                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JAN 13, 2009
                            No. 07-15338
                                                          THOMAS K. KAHN
                        Non-Argument Calendar
                                                              CLERK
                      ________________________

                D. C. Docket No. 06-00314-CR-T-30-MAP

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

TONY JEROME HENRY,
EDWARD DELL,
TOMIKI JENKINS,
HELENA JONES,


                                                      Defendants-Appellants.


                      ________________________

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

                           (January 13, 2009)

Before ANDERSON, CARNES and FAY, Circuit Judges.
PER CURIAM:

      Tony Henry appeals his convictions for conspiracy to possess with intent to

distribute and to distribute crack cocaine, in violation of 21 U.S.C. §§ 846,

841(a)(1), (b)(1)(A), possession with intent to distribute a quantity of cocaine

base, in violation of § 841(a)(1) and (b)(1)(C), distribution of crack cocaine, in

violation of § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2, and knowingly opening,

using, and maintaining a place for the purpose of manufacturing and distributing

cocaine base, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2.

      Tomiki Jenkins appeals his convictions and sentence for conspiracy to

possess with intent to distribute cocaine, in violation of § 846, distribution of

crack cocaine, in violation of § 841(a) and 18 U.S.C. § 2, and knowingly opening,

using, and maintaining a place for the purpose of manufacturing and distributing

cocaine base, in violation of § 856 and 18 U.S.C. § 2.

      Helena Jones appeals her convictions and sentence for conspiracy to possess

with intent to distribute cocaine, in violation of § 846, and knowingly opening,

using, and maintaining a place for the purpose of manufacturing and distributing

cocaine base, in violation of § 856(a)(1) and 18 U.S.C. § 2.

      Edward Dell appeals his sentence for conspiracy to possess with intent to

distribute crack cocaine, in violation of § 846, possession with intent to distribute

                                           2
crack cocaine, in violation of § 841(a)(1), (b)(1)(C), distribution of crack cocaine,

in violation of § 841(a)(1), (b)(1)(B), and knowingly opening, using, and

maintaining a place for the purpose of manufacturing and distributing cocaine

base, in violation of § 856.

      The four codefendants are accused of selling crack cocaine out of two

residences, the “Dahlia” residence, and, later, after the Dahlia residence was

closed, “the Pit.” The Pit initially was purchased by Henry, who directed the

operations and supplied the crack cocaine until his arrest. After Henry was

arrested, Jones, his wife, operated the Pit until her own arrest.

                                        I. Henry

      Henry raises two issues on appeal: (1) the district court abused its discretion

by disqualifying one of his attorneys; and (2) the district court abused its

discretion by excluding photocopies of forms from casinos, retained by his “tax

preparer,” which reflected his gambling winnings, and refusing to permit his tax

preparer to testify regarding the amount of money recorded on the excluded forms.

Henry also has filed a motion to supplement his reply brief.

                               A. Attorney Disqualification

      Before the Defendants’ case went to trial, Dell’s counsel filed a motion for a

continuance and a hearing in order to resolve a possible conflict of interest issue.

                                            3
Dell’s counsel had learned from his client that one of Henry’s attorney’s, Ty

Trayner, had represented Dell during the prosecution of state charges against him

related to actions for which he and Henry were charged in the third count of the

instant indictment. Finding that Trayner had an “intractable conflict of interest,”

the district court disqualified him, after particularly noting that: (1) Dell had

considered acting as a government witness and might still have chosen to do so;

and (2) Dell might have chosen to testify in his own defense.

      On appeal, Henry argues that the district court denied him his Sixth

Amendment right to his choice of counsel. He specifically notes that no evidence

was taken at the hearing where Trayner was disqualified, and the government

never filed a motion or response, only orally joining Dell’s motion. Henry argues

that the district court never inquired into the “essential issue” of whether any

confidential information was shared by Dell and Trayner. He stresses that he was

willing to waive any conflict of interest, even if it would have prevented his

counsel from cross-examining Dell at trial. He also argues that the court

disqualified Trayner on the “remote chance” that a conflict would arise.

      While we have recognized a defendant’s presumptive right under the Sixth

Amendment to counsel of his choice, we have held that this right is not absolute,

but is qualified by the judiciary’s “independent interest in ensuring that the

                                           4
integrity of the judicial system is preserved and that trials are conducted within

ethical standards.” United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994).

