                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            May 13, 2008
                             No. 07-10098                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 05-20807-CR-ASG


UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

FREDERICK JOHNSON, JR.,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 13, 2008)

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Frederick Johnson, Jr., appeals his conviction and 97-month sentence for

conspiracy to possess with intent to distribute crack cocaine, in violation of 21

U.S.C. § 846. Johnson raises several issues on appeal, which we address in turn.

After review, we affirm Johnson’s conviction and sentence.

                                            I.

      Johnson first asserts the district court erred in denying his motion to

suppress his post-arrest statements because the rights waiver form that he signed

did not adequately inform him of his constitutional rights.

      We review a district court’s findings of fact in resolving a motion to

suppress for clear error and the court’s application of the law to those facts de

novo. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir. 2000). A suspect “held

for interrogation must be clearly informed that he has the right to consult with a

lawyer and to have the lawyer with him during interrogation under the system for

protecting the privilege we delineate today.” Miranda v. Arizona, 86 S. Ct. 1602,

1626 (1966). “Opportunity to exercise these rights must be afforded to him

throughout the interrogation.” Id. at 1630. The Supreme Court later clarified,

however, that Miranda warnings do not have to be provided in the exact form as

stated in that decision, as “no talismanic incantation is required to satisfy its

strictures.” Duckworth v. Eagan, 109 S. Ct. 2875, 2880 (1989) (quotations



                                            2
omitted). The Court further found that, where the defendant was informed, inter

alia, of his right to speak to an attorney before and during questioning and to stop

the questioning at any time and speak with an attorney, these statements “touched

all of the bases” required by Miranda. Id.; see also United States v. Street, 472

F.3d 1298, 1311-12 (11th Cir. 2006), cert. denied, 127 S. Ct. 2988 (2007) (noting

the defendant in Duckworth was “fully and completely advised of all of his

rights”). In order for a defendant’s incriminatory statements to be admissible, the

government must prove by a preponderance of the evidence the defendant made a

knowing, voluntary, and intelligent waiver of his Miranda rights. United States v.

Farris, 77 F.3d 391, 396 (11th Cir. 1996).

      Although the rights waiver form Johnson signed did not specifically advise

him of his right to consult with an attorney during questioning, it advised him he

had the right to talk to a lawyer before questioning, to have a lawyer present with

him during questioning, and to stop the questioning at any time until he spoke with

a lawyer. Because Miranda requires a suspect be informed of his rights to “consult

with a lawyer and to have the lawyer with him during interrogation,” and Johnson

was apprised of both of these rights, the waiver form was sufficient, and Johnson

made a knowing, voluntary, and intelligent waiver of his rights. See Miranda, 86

S. Ct. at 1626, 1630; see also Farris, 77 F.3d at 396. Accordingly, the district



                                          3
court did not err in denying Johnson’s motion to suppress his post-arrest

statements.1

                                               II.

       Johnson next contends there was an insufficient basis for the voice

identification Detective Tillman made of Johnson. Johnson did not object on this

basis at trial, so we review this claim under a plain error standard. See United

States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). “Plain error occurs where

(1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s

substantial rights in that it was prejudicial and not harmless; and (4) that seriously

affects the fairness, integrity or public reputation of the judicial proceedings.”

United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002).

       Voice identification testimony can be admitted only after it is determined

sufficient evidence supports a finding “the matter in question is what its proponent

claims.” Fed. R. Evid. 901(a). A speaker’s voice may be identified by opinion

testimony “based upon hearing the voice at any time under circumstances



       1
           Johnson also summarily argues his statements should not have been admitted because
he was impermissibly questioned by an officer prior to waiving his Miranda rights and that he
felt threatened by Detective Wayne Tillman. The magistrate judge made an adverse credibility
determination regarding Johnson’s testimony at the suppression hearing, which the district court
affirmed. Because Johnson has not offered any other evidence on these issues or shown how the
district court committed clear error when it determined his testimony was not credible, these
arguments are without merit. See United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004)
(reviewing a district court’s credibility findings for clear error).

