                Case: 12-15183       Date Filed: 04/09/2015       Page: 1 of 22


                                                                                   [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-15183
                               ________________________

                     D.C. Docket No. 8:11-cr-00410-SDM-TBM-1



UNITED STATES OF AMERICA,

                             Plaintiff - Appellee,

versus

MICHAEL RENARD ALBURY, JR.,

                             Defendant - Appellant.

                               ________________________

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

                                        (April 9, 2015)

Before MARCUS and JILL PRYOR, Circuit Judges, and HINKLE, ∗ District
Judge.

MARCUS, Circuit Judge:

∗
  Honorable Robert L. Hinkle, United States District Judge for the Northern District of Florida,
sitting by designation.
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      After a jury trial, Michael Albury, Jr. appeals from his convictions for

various narcotics offenses, including possession with intent to distribute cocaine,

cocaine base, and N-Benzylpiperazine (“BZP” -- a schedule I controlled

substance), along with various firearm offenses. Albury raises three claims on

appeal: that law enforcement officers unlawfully gathered and used evidence

seized in violation of the Fourth Amendment when applying for a search warrant,

rendering the warrant invalid; that the district court erred in denying his motion for

judgment of acquittal because insufficient evidence supported his convictions and

the jury rendered inconsistent verdicts; and, finally, that the district court erred in

denying his motion for a new trial based on insufficient evidence, inconsistent

verdicts, and an improper flight instruction. After thorough review, we affirm.

                                           I.

      The essential facts are these. Albury checked into a hotel in Bradenton,

Florida, on July 20, 2011. He arranged to stay at the hotel until July 31, making all

payments with his own credit card and in cash. On July 26, the plumbing in

Albury’s room, room 342, began to leak. Albury was forced to transfer just down

the hall to room 332, so that hotel employees could immediately fix the leak.

      After Albury vacated room 342, Jackie Blackwell, the hotel maintenance

supervisor, entered the room to make repairs. While picking up food and trash left

behind by Albury, Blackwell stumbled on a loaded Glock pistol, which he placed


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in a safe at the hotel’s front desk. Blackwell returned to the room, wiped up a

“white powdery substance” that was on the table, picked up some empty baggies

and food debris, and brought that trash to the dumpster. On his way back to room

342, Blackwell spotted Albury going into room 332. Blackwell told Albury the

Glock was in the safe at the front desk. Albury said the gun was his girlfriend’s,

but he immediately went to the front desk to reclaim it. When Blackwell returned

to room 342, he discovered more baggies with white residue, rubber bands, and a

small line of white powder on the credenza -- none of which were removed from

the room. Blackwell reported his findings to the hotel manager, who decided to

alert the police.

       Officer Waker, from the Bradenton Police Department, and another officer

initially responded to the call. When Blackwell escorted the officers to room 342,

he pointed out Albury’s new room (room 332), the door to which was closed and

latched at that time. The officers entered room 342 and observed the white powder

residue and baggies still on the credenza. They then asked to go to room 332.

When they reached room 332, the dead bolt had been thrown so that the self-

closing door was resting against the jamb without latching, but obstructing any

view into the room. Officer Waker knocked and announced his presence, causing

the door to swing open. He entered the room and observed a mound of white

powder approximately six inches long and three inches high. When Officer Waker


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exited, he instructed the other officer to secure the room. Additional officers

arrived at the hotel and discovered two cookies of crack in the nightstand in room

342. At the request of the police, Blackwell retrieved the garbage he previously

removed from room 342. When Blackwell returned with the garbage bag, he saw

police “traffic going in and out of” room 332.

      A short time later, Detective Johnson arrived at the hotel. He was escorted

to room 342, where he field tested the powder residue, the baggies, and the cookies

of crack that were found there. All tested positive for cocaine. When he walked to

room 332, he claimed the door was open, allowing him to see in plain view the

mound of white powder inside the room.

