                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-10395                ELEVENTH CIRCUIT
                                                             JANUARY 15, 2010
                           Non-Argument Calendar
                                                                JOHN LEY
                         ________________________
                                                              ACTING CLERK

                  D. C. Docket No. 08-00271-CR-T-27TGW

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

DANIEL SAWYER,

                                                          Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                              (January 15, 2010)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Defendant Daniel Sawyer appeals his conviction for conspiring to possess
with intent to distribute 500 grams or more of a mixture and substance containing a

detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)

& 846. After review, we affirm.

                                 I. BACKGROUND

A.     Offense Conduct

       This case arises out of a drug investigation by the Sarasota Police

Department in Sarasota, Florida, leading to the May 29, 2008 arrest of five

individuals: defendant Sawyer, Diogenes Balbuena, Jimmy Morales-Garcia

(“Garcia”), Gilberto Montas, and Henry Guzman. Defendant Sawyer went to trial

alone, and his trial showed the following facts.

       A few months before the arrests, Guzman told Garcia that he had a friend

(Sawyer) who wanted to buy some cocaine. Garcia contacted Montas about

purchasing cocaine through Montas.

       Approximately a week before the arrests, Garcia learned that Montas had

located a source for the cocaine. Garcia agreed to buy two kilograms of cocaine

from Montas at a price of $23,500 per kilogram. Garcia informed Guzman, and

Guzman indicated that his friend (Sawyer) was interested in purchasing the cocaine

at this price.

       On May 29, 2008, the day of the arrests, Balbuena attempted to buy cocaine



                                           2
from an undercover police officer, Detective Derrick Gilbert. Balbuena was

arrested and agreed to cooperate with the police. Balbuena led Detective Gilbert

and a confidential source for the police (“CS”) to a restaurant where the

Garcia/Montas deal was to occur.

      On that same day, Garcia went to Guzman’s apartment. Defendant Sawyer

arrived at the apartment later on, after which Garcia noticed that there was a plastic

bag containing money in the apartment. Garcia spoke with Montas by telephone

about the cocaine deal and agreed to meet Montas at a gas station.

      Defendant Sawyer, along with Guzman, Garcia, and a female driver, drove

to the gas station in a sport utility vehicle (“SUV”), during which time a plastic bag

containing the money was at Sawyer’s feet. At the gas station, they met Montas

and followed him to a restaurant.

      At the restaurant, Montas went inside to met with Balbuena and the CS. The

three then exited the restaurant and approached the SUV. Defendant Sawyer

showed the money to Balbuena and the CS.

      Either Balbuena or the CS asked who was going to test the cocaine.

Defendant Sawyer got out of the SUV and was led by Balbuena and the CS into

Detective Gilbert’s undercover vehicle, parked nearby. Defendant Sawyer entered

the front passenger-side compartment of the undercover vehicle, and Balbuena and



                                           3
Montas boarded the rear passenger area, while the CS waited outside the

undercover vehicle. Detective Gilbert, who was in the driver’s seat and had placed

a bag containing two kilograms of cocaine on the console, asked Montas who the

drugs were for. Montas indicated that he and Sawyer intended to purchase the

cocaine. Detective Gilbert opened the bag and placed it in Sawyer’s lap. Sawyer

sampled the cocaine and approved.

      Defendant Sawyer then told Gilbert that Sawyer was going to retrieve the

money to purchase the cocaine, and Sawyer next returned to the SUV. Once at the

SUV, Sawyer asked its occupants whether they knew the drug sellers and whether

the sellers were “trustworthy.” A short time later, a police team arrived at the

scene and arrested Sawyer, Garcia, Montas, and Guzman. The police found a

plastic bag containing $44,720 in cash inside the SUV.

B.    Indictment and Trial

      A grand jury indicted defendant Sawyer, Balbuena, Garcia, and Montas,1

with a single count each of knowingly and willingly conspiring to possess with

intent to distribute 500 grams or more of cocaine, from at least April 29, 2008 to

May 29, 2008, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846.

