                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT           FILED
                       ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                              No. 09-13293                  JULY 28, 2010
                        ________________________             JOHN LEY
                                                               CLERK
                   D. C. Docket No. 07-20588-CR-DMM

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                   versus

JAMES PARK,
a.k.a. Mobboy,

                                                         Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                               (July 28, 2010)

Before BLACK, WILSON and COX, Circuit Judges.

PER CURIAM:
       James Park appeals his conviction and sentence for conspiracy to possess

with intent to distribute five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 841 and 846. On appeal, Park raises the following issues: (1) whether

the district court erred by admitting evidence of prior drug trafficking between

Park and Nelson Aguilar, and Park’s subsequent possession of drugs in Georgia;

(2) whether the district court erred by denying Park’s motion for a mistrial after

Aguilar testified to the jury that Park would kill him if he could; (3) whether the

district court erred by denying Park’s motion for judgment of acquittal where

Park’s involvement amounted to mere presence and association with coconspirator

Tim Starks; (4) whether the district court erred by finding Park accountable for 15

kilograms of reasonably foreseeable cocaine where the only evidence concerning

Park related to 10 kilograms of cocaine; (5) whether the district court erred by

refusing to apply a two-level minor-role reduction; and (6) whether the district

court erred by refusing to give Park’s requested jury instruction concerning

interdependence of defendants in conspiracy cases.

After careful review of the record and the parties’ briefs, and having had the

benefit of oral argument, we affirm Park’s conviction and sentence.1


       1
         In his brief, Park also argued the district court erred by refusing to grant a new trial
based on a claim of newly discovered evidence. This argument fails both because it is without
merit and because it was not briefed to the district court.

                                                 2
                                          I.

      At trial, confidential informant Nelson Aguilar testified concerning his prior

drug dealings with Park’s coconspirators and with Park. The district court

admitted the evidence as inextricably intertwined, but gave the standard limiting

instruction concerning 404(b) evidence. The district court also admitted evidence,

accompanied by a limiting instruction, of Park’s possession of drugs in October

2007 in Georgia.

      On appeal, Park contends Aguilar’s testimony was not supported by any

corroborating evidence and was offered only to show bad character. Park also

challenges the admission of evidence concerning his possession of drugs in

Georgia, which occurred after the conspiracy charged in the indictment.

      Generally, evidence of other crimes committed outside of those charged is

not admissible. Fed. R. Evid. 404(b). Rule 404(b) permits the introduction of

such evidence only if (1) the evidence is relevant to an issue other than the

defendant’s character, (2) the act is established by sufficient proof to permit a jury

to find the defendant committed the extrinsic act, and (3) the probative value of

the evidence is not substantially outweighed by its undue prejudice. United States

v. Cancelliere, 69 F.3d 1116, 1124 (11th Cir. 1995). The standard for evaluating

the admissibility of a subsequent bad act under Rule 404(b) is identical to that for

                                          3
determining whether a prior bad act should be admitted under this rule. United

States v. Jernigan, 341 F.3d 1273, 1283–84 (11th Cir. 2003).

       Rule 404(b) does not apply where the evidence concerns the context,

motive, and set-up of the crime, or forms an integral and natural account of the

crime, or is necessary to complete the story of the crime for the jury. See United

States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992); see also United States

v. McLean, 138 F.3d 1398, 1402 (11th Cir. 1998) (prior drug dealing “inextricably

intertwined” where it explained the relationship between defendant and witness

and was needed to assess the witness’s credibility). Such “inextricably

intertwined” evidence may be excluded, however, if its probative value is

substantially outweighed by the danger of unfair prejudice under Fed R. Evid. 403.

Fortenberry, 971 F.3d at 721. The balance under Rule 403 should be struck in

favor of admissibility. Id.

       The district court did not abuse its discretion by admitting Aguilar’s

testimony as inextricably intertwined.2 At trial, Park claimed he had spent only

minutes with coconspirator Tim Starks in Aguilar’s car “talking about people on

the street.” Thus, the evidence of Aguilar’s prior drug dealing with Tim Starks



       2
          A district court’s admission of evidence is reviewed for abuse of discretion. United
States v. Trujillo, 146 F.3d 838, 843 (11th Cir. 1998).

