                                                                     [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________                       FILED
                                                                   U.S. COURT OF APPEALS
                                    No. 08-12446                     ELEVENTH CIRCUIT
                              ________________________                 AUGUST 12, 2009
                                                                      THOMAS K. KAHN
                                                                           CLERK
                      D. C. Docket No. 07-00250-CR-5-RDP-JEO

UNITED STATES OF AMERICA,

                                                                         Plaintiff-Appellee,

                                           versus

TAURUS JAVIER BLACKBURN,
JEREMY TRAVON MALONE,

                                                                   Defendants-Appellants.

                              ________________________

                     Appeals from the United States District Court
                        for the Northern District of Alabama
                           _________________________

                                     (August 12, 2009)

Before CARNES and PRYOR, Circuit Judges, and STAGG,* District Judge.

PER CURIAM:

       Taurus Javier Blackburn and Jeremy Travon Malone appeal their

       *
        Honorable Tom Stagg, United States District Judge for the Western District of
Louisiana, sitting by designation.
convictions for conspiracy to distribute and possess with intent to distribute

cocaine base (“crack cocaine”) pursuant to 21 U.S.C. §§ 841 and 846.

Additionally, Blackburn appeals his conviction for distribution of crack cocaine

pursuant to 21 U.S.C. § 841(a)(1). On appeal, Blackburn and Malone contend that

the evidence was insufficient to support their convictions. Blackburn further

contends that the district court abused its discretion by giving the jury an Allen 1

charge. Additionally, Malone contends that the district court abused its discretion

(1) in dismissing a prospective juror for cause for stating that he would require the

government to prove the defendants’ guilt to a mathematical certainty, (2) by

permitting testimony that six one-gallon bags of marijuana were discovered in

Malone’s apartment at the time of his arrest, and (3) by permitting testimony that

Malone escaped and fled after he was arrested.

                                I. Sufficiency of the evidence

      We review challenges to the sufficiency of the evidence de novo, with the

evidence viewed in the light most favorable to the government. See United States

v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). A defendant’s conviction must

be affirmed unless a jury could not, under a reasonable construction of the

evidence, have found him guilty beyond a reasonable doubt. See id. The



      1
          Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896).

                                                 2
sufficiency of the government’s evidence to convict Malone depends solely upon

its case-in-chief, as Malone did not present a defense. See United States v. Belt,

574 F.2d 1234, 1236-37 (5th Cir. 1978)2.

       To convict a defendant for distribution of crack cocaine, the government

must prove that the defendant knowingly and intentionally distributed the crack

cocaine. See 21 U.S.C. § 841(a)(1). To convict a defendant for conspiracy to

possess with intent to distribute cocaine, the government must establish beyond a

reasonable doubt that (1) there was an illegal agreement to distribute crack cocaine,

(2) of which the defendant was aware, and (3) he knowingly and voluntarily joined

it. See United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005). The

illegal agreement prong requires the government to prove that the defendant came

to a “meeting of the minds” with someone else to achieve the unlawful result. See

United States v. Arbane, 446 F.3d 1223, 1229 (11th Cir. 2006). The agreement can

be proved by circumstantial evidence, including the conduct of the alleged

participants. See United States v. Obregon, 893 F.2d 1307, 1311 (11th Cir. 1990).

       When the government uses circumstantial evidence, the jury’s verdict must

be supported by reasonable inferences, and not mere speculation. See United



       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we
adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

                                               3
States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002). The evidence does not

have to exclude every reasonable hypothesis of innocence, as a jury is permitted to

choose between reasonable constructions of the evidence. See United States v.

Cruz-Valdez, 773 F.2d 1541, 1545 (11th Cir. 1985) (en banc). Additionally, a jury

may consider a defendant’s disbelieved testimony as substantive evidence of his

guilt, and when there is corroborative evidence of guilt, the defendant’s denial of

guilt may establish, by itself, elements of the crime. See United States v. Brown,

53 F.3d 312, 314-15 (11th Cir. 1995). This rule especially applies when the

element that must be proven is the defendant’s intent. See id. at 315.

