            Case: 18-13501    Date Filed: 06/21/2019   Page: 1 of 18


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-13501
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 2:16-cr-00031-RWS-JCF-2



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

KECOLE DUKES,
a.k.a. Kecode Dukes,

                                                            Defendant-Appellant.
                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                                (June 21, 2019)

Before TJOFLAT, JORDAN and HULL, Circuit Judges.

PER CURIAM:
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      After a jury trial, defendant Kecole Dukes appeals his convictions for one

count of conspiracy to possess with intent to distribute at least 28 grams of cocaine

base, in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii) and 846, and three counts of

possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)

and (b)(1)(C). Dukes argues that the evidence presented at trial was insufficient to

convict him. After review, we affirm Dukes’s convictions.1

                               I. BACKGROUND FACTS

      According to the trial evidence, between August 20, 2015 and March 9,

2016, a task force with the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) used two confidential informants (“CI”), Lecorey Goss and his girlfriend,

Lacasarine Young, to conduct a series of controlled buys of cocaine base (i.e.,

crack cocaine) from defendant Dukes and his identical twin brother, Kemeca

Dukes, either directly or through a middleman, Xavier Johnson. CIs Goss and

Young both knew the Dukes brothers, and Goss had engaged in drug transactions

with them before he began cooperating with law enforcement.

A.    CI Young’s Two Controlled Buys Using Middleman Johnson

      The first controlled buy, which the task force used as a test run, occurred on

August 20, 2015. CI Young met with Xavier Johnson at his house to buy some

crack cocaine, ostensibly for one of her customers. Task force officers surveilled


      1
          Defendant Dukes does not challenge his sentence.
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Johnson’s house from a car and listened to Young’s conversation with Johnson

through Young’s cellphone. When Young arrived, Johnson did not have any crack

cocaine and told Young he would make some calls to find some. After Johnson’s

first call was unsuccessful, he told Young he was going to call “the Duke boys.”

One of the task force officers who was listening testified that he overheard Johnson

say, “I’ll call Kecole,” and Young respond, “Oh, the Duke boys.” The defendant

here is Kecole Dukes.

       After placing this call, Johnson told Young he was going to see the Dukes

brothers at the Summit Street Apartments (where she knew the Dukes lived), and

Young gave Johnson her money. 2 Johnson left Young waiting in his house and

drove away. About fifteen minutes later, Johnson returned with .6 grams of crack

cocaine, which he gave to Young. During a debriefing after the controlled buy,

Young told a task force officer that Johnson got the crack cocaine from “the Duke

boys,” and specifically mentioned “Kiko,” whom the officer knew to be the

defendant Kecole Dukes.

       On August 31, 2015, Young encountered defendant Kecole Dukes at a gas

station. Young explained to defendant Dukes that her customer was not satisfied




       2
        The apartment on Summit Street, also called the Lanier Terrace Apartments, was the
home of the Dukes brothers’ mother, Peggy Dukes. Defendant Dukes’s sister testified that he
lived with his sister and her children on Smallwood Road until sometime in 2016, when he
moved in with his mother.
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with the amount of crack he had received for the price and that she did not want to

go through Johnson anymore because she was not getting her fair cut. Defendant

Dukes responded that Young needed to go through Johnson and gave her

Johnson’s phone number.

      The next day, September 1, Young conducted another controlled buy, this

time wearing an audio recording device. A surveillance team followed as Young

met Johnson at an automotive center, and then she and Johnson drove in separate

cars toward Johnson’s house. On the way, Johnson pulled over and told Young to

wait at his house while he picked up the crack for her, and Young gave Johnson

her money. Johnson then drove to the parking lot of the Summit Street

Apartments, where two members of the surveillance team observed him by driving

through the parking lot in separate unmarked cars. The first officer saw defendant

Kecole Dukes standing in front of Johnson’s front passenger door, and the second

officer saw defendant Kecole Dukes first sitting in the passenger seat of Johnson’s

car and, on a second pass, walking away from Johnson’s car. The officers knew

the Dukes brothers from previous encounters and were able to identify defendant

Kecole Dukes because he is physically heavier than his twin brother, especially in

the face. Johnson then returned to his house, where he gave Young 2.6 grams of

crack cocaine.




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      At a Labor Day party on September 5, 2015, Young saw defendant Kecole

Dukes’s brother Kemeca and complained again that she did not want to go through

Johnson. Like his brother, Kemeca Dukes told Young that she had to go through

Johnson to buy the crack.

