           Case: 12-15113   Date Filed: 06/12/2013   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15113
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:12-cr-00065-JDW-AEP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DEMETRIUS GREGORY FLOYD,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 12, 2013)

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
              Case: 12-15113     Date Filed: 06/12/2013    Page: 2 of 8


      Demetrius Floyd appeals his conviction for possession of crack cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1), claiming that the district

court improperly admitted, under Fed.R.Evid. 403, 404(b), his 14-year-old

conviction for possessing and delivering cocaine. The trial evidence showed that

police found Floyd and several other individuals inside a Florida residence

containing drug paraphernalia and substantial amounts of crack cocaine, most of

which was inside the bedroom that Floyd was seen exiting and that contained

Floyd’s driver’s license and a document addressed to him. His prior conviction for

possession and delivery of cocaine was presented to the jury as an oral stipulation

for the purposes of proving intent and knowledge, after which, the court read two

Rule 404(b) limiting instructions. Before trial and after the close of evidence,

Floyd requested that a simple possession instruction be given to the jury along with

his charged offense, but the court declined to issue the instruction. The jury found

Floyd guilty, and he was sentenced to 360 months’ imprisonment.            On appeal,

Floyd argues that the court abused its discretion in admitting evidence of his prior

cocaine conviction. After thorough review, we affirm.

      We review the district court’s ruling on the admission of evidence for abuse

of discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).

Rule 404(b) provides, in relevant part, that evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in


                                          2
                Case: 12-15113       Date Filed: 06/12/2013      Page: 3 of 8


conformity therewith. Fed.R.Evid. 404(b)(1). This 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.

Fed.R.Evid. 404(b)(2). The following three-step test must be satisfied for evidence

to be admitted under Rule 404(b): (1) the extrinsic offense must be relevant to an

issue other than the defendant’s character; (2) there must be proof that the

defendant committed the offense; and (3) the evidence must possess probative

value that is not substantially outweighed by its undue prejudice and must meet the

other requirements of Rule 403. United States v. Matthews, 431 F.3d 1296, 1310-

11 (11th Cir. 2005). Rule 404(b) is a rule of inclusion, thus 404(b) evidence

should generally be admitted when essential to establishing a case. United States

v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).

       Concerning prong one, we have held that, if the relevant issue is intent, the

prior act must have required the same state of mind as the charged offense. United

States v. Beechum, 582 F.2d 898, 914 (5th Cir. 1978).1 Further, a defendant who

enters a not guilty plea makes intent a material issue, especially when he presents a

“mere presence” defense, thus “imposing a substantial burden on the government




1
       In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
                                               3
              Case: 12-15113    Date Filed: 06/12/2013   Page: 4 of 8


to prove intent,” which the government may do using qualifying Rule 404(b)

evidence. United States v. Delgado, 56 F.3d 1357, 1365-66 (11th Cir. 1995).

      As for prong two, extrinsic evidence of a prior conviction provides sufficient

proof that the defendant committed the prior bad act. Id. at 1365. In addressing

prong three, the district court must engage in “a common sense assessment of all

the circumstances surrounding the extrinsic offense, including prosecutorial need,

overall similarity between the extrinsic act and the charged offense, as well as

temporal remoteness,” in determining whether Rule 404(b) evidence is more

probative than prejudicial. United States v. Brown, 587 F.3d 1082, 1091 (11th Cir.

2009) (quotations omitted).

      We have declined to adopt a bright-line rule regarding temporal remoteness

between the extrinsic act and the charged offense. Matthews, 431 F.3d at 1311-12.

We have also held that an intervening period of 15 years did not render extrinsic

evidence of small-scale marijuana convictions inadmissible, despite the

convictions’ “differing nature and remoteness in time” from the defendant’s

charged participation in a large-scale cocaine deal. United States v. Lampley, 68

F.3d 1296, 1300 (11th Cir. 1995).

      Evidence of prior drug dealings is highly probative of intent in subsequent

charges of conspiracy and distribution of a controlled substance. United States v.

Diaz-Lizaraza, 981 F.2d 1216, 1224-25 (11th Cir. 1993). We have held that Rule


                                         4
               Case: 12-15113     Date Filed: 06/12/2013     Page: 5 of 8


404(b) evidence is especially probative when the government lacks credible

witnesses to testify as to a defendant’s intent to distribute, and when the

defendant’s defense relies on mere presence or “non-participation.” Id. at 1225.

Further, any unfair prejudice caused by admitting extrinsic evidence is mitigated

by the issuance of a limiting instruction to the jury. Id.

      We will reverse an erroneous evidentiary ruling “only if the resulting error

was not harmless.” United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999),

modified by 194 F.3d 1186 (11th Cir. 1999); see also Fed.R.Crim.P. 52(a). An

error in admitting Rule 404(b) evidence is harmless unless it caused “actual

prejudice because it had substantial and injurious effect or influence in determining

the jury’s verdict.” United States v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir.