      Detective Johnson submitted an affidavit in support of a search warrant for

room 332, detailing the following information: the evidence that the police found

in room 342, including the cocaine residue, crack cookies, and baggies with

cocaine residue; the Glock firearm that Blackwell discovered and that Albury

personally retrieved; Albury’s prior cocaine trafficking conviction, which made it

unlawful for him to possess a firearm; that room 342 had been registered

exclusively to Albury since July 20, and that he was relocated to room 332 that day

because of a leak in room 342; that hotel employees identified Albury as the

individual who paid for both rooms; and that Albury recently paid to extend his

stay in room 332.


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      Detective Johnson also included several problematic statements in his

affidavit. He said that when Officer Waker initially approached room 332, the

door “was wide open.” Detective Johnson also said that when he reached room

332, the “door was still open from the last occupants that left it,” allowing him to

“see in plain view from the hallway, a white substance” which he believed to be

cocaine powder. Finally, he failed to state that Blackwell previously removed

some of the plastic baggies with cocaine residue from room 342, only to retrieve

them from the dumpster at the request of the police.

      A search warrant for room 332 was issued based on Detective Johnson’s

affidavit. The search of that room revealed in excess of 600 grams of cocaine

substance; plastic baggies and rubber bands; a scale with cocaine residue; a purse

containing hundreds of N-Benzylpiperazine pills and a loaded Phoenix Arms .25

pistol; nearly $15,000 in cash; a prescription pill bottle bearing Albury’s name;

Albury’s identification; his credit card; and various men’s and women’s clothing

and personal effects.

      Soon thereafter Albury was indicted in the United States District Court for

the Middle District of Florida for one count of possession with intent to distribute

cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2

(Count One); one count of possession with intent to distribute cocaine, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Count Two); one count of


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possession with intent to distribute 500 grams or more of cocaine, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), 851, and 18 U.S.C. § 2 (Count Five); one

count of possession with intent to distribute N-Benzylpiperazine, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Count Six); two counts of

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. §§ 924(c)(1)(A) and 2 (Counts Three and Seven); and two counts of being a

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e), and

2 (Counts Four and Eight).

      Prior to trial, Albury moved to suppress the evidence discovered in room

332. He argued that the police unlawfully entered room 332, and used their

observation of cocaine inside that room as the basis for obtaining a warrant. The

government responded that the warrant was valid because, even without the

observations made from inside room 332, Detective Johnson’s affidavit still

established probable cause that contraband would be found there. At a hearing on

Albury’s motion, Detective Johnson was asked if he would “have applied for the

warrant had [he] not seen the cocaine in 332.” He answered, “[n]o.” The

government tried to explore Detective Johnson’s answer on cross examination, but

the magistrate judge cut that line of questioning short.

      After the hearing, the magistrate judge issued a Report and Recommendation

(“R&R”). See United States v. Albury, No. 8:11-CR-410-T-23TBM, 2012 WL


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1339481 (M.D. Fla. Jan. 19, 2012), report and recommendation rejected, No. 8:11-

CR-410-T-23TBM, 2012 WL 1326921 (M.D. Fla. Apr. 17, 2012). In the R&R, the

magistrate judge found that Officer Waker’s initial entry into room 332 was

unlawful, since the officers had not “observed, as set forth in the warrant

application, that ‘the [door] to 332 was wide open’” when they arrived. Thus,

“[a]ny claim of plain view exposure to the suspected cocaine in room 332” by

Detective Johnson was “tainted by [Officer Waker’s] preceding illegal conduct.”

He also found the “independent source” rule inapplicable, because without the

unlawful observation of cocaine inside room 332, Detective Johnson’s affidavit

made a showing of “arguable suspicion, but not probable cause,” that contraband

would be located within the room.

       The district court adopted the findings of fact contained in the R&R. It

disagreed, however, with the magistrate judge’s legal conclusion that the

independent source rule did not apply. See United States v. Albury, No. 8:11-CR-

410-T-23TBM, 2012 WL 1326921 (M.D. Fla. Apr. 17, 2012). It found that even

without the information unlawfully observed in room 332, the remaining, untainted

evidence in Detective Johnson’s affidavit supported a finding of probable cause.

