                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                             No. 07-11967                    March 21, 2008
                         Non-Argument Calendar             THOMAS K. KAHN
                                                                CLERK
                       ________________________

               D. C. Docket No. 06-00187-CR-ORL-31-JGG

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                   versus

EDDIE JERALD BROOKS,
a.k.a. Rod,
CHARLES CLARENCE BROOKS,


                                                        Defendants-Appellants.


                       ________________________

                Appeals from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (March 21, 2008)

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Charles Brooks appeals his convictions and sentences for: (1) conspiracy to

possess with intent to distribute 50 grams or more of crack cocaine (Count I);

(2) possession with intent to distribute crack cocaine on January 13, 2006 (Count

IV); and (3) possession with intent to distribute 5 grams or more of crack cocaine

on January 24, 2006 (Count V). Charles’s son, Eddie Brooks, appeals his

convictions and sentences for: (1) conspiracy to possess with intent to distribute

50 grams or more of crack cocaine (Count I); (2) possession with intent to

distribute crack cocaine on January 13, 2006 (Count IV); and (3) possession with

intent to distribute crack cocaine on February 3, 2006 (Count VII). Charles and

Eddie each assert three issues on appeal, and Eddie adopts Charles’s issues. We

address each of the issues on appeal in turn, and affirm their convictions and

sentences.

                                          I.

      Both Charles and Eddie assert the district court abused its discretion by not

granting Charles’s motions to sever. Charles contends the district court erred by

not granting his motions for relief from prejudicial joinder. According to Charles,

the district court admitted several pieces of evidence, admissible against Eddie,

that did not necessarily relate to Charles and that were highly prejudicial, including

Eddie’s testimony regarding the firearms that were found in Eddie’s and Charles’s



                                           2
Mathers Street house prior to the start of the conspiracy. Finally, Charles contends

the jury’s split verdict demonstrates its lack of confidence in the evidence. Eddie

adopted this argument in his brief.

      “We review a district court’s ruling on a severance motion only for abuse of

discretion.” United States v. Kennard, 472 F.3d 851, 859 (11th Cir. 2006), cert.

denied, 127 S. Ct. 3004 (2007). In order “[t]o reverse a conviction because of an

improper denial of a severance, a defendant must carry the ‘heavy burden’ of

demonstrating that he ‘suffered compelling prejudice’ and received an unfair trial.”

Id. at 858-59.

      “The permissibility of joint trials is governed by Rules 8 and 14 of the

Federal Rules of Criminal Procedure.” United States v. Blankenship, 382 F.3d

1110, 1120 (11th Cir. 2004). Pursuant to Rule 8(b):

      The indictment or information may charge 2 or more defendants if
      they are alleged to have participated in the same act or transaction, or
      in the same series of acts or transactions, constituting an offense or
      offenses. The defendants may be charged in one or more counts
      together or separately. All defendants need not be charged in each
      count.

Fed. R. Crim. P. 8(b). Rule 14(a) provides: “If the joinder of offenses or

defendants in an indictment, an information, or a consolidation for trial appears to

prejudice a defendant or the government, the court may order separate trials of




                                          3
counts, sever the defendants’ trials, or provide any other relief that justice

requires.” Fed. R. Crim. P. 14(a) (emphasis added).

      In general, defendants who are jointly indicted, particularly in conspiracy

cases, should be tried together. United States v. Baker, 432 F.3d 1189, 1236 (11th

Cir. 2005). However, “[s]everance may be granted at the discretion of the district

court if the court determines that prejudice will result from the joinder.” Id. “[A]

district court must balance the right of the defendant to a fair trial against the

public’s interest in efficient and economic administration of justice.” Id.

      In Zafiro v. United States, 113 S. Ct. 933 (1993), the Supreme Court

established a two-part test for determining whether the defendant is entitled to a

new trial. Blankenship, 382 F.3d at 1122. “First, a defendant must demonstrate

that he was somehow prejudiced by a joint trial.” Id. “This is done by showing

that the jury was unable to make an individualized guilt determination for each

defendant.” United States v. Francis, 131 F.3d 1452, 1459 (11th Cir. 1997).

