                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          FEBRUARY 6, 2007
                             No. 06-12685                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                     D. C. Docket No. 05-00010-CR-6

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                  versus

VANDARREL LEON DOE,
a.k.a. Dwan Devon Doe,
a.k.a. Black

                                                  Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                            (February 6, 2007)

Before BLACK, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      Vandarrel Leon Doe appeals his convictions for manufacture of cocaine base

and conspiracy to manufacture and distribute cocaine base, in violation of 21

U.S.C. §§ 841(a)(1) and 846. On appeal, Doe argues that the district court erred

by failing to find a violation of the Speedy Trial Act, admitting three of his prior

convictions under Rule 404(b) of the Federal Rules of Evidence, denying his

motion for judgment of acquittal, giving an erroneous jury instruction on the

conspiracy offense, and denying his motion for a new trial based on the interests of

justice. For the reasons set forth more fully below, we affirm.

                                        I. Facts

      Doe’s codefendant, Stuart John Greger, pled guilty prior to trial. Prior to

trial, the government notified Doe of its intent to offer at trial evidence of six prior

felony cocaine convictions, occurring between 1989 and 2001, under Fed.R.Evid.

404(b). The oldest five convictions were for possession of cocaine. The most

recent conviction was for “Possession/Purchase/Sell/Delivery of cocaine.”

      At trial, Kent Munsey, a task force agent with the Drug Enforcement

Administration (“DEA”), testified that, on April 6, 2005, a confidential source

(“CS”) and an undercover agent met with Greger, and the CS purchased 50.9

grams of cocaine base from Greger. On April 8, 2005, Greger sold the CS cocaine

base and powder cocaine. Greger was taken into custody following this transaction



                                            2
and told Munsey that he obtained his cocaine base from a black male known to him

as “Black,” who cooked the cocaine base. Munsey recorded a call made by

Greger, which was played to the jury. In this conversation, Greger referred to

“circles.” He explained to the other speaker that “they” complained about the

circles, but took all seven and said they would give him a chance to make it up

later. The other speaker responded, “I’ll do that there.” Greger responded that he

was trying to get it, and the other speaker responded, “But you know that will cost

them more.” Munsey testified that, based on a photograph of Doe, Greger

identified Doe as the person who cooked the cocaine base for him. This

photograph was admitted into evidence. Munsey also testified that Doe was listed

as the subscriber of the telephone number called during Greger’s conversation.

The government also introduced approximately four months of telephone records

for this phone. Munsey testified that the records showed consistent contact

between the this number and Greger’s number between January and April 8, 2005.

      Greger, who had pled guilty to distribution of crack cocaine, testified that,

between January 2005 and April 2005, he sold cocaine and crack cocaine. He

identified Doe, who he knew as Black, and stated that he met Doe around the end

of 2004 and he estimated that Doe cooked crack cocaine for him two or three times

a month beginning around January. Greger paid Doe by giving him cocaine, which



                                          3
Doe would use to cook, and Doe would also keep some for himself. Regarding the

tape recording, Greger explained, inter alia, that the “circles” referred to the

cocaine cookies, which were circular because they were cooked in a round pot, and

that the cookies weighed less than they were supposed to weigh. Greger testified

that Black’s voice was on the tape.

      At side bar, the government explained that it agreed to enter three of the

prior convictions and that they went to the issues of intent, lack of mistake, and

identity. The court permitted the introduction of the evidence, noting that the jury

might have some question as to identity and intent. The government introduced

evidence of two cocaine possession convictions from August 1989 and one from

December 1990.

      Doe called Pamela Tigner, his fiancee. Tigner testified, inter alia, that

everybody in the house, including her children (aged 9-19) and their friends used

the cell phone which was called by Greger in the recorded conversation. Tigner,

who worked as a cook, testified that she would be able to tell if anyone was

cooking in her kitchen and denied seeing signs of anyone doing so. Tigner further

testified that the voice on the recorded call was not Doe’s voice.

      On cross-examination, the government asked Tigner about her drug

convictions from Jacksonville, Florida in 1994. Tigner denied being convicted or



                                           4
pleading guilty to the sale and manufacture of cocaine, although she admitted

being arrested in Jacksonville. When the government showed Tigner a copy of her

criminal history, the following discussion took place:

      THE COURT:          Ms. Tigner, let me remind you that you took an
                          oath to tell the truth. If you do not tell the truth,
                          you will have committed perjury. Perjury is a
                          federal crime. Listen to the questions carefully?

      A [Tigner]          Okay.