       Montas pled guilty to the single drug conspiracy count in the indictment;



      1
          Guzman was not indicted.

                                          4
Garcia pled guilty to misprision of a felony; and Balbuena initially signed a plea

agreement as to the drug conspiracy count in the indictment, but failed to appear

for his plea hearing and is a fugitive. Defendant Sawyer proceeded to trial alone

and was convicted. The district court sentenced Sawyer to thirty years’

imprisonment. Sawyer timely appealed.

                                      II. DISCUSSION

A.     Prior Convictions

       Sawyer first contends that the district court abused its discretion in admitting

these prior drug convictions under Federal Rule of Evidence 404(b): (1) a 1997

conviction in Florida for possession of cocaine; (2) a 1998 conviction in Florida

for possession of cocaine with intent to sell; and (3) two 1999 convictions in

Florida for sale and possession of cocaine.2 Sawyer argues that these prior

convictions were not admissible under Rule 404(b) because (1) none of these prior

convictions is for conspiracy to possess cocaine, and (2) they were too remote in

time (each at least ten years old) to be probative of his intent to commit the offense

for which he was tried.

       Federal Rule of Evidence 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the


       2
         We review the district court’s decision to admit or exclude evidence for abuse of
discretion. United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005).

                                                5
      character of a person in order to show action in conformity therewith. It
      may, however, be admissible for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity, or absence of
      mistake or accident . . . .

Fed. R. Evid. 404(b). We use this three-part test to determine whether prior bad

acts, including convictions, are admissible under Rule 404(b):

      First, the evidence must be relevant to an issue other than the defendant’s
      character; Second, the act must be established by sufficient proof to permit a
      jury finding that the defendant committed the extrinsic act; Third, the
      probative value of the evidence must not be substantially outweighed by its
      undue prejudice . . . .

United States v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005) (quotation

marks omitted).

      Under the first prong, “in every conspiracy case, a not guilty plea renders the

defendant’s intent a material issue. Evidence of such extrinsic evidence as may be

probative of a defendant’s state of mind is admissible unless the defendant

affirmatively takes the issue of intent out of the case.” Id. at 1311 (alterations and

internal quotation marks omitted). We have held that convictions for non-

conspiracy drug offenses are admissible pursuant to Rule 404(b) for the purpose of

demonstrating a defendant’s intent to conspire to possess with intent to distribute

cocaine. See, e.g., United States v. Butler, 102 F.3d 1191, 1196 (11th Cir. 1997)

(upholding admission of a prior conviction for possession of cocaine for purposes

of demonstrating defendant’s intent in the charged conspiracy for possession with

                                           6
intent to distribute); see also United States v. Cardenas, 895 F.2d 1338, 1341-45

(11th Cir. 1990) (upholding admission of testimony regarding defendant’s prior

use of and trafficking in cocaine, where defendant was charged with conspiracy to

possess with intent to distribute cocaine).

      Here, under this Court’s binding precedent, Sawyer put his intent at issue by

pleading not guilty and failing to take any affirmative step to remove intent as an

issue. See Matthews, 431 F.3d at 1311. And Sawyer’s prior cocaine-related

convictions are relevant to his intent to commit the charged offense. Thus, the first

prong was satisfied.

      As to the second prong, Sawyer does not challenge the sufficiency of the

evidence showing the prior convictions or the extrinsic acts underlying those

convictions. Thus, the second prong is not at issue. See Matthews, 431 F.3d at

1311 n.14 (concluding that where the defendant does not challenge the sufficiency

of the evidence supporting the extrinsic act, the second prong need not be

considered).

      Under the third prong, whether the probative value of Rule 404(b) evidence

substantially outweighs its prejudicial effect calls for a “common sense assessment

of all the circumstances surrounding the extrinsic offense, including prosecutorial

need, overall similarity between the extrinsic act and the charged offense, as well



                                              7
as temporal remoteness.” United States v. Jernigan, 341 F.3d 1273, 1282 (11th

Cir. 2003) (quotation marks omitted). “[C]ircuit precedent regards virtually any

prior drug offense as probative of the intent to engage in a drug conspiracy . . . .”