“‘This is a heavy burden, and one which mere conclusory allegations cannot

carry.’” Id. (citation omitted). “‘[C]autionary instructions to the jury to consider

the evidence separately are presumed to guard adequately against prejudice.’” Id.

(citation omitted). Importantly, “a defendant does not suffer ‘compelling prejudice

simply because much of the evidence at trial is applicable only to his



                                            4
codefendants,’ . . . even when the disparity is ‘enormous.’” Baker, 432 F.3d at

1236 (citations omitted). “After finding that a defendant has suffered prejudice

under step one of the Zafiro test, we then turn to the second step–determining

whether severance . . . is the proper remedy for that prejudice.” Blankenship, 382

F.3d at 1122.

      The district court did not abuse its discretion by denying Charles’s and

Eddie’s motions to sever. Both Charles and Eddie were jointly indicted for the

same conspiracy. Because a joint trial is generally appropriate in such a case,

Charles and Eddie bore the “heavy burden” of demonstrating that severance was

nonetheless appropriate because he “suffered compelling prejudice and received an

unfair trial.” See Kennard, 472 F.3d at 858-59; Baker, 432 F.3d at 1236. Charles

claims a significant portion of the evidence presented by the Government was

highly prejudicial and mainly implicated Eddie and not him. However, Charles

cannot demonstrate compelling prejudice by claiming the evidence used at trial

was only applicable against Eddie. See Baker, 432 F.3d at 1236. Further, the bulk

of the evidence to which Charles complains was relevant and admissible against

him to demonstrate the existence and scope of the conspiracy and prove the firearm

charges in Count VIII of the indictment.




                                           5
      Charles also contends he was prejudiced by Eddie’s testimony, as well as the

Government’s rebuttal evidence, which concerned weapons found in the Mathers

Street house prior to the conspiracy’s start date. However, Charles has not shown

he suffered compelling prejudice with regard to that evidence because the jury

acquitted Charles of the charge relating to the firearms. See Francis, 131 F.3d at

1459. In addition, although Eddie adopted this argument in his brief, his wholesale

adoption of these arguments, many of which were particular to Charles, fails to

meet Eddie’s burden of demonstrating that he too suffered compelling prejudice

and received an unfair trial. Thus, because neither Charles nor Eddie has

demonstrated they suffered compelling prejudice, they have failed to pass the first

step of the Zafiro test, and we need not go to the second step. See Blankenship,

382 F.3d at 1122. Consequently, the district court did not abuse its discretion.

                                         II.

      Charles next argues the cumulative effect of the district court’s evidentiary

errors and the denial of his motions to sever rendered his trial fundamentally

unfair. Charles asserts he was prejudiced by the admission of several pieces of

evidence and testimony, and he also contends the district court erred when it

allowed the expert testimony of DEA Agent Baer. Charles contends although the

confidential informant “Lloyd” never mentioned that he purchased crack cocaine



                                          6
from Charles or Eddie prior to November 2005, Lloyd did testify that he purchased

the crack cocaine from “Eau Gallie,” and he testified that “Eau Gallie” was the

home of both Charles and Eddie. In addition, according to Charles, coconspirator

Jasper Riles “gave the impression” that he purchased crack cocaine from Charles

prior to November 2005, even though he never mentioned a specific time period.

Eddie adopted this argument in his brief.

         A district court’s evidentiary rulings are reviewed for abuse of discretion.

Baker, 432 F.3d at 1202. In addition, “[w]e review for abuse of discretion the

district court’s decisions regarding the admissibility of expert testimony and the

reliability of an expert opinion.” United States v. Frazier, 387 F.3d 1244, 1258

(11th Cir. 2004). “The cumulative impact of multiple evidentiary and instructional

errors are reviewed de novo, although some of the errors might individually be

reviewed for plain error.” United States v. Dohan, 508 F.3d 989, 993 (11th Cir.