      THE COURT:          The answers are being recorded. The Court will
                          direct further investigation.

      A                   Okay.

Upon further questioning by the government in reference to Tigner’s criminal

history, she denied being convicted of a crime, explaining that she went to court for

the charge of the sale, manufacture, and delivery of cocaine, but that she was told it

would not be on her record because the person she went to jail with claimed it all

and she would not sign anything. After this explanation, the court stated, “All

right. You will investigate this matter, Mr. Konche, and take appropriate actions.”

Tigner then clarified her position that she was arrested and charged, but was told

that the charge would not end up on her record.

      Doe testified that his nickname was Black. Doe admitted getting into

trouble in the past, but denied having any contact with cocaine in Georgia. He



                                           5
only had contact with Greger once before April 2005, regarding a job to move pine

straw. He denied cooking cocaine for Greger, ever cooking cocaine, or knowing

how to cook cocaine. Doe explained that everybody used his phone and that it was

not him on the tape.

      On cross-examination, Doe admitted to convictions for seven prior felony

drug convictions involving cocaine between 1989 and 2001. The government also

replayed a portion of the taped conversation and asked Doe to say one of the

sentences. Doe complied, and the government requested that Doe “try to say it

normally.” Doe then repeated the line. The jury subsequently returned guilty

verdicts as to both counts of the indictment.

                               II. Standard of review

      We review a claim under the Speedy Trial Act de novo and review a district

court’s factual determinations on excludable time for clear error. United States v.

Dunn, 345 F.3d 1285, 1288 (11th Cir. 2003). We review the district court’s

admission of evidence under Rule 404(b) for abuse of discretion. United States v.

Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005), cert. denied, 127 S.Ct. 46 (2006).

“[W]hen employing an abuse-of-discretion standard, we must affirm unless we

find that the district court has made a clear error of judgment, or has applied the

wrong legal standard.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.



                                           6
2004) (en banc), cert. denied, 544 U.S. 1063 (2005). However, we will not reverse

Doe’s convictions if the admission of the prior conviction evidence was harmless.

United States v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003). We review the

sufficiency of the evidence de novo, “viewing the evidence in the light most

favorable to the government” and making all reasonable inferences and credibility

choices in favor of the government and the jury’s verdict. United States v. Garcia,

405 F.3d 1260, 1269 (11th Cir. 2005). “We review the legal correctness of a jury

instruction de novo, but defer on questions of phrasing absent an abuse of

discretion . . . .”   United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000)

(citations omitted). We review a district court’s denial of a motion for a new trial

for abuse of discretion. United States v. Hernandez, 433 F.3d 1328, 1332 (11th

Cir. 2005), cert. denied, 126 S.Ct. 1635 (2006).

                                  III. Speedy Trial Act

       Under the Speedy Trial Act:

       In any case in which a plea of not guilty is entered, the trial of a
       defendant charged in an information or indictment with the
       commission of an offense shall commence within seventy days from
       the filing date (and making public) of the information or indictment,
       or from the date the defendant has appeared before a judicial officer of
       the court in which such charge is pending, whichever date last occurs.


18 U.S.C. § 3161(c)(1). The Act also provides for the exclusion of time counted



                                             7
toward the 70-day deadline under certain circumstances including delay resulting

from the court’s consideration of a proposed plea agreement. 18 U.S.C.

§ 3161(h)(1)(I). In addition, the Act provides for the exclusion of “[a] reasonable

period of delay when the defendant is joined for trial with a codefendant as to

whom the time for trial has not run and no motion for severance has been granted.”

Id. § 3161(h)(7). “[I]n a multi-defendant case, time excluded due to one defendant

results in excludable days for his codefendants.” United States v. Mejia, 82 F.3d

1032, 1035 (11th Cir. 1996).

       In this case, resolution of the Speedy Trial Act claim turns on the effect of

an order entered on October 5, 2005, by the magistrate judge finding that all of

Doe’s pretrial motions, including his motion to sever his case from his

codefendant, were moot. Doe argues that this order effectively granted his motion

to sever, and, therefore, his speedy trial clock continued to run during the time that

his codefendant’s plea agreement was under advisement. If Doe is correct, more

than 100 non-excludable days elapsed before trial. If, however, the October 5,

2005 order was not an order of severance, a total of 60 non-excludable days

elapsed before trial.1

       In its order, the magistrate stated that it was advised by counsel that all


       1
        We do not address the issue of the exclusion of an additional seven days under
§ 3161(h)(1)(J) as it does not affect the outcome of this case.

