            Case: 19-11332   Date Filed: 06/18/2020   Page: 1 of 7



                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11332
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:18-cr-00129-GAP-TBS-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

KENNETH LAMAR BELL,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 18, 2020)

Before WILSON, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
                 Case: 19-11332        Date Filed: 06/18/2020       Page: 2 of 7



       Kenneth Bell appeals his convictions for: (1) aiding and abetting the

possession of cocaine, cocaine base, and 40 grams or more of fentanyl with intent

to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (C), and 18

U.S.C. § 2; (2) possession of a firearm or ammunition by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (3) possession of a firearm

in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

On appeal Bell argues there was insufficient evidence presented at trial to support

all three of his convictions. After review, 1 we affirm.

       As brief background, the charges against Bell arose out of his involvement

in a drug-distribution operation. On the day in question, an agent with the Orange

County Sheriff’s Office initiated a traffic stop of a vehicle. The two occupants of

the vehicle fled and were eventually apprehended. Upon searching the vehicle,

law enforcement recovered a significant amount of narcotics, $1,300 in cash, and a

magazine, discovered in the passenger-side door, for a 9-millimeter Smith &


       1
          Generally, the sufficiency of evidence presented at trial to support a criminal conviction
is a question of law we review de novo. United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir.
2001). The government, however, argues Bell failed to argue his motion for judgment of
acquittal with sufficient specificity as to his conviction for aiding and abetting the possession of
controlled substances and raised different arguments with respect to his firearms convictions than
those raised on appeal. The government therefore argues we should reverse Bell’s convictions
only if we find plain error. See United States v. Batson, 818 F.3d 651, 664 (11th Cir. 2016)
(“When a defendant raises specific challenges to the sufficiency of the evidence in the district
court, but not the specific challenge he tries to raise on appeal, we review his argument for plain
error.”). At trial, Bell’s counsel stated his motion was “for each offense,” but he focused his
argument on the two firearms offenses and offered specific arguments as to only those charges.
We need not resolve the issue here, as we would affirm Bell’s convictions even reviewing the
sufficiency of the evidence de novo.
                                                 2
               Case: 19-11332     Date Filed: 06/18/2020    Page: 3 of 7



Wesson firearm. Along the route the two occupants had fled, law enforcement

recovered, among other items, a backpack containing cocaine, individual bags used

to package narcotics, lactose—which is typically used to mix and cut cocaine—and

about $2,000 in cash. A firearm was also recovered near the backpack on the

doorstep of a building, and the firearm contained a magazine identical to the one

recovered from the passenger-side door. Bell’s codefendant, Aaron Hinton, who

claimed to have been driving the vehicle, pled guilty and testified at Bell’s trial.

        In evaluating the sufficiency of the evidence, we view the evidence in the

light most favorable to the government, with all reasonable inferences and

credibility choices made in the government’s favor. United States v. Frazier, 605

F.3d 1271, 1278 (11th Cir. 2010). This question involves whether a reasonable

fact-finder could have determined that the evidence proved the defendant’s guilt

beyond a reasonable doubt. United States v. Smith, 459 F.3d 1276, 1286 (11th Cir.

2006). We will not disturb the verdict unless no reasonable trier of fact could find

guilt beyond a reasonable doubt. United States v. Lee, 603 F.3d 904, 912 (11th

Cir. 2010).

      We first address Bell’s conviction for aiding and abetting the possession of

controlled substances. Bell argues there was insufficient evidence to convict him

with aiding and abetting the distribution of cocaine because there was no evidence

that he helped his codefendant obtain the cocaine or that he exercised any control


                                           3
               Case: 19-11332        Date Filed: 06/18/2020   Page: 4 of 7



or possession over it. To be guilty of aiding and abetting, the prosecution must

show (1) that a substantive offense was committed; (2) the defendant contributed

to and furthered the offense; and (3) the defendant intended to aid in its

commission. United States v. Tagg, 572 F.3d 1320, 1324 (11th Cir. 2009). In

order to prove that a defendant possessed narcotics with an intent to distribute, the

government must show that the defendant had knowing possession of the drugs

and intent to distribute them. United States v. Capers, 708 F.3d 1286, 1301 (11th

Cir. 2013). Moreover, for possession and intent to distribute there must be

evidence connecting the defendant with both aspects of the crime, possession and

intent to distribute. Id. at 1307.