2007).

         As discussed above, the district court did not abuse its discretion by failing

to grant either Charles’s or Eddie’s motions to sever. Aside from Agent Baer’s

expert testimony, Charles complains of two categories of evidence that he claims

were improperly admitted: (1) evidence that crack cocaine and weapons were being

sold at the Mathers Street house during the course of the conspiracy; and



                                             7
(2) evidence that crack cocaine and weapons were being sold at the Mathers Street

house prior to the start of the conspiracy. Because, as discussed below, we

conclude the district court did not abuse its discretion by admitting the evidence

about which Charles complains, we also conclude there was no cumulative error

that rendered Charles’s or Eddie’s trial fundamentally unfair.

A.    Evidentiary rulings

      Rule 404(b) provides “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” Fed. R. Evid. 404(b). Such evidence “may, however, be admissible

for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Id.

      For evidence of other crimes or acts to be admissible under Rule
      404(b), (1) it must be relevant to an issue other than defendant’s
      character; (2) there must be sufficient proof to enable a jury to find by
      a preponderance of the evidence that the defendant committed the
      act(s) in question; and (3) the probative value of the evidence cannot
      be substantially outweighed by undue prejudice, and the evidence
      must satisfy Rule 403.

      But evidence of criminal activity other than the charged offense is not
      extrinsic under Rule 404(b), and thus falls outside the scope of the
      Rule, when it is (1) an uncharged offense which arose out of the same
transaction or series of transactions as the charged offense, (2) necessary to
complete the story of the crime, or (3) inextricably intertwined with the evidence
regarding the charged offense.




                                          8
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (quotations

omitted). “A defendant who enters a not guilty plea makes intent a material issue

which imposes a substantial burden on the government to prove intent, which it

may prove by qualifying Rule 404(b) evidence absent affirmative steps by the

defendant to remove intent as an issue.” United States v. Zapata, 139 F.3d 1355,

1358 (11th Cir. 1998).

      1.     Evidence of Crack Cocaine and Firearm Transactions During the
             Course of the Conspiracy

      The indictment alleged that beginning “on or about November 18, 2005, and

continuing through on or about February 3, 2006,” Charles and Eddie conspired

with Riles to distribute and possess crack cocaine. The indictment also charged

that both Eddie and Charles possessed a firearm in furtherance of the conspiracy

charges in Count I. Thus, the evidence that Charles identifies in his brief

concerning drug and firearm transactions that occurred during the course of the

conspiracy was not “[e]vidence of other crimes, wrongs, or acts,” and the district

court did not abuse its discretion in admitting the evidence.

      2.     Evidence of Crack Cocaine and Firearm Transactions Prior to the
             Start of the Conspiracy

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

regarding purchasing drugs from “Eau Gallie,” which he identified as Eddie and



                                          9
Charles’s home during 2004 and 2005. Lloyd’s testimony was not extrinsic to

either Eddie or Charles because it was necessary to complete the story of the crime,

the testimony was probative to establish Lloyd’s history of purchasing drugs, and

the testimony was not substantially outweighed by the danger of unfair prejudice.

See Edouard, 485 F.3d at 1344.

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

testimony regarding purchasing firearms from Charles and having been in

Charles’s bedroom on prior occasions for the purpose of obtaining firearms and

cocaine. Lloyd’s testimony was not extrinsic evidence because it was both

necessary to complete the story of the crime and inextricably intertwined with the

evidence regarding the conspiracy and the firearm charges that occurred during the

course of the conspiracy. See id.

      Further, the district court did not abuse its discretion by admitting Riles’s

testimony regarding obtaining crack cocaine from Charles prior to the conspiracy’s

start date because (1) Charles placed his intent at issue, (2) Charles failed to

present any evidence to rebut Riles’s testimony, and, therefore, a jury could have

found by a preponderance of the evidence that he committed the extrinsic act, and

(3) the probative value of the evidence was not substantially outweighed by undue

prejudice. See Zapata, 139 F.3d at 1358.