                                               4
connecting it with the alleged speaker.” Fed. R. Evid. 901(b)(5). “Once a witness

establishes familiarity with an identified voice, it is up to the jury to determine the

weight to place on the witness’s voice identification.” Brown v. City of Hialeah,

30 F.3d 1433, 1437 (11th Cir. 1994).

      Detective Tillman testified he heard Johnson’s voice three times prior to the

date on which he made his identification. This was sufficient to establish his

familiarity with Johnson’s voice. See Fed. R. Evid. 901(b)(5). Accordingly, the

district court did not plainly err in permitting the voice identification to go to the

jury, as it was up to the jury to determine the weight to place on Detective

Tillman’s identification. See Brown, 30 F.3d at 1437.

                                           III.

      Johnson also asserts the district court erred in prohibiting him from eliciting

the exculpatory portions of his post-arrest statement from Detective Tillman.

Because Johnson did not make an objection to the limitation of Detective Tillman’s

cross-examination during the trial, we review the district court’s evidentiary ruling

for plain error. See Baker, 432 F.3d at 1202. “When a writing or recorded

statement or part thereof is introduced by a party, an adverse party may require the

introduction at that time of any other part or any other writing or recorded

statement which ought in fairness to be considered contemporaneously with it.”



                                            5
Fed. R. Evid. 106. In light of Federal Rule of Evidence 611(a)'s requirement the

district court exercise “reasonable control” over witness interrogation and the

presentation of evidence to make them effective vehicles “for the ascertainment of

truth,” Rule 106 has been extended to encompass oral conversations. United States

v. Range, 94 F.3d 614, 621 (11th Cir. 1996); Fed. R. Evid. 611(a). Accordingly,

the exculpatory portion of a defendant's post-arrest statement should be admitted if

it is: (1) relevant to an issue in the case; and (2) necessary to clarify or explain the

portion received. Range, 94 F.3d at 621.

      The district court did not plainly err by limiting the scope of Johnson’s

cross-examination of Detective Tillman because, although Johnson’s exculpatory

statements may have been relevant to his involvement in the offense conduct

charged, they were not necessary to clarify those portions of the post-arrest

interview related by the witness. See id. Detective Tillman’s testimony was

unambiguous and did not require any clarification or explanation, and regardless,

the fact Johnson also stated in his interview that he was not involved in any

criminal activity would not have clarified or explained the statements to which

Detective Tillman testified.




                                            6
                                         IV.

      Johnson contends the evidence presented at trial was insufficient to support

his conspiracy conviction, as there was no evidence presented that he ever

possessed any drugs or marked money used in the drug transactions. Where, as

here, the issue of sufficiency of the evidence has been preserved, 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

and credibility choices in favor of the jury’s verdict.” See United States v.

Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000). The district court's denial of a

motion for judgment of acquittal “will be upheld if a reasonable trier of fact could

conclude that the evidence establishes the defendant's guilt beyond a reasonable

doubt.” Id. Determinations of the credibility of witnesses fall within the exclusive

province of the jury and may not be revisited by us unless the testimony is

“incredible as a matter of law.” United States v. Calderon, 127 F.3d 1314, 1325

(11th Cir. 1997).

      “To sustain a conviction for conspiracy to possess cocaine with intent to

distribute, the government must prove beyond a reasonable doubt that (1) an illegal

agreement existed; (2) the defendant knew of it; and (3) the defendant, with

knowledge, voluntarily joined it.” United States v. Hernandez, 433 F.3d 1328,



                                           7
1333 (11th Cir. 2005) (quotations omitted). “Although mere presence at the scene

of a crime is insufficient to support a conspiracy conviction, presence nonetheless

is a probative factor which the jury may consider in determining whether a

defendant was a knowing and intentional participant in a criminal scheme.” Id.

(quotations omitted). Moreover, a defendant’s participation in a conspiracy can be

established by circumstantial evidence, and the government need only prove that

the defendant knew the general nature and scope of the conspiracy. United States

v. Anderson, 326 F.3d 1319, 1329 (11th Cir. 2003).

      The evidence was sufficient to sustain Johnson’s conspiracy conviction.

Although there was no photographic or recorded evidence, and Johnson was not

found in possession of any marked money or drugs, Detective Tillman’s testimony

allowed the jury to make the following conclusions: (1) Johnson and Malcolm

Williams called the CI together to arrange the drug transaction, after which

Johnson called the CI on his own and told the CI to go through him for any other

deals with Williams; (2) Johnson made specific references to narcotics in both of

the conversations, showing he knew the nature of the illegal agreement; and

(3) Johnson picked up the CI and drove him to his meeting with Williams,

participated in the meeting, and then drove the CI back to his original location.