Thus, the district court denied Albury’s motion to suppress, and the case proceeded

to trial.




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      Albury was convicted of all counts except Count Four, possession of the

Glock firearm by a convicted felon. He moved for a new trial based on insufficient

evidence, inconsistent verdicts, and improper jury instructions. He also renewed

an earlier motion for judgment of acquittal on similar grounds. The district court

denied all of Albury’s motions. See United States v. Albury, No. 8:11-CR-410-T-

23TBM, 2012 WL 2912517 (M.D. Fla. July 16, 2012). Albury timely appealed.

      A panel of this Court previously found that although the district court denied

Albury’s motion to suppress based on its determination that the independent source

rule applied, “it failed to reach the second question in the relevant analysis,

namely, whether Detective Johnson would have sought the search warrant even if

he had not seen the cocaine in Room 332.” United States v. Albury, No. 12-15183,

Limited Remand Order, at 7-8 (11th Cir. Dec. 10, 2013). Because the Court did

not have the necessary facts to decide the suppression issue, it did not yet know

what evidence to consider when addressing the remaining issues raised by Albury.

It retained jurisdiction over Albury’s appeal, but remanded the case to the district

court for the limited purpose of making a factual finding as to whether the warrant

would have been sought if the police had not unlawfully entered room 332.




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       On limited remand, the district court conducted a hearing prior to making its

findings of fact.1 At that hearing, the government presented essential testimony

from Sergeant Monahan, Detective Johnson’s acting supervisor the day the search

warrant was sought. Sergeant Monahan said that the decision of “whether to seek

a search warrant” was a decision that “ultimately rest[ed] with” him. He further

stated that, even without the observation inside room 332, he would have ordered

Detective Johnson to apply for a search warrant based on the discovery of cocaine

and a firearm in room 342, Albury’s recent transfer from room 342 to room 332,

and Albury’s prior felony conviction for trafficking in cocaine. Based on that

testimony, and a review of the entire record, the district court found that (1) the

decision to seek a warrant was Sergeant Monahan’s, not Detective Johnson’s; and

(2) Sergeant Monahan “would have sought the warrant to search room 332 even

without the information obtained from room 332.”

       Albury’s case has now returned to our Court.




1
  Albury objected that the district court should have made its findings of fact from the record,
alone. But the district court acted well within its authority when it held a hearing and allowed
the presentation of testimony. See United States v. Noriega, 676 F.3d 1252, 1263 (11th Cir.
2012) (remanding to the district court to determine whether a warrant would have been sought
absent an unlawful protective sweep, stating that “[w]e leave it to the district court to determine
whether to hear any additional testimony” on the matter).
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                                               II.

                                               A.

       First, Albury argues that the district court erred by denying his motion to

suppress the evidence seized from room 332. He claims that Detective Johnson’s

application for a warrant to search room 332 included observations made in

violation of the Fourth Amendment, rendering the warrant invalid. Therefore, all

of the evidence seized pursuant to the invalid warrant should have been

suppressed.2 See United States v. Terzado-Madruga, 897 F.2d 1099, 1112 (11th

Cir. 1990) (noting that “evidence derived from” police misconduct generally must

be excluded as “fruit of the poisonous tree”) (quotation omitted).

       The denial of a motion to suppress is a mixed question of law and fact. We

review the district court’s findings of fact for clear error and the application of law

to those facts de novo. United States v. Beckles, 565 F.3d 832, 839 (11th Cir.

2009). We construe all facts in favor of the prevailing party (here the

government). Id. And we may affirm the district court’s denial on any ground

supported by the record. United States v. Caraballo, 595 F.3d 1214, 1222 (11th

Cir. 2010).