B.    CI Goss’s Four Controlled Buys at the Dukes Brothers’ Apartment

      In December 2015 and January 2016, CI Goss, while wearing an audio and

video recording device, conducted several controlled buys directly from the Dukes

brothers at the Summit Street Apartments. During the first transaction on

December 10, 2015, Special Agent Spence Burnett drove Goss to the Dukes’s

apartment, where they saw defendant Kecole Dukes in the parking lot when they

arrived. While Special Agent Burnett waited in the car, Goss entered the

apartment building and purchased 3.14 grams of crack cocaine from Kemeca

Dukes, defendant Kecole Dukes’s brother. Meanwhile, defendant Kecole Dukes

remained in the parking lot and looked around, and Special Agent Burnett believed

defendant Kecole Dukes was acting as a lookout. When Goss left the apartment,

he greeted defendant Dukes in the parking lot and told defendant Dukes that he

would be selling drugs to earn money until he returned to prison on pending

charges.

      On December 16, 2015, Goss made a second controlled buy from Kemeca

Dukes at the Summit Street Apartments. Young drove Goss to the apartments with


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a surveillance team following. When Goss first entered the apartment, neither of

the Dukes brothers was home. Another man named Wayne Tate was there and

asked Goss if he was waiting for “Keko,” meaning defendant Kecole Dukes. Goss

responded, “Yeah, Kemeca, Keko, either one.” At trial, Goss testified that he had

engaged in drug transactions with both Dukes brothers in the past and that it did

not matter to him which brother he dealt with during the December 16 transaction.

Because neither brother was there, Goss returned to Young’s car and called

Kemeca. After Kemeca Dukes arrived in a white Dodge Charger registered in his

name, Goss reentered the apartment and purchased 5.5 grams of crack cocaine

from him.

      During the third controlled buy on January 25, 2016, both Dukes brothers

were present at the Summit Street apartment, as well as their mother and a family

friend. After Goss purchased a “slab” of crack cocaine from Kemeca Dukes,

defendant Kecole Dukes entered the room and handed Kemeca an extra “love slab”

to give to Goss as a reward for being a good customer. Goss told the Dukes

brothers that he had been breaking off small pieces from his customer’s slab to sell

for himself. Goss asked the Dukes brothers if they could sell him a gun for

protection, and Kemeca Dukes said he would try to find one.

      On January 27, 2016, Kemeca Dukes called Goss and said that he had found

a firearm, and Goss arranged to buy the firearm and more crack cocaine. On


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January 29, 2016, Young and Goss drove to the Summit Street apartment, again

followed by a surveillance team. As they pulled into the parking lot, Kemeca

Dukes also pulled up in his white Dodge Charger, and defendant Kecole Dukes

drove out of the parking lot in a red Dodge Charger that was registered in his

name. Goss went into the Dukes’s apartment and purchased 7.45 grams of crack

cocaine from Kemeca, but Kemeca did not have a firearm to sell to Goss.

C.    CI Goss’s Fifth Controlled Buy at a Gas Station

      On March 9, 2016, Goss made a final controlled buy, this time at a gas

station. Special Agent Burnett, posing as Goss’s customer, drove Goss in an

undercover vehicle to the prearranged gas station and parked in a parking space.

Kemeca Dukes pulled up beside them in his white Dodge Charger, followed by a

red Dodge Charger, which stopped between two gas pumps, facing the undercover

vehicle. When Goss got out of Special Agent Burnett’s car, he saw that defendant

Kecole Dukes and another man named Swan were in the red Charger and that

defendant Dukes was the driver. Goss got into Kemeca Dukes’s white Charger

and purchased 14.47 grams of crack cocaine from Kemeca. Special Agent Burnett

believed that the red Charger was acting as a lookout during the transaction.




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D.     Defendant Dukes’s Arrest and Search of Apartment

       On November 2, 2016, ATF agents arrested defendant Kecole Dukes at

another apartment. A search of the apartment revealed sandwich baggies, a digital

scale, and a razor blade, all items commonly used in the distribution of narcotics.

