                                                                                [PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                           JUNE 14, 2012
                                            No. 11-11923
                                      ________________________              JOHN LEY
                                                                             CLERK

                           D.C. Docket No. 2:10-cr-00055-CEH-DNF-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                           Plaintiff - Appellee,

                                                versus

RODERICK L. COCHRAN,

llllllllllllllllllllllllllllllllllllllll                           Defendant - Appellant.

                                     ________________________

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

                                           (June 14, 2012)

Before WILSON, ANDERSON and HIGGINBOTHAM,* Circuit Judges.


         *
          Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
WILSON, Circuit Judge:

      Roderick Cochran was convicted for possessing with intent to distribute five

grams or more of cocaine base and possessing with intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1). The cocaine and cocaine base at

issue were discovered when officers searched a residence; Cochran was standing

in the driveway of that residence at the time of the search. The government’s

theory of the case was that although Cochran lacked actual possession of the

contraband, he constructively possessed the drugs. This circuit’s pattern jury

instruction regarding constructive possession states: “‘Constructive possession’ of

a thing occurs if a person doesn’t have actual possession of it, but has both the

power and the intention to take control over it later.” 11th Cir. Pattern Jury

Instructions (Criminal), Special Instruction 6 (2010). The government requested

that an additional sentence be added: “Constructive possession of a thing also

occurs if a person exercises ownership, dominion, or control over a thing or

premises concealing the thing.” The district court permitted the instruction over

Cochran’s objection.

      Cochran argues on appeal that this jury instruction was misleading as a

matter of law. He also argues that the district court abused its discretion by

admitting evidence of his prior drug-related offense, and he challenges the

                                          2
sufficiency of the evidence to sustain his convictions.

                                         I.

      On December 18, 2009, authorities executed a search warrant of the

residence at 110 Lucille Avenue while Cochran was standing in the driveway of

that home. Cochran was detained while officers conducted the search. Inside the

house, authorities found ammunition in a dresser drawer in one of the bedrooms; a

digital scale and a small quantity of cocaine in a dresser of another bedroom; small

bags containing cocaine and crack, two forks, and a measuring cup bearing drug

residue in the kitchen; and more bags of drugs and paraphernalia in a converted

living space that had previously been a garage.

      Cochran was indicted and charged with possessing ammunition after having

been convicted of a felony, 18 U.S.C. §§ 922(g)(1), 924(e), and 2 (count one);

possessing with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(iii) and 18 U.S.C. § 2 (count two); and possessing with intent to

distribute cocaine, 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (count

three). Cochran pled not guilty, and the case proceeded to trial.

      During trial, the government called Officer Candice Pettacio as a witness,

and she testified that she had been using binoculars to conduct surveillance of the

110 Lucille Avenue residence prior to the search on December 18, 2009. She

                                          3
stated that she was positioned about a block and a half away from the home and

had seen a black male, later identified as Cochran, exit and re-enter the residence

several times. On cross-examination, Cochran presented Pettacio with a number

of photographs of the area taken in 2010 and pointed out how trees and foliage

blocked the view of the residence from her alleged vantage point. Pettacio replied

that the photographs did not accurately depict what she recalled of the scene. She

also stated that she had returned to the neighborhood in August or September of

2010 and that new obstructions, such as cars and overgrown vegetation, had made

it impossible to see 110 Lucille Avenue from her prior point of observation. She

then reiterated her testimony that in 2009 she had been able to observe Cochran

leave and re-enter the house with the aid of her binoculars.

      Following Pettacio’s testimony, members of the SWAT team who raided the

home testified that they had seen no one in the house other than a young child.

The government then called Officer Kelly Witt as a witness. He recounted that he

had assisted with the search and had discovered in the kitchen two forks, a

measuring cup bearing drug residue, and a cigar box containing a number of small

plastic bags filled with drugs. Witt also found drugs and paraphernalia in one of

the bedrooms of the home and in the converted garage. Witt further stated that

during the search he encountered a piece of mail sitting on the kitchen table. The

                                          4
envelope was addressed to both Roderick Cochran and Rodnesha Cochran at 110

Lucille Avenue and listed “Life Skills” as the sender. Witt testified that he

searched Cochran and found in Cochran’s pocket a key that unlocked the door of

the residence. He also obtained Cochran’s driver’s license, which reflects that

Cochran’s address is 116, rather than 110, Lucille Avenue. On cross-examination,

Witt testified that no contraband had been found in the living room and that the

drugs in the kitchen were found on top of a kitchen cabinet, near the ceiling, and

in a cigar box under the microwave stand. He also confirmed that Cochran’s

fingerprints were not detected on any of the items seized in the search.