                                               8
pretrial motions were complied with or matters raised in those motions were

resolved by agreement and, therefore, all pretrial motions were moot. Based on the

magistrate’s explanation of why Doe’s motions were moot, the order cannot fairly

be read to be effectively granting a severance.2 Accordingly, the district court did

not err in finding no violation of the Speedy Trial Act.

                                  IV. Prior convictions

       Doe challenges the district court’s admission of three cocaine possession

convictions from August 1989 and December 1990 under Rule 404(b) of the

Federal Rules of Evidence, arguing that the evidence should not have been

admitted for the purposes of identity and intent, the evidence lacked probative

value, and, in light of the evidence, the probative value was substantially

outweighed by the danger of unfair prejudice.

       Rule 404(b) provides that “[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. It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, [or] identity . . . .”

Fed.R.Evid. 404(b). To be admissible:


       2
         On September 8, 2005, codefendant Greger had a change of plea hearing. At the hearing
a plea agreement with the government was presented. The district court took the matter under
advisement and did not accept the guilty plea and agreement until December 7, 2005. This
period is excludable.

                                              9
      First, the evidence must be relevant to an issue other than the
      defendant’s character; Second, the act must be established by
      sufficient proof to permit a jury finding that the defendant committed
      the extrinsic act; Third, the probative value of the evidence must not
      be substantially outweighed by its undue prejudice, and the evidence
      must meet the other requirements of Rule 403.

Matthews, 431 F.3d at 1310-11 (quoting United States v. Delgado, 56 F.3d 1357,

1365 (11th Cir. 1995)). Whether the probative value is not substantially

outweighed by undue prejudice is a “determination [that] lies within the discretion

of the district court and calls for 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.” United States v. Perez, 443 F.3d 772, 780 (11th Cir. 2006)

(citation and quotation marks omitted).

      Because Doe’s plea of not guilty made intent an issue, see id. at 779, and

Doe’s prior possession convictions were relevant to the issue of intent, see

Matthews, 431 F.3d at 1311, the first prong of the test for admissibility is satisfied.

Moreover Doe’s defense strategy did not make intent irrelevant, as denial of

participation is insufficient to remove the issue of intent in a conspiracy case.

United States v. Kopituk, 690 F.2d 1289, 1334 (11th Cir. 1982). However, the

prior convictions were not properly admitted for the purposes of identity. See

United States v. Lail, 846 F.2d 1299, 1301 (11th Cir. 1988) (holding that, for

                                           10
404(b) evidence offered to establish identity, “the likeness of the offenses is the

crucial consideration. The physical similarity must be such that it marks the

offenses as the handiwork of the accused. In other words, the evidence must

demonstrate a modus operandi.”) (citation omitted).

      Even though the prior convictions were relevant to the issue of intent, we

nevertheless hold that the admission of these convictions was an abuse of

discretion due to the combined effect of their remoteness, their factual

dissimilarity, and the lack of prosecutorial need for their introduction. While we

do not follow a bright-line rule regarding the remoteness of a conviction,

Matthews, 431 F.3d at 1311, the convictions at issue occurred approximately 14

and 15 years before the beginning of the charged conspiracy. While “circuit

precedent regards virtually any prior drug offense as probative of the intent to

engage in a drug conspiracy,” thereby precluding an abuse of discretion based on

the rejection of the argument that factual dissimilarity resulted in disproportionate

prejudice, see id., the fact that the prior convictions were for simple possession of

cocaine while the conspiracy involved a conspiracy to manufacture and distribute

cocaine base lessens the probative value of the prior convictions. See United

States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (“A similarity between the

other act and a charged offense will make the other offense highly probative with



                                          11
regard to a defendant’s intent in the charged offense.”).

      Most significantly, the government’s need for these three convictions was

not substantial. First, the government could have selected the three most recent

prior convictions. In addition, the most recent conviction bore the most similarity

to the conspiracy charge because, unlike the simple possession convictions, this

conviction appears to be for the distribution of cocaine. Second, the government’s

other evidence of intent was strong. Unlike cases which rested on the testimony of

co-conspirators or came down to a credibility choice between co-conspirators and

the defendant and his witness, United States v. Calderon, 127 F.3d 1314, 1332

(11th Cir. 1997); United States v. McMahon, 592 F.2d 871, 875-76 (5th Cir. 1979),

in this case, the jury had corroborative evidence in the form of Agent Munsey’s

testimony of Greger’s prior consistent statements and the phone records showing

consistent contact between Doe and Greger’s telephone numbers, and the jury

heard a tape of a conversation Greger placed to “Black” after his arrest. Doe’s

defense further lessened the need for this evidence because Doe’s testimony gave

the jury the opportunity to determine for itself whether Doe was the other

participant in that conversation.

