United States v. George Arthur Farmer , 553 F. App'x 901 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16031
Non-Argument Calendar
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D.C. Docket No. 8:12-cr-00064-SCB-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE ARTHUR FARMER,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 23, 2014)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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George Arthur Farmer appeals his conviction for possession with intent to
distribute 5 grams or more of methamphetamine actual and 50 grams of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). He
raises two issues on appeal, which we address in turn. After review, we affirm
Farmer’s conviction.
I. MOTION TO SUPPRESS
Farmer first contends the district court erred in denying his motion to
suppress because the warrantless search of the motorcycle he was driving, after he
was placed in a nearby patrol car, was not justifiable as a search incident to arrest
or as an inventory search. Farmer does not address in his initial brief, however, the
district court’s determination that he lacked standing to challenge the
constitutionality of the search because he was driving a stolen motorcycle and had
no driver’s license.
When a defendant fails to offer argument on an issue, that issue is
abandoned. United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998).
Furthermore, issues not raised in a party’s initial brief, but later raised in a reply
brief, are also abandoned. United States v. Magluta, 418 F.3d 1166, 1185-86 (11th
Cir. 2005).
Because Farmer did not raise any challenge to the district court’s threshold
determination that he lacked standing to challenge the search of the motorcycle
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until his reply brief, he has abandoned the issue on appeal. Accordingly, we do not
reach his arguments about the constitutionality of the search.
II. PRIOR CONVICTIONS
Second, Farmer asserts the district court erred when it admitted evidence of
his two prior Florida convictions for felony possession of methamphetamine,
pursuant to Rule 404(b) of the Federal Rules of Evidence, to prove knowledge and
intent. He contends that admitting the Rule 404(b) evidence unfairly tipped the
scales in favor of a guilty verdict.
“Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). However, the evidence
may be admissible for other purposes, including intent, knowledge, absence of
mistake, or lack of accident. Fed. R. Evid. 404(b)(2). To be admissible, Rule
404(b) evidence (1) must be relevant to an issue other than the defendant’s
character, (2) must be proven sufficiently to allow a jury to find that the defendant
committed the extrinsic act, and (3) must possess probative value that is not
substantially outweighed by undue prejudice under Rule 403. United States v.
Sanders, 668 F.3d 1298, 1314 (11th Cir. 2012) (quotations omitted).
Rule 403 of the Federal Rules of Evidence provides that a “court may
exclude relevant evidence if its probative value is substantially outweighed by a
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danger of . . . unfair prejudice.” Fed. R. Evid. 403. In reviewing the third prong of
Rule 404(b) admissibility under Rule 403, “we look at the evidence in a light most
favorable to its admission, maximizing its probative value and minimizing its
undue prejudicial impact.” United States v. Edouard, 485 F.3d 1324, 1344 n.8
(11th Cir. 2007) (quotation omitted).
The district court did not abuse its discretion 1 in admitting evidence of
Farmer’s two prior methamphetamine convictions. Farmer placed his intent and
knowledge in issue by pleading not guilty to the offense charged under 21 U.S.C.
§841(a), which required the Government to prove that he knowingly or
intentionally possessed methamphetamine. See United States v. Delgado, 56 F.3d
1357, 1365 (11th Cir. 1995) (holding when a defendant pleads not guilty and
presents a “mere presence” defense, intent becomes a material issue that the
government may prove with qualifying Rule 404(b) evidence). Farmer’s prior
state-court convictions under § 893.13, Florida Statutes, for possession of
methamphetamine had a similar “knowledge” element to the federal offense charge
under § 841(a). See 21 U.S.C. § 841(a)(1); State v. Adkins, 96 So. 3d 412, 415-16
(Fla. 2012) (determining that § 893.13, Fla. Stat., includes, as an element of
offenses related to the sale, manufacture, delivery, and possession of controlled
substances, “the element of knowledge of the presence of the substance”). Thus,
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We review a district court’s evidentiary rulings for an abuse of discretion. United
States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007).
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the prior convictions were relevant to Farmer’s criminal intent in the § 841(a)
charge. See Delgado, 56 F.3d at 1365-66 (explaining where the state of mind
required for an extrinsic offense is the same as the charged offense, the extrinsic
offense is relevant to the defendant’s intent in the charged offense). The prior
convictions for possession of methamphetamine established a logical connection to
Farmer’s knowledge that methamphetamine was present in the motorcycle in this
case. See United States v. Jernigan, 341 F.3d 1273, 1281-82 (11th Cir. 2003)
(holding a prior conviction for possessing contraband establishes a logical
connection that the defendant knowingly did so on a subsequent occasion).
Farmer’s argument that admitting evidence of his prior convictions was
unfairly prejudicial relies on his assertion that Deputy Craig Lariz’s trial testimony
was contradicted by photographic evidence in the case and the Government
presented little other evidence of intent at trial, and thus admitting evidence of
prior convictions unfairly tipped the scales in favor of a conviction. Even
accepting Farmer’s argument that Lariz’s testimony was contradicted by
photographic evidence, this is the type of case where Rule 404(b) evidence would
have been necessary to prove intent and obtain a conviction. See United States v.
Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997) (stating where proof of extrinsic
acts is necessary to prove intent and to obtain a conviction, such evidence may be
admitted). Moreover, in addition to Lariz’s testimony regarding the scuffle, there
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was other evidence of intent and knowledge introduced at trial, such as the large
amount of cash present on Farmer’s person when he was stopped and the presence
of his red flip phone in the same compartment as the methamphetamine. The
district court took steps to minimize the prejudicial impact of the introduction of
the convictions for methamphetamine possession by giving the jury a limiting
instruction, the substance of which Farmer does not contest. See United States v.
Brown, 665 F.3d 1239, 1247 (11th Cir. 2011) (giving a limiting jury instruction on
the proper use of Rule 404(b) evidence can minimize the evidence’s prejudicial
impact). Because the prior convictions were relevant and their probative value was
not substantially outweighed by the danger of unfair prejudice, the court did not
abuse its discretion in determining that evidence of the prior convictions was
admissible. Accordingly, we affirm Farmer’s conviction.
AFFIRMED.
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