                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                              No. 11-13912
                                                       MAY 25, 2012
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________         CLERK

                 D.C. Docket No. 8:10-cr-00297-JDW-TGW-2

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

MELVIN CANADY,

                                                          Defendant-Appellant.

                        ________________________

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

                               (May 25, 2012)

Before DUBINA, Chief Judge, MARCUS, and BLACK, Circuit Judges.

PER CURIAM:

     Appellant Melvin Canady appeals his conviction for distribution of cocaine
base under 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. On appeal,

Canady argues that his statements concerning prior drug transactions should have

been suppressed because (1) he had not been informed of his Miranda1 rights prior

to making the statements in question; (2) the statements were not admissible under

Federal Rule of Evidence 404(b) because they had not been independently

corroborated; and (3) the statements were excludable pursuant to Federal Rule of

Evidence 403. Further, Canady argues that the evidence was insufficient to

support his conviction.

      We review a district court’s denial of a motion to suppress under a mixed

standard, reviewing the district court’s findings of fact for clear error, and its legal

conclusions de novo. United States v. Virden, 488 F.3d 1317, 1321 (11th Cir.

2007). When considering a ruling on a motion to suppress, we construe all facts in

the light most favorable to the prevailing party below. Id. We have stressed that

“a trial court’s credibility determination is conclusive on the appellate court unless

the judge credits exceedingly improbable testimony.” Odili v. United States

Parole Comm’n, 474 F.3d 1255, 1261 (11th Cir. 2007) (internal quotation marks

omitted). Therefore, we give due weight to a trial court’s finding that an officer is

credible. Ornelas v. United States, 517 U.S. 690, 700, 116 S. Ct. 1657, 1663


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

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(1996).

      Here, Canady alleges that the post-arrest statements in question were given

before Master Detective Belvin Sanchez informed Canady of his Miranda rights.

In contrast, Sanchez testified that he informed Canady of his Miranda rights

before Canady made the statements in question, that Canady knowingly and

voluntarily waived his rights, and that Canady never invoked his right to an

attorney or to remain silent. The district court found that Sanchez’s testimony on

the timing of the Miranda rights was credible and that, therefore, there was no

reason to suppress the statements under Miranda. Canady has not established that

the district court relied on testimony that was improbable under any standard,

much less exceedingly improbable. Therefore, we conclude that the district court

did not err by crediting the testimony of a police officer over Canady’s testimony

about the timing of the Miranda warning.

      Second, Canady alleges that his statements were not admissible under

Federal Rule of Evidence 404(b) because his statements were not independently

corroborated, and therefore, they alone cannot establish that he committed the

prior drug transactions. Under Rule 404(b), evidence of a prior bad act can be

admitted as proof of, inter alia, intent, knowledge, or absence of mistake or

accident. Where a defendant enters a not guilty plea, he places his intent directly in

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issue. United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005). To be

admissible under Rule 404(b), there is a three-prong test: (1) the evidence must be

relevant to an issue other than the defendant’s character; (2) there must be

sufficient proof that a jury could find by a preponderance of the evidence that the

defendant committed the act; and (3) the probative value of the evidence must not

be substantially outweighed by undue prejudice, as established in Federal Rule of

Evidence 403. United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).

        To meet the first prong of this test, the prior bad act must require the same

intent as the crime for which the defendant is indicted. United States v. Dickerson,

248 F.3d 1036, 1047 (11th Cir. 2001). This prong is met “where the state of mind

required for the charged and extrinsic offenses is the same.” Edouard, 485 F.3d at

1345.    Under the second prong, there must be sufficient evidence for a jury to

find, by a preponderance of the evidence, that the defendant committed the

extrinsic act that the government alleges. United States v. Edwards, 696 F.2d

1277, 1280 (11th Cir. 1983) (“[T]his requires only that the jury could find that the

defendant committed the offense.”). A defendant’s own admission to the acts,

“even if mere puffery,” is sufficient to meet the second prong of this test. United




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States v. Chilcote, 724 F.2d 1498, 1502 n.2 (11th Cir. 1984) (citing Edwards, 696

F.2d at 1280).

      The third prong requires the court to conduct the Federal Rule of Evidence

403 inquiry based “upon the circumstances of the extrinsic offense.” Edouard,

485 F.3d at 1345 (internal quotation marks omitted). The district court may

exclude relevant evidence if its probative value is substantially outweighed by the

danger of unfair prejudice to the defendant. See Fed.R.Evid. 403. We view the

disputed evidence “in a light most favorable to its admission, maximizing its

probative value and minimizing its undue prejudicial impact.” Edouard, 485 F.3d

at 1344 n.8 (internal quotation marks omitted). Under Rule 404(b), similarity

between the prior bad act and the charged conduct will make the other offense

highly probative of the defendant’s intent in the charged offense. United States v.

Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005). Moreover, the risk of undue

prejudice can be reduced by an appropriate limiting jury instruction. Id.

      Here, the first prong is met because the prior bad acts and the charged act

are the same – distribution of crack cocaine. See United States v. Cardenas, 895

F.2d 1338, 1344 (11th Cir. 1990) (holding that evidence relating to prior drug

dealings is “highly probative” of a defendant’s intent to distribute a controlled

substance). Under the second prong, Canady’s statements are sufficient for a jury

                                          5
to find that he committed the prior bad acts by a preponderance of the evidence.

Despite Canady’s argument that corroborating evidence is needed for his own

statements to be admitted under this rule, we have held otherwise. See, e.g.,

Chilcote, 724 F.2d at 1502 n.2; Edwards, 696 F.2d at 1280. Canady’s statements

are therefore sufficient for a jury to find by a preponderance of the evidence that

Canady committed the prior bad acts, even without further corroboration.

      Last, the admission of the evidence would not result in unfair prejudice to

the defendant. The statements at issue here are highly probative of Canady’s

intent because they establish that Canady had distributed crack cocaine in the past

in order to gain income. Furthermore, the district court mitigated any unfair

prejudice to Canady by instructing the jury not to consider the statements for any

reason other than to establish Canady’s knowledge and/or intent and that he did

not act because of a mistake or accident. See United States v. Almanzar, 634 F.3d

1214, 1222 (11th Cir. 2011) (“We presume that jurors follow the instructions

given by the district court.”), cert. denied, 132 S. Ct. 316 (2011). In light of the

probative value of the statements and the court’s limiting instruction, the danger of

unfair prejudice here does not outweigh the probative value of the evidence.

Therefore, we conclude from the record that the district court did not err by

refusing to suppress Canady’s statements about prior drug transactions.

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      Furthermore, Canady argues that the evidence presented below is

insufficient to support his conviction. We review the sufficiency of the evidence

to support a conviction de novo. United States v. Jiminez, 564 F.3d 1280, 1284

(11th Cir. 2009). To determine if sufficient evidence exists to support an

appellant’s conviction, we “view the evidence in the light most favorable to the

government and decide whether a reasonable fact finder could have reached a

conclusion of guilt beyond a reasonable doubt.” United States v. Herrera, 931

F.2d 761, 762 (11th Cir.1991). Furthermore, “[a] jury’s verdict cannot be

overturned if any reasonable construction of the evidence would have allowed the

jury to find the defendant guilty beyond a reasonable doubt.” Id. “When the

government relies on circumstantial evidence, reasonable inferences, not mere

speculation, must support the conviction.” United States v. Mendez, 528 F.3d 811,

814 (11th Cir. 2008).

      To establish that the defendant aided and abetted someone, the government

must prove: (1) the substantive offense was committed by someone; (2) an act by

the defendant contributed to and furthered the offense; and (3) the defendant

intended to aid in the commission of the substantive crime. United States v.

DePace, 120 F.3d 233, 238 (11th Cir. 1997). To establish the offense of

distribution of cocaine base the government must establish: (1) knowledge,

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(2) possession, and (3) intent to distribute. United States v. Mercer, 541 F.3d

1070, 1076 (11th Cir. 2008).

      Here, the government has established the knowing and intentional

distribution of cocaine by presenting evidence that Canady knowingly possessed

crack cocaine, and that he transferred the drugs to a co-conspirator, who then gave

the drugs to two undercover police officers. Canady aided and abetted his co-

conspirator, Carlos Green, by (1) driving Green to meet the undercover detectives,

(2) transferring a substance from a bag to Green, (3) consulting with Green about

the price and amount of the crack cocaine, and (4) personally telling the detectives

that he did not have any more crack cocaine when they asked Green for more.

Additionally, Canady’s own statements where he admitted to buying and reselling

crack cocaine in order to generate income on numerous occasions in the past are

evidence of his intent. Because the evidence must be construed in favor of the

jury’s verdict, we conclude that this evidence is sufficient to prove that Canady

aided and abetted the distribution of cocaine base, and we affirm his conviction.

      AFFIRMED.




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