                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-14865                 ELEVENTH CIRCUIT
                                                                MAY 26, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                 D. C. Docket No. 08-00021-CR-5-RDP-PWG

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

CHARLES EDWARD PUCKETT,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                                (May 26, 2009)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Charles Edward Puckett appeals his conviction for conspiracy to distribute
and possess with intent to distribute 50 grams or more of methamphetamine, in

violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). On appeal, Puckett argues that (1)

the admissible evidence presented at trial was insufficient to support his

conviction; (2) the district court abused its discretion in giving a curative

instruction rather than granting a request for a mistrial when a government witness

gave inadmissible hearsay testimony; and (3) the imposition of a mandatory

minimum sentence under 18 U.S.C. § 841(b) offends the separation of powers

doctrine and the Eighth Amendment to the United States Constitution.

                                           I.

      Puckett argues that the evidence at trial failed to support that he knowingly

or voluntarily participated in the conspiracy.

      “Sufficiency of the evidence is a question of law that we review de novo.”

United States v. Gupta, 463 F.3d 1182, 1193 (11th Cir. 2006). In reviewing the

sufficiency of the evidence, we consider “the evidence in the light most favorable

to the government.” United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005)

(per curiam). “All reasonable inferences and credibility choices must be made in

favor of the government and the jury’s verdict.” Id. We must affirm “unless,

under no reasonable construction of the evidence, could the jury have found the

[defendant] guilty beyond a reasonable doubt.” Id. “The evidence need not



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exclude every hypothesis of innocence or be completely inconsistent with every

conclusion other than guilt because a jury may select among constructions of the

evidence.” United States v. Bailey, 123 F.3d 1381, 1391 (11th Cir. 1997).

      To support a conspiracy conviction under 21 U.S.C. § 846, the government

must establish beyond a reasonable doubt that (1) a conspiracy existed, (2) the

defendant had knowledge of it, and (3) he knowingly and voluntarily joined it.

United States v. Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005) (quotation marks

and citation omitted), vacated on other grounds by Stratton v. United States, 128 S.

Ct. 859 (2008). Puckett appears to challenge only the last two elements. “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). While mere presence or close association with a

co-conspirator does not suffice to established knowing participation in a

conspiracy, “[p]resence is, however, a material and probative factor which the jury

may consider in reaching its decision.” Id. Moreover, “[g]uilt may exist even

when the defendant plays only a minor role and does not know all the details of the

conspiracy.” United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994).

      Considering the evidence in the light most favorable to the Government and



                                          3
the jury’s verdict of conviction, a reasonable jury could find that Puckett

knowingly and voluntarily joined the conspiracy. First, as to knowledge of the

conspiracy, Puckett lived with Angie Rollins when she purchased and sold large

quantities of methamphetamine from William Byrum.1 In fact, Puckett watched as

Ms. Rollins retrieved the methamphetamine from a canister in her backyard and

packaged it for resale. Second, as to being a knowing and voluntary participant in

the conspiracy, the evidence established that, on several occasions, Puckett

retrieved the methamphetamine from the canister in the backyard, assisted Rollins

in repackaging the drugs by handing her bags and securing the bags, and returned

the drugs in the canister to the backyard. As such, because a reasonable jury could

have concluded that Puckett knew of the conspiracy and knowingly and voluntarily

participated in that conspiracy, we reject Puckett’s claim that the evidence was

insufficient to support his conviction.

                                              II.

       Puckett argues that his motion for a mistrial should have been granted

because the prejudicial impact of a government witness’s inadmissible hearsay

statement outweighed the district court’s curative instruction, as the only other


       1
         The Government charged and indicted Puckett, Rollins, and Byrum together with
conspiracy to possess with the intent to distribute 50 grams or more of methamphetamine. Ms.
Rollins pled guilty and testified against Puckett. During the course of the investigation, Mr.
Byrum cooperated with the Government.

                                               4
evidence supporting his knowing participation in the conspiracy was the testimony

of his alleged co-conspirator.

      We review the denial of a motion for a mistrial for abuse of discretion.

United States v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005) (per curiam).

Further, “[t]he decision whether to grant a mistrial lies within the sound discretion

of a trial judge as he or she is in the best position to evaluate the prejudicial effect

of improper testimony.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir.