Accordingly, we have held that in light of the limited nature of a defendant’s right

to choose his own counsel, the trial court’s refusal to hear the defendant through

his chosen counsel is reviewed for an abuse of discretion. Id. at 22.

       We have held that an attorney’s actual or potential conflict of interest

overcomes the presumption in favor of a defendant’s counsel of choice and

warrants disqualification. Ross, 33 F.3d at 1523 (11th Cir. 1994); see United

States v. Almeida, 341 F.3d 1318, 1323 (11th Cir. 2003) (holding that “the Sixth

Amendment right to have the effective assistance of counsel encompasses the right

to have counsel untainted by conflicts of interest”). “In deciding whether the

actual or potential conflict warrants disqualification, we examine whether the

subject matter of the first representation is substantially related to that of the

second,” in order to determine whether the potential defense counsel has “divided

loyalties that prevent him from effectively representing the defendant.” Ross, 33

F.3d at 1523. “If the conflict could cause the defense attorney improperly to use

privileged communications in cross-examination, then disqualification is

appropriate.” Id. When a witness at trial was defended by an attorney representing

the defendant against charges related to an identical crime, the attorney has an

                                            5
“actual” conflict of interest. United States v. Campbell, 491 F.3d 1306, 1311

(11th Cir. 2007).

      “The rule of law in this circuit is (and will continue to be) that once the

former client . . . proves that the subject matters of the present and prior

representations are ‘substantially related,’ the court will irrebutably presume that

relevant confidential information was disclosed during the former period of

representation.” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999)

(quotations omitted). Although a client may knowingly, intelligently, and

voluntarily waive his right to conflict-free representation, the court may refuse to

accept the waiver where necessary to “ensure the adequacy of representation, to

the protect the integrity of the court, and to preserve trial judge’s interest to be free

from future attacks over adequacy of waiver and fairness of trial.” Almeida, 341

F.3d at 1323 (internal quotations and citation omitted).

      Where a court justifiably finds an actual conflict of interest, there can
      be no doubt that it may decline a proffer of waiver. . . . [I]n the
      murkier pretrial context when relationships between parties are seen
      through a glass, darkly . . . [t]he likelihood and dimensions of nascent
      conflicts of interest are notoriously hard to predict, even for those
      thoroughly familiar with criminal trials[.] . . . [Thus,] the district
      court must be allowed substantial latitude in refusing waivers of
      conflicts of interest not only in those rare cases where an actual
      conflict may be demonstrated before trial, but in the more common
      cases where a potential for conflict exists which may or may not
      burgeon into an actual conflict as the trial progresses.

                                            6
Wheat v. United States, 486 U.S. 153, 162-63, 108 S.Ct. 1692, 1698-99, 100

L.Ed.2d 140 (1988).

      Because one of Henry’s attorneys had several potential conflicts of interest

relating to his representation of both Henry and a codefendant, and Henry was able

to receive his choice of representation with respect to one of his attorneys, the

district court did not abuse its discretion by disqualifying his attorney.

                      B. Exclusion of Evidence and Testimony

      At trial, Henry called his mother, Karen Simmons, to the stand, and she

testified that she was Henry’s “tax preparer.” Henry sought to introduce into

evidence, through Simmons, documents that she stated were photocopies of “W-

2G” forms received from casinos reflecting Henry’s gambling winnings for several

years. She stated that they were used to prepare Henry’s income tax returns. The

district court found that they were hearsay and not covered by the “business

records” exception, as argued by Henry. Henry then questioned Simmons

regarding whether she knew, from preparing Henry’s tax returns, what amounts of

money had been recorded on the forms. The court found that, to the extent that

Henry was asking Simmons about his tax returns, her testimony would be

excluded by the best evidence rule. The court also refused to allow Henry to use




                                           7
the excluded forms to refresh Simmons’s recollection regarding the amount of

Henry’s gambling winnings.

      Henry argues that the district court erred by excluding Simmons’s

photocopies of the W-2G forms provided by casinos regarding his gambling

earnings, because they were admissible as business records. Acknowledging that

Simmons did not prepare the forms herself, he stresses that Simmons kept the

forms in her capacity as a licensed tax-preparer. He contends, further, that the

court denied him a chance to provide proof of a legitimate source of income from

his gambling winnings by refusing to allow Simmons to testify regarding her

recollections of Henry’s gambling winnings as his tax-preparer, or to allow him to

use the inadmissable forms to refresh her recollection regarding Henry’s winnings.