2
  Albury also argues the good faith exception embodied in United States v. Leon, 468 U.S. 897
(1984), does not apply because the magistrate judge found that Detective Johnson’s affidavit
contained statements made with “reckless indifference for the truth.” The government argues, in
turn, that Albury abandoned his Fourth Amendment privacy interest in room 332 prior to the
officers’ arrival, rendering any warrantless entry into that room lawful. Because we affirm the
district court’s finding that the warrant is valid under the independent source rule, we need not
address those arguments.
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      When police use evidence gathered in violation of the Fourth Amendment to

secure a warrant, we apply a two-part test to determine whether the evidence

seized pursuant to the warrant is admissible. Noriega, 676 F.3d at 1260 (citing

United States v. Chaves, 169 F.3d 687, 692-93 (11th Cir. 1999)). First, we excise

from the affidavit any information gained from the “illegal initial entry and

determine whether the remaining information” supports a finding of probable

cause. Id.; cf. Franks v. Delaware, 438 U.S. 154, 168-72 (1978) (noting that

warrants based on “falsified allegations to demonstrate probable cause” may be

valid if sufficient, untainted evidence in the affidavit supports a finding of probable

cause). If the remaining information supports a probable cause finding, we then

determine whether the officers’ “decision to seek the warrant was [not] prompted

by what they had seen during the initial entry.” Chaves, 169 F.3d at 693 (alteration

in original) (quoting Murray v. United States, 487 U.S. 533, 542 (1988)). If the

warrant would have been sought absent the illegal entry, the evidence seized

pursuant to the warrant is admissible. Noriega, 676 F.3d at 1260-61.

      Here, the district court found that “independent of any unlawful search of

room 332,” Detective Johnson’s affidavit contained sufficient evidence to support

a finding of probable cause. Probable cause exists when under the “totality-of-the-

circumstances . . . there is a fair probability that contraband or evidence of a crime

will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).


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Although the determination that probable cause exists is a legal conclusion subject

to plenary review, we “must give great deference to a lower court’s determination

that the totality of the circumstances supported a finding of probable cause.”

United States v. Steiger, 318 F.3d 1039, 1046 (11th Cir. 2003) (quotation omitted);

see also United States v. Mathis, 767 F.3d 1264, 1275 n.3 (11th Cir. 2014) (per

curiam) (stating that we “employ[] a commonsense approach in reviewing” search

warrants), cert. denied, No. 14-7814, 2015 WL 732182 (U.S. Feb. 23, 2015).

Where evidence shows that the defendant “is in possession of contraband that is of

the type that [one] would normally [hide] at their residence,” there is sufficient

probable cause to support a search warrant. United States v. Anton, 546 F.3d

1355, 1358 (11th Cir. 2008).

      As an initial matter, Albury does not challenge the evidence seized from

room 342, the room he vacated prior to the officers’ arrival. As a result, that

evidence may serve as untainted evidence in Detective Johnson’s affidavit. And to

the extent the government’s abandonment argument was rejected by the district

court, it does not otherwise argue that Detective Johnson’s observation inside of

room 332 was lawful. See United States v. Folk, 754 F.3d 905, 911 (11th Cir.

2014) (noting that for the plain view doctrine to apply, the officer must view the

object from a lawful vantage point), cert. denied, 135 S. Ct. 1006 (2015); United

States v. Ramos, 12 F.3d 1019, 1023 (11th Cir. 1994) (“[I]t is well-settled that a


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person does not forfeit Fourth Amendment protection merely because he is

residing in a hotel room.”). We, therefore, assume for the sake of our analysis that

all of the statements in Detective Johnson’s affidavit derived from observations

made inside room 332 were the product of an unlawful search and must be excised.

      After excising the observations made from inside room 332, Detective

Johnson’s affidavit recounted that Albury paid for, and occupied, room 342 for six

days prior to the officers’ arrival. Because of a water leak in room 342, Albury

moved directly from room 342 to room 332, just down the hall. Inside the vacated

room, 342, the police found cocaine powder residue, two cookies of crack cocaine,

and baggies with cocaine residue -- in addition to the baggies with residue that

were removed by Blackwell and later retrieved from the hotel dumpster.