1994) (per curiam). A defendant is entitled to a grant of mistrial only upon a

showing of substantial prejudice. United States v. Chastain, 198 F.3d 1338, 1352

(11th Cir. 1999). Prejudicial testimony is less likely to mandate a mistrial “when

there is other significant evidence of guilt which reduces the likelihood that the

otherwise improper testimony had a substantial impact upon the verdict of the

jury.” United States v. Rouco, 765 F.2d 983, 992 (11th Cir. 1985) (quotation

omitted). Where the district court issues a curative instruction, we will overturn

the district court’s refusal to declare a mistrial only where the evidence is so highly

prejudicial as to be incurable. United States v. Dodd, 111 F.3d 867, 870 (11th Cir.

1997). In making that determination, we presume that the jury followed the district

court’s curative instructions. Ramirez, 426 F.3d at 1352.

      On direct examination, a witness for the Government, Special Agent



                                            5
Frederick Gasbarro of the U.S. Drug Enforcement Administration, testified that

Byrum told him that Rollins and Puckett obtained methamphetamine from Byrum.2

Counsel for Puckett objected and the district court sustained the objection and

instructed the jury to disregard the testimony. In addition, after the district court

denied Puckett’s motion for a mistrial, the district court gave a curative instruction

to the jury and again reminded them to disregard the testimony. In order for

Puckett to prevail on this issue, he must show that the curative instruction failed to

cure the prejudicial effect of the statement. See Dodd, 111 F.3d at 870. Puckett

has failed to do so. Presuming that the jury followed the district court’s

instructions to disregard the improper testimony, the district court’s curative

instruction appeared to alleviate any prejudicial impact of the inadmissible hearsay


       2
         The exchange between counsel for the Government and Special Agent Gasbarro
transpired in this way:

              Q:     Did [Byrum] agree to make any telephone calls on that
                     day?
              A:     Yes.
              Q:     Did there come occasion on that day that he spoke to Ms.
                     Rollins?
              A:     Yes.
              Q:     And how do you know that?
              A:     I was there. I listened to the call when it was made. I set
                     up the equipment to make the call.
              Q:     And what was the point of that call?
              A:     It was to - he had indicated to us Ms. Rollins and Mr.
                     Puckett had obtained some methamphetamine from him a
                     few days earlier -

R. at 158.

                                               6
statement. Considering the discretion given to the district court to gauge the

prejudicial effect of improper testimony as well as the other admissible evidence

sufficient to support Puckett’s conviction, we conclude that district court did not

abuse its discretion by refusing to grant a mistrial.

                                          III.

      Lastly, Puckett argues that the district court’s imposition of a mandatory

minimum sentence under 18 U.S.C. § 841(b) offends the separation of powers

doctrine and the Eighth Amendment to the U.S. Constitution. “We review

questions of constitutional law de novo.” United States v. Brown, 364 F.3d 1266,

1268 (11th Cir. 2004).

      Precedent forecloses both constitutional arguments. As to the separation of

powers, we have held that statutory mandatory minimum sentences do not violate

the separation of powers doctrine, explaining that “[i]t is for Congress to say what

shall be a crime and how that crime shall be punished.” United States v. Holmes,

838 F.2d 1175, 1178 (11th Cir. 1988) (citation omitted). As to the Eighth

Amendment, we have rejected arguments that mandatory life sentences under 21

U.S.C. § 841(b)(1)(A) constitute cruel and unusual punishment in violation of the

Eight Amendment as “without merit.” United States v. Willis, 956 F.2d 248, 251

(11th Cir. 1992) (per curiam); see also United States v. Johnson, 451 F.3d 1239,



                                            7
1243 (11th Cir. 2006) (per curiam) (“In general, a sentence within the limits

imposed by statute is neither excessive nor cruel and unusual under the Eighth

Amendment.”) (citation omitted). Accordingly, we find that our precedent

forecloses Puckett’s constitutional arguments.

                                         IV.

      Based on a review of the record and the parties’ briefs, we discern no

reversible error. Accordingly, we affirm Puckett’s conviction and sentence.

      AFFIRMED.




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