                                                4
and Park was necessary to demonstrate their prior relationships and to explain the

context of their meeting on June 8, 2007. See id. The evidence gave meaning to

Park’s assurance that he could take up more of Aguilar’s business if Aguilar

stopped dealing with a competing drug dealer. Id. Thus, Aguilar’s testimony

concerning his prior dealings with Park and Park’s coconspirators was inextricably

intertwined with the evidence of the conspiracy.

      The Rule 404(b) evidence concerning Park’s subsequent possession of

cocaine was also properly admitted. Park placed his intent at issue in this case by

maintaining he had not conspired with his co-conspirators to possess cocaine with

intent to distribute. Thus, that Park possessed cocaine four months later was

relevant to his intent and motive in his dealings with Aguilar and his

coconspirators. See Cancelliere, 69 F.3d at 1124. His possession of cocaine in

October was also established by sufficient proof to permit a jury finding that he

had committed the act: the trooper who had stopped Park for speeding testified

that Park had appeared extremely nervous and had difficulty answering simple

questions. Moreover, a trained narcotics dog alerted to the presence of cocaine in

Park’s automobile. Finally, there was no undue prejudice because the district

court issued a limiting instruction on the use of the evidence. Accordingly, the

district court did not abuse its discretion by admitting this Rule 404(b) evidence.

                                          5
                                              II.

       Park contends the district court erred by denying his motion for a mistrial,

which was based on Aguilar’s response to a question. During his direct

examination, Aguilar explained a statement made regarding Park meant that Park

hated informants. The prosecutor then inquired, “And what are you?,” to which

Aguilar responded: “An informant. Oh, he would kill me if he would get a

chance.”

       Park is entitled to a grant of mistrial only upon a showing of substantial

prejudice. See United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999).

Substantial prejudice occurs when there is a “reasonable probability that, but for

the remarks, the outcome of the trial would have been different.” United States v.

Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009) (citation omitted).

       The district court, which was in the best position to evaluate the prejudicial

effect of the statement, did not abuse its discretion by denying Park’s motion for a

mistrial.3 Park has not shown he suffered substantial prejudice as a result of

Aguilar’s comment. The comment was unsolicited and there was no further

reference to the remark during trial. Moreover, there was strong evidence of



       3
          “We review a decision not to grant a mistrial for abuse of discretion.” Emmanuel, 565
F.3d at 1334.

                                               6
Park’s participation in the conspiracy, including video recordings, audio

recordings, and cell phone records.

                                               III.

       Park challenges the sufficiency of the evidence presented against him.

Specifically, he argues his mere presence at one meeting and his agreement with

certain statements at that meeting were insufficient to support a finding that he

conspired with intent to distribute cocaine.

       The evidence amply demonstrates Park’s participation in the conspiracy.4

Park and Tim Starks assured Aguilar they could sell all the cocaine Aguilar could

provide them, and they urged Aguilar to cut out another dealer so they could take

up his supply. Park also assured Aguilar the delivery location was safe, and

approved of the $19,500 per kilogram price tag. Aguilar testified he could not

have reached the agreement on those terms if Park had not been an active

participant in the negotiations. That Park was not present when Aguilar delivered

the cocaine does not absolve him—Park was nearby and was in contact with his

co-conspirators before and after the delivery, and Aguilar noted there was no



       4
          We review de novo the sufficiency of the Government’s evidence presented at trial.
United States v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006). This Court views the evidence in
the light most favorable to the Government, with all reasonable inferences and credibility choices
made in the Government’s favor. Id.

                                                7
reason for Park to be present at the delivery. Based on this evidence, the jury

reasonably concluded Park was an active participant in the conspiracy.

                                        IV.

      Park contends he was not responsible for 15 kilograms of cocaine because

that amount was not reasonably foreseeable from his membership in the

conspiracy. Rather, Park contends he should be held responsible for only ten

kilograms.