Blackwell also told the police that he found a loaded Glock handgun inside room

342, which Albury promptly retrieved from the hotel safe. Finally, Albury had a

prior felony conviction for trafficking in cocaine, making it unlawful for him to

possess a firearm.

      Ample, untainted evidence from room 342 strongly suggested that Albury, a

convicted felon, was in possession of narcotics and a firearm. He was the only

registered occupant of a room where the police found evidence of a large quantity

of drugs and a firearm. He was then forced to relocate to room 332 the very day

the police arrived. A court could easily draw the common sense conclusion that


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Albury was still in possession of contraband when he moved to room 332,

resulting in a strong probability that contraband would be found there. See Anton,

546 F.3d at 1358. We find no error in the district court’s determination that, under

the totality of the circumstances, the untainted portions of Detective Johnson’s

affidavit supported a finding of probable cause.

      That leaves only the question of whether the warrant to search room 332

would have been sought if no unlawful observation had occurred. The Supreme

Court has framed the relevant question as “whether the actual illegal search had

any effect in producing the warrant.” Murray, 487 U.S. at 542 n.3; see also

Noriega, 676 F.3d at 1260 (stating that the rationale behind the independent source

rule is to prevent the government from being in a “worse position than if the

constitutional violation had not occurred”).

      The district court, on limited remand, made findings of fact on this point that

we may review only for clear error. Specifically, it found that Sergeant Monahan,

as the acting supervisor of the investigation, “was the person on the scene with the

authority to decide, and the person who actually decided, to apply for the warrant

to search room 332.” It also found that Sergeant Monahan would have sought the

warrant to search room 332 even without any of the information unlawfully

derived from that room. In light of Sergeant Monahan’s uncontradicted testimony

at the hearing on limited remand, we cannot say that the district court’s findings


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are clearly erroneous. The warrant would have been sought even if there had been

no unlawful entry into room 332. In short, the district court did not err in denying

Albury’s motion to suppress the evidence seized from room 332.

                                          B.

      Albury argues next that the district court erred in denying his Rule 29

motion for judgment of acquittal based on insufficient evidence and inconsistent

verdicts. We are unpersuaded.

      We review the denial of a motion for judgment of acquittal de novo. United

States v. Bowman, 302 F.3d 1228, 1237 (11th Cir. 2002) (per curiam). When the

sufficiency of the evidence is challenged, we “view[] the evidence in the light most

favorable to the verdict,” and draw “all reasonable inferences and credibility

choices in the verdict’s favor.” United States v. Godwin, 765 F.3d 1306, 1319

(11th Cir.), cert. denied, 135 S. Ct. 491 (2014). “The test for sufficiency of

evidence is identical regardless of whether the evidence is direct or circumstantial,

and no distinction is to be made between the weight given to either direct or

circumstantial evidence.” United States v. Doe, 661 F.3d 550, 560 (11th Cir.

2011) (quotation omitted). We will not overturn a verdict “if any reasonable

construction of the evidence would have allowed the jury to find the defendant

guilty beyond a reasonable doubt.” United States v. Rodriguez, 732 F.3d 1299,

1303 (11th Cir. 2013).


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      Albury challenges the sufficiency of the evidence on all seven counts of his

conviction, but he challenges the sufficiency of only one element -- his knowing

possession of the firearm and narcotics. To “sustain a conviction for possession of

a controlled substance with intent to distribute, the government must show that a

defendant knowingly possessed the controlled substance with the intent to

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

(quotation omitted). Under 18 U.S.C. § 924(c)(1)(A), the government must show

that a defendant knowingly possessed a firearm in furtherance of any federal drug

trafficking crime. United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir.