                                           10
B.    Expert testimony

       Federal Rule of Evidence 702 provides:

      If scientific, technical, or other specialized knowledge will assist the
      trier of fact to understand the evidence or to determine a fact in issue,
      a witness qualified as an expert by knowledge, skill, experience,
      training, or education, may testify thereto in the form of an opinion or
      otherwise, if (1) the testimony is based upon sufficient facts or data,
      (2) the testimony is the product of reliable principles and methods,
      and (3) the witness has applied the principles and methods reliably to
      the facts of the case.

Fed. R. Evid. 702. “‘The operations of narcotics dealers are a proper subject for

expert testimony under Rule 702.’” United States v. Garcia, 447 F.3d 1327, 1335

(11th Cir. 2006) (citation omitted). Further, we have “recognized the

‘well-established’ ‘rule’ that ‘an experienced narcotics agent’ may testify as an

expert to help a jury understand ‘the significance of certain conduct or methods of

operation unique to the drug distribution business.’” Id. (citation omitted).

Moreover, we have “affirmed the admission under Rule 702 of the expert

testimony of a police officer interpreting ‘drug codes and jargon.’” Id. (citations

omitted).

      The district court did not abuse its discretion by permitting Agent Baer to

testify as an expert witness. Agent Baer was an “experienced narcotics agent,” and

his testimony could have helped the jury understand the evidence. Further, Agent

Baer’s testimony was probative because it was the type of testimony that could

                                          11
help the jury understand “the significance of certain conduct or methods of

operation unique to the drug distribution business.” See id.

                                          III.

      Charles’s final argument is that mandatory minimum sentences are

unconstitutional when they provide for exceptions that can only be applied by

motion from the executive branch. Therefore, Charles contends 21 U.S.C. § 841 is

unconstitutional and violates the doctrine of separation of powers. Charles states

he is “[c]ognizant of current precedent contrary to his position,” but wishes to

preserve the issue for further review. Eddie adopted this issue in his brief.

      In United States v. Holmes, we held that statutory mandatory minimum

sentences do not violate the separation of powers doctrine, stating “[i]t is for

Congress to say what shall be a crime and how that crime shall be punished.” 838

F.2d 1175, 1178 (11th Cir. 1988) (citation omitted). In light of our binding

precedent, this argument is without merit.

                                          IV.

      Eddie asserts the district court erred by failing to grant his motion for

judgment of acquittal for the conspiracy charge in Count I because the

Government’s evidence showed only that there was cocaine in the house that was

occupied at various time by Eddie and others. According to Eddie, in order for the



                                           12
jury to have concluded that there was a conspiracy among him and the other

defendants, the jury must have assumed facts that were not in evidence.

      We review de novo a district court’s denial of judgment of acquittal on

sufficiency of evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-12

(11th Cir. 2006) (en banc). In considering the sufficiency of the evidence, we view

all of the evidence “in the light most favorable to the government, with all

inferences and credibility choices drawn in the government’s favor.” United States

v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006). We “cannot reverse a conviction

for insufficiency of the evidence unless . . . we conclude that no reasonable jury

could find proof beyond a reasonable doubt.” United States v. Jones, 913 F.2d

1552, 1557 (11th Cir. 1990). In addition, at least where some corroborative

evidence of guilt exists for the charged offense, “a statement by a defendant, if

disbelieved by the jury, may be considered as substantive evidence of the

defendant’s guilt.” United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995)

(emphasis in original). “To be more specific, we have said that, when a defendant

chooses to testify, he runs the risk that if disbelieved ‘the jury might conclude the

opposite of his testimony is true.’” Id. (citation omitted).

      To support a conviction for conspiracy to distribute crack cocaine, the

government must establish (1) an illegal agreement existed to possess with the



                                           13
intent to distribute crack cocaine, (2) the defendant knew of the agreement; and

(3) the defendant knowingly and voluntarily joined in the agreement. See United

States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002). Further, “[b]ecause the

crime of conspiracy is ‘predominantly mental in composition,’ it is frequently

necessary to resort to circumstantial evidence to prove its elements.” United States

v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998) (citations omitted).