      Determinations of the admissibility of evidence are within the discretion of

the trial judge, and we will not reverse unless we find an abuse of discretion.

United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002). We will reverse an

erroneous evidentiary ruling, however, “only if the resulting error was not

harmless.” United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999),

corrected by 194 F.3d 1186 (11th Cir. 1999); see also Fed.R.Crim.P. 52(a) (noting

that errors that do not affect substantial rights must be disregarded). An error is

harmless unless “there is a reasonable likelihood that [it] affected the defendant’s

                                          8
substantial rights.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.

1990).

      The business records exception to the hearsay rule provides that a record “if

kept in the course of a regularly conducted business activity, and if it was the

regular practice of that business activity to make the . . . record . . ., all as shown

by the testimony of the custodian or other qualified witness,” is admissible unless

the circumstances indicate a lack of trustworthiness. See Fed.R.Evid. 803(6). The

trustworthiness prong is not met when the party authenticating the records can

provide no testimony regarding “the origination and compilation of the

documents” or “about the initial link in the chain producing the record.” United

States v. Petrie, 302 F.3d 1280, 1288 (11th Cir. 2002). The best evidence rule, in

Federal Rule of Evidence 1002, provides that:

      [T]o prove the content of a writing, recording, or photograph, the
      original writing, recording, or photograph is required, except as
      otherwise provided in [the Federal Rules of Evidence]. The purpose
      of the best evidence rule is to prevent inaccuracy and fraud when
      attempting to prove the contents of a writing. However, where the
      original of a [document] has been lost or destroyed, the original is not
      required and other evidence of its content is admissible, unless the
      proponent lost or destroyed the original in bad faith.

United States v. Ross, 33 F.3d 1507, 1513-14 (11th Cir. 1994) (citations and

quotations omitted). Federal Rule of Evidence 612 provides that a witness may



                                            9
use a writing to refresh her memory for the purpose of testifying. Fed.R.Evid.

612.

       The district court properly excluded documents and testimony from

evidence because: (1) the forms that Henry’s witness presented were hearsay and

were not business records under the hearsay exception; and (2) the witness’

testimony regarding her memories of Henry’s tax returns was barred by the best

evidence rule. Accordingly, we affirm.

                                        II. Dell

       On appeal, Dell argues that the district court erred by failing to “both

determine the scope of [his] criminal activity . . . and to specify the amount of

crack cocaine attributable to . . . Dell in the entire case.” Dell argues that the

evidence indicates that the “scope” of his criminal activity was limited to the drug

transactions taking place in February, September, and October 2005, which totaled

46.39 grams of crack cocaine. He stresses that, with respect to other controlled

buys, his name was not mentioned, and the confidential sources (“CS”) did not

indicate that he was involved. Dell argues that because the parties who testified

to his involvement gave inconsistent testimony, no “credible evidence” supports

the inference that he was more involved in the conspiracy.




                                           10
      We review a district court’s determination of the amount of drugs for which

a defendant is held accountable at sentencing for clear error. United States v. Lee,

68 F.3d 1267, 1274 (11th Cir. 1995). “When a defendant objects to a factual

finding that is used in calculating his guideline sentence, such as drug amount, the

government bears the burden of establishing the disputed fact by a preponderance

of the evidence.” United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.

2005).

      “For sentencing purposes a member of a drug conspiracy is liable for his

own acts and the acts of others in furtherance of the activity that the defendant

agreed to undertake and that are reasonably foreseeable in connection with that

activity.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993).

      [T]o determine a defendant’s liability for the acts of others, the
      district court must first make individualized findings concerning the
      scope of criminal activity undertaken by a particular defendant.
      Once the extent of a defendant’s participation in the conspiracy is
      established, the court can determine the drug quantities reasonably
      foreseeable in connection with that level of participation. If the court
      does not make individualized findings, the sentence may nevertheless
      be upheld if the record supports the amount of drugs attributed to a
      defendant.

Id. (citations omitted). The district court must take into account all “relevant

conduct” when determining the quantity of drugs attributable to the defendant, i.e.

“all acts and omissions committed, aided, abetted, counseled, commanded,

                                          11
induced, procured, or willfully caused by the defendant[.]” U.S.S.G.