2008). And to prove a defendant violated 18 U.S.C. § 922(g)(1), “the government

must show that (1) he or she knowingly possessed a firearm or ammunition, (2) he

or she was previously convicted of an offense punishable by a term of

imprisonment exceeding one year, and (3) the firearm or ammunition was in or

affecting interstate commerce.” United States v. Palma, 511 F.3d 1311, 1315 (11th

Cir. 2008) (per curiam). However, the government “need not prove actual

possession in order to establish knowing possession; it need only show

constructive possession through direct or circumstantial evidence.” United States

v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006). Even when a residence is rented, a

“person who owns or exercises dominion and control over a . . . residence in which

contraband is concealed may be deemed to be in constructive possession of the


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contraband.” United States v. Morales, 868 F.2d 1562, 1573 (11th Cir. 1989)

(quotation omitted).

      The evidence is clear that Albury exercised control over both rooms in

which contraband was discovered. Albury paid for both rooms with his personal

credit card and in cash. Although some women’s clothing was found in the rooms,

hotel records listed no registered guests other than Albury, himself. Albury

presented his identification to hotel staff when he picked up the key to room 332

the morning of the search. Blackwell saw Albury “going into” room 332 when

Blackwell told him the Glock pistol found in room 342 was being held at the front

desk. Albury personally reclaimed the Glock, once again presenting his

identification. When the police ultimately searched room 332, they discovered

Albury’s Florida identification card, his credit card, and a prescription pill bottle

bearing his name on the label. Indeed, the law enforcement officers found no

identification for anyone other than Albury, and no hotel employee testified to

seeing any other guest either with Albury, or in his rooms, at any point during his

stay. Albury was the only person who dealt with the hotel when renting the rooms,

and many of his personal effects were found there, strongly indicating that he not

only resided in the rooms, but that he retained ultimate control over their use.

      That the N-Benzylpiperazine pills and the Phoenix Arms pistol were found

inside a purse inside the room does not foreclose a finding of constructive


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possession. See, e.g., United States v. Greer, 607 F.3d 559, 564-65 (8th Cir. 2010)

(affirming a finding of constructive possession of a handgun by a male defendant

even though the handgun was found in a woman’s purse that was inside the

bedroom closet of the defendant’s rented home). Drawing all inferences in the

verdict’s favor, a jury could reasonably have found beyond a reasonable doubt that

Albury, himself, hid contraband in the purse before departing from the room. We

cannot say that no reasonable construction of the evidence would allow the jury to

find that Albury exercised dominion and control over both rooms, knew of the

contraband within them, and thereby constructively possessed that contraband.

      Albury’s alternative argument that his motion for judgment of acquittal

should have been granted based on inconsistent jury verdicts is a nonstarter.

Albury argues that the verdicts are inconsistent because the jury found him guilty

of Count Eight, being a felon in possession of a Phoenix Arms firearm, and not

guilty of Count Four, being a felon in possession of a Glock firearm -- yet it found

him guilty of two counts of possessing a firearm in furtherance of a drug

trafficking crime, Counts Three and Seven. But there is no inconsistency. Count

Three of the indictment alleged the use of a firearm in furtherance of Counts One

and Two -- trafficking in cocaine and trafficking in cocaine base, respectively.

Whereas Count Seven of the indictment alleged the use of a firearm in furtherance

of Counts Five and Six -- trafficking in at least 500 grams of cocaine and


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trafficking in N-Benzylpiperazine, respectively. The jury’s finding that Albury

possessed the Phoenix Arms firearm in Count Eight was sufficient to support the

guilty verdicts on both Count Three and Count Seven. The jury’s finding of not

guilty on Count Four, possession of the Glock firearm, was consistent with

findings of guilt on all other counts.

      But even assuming arguendo that the verdicts are inconsistent, we have held

that a jury’s “verdicts are ‘insulate[d] from review’ on the ground that they are

inconsistent,” as long as sufficient evidence supports each finding of guilt. United

States v. Mitchell, 146 F.3d 1338, 1344 (11th Cir. 1998) (alteration in original)

(quoting United States v. Powell, 469 U.S. 57, 68-69 (1984)). As we have

discussed, ample evidence supported all seven counts of conviction the jury

returned against Albury. The district court did not err in denying Albury’s motion

for judgment of acquittal.