E.     Indictment and Trial

       A federal grand jury indicted defendant Kecole Dukes with conspiring with

his brother Kemeca Dukes to possess with intent to distribute and to distribute at

least 28 grams of cocaine base between August 1, 2015 and October 21, 2016

(Count One), and distributing cocaine base on September 1, 2015, January 25,

2016 and March 9, 2016 (Counts Two, Six, and Nine, respectively). The

indictment alleged that defendant Kecole Dukes carried out Counts Six and Nine

by aiding and abetting his brother Kemeca Dukes. 3

       During a four-day trial the government presented testimony from ATF task

force officers and CIs Young and Goss, as well as other evidence, including audio

and video recordings, that established the facts recounted above. In addition, the

parties stipulated that: (1) the drugs purchased in the controlled buys contained

cocaine base, which is a schedule II controlled substance, and that the cocaine base

totaled at least 28 grams; and (2) defendant Kecole Dukes had prior state



       3
        Kemeca Dukes was charged with multiple counts in the same indictment but pled guilty
to one count of distributing cocaine base several days before trial.
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convictions for, among others, possession of cocaine, sale of cocaine, and

possession of cocaine with intent to distribute. In addition, a former narcotics

investigator at the Hall County Sheriff’s Office, Ricky Ansbro, testified that, in

August 2009, defendant Kecole Dukes was arrested for, and later pled guilty to,

sale of crack cocaine after he sold crack cocaine to Ansbro’s confidential

informant during a controlled purchase. After the government rested its case and

at the close of all the evidence, defendant Kecole Dukes did not move for a

judgment of acquittal.

      In closing arguments, defense counsel argued, among other things, that

surveillance team members may have confused defendant Kecole Dukes with his

identical twin brother Kemeca Dukes, or otherwise been unable to properly

observe defendant Kecole Dukes, and that the government’s evidence showed that

the CIs conducted the controlled buys with Kemeca Dukes. Defense counsel

maintained that defendant Kecole Dukes just happened to be present or nearby

during some of his brother’s drug transactions, and “proximity is not

participation.”

      During the jury charge, the district court instructed the jury on, among other

things, the elements of each charged offense and what constitutes constructive

possession and aiding and abetting. With regard to defendant Kecole Dukes’s

mere presence defense, the district court instructed the jury that “simply being


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present at the scene of an event or merely associating with certain people and

discussing common goals and interests does not establish proof of a conspiracy.”

The district court further stated:

            But finding that a defendant is criminally responsible for the acts
      of another person requires proof that the defendant intentionally
      associated with or participated in the crime, not just proof that the
      defendant was simply present at the scene of a crime or knew about it.
            In other words, you must find beyond a reasonable doubt that the
      defendant was a willful participant and not merely a knowing spectator.

The jury found defendant Kecole Dukes guilty on all counts. The district court

sentenced defendant Kecole Dukes to a 96-month prison term.

                                     II. DISCUSSION

A.    Standard of Review

      Ordinarily, this Court reviews de novo the sufficiency of the evidence to

determine whether a reasonable jury could have found the defendant guilty beyond

a reasonable doubt. United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.

2008). When a defendant raises a challenge to the sufficiency of the evidence on

appeal that is different from the challenge he raised at trial, our review is for plain

error. United States v. Baston, 818 F.3d 651, 664 (11th Cir. 2016). When, as here,

the defendant failed to move for a judgment of acquittal and thus failed to raise any

issue as to the sufficiency of the evidence, our review is only for a manifest

miscarriage of justice. Id. at 663; United States v. Fries, 725 F.3d 1286, 1291 n.5

(11th Cir. 2013). Under this standard, we must affirm unless “the evidence on a
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key element of the offense is so tenuous that a conviction would be shocking.”

United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006) (quotation marks

omitted). “In making this determination, we must view the evidence in the light

most favorable to the government and accept all reasonable inferences and

credibility determinations that support the jury’s verdict.” Id. For the reasons that

follow, we conclude the government presented ample evidence of Dukes’s guilt on

all counts, and thus we affirm his convictions, regardless of the applicable standard

of review.

B.     Drug Offenses Under 21 U.S.C. §§ 841(a) and 846

       To convict a defendant under 21 U.S.C. § 841(a) of distribution of a

controlled substance, the government must prove that the defendant: (1) distributed

a controlled substance; and (2) he acted knowingly and intentionally. See United

States v. Rosen, 582 F.2d 1032, 1033 (5th Cir. 1978).4 To “distribute” means “to

deliver (other than by administering or dispensing)” the controlled substance and

“deliver” means “actual, constructive, or attempted transfer” of the controlled

substance. 21 U.S.C. § 802(8), (11). As to intent, the government must prove that

the defendant knew the substance was a controlled substance. United States v.




       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 by the former Fifth Circuit handed down prior
to October 1, 1981.