§ 1B1.3(a)(1)(A). If the case involves drugs, “the defendant is accountable for all

quantities of contraband with which he was directly involved and, in the case of a

jointly undertaken criminal activity, all reasonably foreseeable quantities of

contraband that were within the scope of the criminal activity that he jointly

undertook.” U.S.S.G. § 1B1.3, comment. (n.2); U.S.S.G. § 1B1.3(a)(1)(B).

Because “the [g]uidelines require a district court to attribute to a defendant all

drugs foreseeably distributed pursuant to a common scheme or plan of which that

defendant’s offense of conviction was a part,” a defendant may be held

accountable for drugs that were not related specifically to his counts of conviction

and for actions taken by others. States v. Mertilus, 111 F.3d 870, 873 (11th Cir.

1997) (quotations and citation omitted).

      Because the government presented sufficient evidence to show the quantity

of crack cocaine attributed to the conspiracy and that Dell was extensively

involved in the conspiracy to distribute the entire quantity of crack cocaine, we

hold that the district court did not clearly err holding him accountable for 1.5

kilograms of crack cocaine. Accordingly, we affirm.

                                     III. Jenkins




                                           12
      Jenkins raises two issues on appeal: (1) the district court erred in

determining that the government had presented sufficient evidence to support his

conviction for distributing crack cocaine on October 3, 2005, which was Count 6

of the indictment; and (2) the district court erred by holding that it did not have the

authority to consider the cocaine base versus powder cocaine disparity at

sentencing.

                           A. Sufficiency of the Evidence

      Relying on United States v. Hamblin, 911 F.2d 551 (11th Cir. 1990),

Jenkins argues that the government presented insufficient evidence to prove him

guilty beyond a reasonable doubt of Count 6. He argues that the government

presented no evidence that he knew that Dell was delivering cocaine to Henry on

October 3, 2005, because it merely presented CS Myron Drayton’s testimony of

the following sequence of events: (1) Drayton met with Henry at the Pit, where

they discussed a crack purchase; (2) Henry then met with Dell alone; (3) Dell and

Jenkins left the Pit and returned; (4) Dell met again with Henry; and (5) Henry

delivered crack cocaine to Drayton. Jenkins argues that the evidence shows that

Dell left the Pit to obtain cocaine that Henry supplied to Drayton, but not that

Jenkins knew that Dell intended to do so.




                                          13
      We review de novo a district court’s denial of a properly preserved motion

for a judgment of acquittal based on the sufficiency of the evidence. United States

v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005). We “view the evidence in the light

most favorable to the government, with all reasonable inferences and credibility

choices drawn in the government’s favor.” Id. “‘A conviction must be upheld

unless the jury could not have found the defendant guilty under any reasonable

construction of the evidence.’” Id. (quoting United States v. Chastain, 198 F.3d

1338, 1351 (11th Cir. 1999)).

      To sustain the conviction under § 841, the government must have proven,

either by direct or circumstantial evidence, that Jenkins knowingly distributed five

grams or more of crack cocaine. See United States v. Poole, 878 F.2d 1389, 1391-

92 (11th Cir. 1989); 21 U.S.C. § 841(a)(1). Section 2 “provides that anyone who

‘aids, abets, counsels, commands, induces or procures’ the commission of an

offense against the United States is punishable as a principal for the offense.”

Hamblin, 911 F.2d at 551. “To prove aiding and abetting, the government must

demonstrate that a substantive offense was committed, that the defendant

associated himself with the criminal venture, and that he committed some act

which furthered the crime,” and “the government must show that the defendant

shared the same unlawful intent as the actual perpetrator.” Id.

                                         14
      In Hamblin, we reversed a defendant’s conviction for aiding and abetting

under 18 U.S.C. § 924(c) when the government failed to present evidence that the

defendant knew that his codefendant was planning on bringing a weapon to a bank

robbery. Hamblin, 911 F.2d at 551. With respect to a later robbery, however, we

found that the jury reasonably could find that, based on the defendant’s knowledge

of the use of the firearm in the original robbery, he knew his codefendant would

use a firearm during the later robbery. Id.

      Because Jenkins was involved in his codefendants’ cocaine base

distribution business for years before October 3, 2005, and had participated in a

practically identical sale of crack cocaine before, the jury could infer that Jenkins

knew that his codefendants were distributing crack cocaine when he participated

in the delivery on October 3, 2005. Accordingly, we affirm as to this issue.