      However, this error does not require reversal because we hold that it was

harmless due to the overwhelming evidence of guilt in this case.



                                          12
      We often have concluded that an error in admitting evidence of a prior
      conviction was harmless where there is overwhelming evidence of
      guilt. This Court further has instructed that erroneous admission of
      evidence does not warrant reversal if the error had no substantial
      influence on the outcome and sufficient evidence uninfected by error
      supports the verdict. These harmless-error determinations are highly
      fact-intensive and will vary from case to case.

Harriston, 329 F.3d at 789 (citations and quotation marks omitted).

      Greger testified that he provided Doe cocaine and Doe would cook crack

cocaine for him. Greger also identified the voice on the phone as that of Black,

who he identified as Doe, and explained that the recorded conversation concerned

the sale of the cocaine base. Agent Munsey testified to Greger’s prior consistent

statement that Black, Doe’s admitted nickname, cooked and supplied him with

cocaine base. The recorded conversation as a whole, particularly the other

speaker’s responses to Greger that “I’ll do that there” and, “But you know that will

cost them more[,]” would allow a jury to find an agreement to manufacture and

distribute cocaine base. Because Doe testified, the jury was able to make its own

comparison of Doe’s voice and the voice on the tape. Doe provided the jury

further evidence because, by taking the stand and, inter alia, denying his

involvement with cocaine and denying that he was the person on the tape, the jury

could infer that the opposite of his testimony was true. United States v. Hasner,

340 F.3d 1261, 1272 (11th Cir. 2003). The same is true regarding Tigner’s



                                          13
testimony that it was not Doe’s voice on the recording. In addition, the jury also

had the phone records showing the extent of the contact between Doe’s phone and

Greger’s phone.3

                                      V. Jury instruction

       Doe argues that the record is devoid of any evidence that anyone aside from

he and Greger were participants in the charged conspiracy. As a result, Doe

contends that it was error for the district court to charge the jury that: (1) the

government need not prove that all of the people named in the indictment were

members of the scheme; or (2) two or more persons came to the requisite mutual

agreement.4

       Generally, district courts “have broad discretion in formulating jury
       instructions provided that the charge as a whole accurately reflects the
       law and the facts,” and we will not reverse a conviction on the basis of
       a jury charge unless “the issues of law were presented inaccurately, or
       the charge improperly guided the jury in such a substantial way as to
       violate due process.”

Prather, 205 F.3d at 1270 (citation omitted).

       Doe challenges the following portion of the conspiracy instruction, which




       3
         For these reasons, we likewise reject Doe’s claim that the evidence was not sufficient to
sustain his convictions.
       4
          We disagree with the government’s contention that Doe invited an error by the district
court, as the doctrine is not implicated due to Doe’s objection to the instruction after it was given
to the jury. See United States v. Gray, 626 F.2d 494, 501 (5th Cir. 1980).

                                                 14
was almost verbatim from the pattern jury instruction:5

       In order to establish a conspiracy offense, it is not necessary for the
       government to prove that all of the people named in the indictment
       were members of the scheme . . . . A defendant can be found guilty of
       the conspiracy offense only if all of the following facts are proved
       beyond a reasonable doubt[.] . . . First, two or more persons in some
       way or manner came to a mutual understanding to try to accomplish a
       common and unlawful plan as charged in the indictment.

The pattern jury instruction accurately reflects the elements of a conspiracy.

United States v. Trujillo, 146 F.3d 838, 846 (11th Cir. 1998). However, where the

indictment alleges that only two people were involved in the conspiracy and does

not contain language to the effect that the conspiracy involved unnamed

conspirators, the use of the challenged language may constitute a constructive

amendment of the indictment. United States v. Keller, 916 F.2d 628, 634-36 (11th

Cir. 1990); United States v. Andrews, 850 F.2d 1557, 1558-60 (11th Cir. 1988) (en

banc). In such a case, it is incorrect for the court to instruct the jury that it need not

find that all those named in the indictment were part of the conspiracy. See Keller,

916 F.2d at 636.



       5
           The pattern instruction reads, in pertinent part,

       In order to establish a conspiracy offense it is not necessary for the Government
       to prove that all of the people named in the indictment were members of the
       scheme . . . . What the evidence in the case must show beyond a reasonable doubt
       is: First: That two or more persons in some way or manner, came to a mutual
       understanding to try to accomplish a common and unlawful plan, as charged in
       the indictment . . .