Because Detective Tillman’s testimony established Johnson facilitated the



                                          8
transaction and participated in the discussions in the parking lot before the money

and drugs were exchanged, a reasonable trier of fact could conclude Johnson was

guilty beyond a reasonable doubt, as he knew of the existence of the illegal

agreement and, with knowledge, voluntarily joined it. See Hernandez, 433 F.3d at

1333. Moreover, it was the province of the jury to assess the credibility of

Detective Tillman, and it could find Johnson guilty beyond a reasonable doubt

based on this testimony alone. See Calderon, 127 F.3d at 1324. Accordingly,

sufficient evidence supported Johnson’s conviction.

                                          V.

      Johnson also contends he was denied a fair trial because the prosecutor made

an improper burden-shifting argument and improperly attempted to bolster the

credibility of one of its witnesses during its closing argument. Prosecutorial

misconduct during closing argument, including an improper burden-shifting

argument and improper vouching, requires a new trial only where the remarks were

improper and prejudiced the defendant’s substantial rights. United States v.

Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998). “A defendant’s substantial rights

are prejudicially affected when a reasonable probability arises that, but for the

remarks, the outcome of the trial would be different.” Id. (quotations omitted).




                                           9
A. Burden shifting

       Johnson objected to the prosecutor’s alleged burden-shifting comment at

trial, and therefore, the claim of prosecutorial misconduct, which generally

involves mixed questions of law and fact, is reviewed de novo. See United States

v. Noriega, 117 F.3d 1206, 1218 (11th Cir. 1997). “[W]hile a prosecutor may not

comment about the absence of witnesses or otherwise attempt to shift the burden of

proof, it is not improper for a prosecutor to note that the defendant has the same

subpoena powers as the government, particularly when done in response to a

defendant's argument about the prosecutor's failure to call a specific witness.”

United States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir. 1998) (quotations

omitted). Moreover, any potential prejudice regarding burden-shifting is

diminished by the prosecutor’s statement during closing argument “that the burden

of proof [is] theirs to carry and by the trial court’s explicit instruction after closing

arguments to that same effect.” Id.

       The prosecutor’s comment the defense had the same subpoena power as the

Government was made in response to Johnson’s statement regarding a Government

witness that was not called to testify. Such a statement is not improper,

particularly when made in response to the defendant’s argument about the

government’s failure to call a specific witness. See Hernandez, 145 F.3d at 1438.



                                            10
Moreover, any potential prejudice this statement may have caused was alleviated

by: (1) the prosecutor’s statement that the Government held the burden of proof;

and (2) the court’s instruction to the jury that it was not improper for the prosecutor

to note the defendant had the same subpoena powers as the Government, but the

Government could not shift the burden of proof to the defense. See id. at 1439.

Thus, the prosecutor’s comment was not inappropriate, and did not prejudice

Johnson’s substantial rights.

B. Improper vouching

      Because Johnson did not object to the prosecutor’s comment until he filed

his motion for a new trial, this comment is reviewed for plain error. See United

States v. Newton, 44 F.3d 913, 920 (11th Cir. 1995) (“[a]bsent a contemporaneous

objection, the propriety of the [g]overnment’s closing argument and alleged

prosecutorial misconduct in improperly vouching for a witness’ credibility are

reviewed under a plain error standard”). “Attempts to bolster a witness by

vouching for his credibility are normally improper and constitute error.” Id. We

have held:

      When faced with a question of whether improper vouching occurred
      we ask: whether the jury could reasonably believe that the prosecutor
      was indicating a personal belief in the witness’s credibility. In
      applying this test, we look for whether (1) the prosecutor placed the
      prestige of the government behind the witness by making explicit
      assurances of the witness’s credibility, or (2) the prosecutor implicitly

                                       11
      vouched for the witness’s credibility by implying that evidence not
      formally presented to the jury supports the witness’s testimony.

United States v. Castro, 89 F.3d 1443, 1456-57 (11th Cir. 1996) (quotations and

citation omitted). When the defense attacks the credibility of the government’s

witness, however, the prosecutor is “entitled to argue fairly to the jury the

credibility of the government and defense witnesses.” United States v. Eley, 723

F.2d 1522, 1526 (11th Cir. 1984).

      The prosecutor’s comment that Detective Tillman would use a valid CI

because he would not risk his career did not amount to improper bolstering.

During his closing statement, Johnson attacked Detective Tillman’s credibility,

stating he was desperate to use the CI as his ticket to federal agency employment.