Matthews, 431 F.3d at 1311. “[T]emporal remoteness is an important factor to be

considered as it depreciates the probity of the extrinsic offense.” Id. (quotation

marks omitted). However, we “ha[ve] refrained from adopting a bright-line rule

with respect to temporal proximity because decisions as to impermissible

remoteness are so fact-specific that a generally applicable litmus test would be of

dubious value.” Id. (quotation marks omitted). Thus, a defendant “bears a heavy

burden in demonstrating an abuse of the court’s broad discretion in determining if

an extrinsic offense is too remote to be probative.” Id. (quotation marks omitted).

      Here, three of Sawyer’s prior convictions were for sale of cocaine or

possession with intent to sell, and one of the convictions was for possession of

cocaine. These convictions are similar to the cocaine conspiracy charge for which

Sawyer was tried. See Cardenas, 895 F.2d at 1344 (“Evidence of prior drug

dealings is highly probative of intent to distribute a controlled substance, as well as

involvement in a conspiracy.”) (quotation marks omitted). Further, although the

earliest of Sawyer’s prior convictions occurred approximately eleven years before

the offense conduct in the present case, this Court has held that longer periods did



                                           8
not render admission of such Rule 404(b) evidence improper. See United States v.

Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (determining that a time period of

approximately fifteen years was not too remote). Moreover, in Sawyer’s case the

district court instructed the jury that his prior convictions must be considered only

to determine Sawyer’s state of mind or intent with respect to his commission of the

charged offense. See United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th

Cir. 1993) (concluding prejudice could be mitigated by giving a cautionary

instruction on the limited use of such evidence). Given these circumstances, the

district court did not abuse its discretion in determining the probative value of

Sawyer’s prior convictions was not substantially outweighed by any prejudicial

effect and in admitting Sawyer’s prior convictions.

B.    Government’s Motion to Reopen

      Defendant Sawyer next claims the district court abused its discretion in

granting the government’s motion to reopen its case-in-chief to admit Sawyer’s

prior convictions, because this placed “undue emphasis” on them.

      “‘[I]t is well established that a trial court may permit the reopening of a case

in order that omitted evidence may be presented. Considerable latitude in

discretion is vested in the trial court in such matters.’” United States v. Molinares,

700 F.2d 647, 652 (11th Cir. 1983) (quoting Maggard v. Wainwright, 432 F.2d



                                           9
941, 942 (5th Cir. 1970)). “[W]e will not disturb the district court’s exercise of

discretion unless the circumstances of the case show that [the defendant] suffered

actual prejudice in the conduct of his defense.” Id. (citing United States v. Marino,

562 F.2d 941, 944 (5th Cir. 1977)3).

       Here, on October 1, 2008 – fourteen days before trial – the government filed

a notice of prior convictions, listing Sawyer’s 1997 conviction in Florida for

possession of cocaine and a 2000 conviction in Florida for possession of cocaine

with intent to sell. On October 8, 2008, the government submitted an amended

notice of prior convictions that omitted the 2000 conviction, but included Sawyer’s

1997, 1998, and two 1999 drug convictions. At a hearing the day before trial, the

court ruled that the convictions were admissible. Sawyer was tried on October 15,

2008, but the government did not introduce the prior convictions during its case-in-

chief. After both the government and the defense rested, the government moved to

reopen its case to introduce the prior convictions pursuant to Rule 404(b). The

district court granted the motion.

       We conclude that the district court did not abuse its discretion in granting the

motion to reopen. First, Sawyer does not contest that he was in fact convicted of


       3
        In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the former Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.


                                               10
the offense in each conviction. Second, Sawyer had notice that the government

was intending to introduce the convictions as early as October 1, 2008 (for the

1997 conviction) and October 8, 2008 (for the 1998 and 1999 convictions).

Consequently, that the government intended to introduce the prior convictions was

not a surprise to Sawyer, and Sawyer has shown no reversible error as to the timing

of their admission. See United States v. Wilcox, 450 F.2d 1131, 1143-44 (5th Cir.

1971) (finding no abuse of discretion where district court permitted government to

reopen its rebuttal case to recall defendant for purpose of asking whether defendant

had ever been convicted of a felony, notwithstanding defendant’s claim that this

would place “undue emphasis” on defendant’s felony conviction). Third, Sawyer’s

argument of undue emphasis is also undercut by the fact that the district court gave

a limiting instruction that the jury was to consider the prior convictions only as to

state of mind or intent.