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Louis, 861 F.3d 1330, 1333 (11th Cir. 2017).5 “Intent to distribute can be proven

circumstantially from, among other things, the quantity of cocaine and the

existence of implements such as scales commonly used in connection with the

distribution of cocaine.” United States v. Poole, 878 F.2d 1389, 1392 (11th Cir.

1989).

       A defendant “who has been indicted as a principal may be convicted on

evidence showing only that he aided and abetted the offense.” United States v.

Iglesias, 915 F.2d 1524, 1528 (11th Cir. 1990). In order to find that a defendant

aided and abetted a substantive crime, the government must establish “that the

defendant in some way associated himself with the criminal venture, that he

wished to bring it about, and that he sought by his actions to make it succeed.”

United States v. Broadwell, 870 F.2d 594, 608 (11th Cir. 1989). A defendant may

be convicted under an aiding and abetting theory, even if he did not commit all of

the acts that constitute the elements of § 841(a), if the government proves beyond a

reasonable doubt that: (1) someone committed the substantive crime; (2) the

defendant contributed to and furthered that crime; and (3) the defendant intended




       5
        Similarly, to convict a defendant under § 841(a) of possession with intent to distribute,
the government must prove that “the defendant (1) knowingly (2) possessed [a controlled
substance] (3) with intent to distribute it.” United States v. Faust, 456 F.3d 1342, 1345 (11th Cir.
2006) (quotation marks omitted).
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to aid in the commission of that crime. See United States v. Sosa, 777 F.3d 1279,

1292-93 (11th Cir. 2015).

      To convict a defendant for conspiracy under § 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 essential element of a drug conspiracy

charge is an agreement to violate federal narcotics law.” United States v. Carcaise,

763 F.2d 1328, 1332 (11th Cir. 1985). The existence of such an agreement may be

established through circumstantial evidence, including a defendant’s conduct and

circumstances suggesting a plan or scheme. Id. at 1332 n.9. Where there are

multiple, separate drug transactions, a single conspiracy is established if a

defendant’s actions facilitated the criminal venture as a whole or the endeavors of

other co-conspirators. United States v. Brown, 587 F.3d 1082, 1089 (11th Cir.

2009).

C.    Analysis

      Here, as to the substantive drug offenses in Counts Two, Six, and Nine, the

government presented substantial evidence that defendant Kecole Dukes

participated in each controlled purchase of cocaine base either directly or by aiding

and abetting his brother. Specifically, as to Count Two, the government showed

that: (1) on September 1, 2015, when CI Young gave Johnson money for crack


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cocaine, Johnson told Young to wait for him at his house while he went to see the

Dukes brothers at the Summit Street Apartments to get the drugs; (2) shortly

thereafter, surveillance team members saw Johnson arrive in the parking lot of the

Summit Street Apartments and observed defendant Kecole Dukes standing at, and

then sitting inside, Johnson’s car; and (3) Johnson then returned to his house,

where he gave CI Young some crack cocaine. Although defendant Kecole Dukes

challenges the surveillance team members’ identification of him, both officers

testified that they knew what Kecole and Kemeca Dukes looked like from previous

encounters with them and that they were able to tell them apart. 6 Viewed in the

light most favorable to the government, the forgoing evidence permitted a

reasonable jury to find beyond a reasonable doubt that defendant Kecole Dukes

conducted the September 1, 2015 drug deal with Johnson and, therefore,

distributed cocaine base on that date.

       As to Count Six, the government showed that: (1) on January 25, 2016, CI

Goss, while wearing a wire over which Special Agent Burnett listened, purchased

crack cocaine from Kemeca Dukes at the Summit Street Apartments; (2) Goss was

in the apartment for five minutes, after which Special Agent Burnett drove him to a


       6
         Defendant Kecole Dukes also misstates the record. Task Force Officer Jamie Compton
testified that he was driving approximately five miles per hour, not 20 to 25 miles per hour,
through the parking lot when he saw defendant Kecole Dukes standing at Johnson’s passenger-
side door. Also, neither Officer Compton nor Officer Christopher Ware, the other surveillance
team member who identified defendant Kecole Dukes, testified that Johnson’s car windows were
tinted.
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secure location and took the crack cocaine from him; (3) Goss explained that both

Dukes brothers were present in the apartment when he arrived, but that he

purchased the crack cocaine from Kemeca Dukes; (4) after the transaction was

completed, defendant Kecole Dukes entered the room holding another slab of

crack cocaine, which he handed to Kemeca, who then gave it to Goss; and (5) Goss

and Special Agent Burnett both explained that in the drug trade, a “love slab” is an

extra piece of crack cocaine given as a reward for being a good customer. Viewed

in the light most favorable to the government, a reasonable jury could find from

this evidence that Kemeca Dukes distributed cocaine base to CI Goss on that date

and that defendant Kecole Dukes contributed to and furthered his brother’s

distribution to CI Goss and intended to aid in the commission of the offense.