      Here, the evidence, when viewed in the light most favorable to the

government, was sufficient to support both Blackburn’s and Malone’s conspiracy

convictions. Contrary to Malone’s assertion, the government did not have to prove

that he possessed crack cocaine because he was not charged with possession of

crack cocaine but with conspiring to distribute and to possess with intent to

distribute crack cocaine. It is reasonable to infer that Blackburn and Malone

knowingly and voluntarily conspired and agreed to distribute and possess with

intent to distribute crack cocaine because (1) Malone mailed a package to

Blackburn, who mailed it back two days later filled with 82.37 grams of powder

cocaine, 50.53 grams of crack cocaine, and 12.1 grams of marijuana, (2) Blackburn



                                          4
was visibly nervous, used a false name and return address, and listed an inoperative

telephone number, (3) Blackburn and Malone talked several times during the

course of the package being shipped back and forth, including talking five times

over the phone on the date that Blackburn mailed the package back to Malone, and

(4) Malone used his and his mother’s computers to continually check on the

delivery status of the package. Additionally, it is reasonable to infer that

Blackburn would not have mailed $6,500 to $7,000 worth of drugs, including

50.53 grams of crack cocaine worth $2,500, to Malone unless Blackburn and

Malone had an agreement to possess the drugs with intent to distribute them. See

United States v. Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997) (stating that it

is reasonable to infer that drug smugglers are not likely to entrust the drugs to an

innocent person without the person’s knowledge). Further, the jury’s finding that

Blackburn’s testimony denying his guilt was false is substantive evidence that he

conspired with Malone to distribute and possess with intent to distribute crack

cocaine.

      The evidence was also sufficient to establish that Blackburn knowingly

distributed crack cocaine by mailing the package, as (1) he was visibly nervous, (2)

he used a false name and address, (3) he listed an inoperative telephone number,

(4) he paid in cash, and (5) he taped the package so that all of the openings were



                                           5
covered. Again, because there is corroborative evidence of guilt, Blackburn’s

disbelieved testimony that he did not know the package contained drugs is

substantive evidence that he knowingly mailed the crack cocaine.

                                   II. Allen charge

      We review the giving of an Allen charge for an abuse of discretion. See

United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008). A district court

abuses its discretion only if the charge was inherently coercive. See id. In

determining whether the charge was coercive, we consider the language used and

the totality of the circumstances surrounding the charge, including (1) whether the

jury was polled before the charge was given, and (2) the amount of time that

elapsed between the charge and the return of the verdict. See id. We have held

that the language of the pattern Allen charge is non-coercive. See id. In Woodard,

we held that the district court did not abuse its discretion in giving a pattern Allen

charge where there was no jury poll because (1) the court did not give the charge

until after the second time that the jurors informed the court that they were

deadlocked and (2) the jurors deliberated for four hours after the charge before

they returned a verdict. See id.

      The district court did not err by giving the Allen charge because the court

gave the pattern instruction after the jurors informed the court for a second time



                                           6
that they were deadlocked, and the jurors deliberated for a day after the charge was

given.

                       III. Striking of prospective juror for cause

         We review the district court’s decision to strike a prospective juror for cause

for an abuse of discretion. See United States v. Brown, 441 F.3d 1330, 1356 (11th

Cir. 2006). A prospective juror can be impartial if he can set his personal opinions

aside and render a verdict based solely on the evidence. See United States v.

Simmons, 961 F.2d 183, 184 (11th Cir. 1992). Because the district court had the

opportunity to see and hear the juror, we must give deference to the district court’s

determination that the juror will be unable to apply the law faithfully. See Brown,

441 F.3d at 1357. There are few aspects of a jury trial where we are less inclined

to reverse a district court’s exercise of discretion than with regard to striking a

juror for cause. See United States v. Tegzes, 715 F.2d 505, 509 (11th Cir. 1983).