       The government also called Officer Dominic Zammit as a witness. Zammit

described the circumstances surrounding Cochran’s arrest in 2004, which involved

Cochran possessing packets of powder cocaine and marijuana.1 The district court

instructed the jury that Zammit’s evidence was only relevant to determine whether

Cochran had “the intent necessary for the crime charged, knowledge, motive, and

absence of mistake or accident.” After the government rested, Cochran moved for

a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The

district court denied the motion.



       1
         Prior to trial, the government filed a motion to admit evidence of Cochran’s 2004
offense. The district court granted that motion over Cochran’s objection.

                                                5
       The defense then called Cochran’s daughter, Rodnesha Cochran. She

testified that she had lived at 110 Lucille Avenue with her uncle for two or three

months but had moved out a few weeks before the police search. During the time

she lived in the home, she attended an educational institution called Life Skills.

Rodnesha stated that Cochran lived with his mother at 116 Lucille Avenue but had

visited 110 Lucille Avenue many times. She also testified that she had seen drugs

in the home on many occasions, that the house was heavily trafficked in the

evenings, and that she had witnessed her uncle using drugs. The principal of Life

Skills then testified that letters sent to students were addressed using a mailing

system that automatically added the student’s listed contact person as a recipient

but otherwise utilized only the student’s street address.

      The defense also called an investigator for the Federal Public Defender’s

Office who had photographed the area around 110 Lucille Avenue in August

2010. The investigator testified that it was impossible to view the residence from

Officer Pettacio’s alleged stake-out position.

      The government called rebuttal witness Demeitra Battle, Rodnesha’s

juvenile probation officer. Battle testified that Rodnesha had reported that she and

her father both resided at 110 Lucille Avenue. Battle also stated that Rodnesha

had said that she wanted to move out of the house at 110 Lucille Avenue because

                                          6
“her father was having company that she didn’t approve of.” Another officer

testified that he had been sent to the residence to check on Rodnesha and had

witnessed Cochran in the home.

      Following the close of evidence, the court discussed the proposed jury

instructions with the parties. The government requested that the jury be given a

possession instruction that consisted of the standard pattern instruction language

plus an additional sentence more tailored to the circumstances of the case:

      The law recognizes several kinds of possession . . . . Actual
      possession of a thing occurs if a person knowingly has direct physical
      control of it. Constructive possession of a thing occurs if a person
      doesn’t have actual possession of it but has both the power and the
      intention to take control over it later. Constructive possession of a
      thing also occurs if a person exercises ownership, dominion, or
      control over a thing or premises concealing the thing.

Cochran argued in response that the addition of the final sentence to the pattern

instruction omitted the knowledge element and stripped the instruction of the

essential “power and intention to take control” language. He also contended that

although evidence of dominion or control over the premises where contraband is

located may serve as circumstantial evidence, it does not automatically establish

constructive possession. The district court permitted the instruction over

Cochran’s objection.

      The court addressed the jury, beginning by advising it to follow all of the

                                         7
instructions as a whole. It read to the jury the definition of “knowingly” and later

in the instructions stated that the drug possession crimes required the defendant to

have “knowingly possessed” the drugs at issue. The court then recited another

paragraph of instructions before reaching its instruction regarding types of

possession, in which it delivered the objected-to language requested by the

government.

      After the jury retired for deliberations, it submitted a question to the court:

“If you have free access to a home then do you have constructive possession of the

contents?” The district court replied that it could not answer the question and

instructed the jury to consult the jury instructions. During deliberations the next

day, the jury again sent a note to the district court, this time asking: “Regarding

Count 1 [the ammunition charges] does the definition of constructive possession

apply to the phrase ‘knowingly possess?’” Again the district court referred the

jury to the jury instructions, refusing to answer the question.

      Ultimately, the jury returned a verdict finding Cochran not guilty of count

one, the ammunition charges, but guilty regarding count two and count three, the

drug offenses. Cochran was sentenced to 132 months in prison. This appeal

followed.

                                          II.

                                          8
       Cochran first argues, as he did below, that the jury instruction regarding

constructive possession was misleading as a matter of law. We review jury

instructions that were properly challenged below de novo to determine “whether

the instructions misstated the law or misled the jury to the prejudice of the

objecting party.” United States v. Felts, 579 F.3d 1341, 1342 (11th Cir. 2009) (per

curiam). We analyze the objected-to portion of the instructions “in light of the

entire charge” and we keep in mind “that isolated statements which appear

prejudicial when taken out of context may be innocuous when viewed in light of

the entire trial.” United States v. McCoy, 539 F.2d 1050, 1063 (5th Cir. 1976).2

We will reverse only if we have a “substantial and ineradicable doubt as to

whether the jury was properly guided in its deliberations.” United States v.

Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001) (quotation marks omitted).

       We agree with Cochran that there were a number of problems with the given

constructive possession instruction. The standard pattern jury instruction in this

circuit regarding constructive possession is: “‘Constructive possession’ of a thing

occurs if a person doesn’t have actual possession of it, but has both the power and

the intention to take control over it later.” 11th Cir. Pattern Jury Instructions


       2
         The Eleventh Circuit has adopted as binding precedent all Fifth Circuit cases handed
down on or before September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).

                                              9
(Criminal), Special Instruction 6 (2010) (emphasis added). The government’s

suggested addition that, “[c]onstructive possession of a thing also occurs if a

person exercises ownership, dominion, or control over a thing or premises

concealing the thing,” eliminates the “power and the intention to take control over

it later” language. That omission is especially troubling given that the definition

of “constructive possession” immediately follows the instruction that “[a]ctual

possession of a thing occurs if a person knowingly has direct physical control of

it.” 11th Cir. Pattern Jury Instructions (Criminal), Special Instruction 6 (2010)

(emphasis added). Such a juxtaposition could create an inference that constructive

possession, as defined by the government’s instruction, lacks an intentionality

requirement.

      Furthermore, the supplemented constructive possession instruction states

that control over the premises—rather than control over the contraband itself—is

sufficient to convict. Although we have found control of premises to be enough to

uphold a conviction on a sufficiency of the evidence challenge, see, e.g., United

States v. Poole, 878 F.2d 1389, 1392 (11th Cir. 1989) (per curiam), that does not

mean that the jury should be instructed that control of premises can serve as a sole

basis of conviction. We have indicated that the essence of constructive possession

is the power to control the contraband itself and that control of the premises

                                         10
simply permits an inference of that power. See United States v. Mieres-Borges,

919 F.2d 652, 657 (11th Cir. 1990) (“[C]onstructive possession . . . may be shown

circumstantially through evidence of ownership, dominion, or control over the

premises on which the substance is located.” (emphasis added)). It is the jury’s

choice and responsibility to draw inferences, see United States v. Henderson, 693

F.2d 1028, 1031 (11th Cir. 1982), and we disapprove of a jury instruction that

invades the jury’s province by implicitly mandating an inference.

      Although we agree that district courts should utilize a constructive

possession instruction more precise than the one given in this case, we cannot say

that we are left with a “substantial and ineradicable doubt” as to whether the jury

was properly guided here. It is an established principle that we evaluate a jury

instruction in the context of the overall charge. See United States v. Park, 421

U.S. 658, 674, 95 S. Ct. 1903, 1912 (1975). Thus, when making our review we

employ a holistic approach, rather than “isolating and examining the deficiencies

of individual instructions.” Lomelo v. United States, 891 F.2d 1512, 1518 (11th

Cir. 1990) (quotation marks omitted). We find that although the wording of the

final sentence of the constructive possession instruction would have been more

clear if it included language about knowledge or intent, that flaw is mitigated by

the totality of the instructions. Because here the jury instructions stated in a

                                          11
different section that possession of the contraband had to be knowing, the failure

to reiterate that requirement does not constitute reversible error. Additionally, the

government during trial and in its closing argument repeatedly emphasized that it

needed to prove that Cochran knowingly possessed the cocaine and cocaine base.

See Park, 421 U.S. at 674, 95 S. Ct. at 1913 (“[I]n reviewing jury instructions, our

task is also to view the charge itself as part of the whole trial.”). The jury’s

decision to convict Cochran of the drug charges but acquit him of the ammunition

charges demonstrates an understanding of that instruction, given that the

ammunition was hidden in a bedroom dresser drawer while the drugs were located

in plain sight in the converted garage and present in common areas of the home.

On the whole, we find that the wording of the jury instructions created a

difficulty—a difficulty that might have been avoided had the district court

answered the jury’s questions. However, we do not find that the jury was actually

misled or that Cochran was prejudiced by the instruction, given the circumstances

of the case and the fact that other provisions of the jury instructions laid out the

proper elements of the offense.

                                          III.

      Cochran next argues that the district court erred in admitting evidence of his

prior drug offense. We review the district court’s admission of Rule 404(b)

                                          12
evidence for abuse of discretion, United States v. Brown, 587 F.3d 1082, 1091

(11th Cir. 2009), and use a three-part test in our evaluation. “First, the evidence

must be relevant to an issue other than the defendant’s character.” United States v.

Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc). Second, “there must be

sufficient proof so that a jury could find that the defendant committed the extrinsic

act.” Id. “Third, the evidence must possess probative value that is not

substantially outweighed by its undue prejudice, and the evidence must meet the

other requirements of Rule 403.” Id.