      Viewing the evidence in the light most favorable to the Government, the

jury’s determination that Eddie was guilty of conspiracy to possess with intent to

distribute crack cocaine is supported by the evidence. The jury reasonably could

have found that a conspiracy to sell crack cocaine from the Mathers Street house

existed among Charles, Eddie, and Riles because Riles testified he obtained crack

cocaine from Charles at the Mathers Street house, and, on three or four occasions,

Riles sold crack cocaine out of the house on Charles’s behalf. Riles also testified

that others came to the Mathers Street house to buy crack cocaine from Charles.

Eddie participated in conspiracy because: (1) Lloyd bought crack cocaine from

Eddie on at least three separate occasions; (2) Lloyd bought crack cocaine from

both Eddie and Charles on two occasions; and (3) Riles acted as a lookout for

Eddie during the February 3, 2006 transaction. Riles also testified he observed

Eddie “cooking” cocaine at the Mathers Street house “a few times.” Det.



                                         14
Mercaldo’s testimony that he observed numerous people, including local

prostitutes, frequent the Mathers Street house, corroborated Lloyd’s and Riles’s

testimony that the house was being used by Eddie, Charles, and Riles to sell crack

cocaine. Although Eddie testified he did not live at the Mathers Street house, and

he denied ever having cooked or sold crack cocaine, the jury was free to disbelieve

him and consider his testimony as substantive evidence of his guilt. See Brown, 53

F.3d at 314. Thus, based on the evidence presented, a jury could have reasonably

inferred that: (1) an illegal agreement existed to possess with intent to distribute

crack cocaine: (2) Eddie knew of the agreement; and (3) Eddie knowingly and

voluntarily joined in the agreement. See Charles, 313 F.3d at 1284. Therefore, the

district court did not err by failing to grant Eddie’s motion for judgment of

acquittal.

                                                V.

       Eddie contends the district court erred by holding him responsible for 50

grams or more of crack cocaine because the evidence showed he was responsible

for only 35 to 50 grams of crack cocaine.1


       1
           After the briefs were filed, Eddie filed a letter of supplemental authority, pursuant to
Fed. R. App. P. 28(j). According to Eddie, application of the changes contained in Amendment
706 of the 2007 version of the Guidelines results in a two-level reduction of his base offense
level. Although Eddie might be eligible for a reduction of his base offense level, this issue is not
before us on this appeal as the district court has made no decision on whether Eddie is or is not
entitled to a reduction.

                                                 15
      We review a sentencing court’s application of the Sentencing Guidelines de

novo. United States v. Edmonds, 348 F.3d 950, 952-53 (11th Cir. 2003). We

review a district court’s drug-quantity determination for clear error. United States

v. Mertilus, 111 F.3d 870, 873 (11th Cir. 1997).

      Eddie’s assertion he is responsible for less than 50 grams of crack cocaine is

without merit. The Government presented evidence at trial that Eddie was

responsible for more than 50 grams of cocaine, including testimony from persons

who bought crack cocaine, the crack cocaine itself, tape recordings of drug sales,

and expert testimony establishing the nature and weight of the crack cocaine. As

part of its verdict determination, the jury specifically found beyond a reasonable

doubt that 50 grams or more of crack cocaine were involved in the conspiracy

offense for which they found Eddie guilty. Thus, the district court did not clearly

err in finding him responsible for more than 50 grams of crack cocaine for

purposes of sentencing.

                                         VI.

      Finally, Eddie contends the district court erred by enhancing his sentence

under U.S.S.G. § 2D1.1(b)(1) because the jury acquitted him of the 18 U.S.C.

§ 924(c)(1) charges contained in Counts VIII and IX.




                                          16
      “We review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)

for clear error, and the application of the Sentencing Guidelines to those facts

de novo.” United States v. Gallo, 195 F.3d 1278, 1280 (11th Cir. 1999).