      The record shows there was sufficient evidence from which a reasonable

jury could find beyond a reasonable doubt Bell aided and abetted the possession of

controlled substances with the intent to distribute. The jury heard testimony from

several witnesses, including two law-enforcement officers from the Orange County

Sheriff’s Office and Bell’s codefendant, Hinton. That testimony showed Bell at

one point possessed the backpack that was found to have drugs, small bags, and

cash in it; he helped “serve customers” out of the backpack in a car that had a large

amount of drugs, small bags, and cash in it; and he helped bag the drugs in a hotel

room that he rented. Bell argues the backpack that contained the contraband was

not tested for his DNA, but this is not a reason to disturb the jury’s verdict. The


                                             4
               Case: 19-11332     Date Filed: 06/18/2020    Page: 5 of 7



government was under no obligation to tie Bell to the backpack through anything

beyond the testimony it presented.

       Moving on to Bell’s firearms convictions, Bell argues there was insufficient

evidence that he possessed a firearm because law enforcement officials never

observed him with an actual firearm, nor were his fingerprints found on any of the

guns recovered. Under § 922(g)(1), the government must prove that (1) the

defendant was a convicted felon; (2) that the defendant knew he was in possession

of a firearm; and (3) that the firearm affected or was in interstate commerce.

United States v. Jernigan, 341 F.3d 1273, 1279 (11th Cir. 2003). In order to

sustain a conviction under § 924(c)(1), the government must prove three elements:

that the defendant (1) used or carried a firearm; (2) during; and (3) in relation to

any . . . drug trafficking crime. 18 U.S.C. § 924(c)(1)(A).

      Here, again, there was sufficient evidence from which the jury was entitled

to find Bell guilty of possessing a firearm as a convicted felon and in furtherance

of a drug trafficking crime. Hinton testified that when they were pulled over and

decided to flee, Bell said he was taking “the bag and the fire”—“fire” meaning

gun—with him. Hinton further testified he heard something hit the roof of a

building and then slide off as they fled, and an officer later recovered a firearm on

a doorstep near where the backpack was recovered. Hinton identified the

recovered firearm as one he had seen on the passenger-side floorboard of the


                                           5
               Case: 19-11332    Date Filed: 06/18/2020   Page: 6 of 7



vehicle, and a magazine was found in the passenger-side door that matched the

magazine found in the recovered firearm.

      From this evidence, the jury was entitled to conclude that Bell, at the very

least, constructively possessed the firearm and did so in furtherance of the drug-

trafficking crime discussed above. See United States v. Wright, 392 F.3d 1269,

1273 (11th Cir. 2004) (noting a defendant may possess a firearm either actually or

constructively and that “[t[he firearm need not be on or near the defendant's person

in order to amount to knowing possession”). That the evidence giving rise to this

reasonable conclusion was circumstantial is of no moment. See id. (“Possession

can be shown by circumstantial as well as direct evidence.”). And, as with the

above-discussed controlled-substance conviction, there is no requirement that the

government present forensic evidence tying Bell to the firearm.

      Bell also generally argues, as to all his convictions, that we should discount

his codefendant’s testimony because he testified in exchange for a lesser sentence.

However, the jury was aware Hinton had pled guilty and agreed cooperate with the

government, and it was for the jury to decide if and how that information affected

his credibility. See United States v. Clay, 832 F.3d 1259, 1294 (11th Cir. 2016)

(“The jury has exclusive province over the credibility of witnesses, and we may

not revisit the question.”).




                                          6
                 Case: 19-11332   Date Filed: 06/18/2020   Page: 7 of 7



      Accordingly, and for the reasons stated above, we affirm Bell’s convictions

and sentences.

      AFFIRMED.




                                          7