                      B. Crack and Powder Cocaine Disparity

      Jenkins argues that, under Kimbrough v. United States, 552 U.S. __, 128

S.Ct. 558, 169 L.Ed.2d 481 (2007), the district court erred by finding, at his

sentencing hearing, that it was unable to consider the disparity between the

guideline sentences for crack versus powder cocaine when sentencing him.

      We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.

                                          15
2005). In reviewing a sentence, we are required to “evaluate whether the sentence

imposed by the district court fails to achieve the purposes of sentencing as stated

in [18 U.S.C.] § 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005). In Kimbrough, the Supreme Court stated that, when sentencing a party,

“[t]he [district court] may determine . . . that . . . a within-Guidelines sentence is

‘greater than necessary’ to serve the objectives of sentencing.” 552 U.S. at __,

128 S. Ct. at 564. The Supreme Court further held that “it would not be an abuse

of discretion for a district court to conclude when sentencing a particular

defendant that the crack/powder disparity yields a sentence ‘greater than

necessary’ to achieve § 3553(a)’s purposes.” Id. at __, 128 S.Ct. at 576.

      We since have held that remand of a case for limited re-sentencing, “to

permit the district court to reconsider the § 3553(a) factors in light of the Supreme

Court's holding in Kimbrough,” is necessary when the district court failed to

consider the disparity between the guideline sentences for crack versus powder

cocaine because it “concluded that it lacked authority to consider the crack/powder

sentencing disparity in reaching an appropriate sentence.” United States v.

Stratton, 519 F.3d 1305, 1306-07 (11th Cir. 2008).




                                           16
      Because the district court ruled that it was unable to consider the sentencing

disparities between crack and powder cocaine cases when imposing sentence on

Jenkins based on our precedent that since has been overruled, we vacate and

remand Jenkins’s case to the district court for limited re-sentencing.

                                       IV. Jones

      Jones raises two issues on appeal: (1) the district court erred in determining

that the government had presented sufficient evidence to sustain her conviction for

maintaining a place for the purpose of manufacturing and distributing cocaine; and

(2) the district court erred by holding that it did not have the authority to consider

the cocaine base versus powder cocaine disparity at sentencing.

                           A. Sufficiency of the Evidence

      On appeal, Jones argues that the government failed to present sufficient

evidence to show that she “maintain[ed]” the residence at 5606 86th Street,

because it failed to show that she exercised “any significant control” over the site,

had a “role in the acquisition of the site, rented or furnished the site, repaired the

site, or supplied food to those at the site.”

      To support a conviction for maintaining a place for the purpose of

manufacturing and distributing crack cocaine, the government had to prove that

Jones knowingly operated or maintained a place for the purpose of manufacturing

                                           17
crack cocaine. See United States v. Clavis, 956 F.2d 1079, 1090 (11th Cir. 1992),

modified in part on other grounds, 977 F.2d 538 (11th Cir. 1992); 21 U.S.C.

§ 856(a)(1). Distribution alone is not enough to establish purposeful maintenance

of a place, but “[a]cts evidencing such matters as control, duration, acquisition of

the site, renting or furnishing the site, repairing the site, supervising, protecting,

supplying food to those at the site, and continuity are, of course, evidence of

knowingly maintaining the place.” Clavis, 956 F.2d at 1091.

       Because the government offered testimony that Jones helped direct and

“supervise” the crack cocaine distribution before Henry’s arrest and supervised the

Pit “employees,” in order to continue the distribution operation, after Henry’s

arrest, the government presented sufficient evidence to show that Jones

“maintained” the Pit for the purpose of manufacturing and distributing crack

cocaine. Accordingly, we affirm as to this issue.

                       B. Crack and Powder Cocaine Disparity

       Jones argues that, under Kimbrough, the district court erred by failing to

consider the disparity between the guideline sentences for crack cocaine and

powder cocaine. Jones states that she “raised her Kimbrough claim in the district

court [and] the district court . . . rejected [her] request to consider the . . .

disparity.”

                                             18
       Because Jones raised the issue in her sentencing memorandum, the district

court failed to address it at sentencing, and the district court ruled that it was

unable to consider the sentencing disparities between crack and powder cocaine

cases, when imposing sentence on Jenkins, we vacate and remand Jones’s case to

the district court for limited re-sentencing.

       AFFIRMED IN PART; VACATED AND REMANDED IN PART1




       1
        Henry’s motion to supplement his reply brief is denied and his and Dell’s requests for oral
argument are denied.

                                                19