C.    Admission of Hearsay Testimony

      Sawyer next argues that the district court erred in admitting hearsay

testimony. Specifically, Sawyer claims the district court should have excluded on

hearsay grounds Garcia’s testimony that Guzman had a friend (referring to

Sawyer) who was asking about buying cocaine.

      During Garcia’s direct examination, the government elicited this testimony:



                                          11
      [PROSECUTOR]:      How long before the events of May 29th of 2008
                         did you have knowledge of a potential cocaine
                         transaction?
      [GARCIA]:          A few months.
      [PROSECUTOR]:      Who presented this idea to you?
      [GARCIA]:          A friend. His name is Henry Guzman.
      [PROSECUTOR]:      What did Henry Guzman tell you or ask you when
                         you first learned about a potential cocaine
                         transaction?
      [GARCIA]:          What is the question?
      [PROSECUTOR]:      What did Henry Guzman ask you or tell you about
                         this potential cocaine transaction?
      [DEFENSE COUNSEL]: Objection, hearsay.
      THE COURT:         Overruled.
      [PROSECUTOR]:      You may answer the question.
      [GARCIA]:          That he had a friend and acquaintance -- that he
                         had a friend that was asking him about the cocaine.

The government asked Garcia if Guzman identified the friend, and Sawyer

objected. The district court concluded the testimony was admissible under Federal

Rule of Evidence 801(d)(2)(E). The government continued to question Garcia:

      [PROSECUTOR]:             Who did Henry Guzman identify as his friend who
                                wanted the cocaine?
      [GARCIA]:                 He said they were black, like black from St. Pete.
      [PROSECUTOR]:             And did you meet this friend?
      [GARCIA]:                 We all met on the 29th at Guzman’s house.
      [PROSECUTOR]:             That’s May 29th, the day you were arrested?
      [GARCIA]:                 Yes.
      [PROSECUTOR]:             Do you see this friend in court today?
      [GARCIA]:                 Yes.

Garcia then identified Sawyer in the courtroom.

      Hearsay is inadmissible unless it meets one of the exceptions to the hearsay



                                        12
rule. See Fed. R. Evid. 802. Under Rule 801(d)(2)(E), statements made by a

coconspirator in furtherance of a conspiracy are not hearsay. Fed. R. Evid.

801(d)(2)(E). For a statement to constitute non-hearsay by a coconspirator, the

government must show by a preponderance of the evidence that:

      (1) a conspiracy existed; (2) the conspiracy included the declarant and the
      defendant against whom the statement is offered; and (3) the statement was
      made during the course and in furtherance of the conspiracy. In determining
      the admissibility of co-conspirator statements, the trial court may consider
      both the co-conspirator's statements and independent external evidence.

United States v. Flores, 572 F.3d 1254, 1264 (11th Cir.), cert. denied, 130 S. Ct.

561, 130 S. Ct. 562, and 130 S. Ct. 568 (2009) (quoting United States v. Hasner,

340 F.3d 1261, 1274 (11th Cir. 2003)). The district court’s factual determinations

that the conspiracy existed and that the statement was made in furtherance of that

conspiracy are reviewed under the clearly erroneous standard. United States v.

Tokars, 95 F.3d 1520, 1538 (11th Cir. 1996) (citing United States v. Allison, 908

F.2d 1531, 1533-34 (11th Cir. 1990)).

      Here, the evidence reflected that a conspiracy to purchase cocaine existed

between the declarant, Guzman, and the defendant, Sawyer, at the time of

Guzman’s statement. First, the very statement made by Guzman to Garcia, “that

[Guzman] had a friend that was asking him about the cocaine,” shows that Guzman

and his friend (Sawyer) already had discussed a potential cocaine transaction



                                          13
before Guzman made the statement to Garcia. Second, other evidence presented at

trial shows that Guzman and Sawyer had agreed to participate in a cocaine

transaction at the time Guzman’s statement to Garcia was made. For example,

Garcia testified he knew about a potential cocaine deal “[a] few months” before the

deal, when Guzman requested cocaine on his friend’s behalf. “[A] week” before

the transaction, Garcia learned that Montas had found a source for the cocaine, and

Montas and Garcia agreed on a purchase price for two kilograms of cocaine.