      A defendant is accountable for co-conspirators’ conduct that was reasonably

foreseeable and within the scope of the criminal activity that the defendant agreed

to undertake. United States v. Westry, 524 F.3d 1198, 1219 (11th Cir. 2008). A

district court errs when it determines the foreseeable quantity of drugs “without

making the critical inquiry as to the scope of criminal activity undertaken by the

defendant.” United States v. Bush, 28 F.3d 1084, 1087 (11th Cir. 1994). In a

“reverse sting” operation, like here, “the agreed-upon quantity of the controlled

substance would more accurately reflect the scale of the offense because the

amount actually delivered is controlled by the government, not by the defendant.”

U.S.S.G. § 2D1.1 cmt. n.12.




                                         8
       The district court did not clearly err by holding Park accountable for 15

kilograms of cocaine.5 The district court properly limited the scope of Park’s

criminal activity to the June 8 meeting in which he participated and the subsequent

delivery resulting from the meeting. Furthermore, 15 kilograms was a foreseeable

amount of cocaine even though Park arrived at the June 8 meeting after Aguilar

discussed providing between 10 and 15 kilograms. Although Park did not witness

Aguilar’s statement regarding the amount of cocaine Aguilar could supply, Park

told Aguilar that he could handle enough cocaine for all of Overtown. Park even

convinced Aguilar to stop dealing with another dealer so Park and Tim Starks

could take his share. Based on these statements indicating Park could and wanted

to move large quantities of cocaine, Park could foresee that the conspiracy would

involve at least 15 kilograms.

                                              V.

       Park contends that he played only a minor role in the conspiracy and that his

sentence should have been reduced accordingly. Park claims he is less culpable

than his coconspirators because he was not present at the delivery of the cocaine,

and he did not order or pay for it.


       5
         This Court reviews determinations of drug quantities for clear error. United States v.
Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). The Government bears the burden of proving
a disputed fact, such as drug quantity, by a preponderance of the evidence. Id.

                                               9
       The district court may reduce an offense level by two points if a defendant

is only a minor participant in the offense. U.S.S.G. § 3B1.2(b). To determine if a

defendant is a minor participant, “the district court must measure the defendant’s

role against the relevant conduct for which [he] was held accountable at

sentencing.” United States v. Rodriguez De Varon, 175 F.3d 930, 945 (11th Cir.

1999) (en banc). If the first inquiry is not dispositive, “the district court may also

measure the defendant’s role against the other participants, to the extent that they

are discernable, in that relevant conduct.” Id.

       The district court did not clearly err when it denied Park’s request for a

minor role reduction.6 Aguilar testified that Park was an equal partner with Tim

Starks, and that Park’s participation in the meeting was integral to reaching an

agreement to deliver the cocaine. The district court was entitled to believe

Aguilar’s testimony. See United States v. Clay, 483 F.3d 739, 744 (11th Cir.

2007) (noting the district court is afforded substantial deference “in reaching

credibility determinations with respect to witness testimony”). The district court

reasonably found that Park was a key player in the cocaine delivery and that he

was no less culpable than coconspirator Greg Starks, who helped to set up the


       6
         “This Court has long and repeatedly held that a district court’s determination of a
defendant’s role in the offense is a finding of fact to be reviewed only for clear error.” Rodriguez
De Varon, 175 F.3d at 937.

                                                10
meeting and collect the fake cocaine. See Rodriguez De Varon, 175 F.3d at 945.

Thus, Park failed to prove he was entitled to a minor role sentence reduction.

                                                VI.

       Park contends the district court erred by refusing to give his requested

theory of defense instruction. Park’s proposed instruction used “interdependence”

language to describe the concepts of mere presence or association.

       The district court’s refusal to give the requested “interdependence”

instruction was not an abuse of discretion.7 The essence of the proposed

instruction was adequately set out in the district court’s instructions to the jury,

which outlined the concept of mere presence or association. Moreover, defense

counsel was able to argue to the jury in summation the theory encompassed in his

proposed instruction.

       AFFIRMED.




       7
         The district court’s refusal to give a defendant’s requested jury instructions is reviewed
for abuse of discretion. United States v. Schlei, 122 F.3d 944, 969 (11th Cir. 1997).

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