F.3d 840, 847 (11th Cir. 2007) (“Where an appellant has

objected to a jury instruction at trial, we review the court’s decision to use that



       4
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.

                                               12
instruction for abuse of discretion.”). Worthen essentially argues the instruction

was improper as to him because there was both testimony that he fled into the

woods and testimony that he was arrested inside the residence. First, irrespective

of whether Worthen fled by running toward a wooded area or by running back

inside Tutt’s residence, he still fled. Second, as noted by the Government,

Worthen himself testified that he fled by trying to run into a wooded area when law

enforcement moved in to arrest him. Because Worthen admitted he attempted to

flee when he spotted law enforcement outside of Tutt’s residence, and this

occurred immediately after he had purchased nearly a kilogram of cocaine, the

district court did not abuse its discretion by giving the jury a flight instruction as to

Worthen.

      Similarly, with regard to Artis, Agent Ozden testified that when law

enforcement moved in to arrest Worthen and Artis, Artis ran back inside Tutt’s

residence and was immediately apprehended. Just like Worthen, Artis’s action of

running occurred when law enforcement moved in to arrest him, and this was

immediately after he had purchased nearly a kilogram of cocaine. Thus, because of

the temporal proximity of the Artis’s act of running back into the residence upon

seeing law enforcement to his purchase of nearly a kilogram of cocaine, the district

court did not abuse its discretion by giving a flight instruction with regard to Artis.



                                            13
                                          IV.

      In conclusion, there was sufficient evidence for the jury to find Worthen and

Artis guilty of both counts charged in the indictment, and that the conspiracy

charged in Count One of the indictment involved more than five kilograms of

cocaine. Additionally, the district court did not err by allowing rebuttal testimony

concerning Worthen’s proffer statement, and the evidence in this case supported

the district court’s decision to instruct the jury that it could draw an inference of

guilt from flight.

      AFFIRMED.




                                           14