                                          C.

      Finally, Albury argues that the district court erred by denying his motion for

a new trial because insufficient evidence led to inconsistent verdicts, and because

the district court improperly instructed the jury on intentional flight. Again, we are

unpersuaded.

      We review the denial of a motion for a new trial for abuse of discretion.

Hernandez, 433 F.3d at 1332. Fed. R. Crim. P. 33 provides the district court with


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discretion to grant a defendant a new trial “if the interest of justice so requires.”

The ultimate decision of whether to grant a new trial motion falls “within the

sound discretion of the trial court.” United States v. Vicaria, 12 F.3d 195, 198

(11th Cir. 1994) (quotation and alteration omitted). When considering a motion

for a new trial, the district court “may weigh the evidence and consider the

credibility of the witnesses.” Hernandez, 433 F.3d at 1335 (quotation omitted).

We will only overturn the denial of a motion for a new trial if the evidence

“preponderate[s] heavily against the verdict, such that it would be a miscarriage of

justice to let the verdict stand.” Id. at 1336 (quotation omitted).

      We have already rejected Albury’s arguments regarding insufficient

evidence and inconsistent verdicts in the context of his motion for judgment of

acquittal. It follows a fortiori that those arguments fail under the abuse of

discretion standard we employ here.

      Albury’s suggestion that there was an insufficient factual foundation to

support a jury instruction on flight likewise fails. Although we review “the legal

correctness of a jury instruction de novo,” United States v. Prather, 205 F.3d 1265,

1270 (11th Cir. 2000), where a defendant challenges the factual basis for a flight

instruction, we review the district court only for abuse of discretion, United States

v. Williams, 541 F.3d 1087, 1089 (11th Cir. 2008) (per curiam). A flight

instruction is proper where a “reasonable jury could conclude, based on the


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evidence presented, that [the defendant] fled from the police to avoid the charged

crime.” Williams, 541 F.3d at 1089. We will reverse a district court based on

erroneous jury instruction only if we are left with a “substantial and ineradicable

doubt as to whether the jury was properly guided in its deliberations.” United

States v. Cochran, 683 F.3d 1314, 1319 (11th Cir. 2012) (quotation omitted).

       Blackwell’s testimony established that when the police arrived at the hotel,

the door to Albury’s room, room 332, was completely closed. Yet by the time the

officers made their way to room 332, the door was unlatched, leaving a large

quantity of cocaine and Albury’s personal belongings unsecured in the room. Even

though the room was left unlocked, Albury was never again seen at the hotel after

the police arrived. The district court correctly noted that “some evidence suggests

that Albury departed from the room and the motel promptly upon, and in response

to, suspecting that the police were present.”3 Quite simply, there was a sufficient

factual foundation to give a pattern instruction on intentional flight, which allows

the jury to determine whether flight actually occurred. Because we do not have an

ineradicable doubt as to whether the jury was properly guided in its deliberations,



3
  Albury argues that the magistrate judge made a finding of fact in the R&R that he did not flee.
But the magistrate found only that Albury did not abandon his Fourth Amendment privacy
interest in room 332, not that he did not flee from the police. In fact, the magistrate judge
specifically noted that the door to room 332 was originally closed when the police arrived, that it
was unlatched when Officer Waker knocked on the door, and “that [Albury] was not seen back at
the room by the time of the search.” He called these “circumstances meriting consideration,”
although they did not provide “sufficient proof to establish an abandonment.”
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             Case: 12-15183    Date Filed: 04/09/2015   Page: 22 of 22


we cannot say the district court abused its considerable discretion in denying

Albury’s Rule 33 motion for a new trial.

      Accordingly, we AFFIRM Albury’s convictions.




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