            Case: 12-15199    Date Filed: 07/26/2013   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-15199
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 4:12-cr-00024-RH-CAS-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

ISAAC GASPER,
a.k.a. Big Ike,

                                                           Defendant-Appellant.

                         ________________________

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

                                (July 26, 2013)

Before HULL, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
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      Isaac Gasper appeals his convictions for conspiracy to possess with intent to

distribute cocaine, distributing cocaine, and possession with intent to distribute

cocaine, cocaine base, and marijuana. On appeal, Gasper argues that the evidence

at trial was insufficient to support his conviction for possession with intent to

distribute cocaine, cocaine base, and marijuana. For the reasons set forth below,

we affirm Gasper’s convictions.

                                           I.

      In May 2012, a federal grand jury returned an indictment, charging Gasper

with conspiracy to possess with intent to distribute 500 grams or more of cocaine

in violation of 21 U.S.C. § 846 (Count 1); distributing cocaine in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C) (Count 2); and possession with intent to distribute 28

grams of cocaine base, cocaine, marijuana, and methylenedioxymethamphetamine

(“MDMA”) in violation of 26 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), (b)(1)(C), and

(b)(1)(D) (Count 3). As to Count 3, the indictment alleged that the charged offense

occurred on March 6, 2012.

      At the outset of trial, the government moved to amend Count 3 to omit the

amount of cocaine base and the MDMA charge, and the court granted the motion.

The government then presented several witnesses over the course of a two-day

trial. In relevant part, Telly Diaz Thomas, a federal inmate who had pled guilty to

drug conspiracy charges, testified that he “routinely” sold drugs to four people,


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including Gasper. Further, Thomas estimated that, during 2009 and 2010, he

provided Gasper with as much as four and a half ounces of cocaine approximately

every three weeks. Next, Jorge Turo, a federal inmate convicted of distributing

drugs, testified that, between 2009 and July 2011, he purchased drugs from Gasper

seven or eight times, and he could have purchased drugs from Gasper regularly.

      Edward Paul Sieg, who had also pled guilty to drug charges, testified that he

assisted agents from the Drug Enforcement Administration (“DEA”) by

participating in a “controlled purchase” of cocaine from Gasper. Specifically, in

February 2012, Sieg negotiated to purchase 14 grams of cocaine from Gasper for a

price of between $500 and $550. The government played a video recording of this

transaction for the jury and, during the video, Sieg testified that he met Gasper at a

residence and purchased the drugs.

      Finally, David Wilson, a DEA agent, testified that, on March 6, 2012, two

weeks after the controlled purchase, the DEA executed a search warrant at the

residence where the controlled purchase had occurred. During the search, Gasper

agreed to talk with Agent Wilson, and he admitted that all of the evidence that was

seized during the search belonged to him. The government and Gasper stipulated

that the search resulted in the seizure of 252.2 grams of marijuana, 13.9 grams of

cocaine, 3.3 grams of cocaine, 1.8 grams of cocaine base, and 3 grams of cocaine

base. Agent Wilson then testified that DEA agents also discovered other “nondrug


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evidence,” including three digital scales, baggies, and containers with “false

compartments.” In Agent Wilson’s experience, digital scales are frequently used

in drug distribution to weigh the drugs to be sold. Additionally, baggies are also

frequently used to distribute drugs, and the containers that were discovered had

“false compartments,” which can be used to transport drugs or currency while

appearing to contain other items. When Agent Wilson questioned Gasper after his

arrest, Gasper told DEA agents that he “got back in the drug business due to some

financial difficulties,” but that “he was just selling small amounts of cocaine.”

Gasper admitted that he had been selling drugs for three to five months and, at the

most, he sold quarter-ounce quantities of cocaine.

      At the conclusion of trial, the jury found Gasper guilty on all counts.

                                          II.

      Generally, 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.” United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007). However,

when a defendant does not move for a judgment of acquittal at the close of the

evidence, we will reverse the conviction only to prevent a manifest miscarriage of

justice. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.2002). “This

standard requires the appellate court to find that the evidence on a key element of


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the offense is so tenuous that a conviction would be shocking.” Id. A jury is free

to choose among reasonable constructions of the evidence, and it is unnecessary

for the evidence to exclude every reasonable hypothesis of innocence, provided

that a reasonable trier of fact could find that the evidence establishes guilt beyond a

reasonable doubt. United States v. Williams, 390 F.3d 1319, 1323-24 (11th Cir.

2004).

      To sustain a conviction under § 841(a)(1) for possession with intent to

distribute a controlled substance, the government must prove: (1) knowledge;

(2) possession; and (3) intent to distribute. See 21 U.S.C. § 841(a)(1); United

States v. Faust, 456 F.3d 1342, 1345 (11th Cir. 2006). Knowledge, possession,

and intent can be proved by direct or circumstantial evidence. United States v.

Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989). Intent to distribute can be proven

circumstantially from the quantity of drugs and the existence of implements, like

scales, that are commonly used in connection with the distribution of cocaine. Id.

at 1392.

      As an initial matter, Gasper, on appeal, challenges only his conviction as to

Count 3 and, thus, he has abandoned any challenges to his convictions on Counts 1

and 2. See United States v. Woods, 684 F.3d 1045, 1064 n.23 (11th Cir. 2012)

(deeming an issue abandoned where the appellant failed to develop any argument

on the issue in his opening brief). Further, Gasper did not move for a judgment of


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acquittal as to Count 3 at the conclusion of the evidence. Although Gasper

suggests that he preserved his instant arguments by presenting them to the jury, he

does not claim that he moved for a judgment of acquittal. Thus, we will affirm

Gasper’s conviction unless he can show that a reversal is necessary to prevent a

manifest miscarriage of justice. See Bender, 290 F.3d at 1284.

      Gasper has not shown that his conviction for possession of cocaine, cocaine

base, and marijuana with intent to distribute resulted in a manifest miscarriage of

justice. At trial, Thomas testified that, during 2009 and 2010, he routinely sold

drugs to Gasper. Further, Turo testified that, between 2009 and 2011, he

purchased cocaine from Gasper on seven or eight occasions, and he could have

done so on a regular basis. Additionally, in February 2012, Gasper sold cocaine to

Sieg during a controlled purchase. This evidence of Gasper’s history of purchasing

and selling drugs is circumstantial evidence of his knowing possession of drugs

with intent to distribute.

      On appeal, Gasper argues that his intent to distribute cannot be inferred

solely from the small drug quantities that were discovered during the search on

March 6, 2012, as those quantities supported a verdict of possession only for

personal use. However, the government’s case was not based solely on the drug

quantities involved. To the contrary, evidence also showed that Gasper possessed

items such as scales and packaging materials that are frequently used in


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distributing drugs, and his possession of these items was circumstantial evidence of

his intent to distribute drugs. See Poole, 878 F.2d at 1391-92. Finally, in his post

arrest statement, Gasper admitted that he had been involved in the “drug business”

and had been selling small amounts of cocaine. Thus, Gasper’s own statements

showed his intent to distribute. In sum, the evidence of Gasper’s intent to

distribute drugs was not so tenuous that his conviction as to Count 3 is shocking.

See Bender, 290 F.3d at 1284.

      For the foregoing reasons, we affirm Gasper’s convictions.

      AFFIRMED.




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