Garcia shared the price with Guzman, and Guzman indicated that his friend

(Sawyer) was still interested in purchasing the cocaine. Finally, Sawyer arrived at

Guzman’s apartment and participated in the cocaine transaction. As a result, the

trial evidence shows that a conspiracy existed between Sawyer and Guzman at the

time Guzman’s statement to Garcia was made. Because Sawyer and Guzman were

coconspirators when the challenged statement was made, the district court did not

abuse its discretion in admitting Garcia’s testimony that Guzman’s friend was

interested in purchasing cocaine.

D.     Sufficiency of the Evidence

       Sawyer’s final argument challenges the sufficiency of the evidence to

support his conviction.4


       4
       We review the sufficiency of the evidence to support a conviction de novo, viewing the
evidence in the light most favorable to the government, and drawing all reasonable inferences

                                              14
       Conspiracy to possess cocaine with intent to distribute requires the

government to prove beyond a reasonable doubt “(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. Molina, 443 F.3d 824, 828 (11th Cir. 2006)

(quoting United States v. Lopez-Ramirez, 68 F.3d 438, 440 (11th Cir. 1995)). The

agreement forming the basis of the conspiracy can be proved “by circumstantial

evidence, through ‘inferences from the conduct of the alleged participants or from

circumstantial evidence of a scheme.’” United States v. Obregon, 893 F.2d 1307,

1311 (11th Cir. 1990) (quoting United States v. Tamargo, 672 F.2d 887, 889 (11th

Cir. 1982)). “Where the government’s case is circumstantial, reasonable

inferences, and not mere speculation, must support the jury’s verdict.” United

States v. Mejia, 97 F.3d 1391, 1392 (11th Cir. 1996) (quotation marks omitted).

“Mere presence, guilty knowledge, even sympathetic observation” and close

association with a coconspirator are insufficient, without more, to support a

conviction for conspiracy to distribute drugs. United States v. Lyons, 53 F.3d

1198, 1201 (11th Cir. 1995). Yet, such factors may raise a permissible inference of

participation in a conspiracy, which the jury may consider as a “material and

probative factor . . . in reaching its decision.” United States v. Hernandez, 896


and credibility choices in favor of the jury’s verdict. United States v. Rodriguez, 218 F.3d 1243,
1244 (11th Cir. 2000).

                                                15
F.2d 513, 518 (11th Cir. 1990).

      “A defendant’s knowing participation in a conspiracy may be established

through proof of surrounding circumstances such as acts committed by the

defendant which furthered the purpose of the conspiracy.” United States v. Bain,

736 F.2d 1480, 1485 (11th Cir. 1984). The evidence of prior drug activity may

establish intent. United States v. Roberts, 619 F.2d 379, 383-84 (5th Cir. 1980)

(concluding that a prior conviction increases the likelihood that the defendant

intended to conspire to commit similar subsequent criminal conduct).

      We readily conclude that the evidence was sufficient for the jury to infer that

Sawyer was a part of the charged conspiracy to possess cocaine with intent to

distribute. The evidence showed that Garcia and Guzman negotiated to purchase

two kilograms of cocaine on Sawyer’s behalf, that Sawyer traveled with others to

purchase the cocaine, that Sawyer had $44,720 in cash to buy the cocaine in his

possession during the drive to the site where the deal occurred, that coconspirator

Montas indicated to Detective Gilbert that he and Sawyer wanted to buy the

cocaine, and that Sawyer tested the cocaine and then returned to the SUV to

retrieve the money, asking if the sellers were “trustworthy.” Furthermore, the

government offered evidence of Sawyer’s four prior convictions for cocaine-

related offenses. The evidence amply supported Sawyer’s conviction.



                                         16
                               III. CONCLUSION

For all the foregoing reasons, we affirm Sawyer’s conviction.5

AFFIRMED.




5
    On appeal, defendant Sawyer made no challenges to his sentence.

                                         17