         The district court determined that the juror in question could not put aside

his personal opinions and render a verdict based upon the evidence because the

juror (1) testified that he would have a problem with passing any sort of judgment

based upon circumstantial evidence and (2) stated several times that he would

require that guilt or innocence be established to a mathematical certainty. While

the juror did not speak up when the panel was asked as a whole if they would have



                                             7
trouble following the district court’s instructions, when the question was asked to

this juror personally, he stated that he would have trouble following the district

court’s instructions with regard to finding guilt based upon circumstantial

evidence.

      After hearing and observing the juror, the district court did not abuse its

discretion in concluding that the juror would not be able to set aside his view that

guilt or innocence had to be established to a mathematical certainty. See Simmons,

961 F.2d at 184; Brown, 441 F.3d at 1357. Additionally, the district court was not

required to inquire further about the juror’s views because the juror stated clearly

that he would not be able to pass judgment based upon circumstantial evidence,

and the parties had a full opportunity to question the juror prior to the court’s

ruling.

                 IV. Evidence seized at the time of Malone’s arrest

      We review evidentiary rulings for an abuse of discretion. See United States

v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). Federal Rule of Evidence 404(b)

provides:

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such as
      proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident. . . .



                                           8
Fed. R. Evid. 404(b). We apply a three-part test in determining whether prior bad

acts were admissible under Rule 404(b): (1) the evidence was relevant for a reason

other than for establishing the defendant’s character; (2) the probative value of the

evidence was not substantially outweighed by undue prejudice; and (3) there was

substantial evidence presented at trial that the defendant committed the prior act.

See United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008). It is irrelevant

whether the defendant committed the other crimes that are introduced under Rule

404(b) after, rather than before, he committed the charged offense. See United

States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). We do not need to

consider the third prong when the defendant does not challenge the sufficiency of

the evidence supporting the extrinsic act. See United States v. Matthews, 431 F.3d

1296, 1311 n.14 (11th Cir. 2005).

      Malone argues that the district court abused its discretion by permitting

testimony that marijuana and drug paraphernalia were found in his apartment at the

time of his arrest because possession of marijuana was dissimilar to his charged

conspiracy to possess with intent to distribute crack cocaine. Malone contends that

the probative value of the evidence was substantially outweighed by the danger of

unfair prejudice, arguing that the extrinsic evidence was the only evidence that

suggested that he was involved with drugs.



                                           9
      The officer’s testimony regarding the items found in Malone’s apartment

was introduced to establish Malone’s intent to enter into the conspiracy, and he

made his intent a material issue by pleading not guilty. See Ellisor, 522 F.3d at

1267; Matthews, 431 F.3d at 1310-11. While Malone is correct that there are

factual dissimilarities between the charged offense and the extrinsic evidence, the

required degree of similarities between the evidence and the charged offense was

low because the extrinsic evidence was introduced to establish intent in a drug

case. See Matthews, 431 F.3d at 1311; Delgado, 56 F.3d at 1366. Further, the

probative value of the extrinsic evidence was not substantially outweighed by

undue prejudice because the evidence was necessary for establishing intent. The

district court properly instructed the jurors that they could only consider the

evidence in determining whether Malone had the intent necessary to commit the

charged offense, not in deciding if he committed the underlying acts. See United

States v. Jernigan, 341 F.3d 1273, 1282-83 (11th Cir. 2003). Therefore, the district

court did not abuse its discretion by permitting evidence that six one-gallon bags of

marijuana were found in Malone’s apartment when he was arrested.