      As to Count Nine, the government’s evidence showed that: (1) on March 9,

2016, Special Agent Burnett drove CI Goss to a gas station; (2) Kemeca Dukes

pulled up next to them in his white Dodge Charger and was followed by a red

Dodge Charger, which parked nearby between the gas pumps; (3) as Goss stepped

into Kemeca’s vehicle, he saw that defendant Kecole Dukes was inside the red

Dodge Charger; (4) once in Kemeca’s vehicle, Goss purchased crack cocaine from

him; (5) afterward, Goss returned to Special Agent Burnett’s car and, as they left,

Agent Burnett saw that the numbers on the license plate of the red Dodge Charger

matched the numbers of the license plate registered to defendant Kecole Dukes;


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and (6) Burnett thought the red Dodge Charger was there to serve as a lookout

during the transaction. From this evidence, the jury could reasonably find that

Kemeca Dukes distributed cocaine base to CI Goss at the gas station, that

defendant Kecole Dukes served as a lookout during the drug deal, thus contributing

to and furthering his brother’s distribution and showing his intent to aid in the

commission of the crime.

      Finally, as to the conspiracy charged in Count One, in addition to all the

evidence already discussed, the government also showed that: (1) during the

August 20, 2015 controlled buy, CI Young knew Johnson got the crack cocaine

from “the Duke boys,” and specifically mentioned “Kiko,” a nickname for

defendant Kecole Dukes; (2) when CI Young ran into defendant Kecole Dukes at a

gas station on August 31, 2015, and asked if she could buy drugs directly from

him, defendant Kecole Dukes responded that Young needed to go through Johnson

and provided her with Johnson’s phone number; (3) at a Labor Day party on

September 5, 2015, defendant Dukes’s brother Kemeca also told CI Young she

needed to go through Johnson; (4) on December 10, 2015, Special Agent Burnett

drove CI Goss to the Summit Street Apartments for a controlled buy with Kemeca,

during which defendant Kecole Dukes stood outside the apartment building and

appeared to act as a lookout; (5) during the December 16, 2015 controlled buy with

Kemeca, CI Goss initially encountered a man named Wayne Tate, who asked Goss


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if he was waiting for “Keko,” and Goss told Tate he was waiting for either of the

Dukes brothers; (6) Goss testified that in the past he had engaged in drug

transactions with both Dukes brothers; (7) defendant Kecole Dukes had multiple

prior state court convictions for possession of cocaine, sale of cocaine, and

possession of cocaine with intent to distribute, including the sale of crack cocaine

during a controlled drug purchase with another CI in 2009; and (8) a search of the

apartment in which defendant Kecole Dukes was arrested revealed baggies, a

digital scale, and a razor blade, all items commonly used for the distribution of

crack cocaine.

      From this evidence, the jury could reasonably find beyond a reasonable

doubt that defendant Kecole Dukes had an illegal agreement with his brother

Kemeca to possess cocaine base with intent to distribute it and to distribute cocaine

base, that defendant Kecole Dukes knew of and voluntarily joined the agreement,

and that defendant Kecole Dukes’s actions in conducting some drug sales himself

and in assisting his brother with other drug sales by acting as a lookout or bringing

him additional drugs facilitated the criminal venture as a whole and the endeavors

of his brother.

      Defendant Kecole Dukes’s argument that the government’s evidence

established only his mere presence or proximity to his brother’s drug transactions

is belied by the record. The government presented evidence that defendant Kecole


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Dukes not only took actions that helped his brother conduct drug transactions, but

in one instance he conducted the drug transaction himself. The jury was given a

“mere presence” instruction and clearly rejected defendant Kecole Dukes’s

contention that he was just a knowing spectator who happened to be present at, but

did not participate in, his brother’s drug deals.

      In sum, defendant Kecole Dukes has failed to establish, even under de novo

review, that the government’s evidence was insufficient to support his convictions,

much less that it was so tenuous that his convictions would be considered shocking

under a manifest-miscarriage-of-justice review. For these reasons, we affirm

defendant Kecole Dukes’s convictions on Counts One, Two, Six, and Nine.

      AFFIRMED.




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