“Possession of a firearm for sentencing purposes is a factual finding.” United

States v. Geffrard, 87 F.3d 448, 452 (11th Cir. 1996).

      A defendant’s offense level should be increased by two levels “[i]f a

dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1).

“The adjustment should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1,

comment. (n.3). “The government has the burden under § 2D1.1 to demonstrate

the proximity of the firearm to the site of the charged offense by a preponderance

of the evidence.” United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001).

The government need not prove that the firearm was used to facilitate the

distribution of drugs. Id. “If the government is successful, the evidentiary burden

shifts to the defendant to demonstrate that a connection between the weapon and

the offense was ‘clearly improbable.’” Id. “Relevant conduct of which a defendant

was acquitted . . . may be taken into account in sentencing for the offense of

conviction, as long as the government proves the acquitted conduct relied upon by




                                          17
a preponderance of the evidence.” United States v. Barakat, 130 F.3d 1448, 1452

(11th Cir. 1997).

      Eddie’s argument the firearm enhancement is inapplicable because the jury

acquitted him of the § 924(c) charges is without merit. The Government was only

required to demonstrate by a preponderance of the evidence that the firearm was

present during the drug transaction. See Audain, 254 F.3d at 1289. Lloyd testified

at trial that Eddie usually carried a gun in his pocket, and he believed Eddie was

carrying a gun in his front pocket during the February 3, 2006, transaction because

Lloyd saw a bulge in Eddie’s front pocket. Lloyd made a controlled purchase of

crack cocaine from Eddie that day using $1,900 worth of bills that were provided

by Det. Mercaldo. Det. Mercaldo testified the bills were photocopied prior to the

transaction. Eddie was arrested shortly after the transaction, and he was found

with a loaded firearm in his pocket and $1,900 worth of bills in his hand.

According to Det. Mercaldo, the serial numbers from the bills Eddie was holding

matched those in the photocopies. Thus, because the Government met its burden

of showing by a preponderance of the evidence a sufficient nexus between the

loaded firearm and the February 3, 2006, drug transaction, Eddie was required to

demonstrate that a connection between the weapon and the offense was clearly

improbable. See id. Eddie failed to meet his burden. Moreover, even though



                                          18
Eddie was acquitted of the § 924(c)(1) charges in Counts VIII and IX, his conduct

with regard to the firearm found in his possession that day was relevant for

purposes of sentencing. See Barakat, 130 F.3d at 1452. Therefore, the district

court did not clearly err in applying the § 2D1.1(b)(1) enhancement.

                                         VII.

      The district court did not abuse its discretion by denying the motions to

sever because neither Charles nor Eddie demonstrated they suffered compelling

prejudice from the joint trial. Second, neither Charles nor Eddie was entitled to a

new trial because the cumulative effect of evidentiary errors and the denial of the

motions to sever did not render the trial fundamentally unfair. Third, this Court’s

binding precedent precludes Charles’s and Eddie’s argument that the mandatory

minimum provisions of 21 U.S.C. § 841 are unconstitutional on the ground the

provisions violate the doctrine of separation of powers.

      Additionally, there was sufficient evidence to support Eddie’s conviction for

conspiracy because a reasonable jury could have concluded beyond a reasonable

doubt that: (1) an illegal agreement existed to possess with intent to distribute

crack cocaine; (2) Eddie knew of it; and (3) Eddie knowingly and voluntarily

joined the agreement. Next, the district court did not clearly err in holding Eddie

responsible for 50 grams of crack cocaine because the jury specifically found that



                                          19
50 grams or more of crack cocaine were involved in the conspiracy offense for

which Eddie was convicted. Third, the district court did not clearly err in its

application of the § 2D1.1(b)(1) firearm enhancement, because Eddie did not meet

his burden of showing that a connection between the firearm he possessed at the

time of his arrest and the drug trafficking offense was clearly improbable.

Accordingly, we affirm Charles’s and Eddie’s convictions and sentences.

      AFFIRMED.




                                          20