                           V. Evidence of Malone’s flight

      We review the admission of flight evidence for an abuse of discretion, and

we will not reverse absent a showing of clear abuse. See United States v. Blakey,



                                          10
960 F.2d 996, 1001 (11th Cir. 1992). Evidence of flight is admissible to establish a

consciousness of guilt, and thereby the defendant’s guilt. See id. at 1000. The

probative value of such evidence diminishes “if the defendant has committed

several unrelated crimes or if there has been a significant time delay between the

commission of the crime or the point at which the accused has become aware that

he is the subject of a criminal investigation, to the time of flight.” Id. at 1000-01

(citation omitted).

      The interpretation to be drawn from a defendant’s flight should be made

with caution and based upon the facts of the particular case. See United States v.

Borders, 693 F.2d 1318, 1325 (11th Cir. 1982). The probative value of flight as

circumstantial evidence of guilt depends upon how confidently these four factual

inferences can be drawn: “(1) from the defendant’s behavior to flight; (2) from

flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of

guilt concerning the crime charged; and (4) from consciousness of guilt concerning

the crime charged to actual guilt of the crime charged.” Id. The more remote a

defendant’s flight is from the commission of an offense, the greater the likelihood

that the defendant’s flight resulted from something other than a consciousness of

guilt with regard to that offense. See United States v. Myers, 550 F.2d 1036, 1051

(5th Cir. 1977); Borders, 693 F.2d at 1326.



                                           11
      Malone contends that the district court abused its discretion by permitting

evidence regarding his attempted escape and resistance to arrest because he did not

attempt to escape or resist arrest until after he was informed that officers were

obtaining a search warrant for his apartment, which he contends establishes that his

actions were based upon his fear that officers would find marijuana in his

apartment, not that he had a guilty conscience regarding the charged offense. The

government counters that the evidence was properly admitted because evidence of

flight is admissible to demonstrate guilt and the district court instructed the jury

that there might have been reasons for Malone’s flight that were fully consistent

with his innocence.

      As this court has previously stated: “People, including jurors, realize that

while ‘[t]he wicked flee when no man pursueth,’ Proverbs 28:1 (KJV), they really

flee when law enforcement is looking for them.” United States v. Kennard, 472

F.3d 851, 855 (11th Cir. 2006). Malone fled shortly after he learned that he had

been indicted for the drugs found in the seized package charged in the conspiracy.

In addition, it appears Malone fled at the first available opportunity after he learned

about the federal charges. The testimony of the arresting officer during direct and

cross-examination only bolsters this conclusion:

      Q:     [W]hat, if anything, did you tell Mr. Malone as to why he was
             being arrested?

                                           12
       A:     I advised Mr. Malone that he was being arrested for the incident
              that had occurred the following -- the previous July and that he
              was under arrest for trafficking in cocaine.

See Volume 4 at 396. As anyone in the “drug trade” would know, jail time for 50

grams of crack cocaine far exceeds that to be meted out for several pounds of

marijuana.3

       Prior to the testimony of the officer, the court gave a limiting instruction to

the jury which stated that the similar act evidence could not be considered in

deciding if Malone committed the acts charged in the indictment but that the acts

could be considered for other very limited purposes. See Volume 4 at 393-394. In

the final jury instructions, the court informed the jury that (1) post-arrest conduct is

not, in itself, sufficient to establish guilt; (2) evidence of flight “may” -- not must --

be considered by the jury as evidence of consciousness of guilt and of guilt; (3) in

considering the evidence of flight, there may be reasons for the conduct which are

fully consistent with innocence; and (4) “[a] feeling of guilty does not necessarily

reflect actual guilt of a crime.” Volume 5 at 640. The district court did not abuse

its discretion when it admitted evidence of Malone’s flight.

AFFIRMED.4

       3
        The difference would be between an offense level of 32 versus an offense level of 16.
See U.S.S.G. § 2D1.1(Drug Quantity Table).
       4
         This case was originally scheduled for oral argument, but the panel unanimously
decided that oral argument was not necessary. See 11th Cir. R. 34-3(f).

                                              13