                                                   15
      In this case, the indictment did not charge that the conspiracy was only

between Greger and Doe, but also included other persons both known and

unknown in the conspiracy. Thus, the instruction was not an incorrect statement of

law generally or in relation to the conspiracy charged in this case. See Trujillo,

146 F.3d at 846; Keller, 916 F.2d at 636. Nor did the charge substantially mislead

the jury so as to violate due process. In order for the jury to have convicted Doe of

a conspiracy in accordance with its instructions to follow the court’s instructions as

a whole and to decide the case on the basis of the testimony and other evidence,

which we presumed it followed, Ramirez, 426 F.3d at 1352, it must have found

that Doe conspired with Greger. As these additional instructions provide further

context for the instructions on the conspiracy charge, we discern no abuse of

discretion in the court’s phrasing of the conspiracy charge.

                            VI. Motion for a new trial

      Doe moved for a new trial under Rule 33 of the Federal Rules of Criminal

Procedure, arguing that the government’s improper impeachment of Tigner, and

the court’s comments in the presence of the jury concerning the purported felony

conviction, destroyed Tigner’s credibility and resulted in a miscarriage of justice.

Doe provided a certified copy of the disposition in Tigner’s case, showing that

Tigner entered a plea of nolo contendere to the lesser included offense of



                                          16
possession of a controlled substance and that adjudication of guilt was withheld.

The district court found that the government wrongly impeached Tigner because

she was not convicted under Florida law. However, it further found that Doe did

not establish a miscarriage of justice, reasoning that the evidence in the

government’s case was substantial. On appeal, Doe asserts the importance of

Tigner’s credibility to his case, arguing that the government’s improper

impeachment and the district court’s comments destroyed her credibility, which

resulted in a miscarriage of justice.

       A district court may vacate a judgment and grant a new trial if the interest of

justice requires. Fed.R.Crim.P. 33. We cannot conclude that the district court’s

decision to evaluate Doe’s new trial motion based on the strength of the other

evidence against him or the conclusion it reached in doing so constituted an abuse

of discretion. First, improper impeachment is subject to review for harmless error,

taking into account the strength of the government’s case. United States v. Rubin,

559 F.2d 975, 984-88 (5th Cir. 1977), vacated and remanded on other grounds, 439

U.S. 810 (1978).6 Second, in evaluating prejudice stemming from judicial

comments similar to the comments at issue in this case, among the factors



       6
        Rubin was remanded for consideration of the government’s position regarding the
concurrent sentences doctrine. United States v. Rubin, 591 F.2d 278, 280 (5th Cir. 1979). On
remand, the Court otherwise affirmed based on its reasoning in its prior opinion. Id. at 283.

                                              17
considered was the strength of the evidence against the defendant. See Hellman v.

United States, 339 F.2d 36, 37-38 & n.2 (5th Cir. 1964). In addition, the factors

we consider in determining whether a judge’s comments were not reversible error7

are not clearly weighted in favor of a finding of reversible error. Although the trial

was not lengthy, the court’s three comments including, “All right. You will

investigate this matter, Mr. Konche, and take appropriate actions[,]” occupied a

short period of the trial. The final comment was directed to the prosecutor and not

the jury, and the jury was instructed to disregard the court’s comments other than

its instructions on the law.

       Nor was the court’s evaluation of the evidence an abuse of discretion. As

discussed previously, the properly introduced evidence of Doe’s guilt was

overwhelming. In addition, the court’s finding that Doe and Tigner lacked

credibility regardless of the improper impeachment was not an impermissible

finding when evaluating a motion for a new trial in the interests of justice. See

Hernandez, 433 F.3d at 1335 (holding that, on motion for new trial based on the

weight of the evidence, the court could weigh evidence and consider the witnesses’

       7
          We will not reverse a conviction based upon comments of a trial judge unless the
comments are so prejudicial as to constitute denial of a fair trial. United States v. Morales, 868
F.2d 1562, 1576 (11th Cir. 1989). We have examined three factors weighing in favor of a
determination that the judge’s comments were not reversible error, namely “(1) the comments
occupied but a few seconds of a lengthy trial; (2) the comments were directed to defense counsel
rather than to the jury; and (3) the Trial Judge advised the jury to disregard any intimation by the
Court relating to the facts of the case.” Id. (citation and quotation marks omitted).

                                                 18
credibility).

       In light of the foregoing, Doe’s convictions are

       AFFIRMED.




                                          19