      The government in this case was tardy in filing notice that it wished to

introduce prior crimes knowledge, but it claimed that its belatedness was due to

the fact that it had just learned that Cochran intended to raise as a defense the

argument that he did not live at 110 Lucille Avenue. Cochran contends that such

evidence is not relevant to the issue of where he resided. However, Cochran pled

not guilty, and “[a] defendant who enters a not guilty plea makes intent a material

issue.” United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995).

      Cochran also contends that his 2004 offense was too remote to be probative

and that the offense was dissimilar because it involved different drugs. We cannot

agree. We have approved of the introduction of evidence regarding acts more

remote than those at issue here. See, e.g., United States v. Matthews, 431 F.3d

                                          13
1296, 1311–12 (11th Cir. 2005) (per curiam) (offense was eight years prior);

United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (offense was

fifteen years prior). We have also held that prior convictions for drug trafficking

are considered highly probative of intent to commit the charged drug trafficking

offenses. Brown, 587 F.3d at 1091. Because the contested evidence was relevant,

sufficiently supported, and more probative than prejudicial, we find that the

district court did not abuse its discretion in granting its admission.

                                        IV.

      Finally, Cochran contends that the evidence presented at trial is not

sufficient to support his conviction. We review de novo whether there is sufficient

evidence to support the jury’s verdict and whether the district court properly

denied Cochran’s motions for a judgment of acquittal. United States v. Merrill,

513 F.3d 1293, 1299 (11th Cir. 2008). In doing so, we examine 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. Ortiz, 318

F.3d 1030, 1036 (11th Cir. 2003) (per curiam). We affirm a verdict if a reasonable

trier of fact could conclude that the evidence establishes guilt beyond a reasonable

doubt. Id.

      To support a conviction under 21 U.S.C. § 841(a)(1), the government had to

                                          14
show that Cochran had knowing possession of the drugs and an intent to distribute

them. See United States v. Faust, 456 F.3d 1342, 1345 (11th Cir. 2006).

Although Cochran acknowledges that a possession conviction may be upheld

where the government has shown that the defendant had dominion and control

over the premises containing the contraband, see United States v. Clay, 355 F.3d

1281, 1284 (11th Cir. 2004) (per curiam), Cochran argues that no reasonable jury

could have concluded that he enjoyed such dominion and control. He contends

that no evidence linked him to any of the drugs found within the house and that

“mere presence in the area of contraband or awareness of its location is not

sufficient to establish possession.” United States v. Gardiner, 955 F.2d 1492,

1495 (11th Cir. 1992) (quotation marks omitted). He also challenges the

credibility of Pettacio’s testimony regarding her observation of 110 Lucille

Avenue from her vantage point a block and a half away.

      We disagree with Cochran’s assertion that no evidence tied him to the

contraband. During trial, the government presented evidence that Cochran was

found standing in the driveway of the residence where the contraband was located

with a key to the home in his pocket. Officer Pettacio testified that she had seen

him enter and exit the house a number of times just before it was searched.

Because we do not find her testimony that she was able to observe the house using

                                         15
binoculars to be “incredible as a matter of law,” that is, “relat[ing] to facts that

[she] could not have possibly observed or events that could not have occurred

under the laws of nature,” we will not disturb the jury’s findings. United States v.

Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (per curiam) (quotation marks

omitted). Additionally, it was shown that the drugs were present in common areas

of the house and located in plain view in the converted garage. A letter was found

within the residence that was addressed to Cochran, and Cochran’s daughter

acknowledged that he frequented the home. Finally, evidence was presented that

Cochran had been convicted of prior drug-related crimes, which bears on his

intent.

          It is true that the defense presented testimony that contradicted the

government’s case, but “all conflicts in the evidence must defer to the jury’s

resolution of the weight of the evidence and the credibility of the witnesses.”

United States v. Pearson, 746 F.2d 787, 794 (11th Cir. 1984). “It is not necessary

that the evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, provided that a reasonable

trier of fact could find that the evidence established guilt beyond a reasonable

doubt.” United States v. Harris, 20 F.3d 445, 452 (11th Cir. 1994). We find the

evidence here sufficient to sustain Cochran’s convictions.

                                             16
                                         V.

      In conclusion, although we disapprove of the constructive possession

instruction given to the jury, we do not find that under the circumstances of this

particular case it misled the jury or prejudiced Cochran. We also find that the

district court committed no abuse of discretion in admitting the Rule 404(b)

evidence and that there is sufficient evidence to uphold Cochran’s convictions.

      AFFIRMED.




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