2010) (quotations omitted).

      Lastly, to establish a violation of 21 U.S.C. § 841(a)(1), the offense with

which Floyd was charged, the government must prove beyond a reasonable doubt

that the defendant (1) knowingly (2) possessed a controlled substance (3) with the

intent to distribute that substance. See United States v. Woodward, 531 F.3d 1352,

1360 (11th Cir. 2008).

      In this case, Floyd has failed to establish that the district court abused its

discretion in concluding that Floyd’s prior conviction for possession and delivery

of cocaine was admissible for the non-propensity purposes of establishing Floyd’s


                                           5
              Case: 12-15113     Date Filed: 06/12/2013    Page: 6 of 8


intent and knowledge. See Fed.R.Evid. 404(b). First, the court was justified in

concluding that, because Floyd pled not guilty and did not expressly remove intent

as an issue, he thereby made intent an issue. See Delgado, 56 F.3d at 1365-66.

Although Floyd criticizes the rule that a not-guilty plea necessarily places intent at

issue, arguing that the subject should be addressed on a case-by-case basis, we

have repeatedly held to the contrary. See, e.g., Matthews, 431 F.3d at 1311.

      At trial, Floyd relied on the defense that he was merely present at the house

and also requested a jury instruction on simple possession, which would have

placed his intent directly at issue. The government made clear that its primary

reason for admitting the conviction was to refute the foreseeable argument

regarding simple possession, and, after the court denied to give the instruction, the

government intentionally refrained from emphasizing the conviction during its

closing arguments. Floyd argues that, because the parties did not know whether

the court would grant his request, and because the court, in fact, denied his request,

his intent never became an issue. However, since Floyd made the request before

trial and renewed it after all the evidence had been presented, including his prior

conviction, the fact that the court ultimately denied his request was irrelevant to the

government’s apparent need for the evidence while the matter was unresolved.

      Second, it reasonable for the court to conclude that Floyd was contesting his

knowledge of the characteristics of the substance found in his possession. Indeed,


                                          6
              Case: 12-15113     Date Filed: 06/12/2013    Page: 7 of 8


Floyd presented a mere presence defense, which implied that he had no unlawful

mindset regarding the crack cocaine. See Diaz-Lizaraza, 981 F.2d at 1225.

      Further, Floyd failed to demonstrate that the court abused its discretion in

conducting the Rule 403 balancing test. Because an intervening period of as much

as 15 years does not, alone, render evidence of prior convictions inadmissible, the

14-year gap between Floyd’s prior conviction and his current offense did not

preclude the admission of his prior conviction. See Lampley, 68 F.3d at 1300.

Additionally, since both the prior and current offenses involved possession, with

intent to distribute or deliver, cocaine in some form in street-level transactions, the

past offense is similar enough to provide significant probative value in this case.

      Though Floyd emphasizes the difference in relevance between admitting

prior offenses to prove intent versus knowledge, he fails to address that one of the

government’s purposes for admitting the prior offense was to prove that he

knowingly possessed crack cocaine. For the same reasons, Floyd’s argument --

that his prior conviction was irrelevant to proving possession -- is also flawed.

Moreover, the court mitigated any unfair prejudice by presenting the prior

conviction orally, as a factual stipulation, rather than admitting a paper copy, and

by giving the jury multiple limiting instructions regarding the proper use of the

evidence. See Diaz-Lizaraza, 981 F.2d at 1225.




                                          7
              Case: 12-15113     Date Filed: 06/12/2013    Page: 8 of 8


      Regardless, even if the court abused its discretion in admitting the evidence

of Floyd’s prior conviction, any error was harmless. The alleged error was not

reasonably likely to have affected Floyd’s substantial rights, since there was

sufficient evidence supporting the verdict unrelated to his prior conviction. See

Phaknikone, 605 F.3d at 1109. In fact, other evidence showed that: (1) officers

detained Floyd as he walked out of a bedroom containing, in plain view, recently

cooked crack cocaine and paraphernalia consistent with distribution; (2) Floyd had

$1,465 in small bills bundled in his pockets, which was consistent with street-level

distribution; (3) in that bedroom, Floyd’s driver’s license and a court document

addressed to him were discovered in the same chest of drawers as several bags of

crack cocaine; and (4) Floyd’s DNA was consistent with the DNA recovered from

several of the bags of crack cocaine found in that bedroom. See id. Based on this

evidence, a reasonable jury could have found beyond a reasonable doubt that Floyd

possessed crack cocaine with intent to distribute it. See id.

      In short, because the district court’s admission of the Rule 404(b) evidence

was not an abuse of discretion and, moreover, did not influence the outcome of the

case, we affirm.

      AFFIRMED.




                                          8