In direct response to this attack, the prosecutor told the jury that Detective Tillman

was not so desperate to become a federal agent that he would risk his career by

using a CI that was “not valid.” A jury could not reasonably have believed the

prosecutor was placing the prestige of the Government behind Detective Tillman

by making an assurance about his credibility, or that he was implying evidence not

presented to the jury supported the witness’s testimony. See Castro, 89 F.3d at

1456-57. Instead, the prosecutor’s comment was a fair argument defending the

credibility of the Government’s witness. Accordingly, the prosecutor’s remark was

not improper and did not prejudice Johnson’s substantial rights.

                                          12
                                         VI.

      Finally, Johnson contends the district court erred at sentencing because the

five criminal history points it assessed against him over-represented his criminal

history, as all five points were related to the same prior offense. We review de

novo a claim the district court engaged in impermissible double counting during its

calculation of the advisory guidelines range. United States v. Phillips, 363 F.3d

1167, 1168 n.2 (11th Cir. 2004). “‘Impermissible double counting occurs only

when one part of the Guidelines is applied to increase a defendant’s punishment on

account of a kind of harm that has already been fully accounted for by application

of another part of the Guidelines.’” Id. at 1168 (quotations omitted). Double

counting is permissible when “(1) the Sentencing Commission intended the result,

and (2) each guideline section in question concerns conceptually separate notions

related to sentencing.” Id. (quotations omitted).

      Section 4A1.1(d) of the Sentencing Guidelines requires an addition of two

points to a defendant’s criminal history calculation if “the defendant committed the

instant offense while under any criminal justice sentence, including probation,

parole, supervised release, imprisonment, work release, or escape status.” U.S.S.G.

§ 4A1.1(d). Section 4A1.1(e) provides that two criminal history points should be

added “if the defendant committed the instant offense less than two years after



                                         13
release from imprisonment on a sentence counted under [subsection] (a) or (b) . . . .

If 2 points are added for item (d), add only 1 point for this item.” U.S.S.G.

§ 4A1.1(e). The commentary to § 4A1.1 recognizes the potential overlap of

subsections (d) and (e), but notes their importance to addressing separate

sentencing concerns, stating that subsection (d) “implements one measure of

recency . . . [subsection (e)] implements another measure of recency . . . [,]” and “a

defendant who falls within both (d) and (e) is more likely to commit additional

crimes; thus, (d) and (e) are not completely combined.” U.S.S.G. § 4A1.1,

comment. (backg’d). The commentary provides that, because of their potential

overlap, the combined impact of the two subsections is limited to three points. Id.

      The Sentencing Commission intended for § 4A1.1(d) and (e) to apply

together in certain cases, as it specifically addressed the potential overlap and

noted that, although their combined effect would be to add an additional three

points to a defendant’s criminal history instead of four, they were not completely

combined. See id.; see also Phillips, 363 F.3d at 1168. Therefore, the district

court’s double counting was permissible, and the court’s sentencing calculations

were correct.




                                           14
                                          VII.

      First, the district court did not err in denying Johnson’s motion to suppress

his post-arrest statements because he was fully informed of his rights and

voluntarily chose to waive them before speaking to law enforcement. Second,

Detective Tillman heard Johnson’s voice three times prior to identifying it on the

date on which the offense occurred, so the district court did not plainly err in

permitting his voice identification. Third, the district court did not plainly err in

limiting the scope of Johnson’s cross-examination of Detective Tillman by not

allowing Johnson’s exculpatory post-arrest statements to be admitted, because the

statements were not necessary to clarify those portions of the post-arrest interview

related by the witness. Fourth, the evidence presented was sufficient for

conviction, as it showed that Johnson facilitated a drug transaction between two

individuals. Fifth, the prosecutor did not improperly shift the burden to the defense

during closing argument because he responded to a statement Johnson made in his

closing argument and only told the jury the defense had the same subpoena power

as the Government. The prosecutor also did not improperly bolster the credibility

of a witness, as his comment was a fair argument defending the credibility of the

witness after it was attacked by the defense. Finally, because the district court

applied two subsections of the Sentencing Guidelines that were intended to address



                                           15
different sentencing issues and be applied together when necessary, it did not err in

calculating Johnson’s criminal history category. Accordingly, we affirm Johnson’s

conviction and sentence.

      AFFIRMED.




                                          16
