United States v. Corey Jamaal Woodard

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12567
Non-Argument Calendar
________________________
D.C. Docket No. 5:14-cr-00042-WTH-PRL-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
COREY JAMAAL WOODARD,
SHAWN LAMONTE ROBINSON,
Defendants - Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(November 30, 2016)
Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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The government alleged that defendants Corey Jamaal Woodard and Shawn
Lamonte Robinson participated in a cocaine trafficking conspiracy over the course
of seven years. After a jury trial, the defendants appeal their convictions and
sentences for conspiracy to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. § 846, and aiding and abetting the attempted possession with
intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(B), (b)(2). Additionally, Woodard appeals his conviction and
sentence for knowingly possessing a firearm during a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1).
The defendants mount a number of challenges to their convictions and
sentences. After careful consideration, we find no reversible error and therefore
affirm.
Robinson first challenges the district court’s denial of his motion to suppress
evidence stemming from a search of his residence. But we conclude that the
warrant authorizing this search was based on sufficient probable cause. Second, he
challenges the sufficiency of the evidence underlying both of his convictions. The
evidence was sufficient to support his convictions, however: it was extensive and
the jury could reasonably have believed the government’s witnesses. Third,
Robinson challenges the district court’s refusal to give his requested jury
instruction about the inability of government informants to be co-conspirators.
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The court gave an alternate instruction, however, which substantially covered what
Robinson requested.1
Woodard challenges the district court’s exclusion of a portion of a
prosecution witness’s plea agreement under the rule of completeness. This
exclusion was proper because the excluded portion did nothing to clarify or
contextualize the part that had been admitted. Woodard also challenges the
sufficiency of the evidence underlying his firearms conviction. But witness
testimony, along with the proximity of the firearms to Woodard and drug purchase
money, was sufficient to support his conviction.
Given the number of issues in this appeal, we discuss each issue separately
below and set forth its relevant facts in the context of that discussion. We first
address Robinson’s appeal of the denial of his motion to suppress the evidence
seized from his residence. Next, we address Woodard’s challenge to the district
court’s evidentiary ruling denying admission of the factual basis of a government
cooperator’s plea agreement. We then address both defendants’ challenges to the
1
Additionally, both Woodard and Robinson argue that the district court’s factual findings
about the quantity of cocaine involved in their scheme violated the Sixth Amendment under
Alleyne v. United States, 133 S. Ct. 2151(2013). This argument is foreclosed by our decision in
United States v. Charles, 757 F.3d 1222 (11th Cir. 2014), which held that “a district court may
continue to make guidelines calculations based upon judicial fact findings and may enhance a
sentence—so long as its findings do not increase the statutory maximum or minimum authorized
by facts determined in a guilty plea or jury verdict.” Id. at 1225. As in Charles, here, “[b]ecause
the . . . increase here affected only [the defendants’] guidelines calculation and not [their]
statutory mandatory minimum or maximum, [their] reliance on Alleyne is misplaced.” Id. at
1225–26.
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sufficiency of the evidence to support their convictions. Finally, we address
Robinson’s appeal of the district court’s refusal to give Robinson’s requested jury
instruction on the inability of government cooperators to be co-conspirators.
I. The Search Warrant and Motion to Suppress
Robinson challenges the district court’s refusal to suppress evidence seized
from his house by Drug Enforcement Administration (“DEA”) agents acting
pursuant to a search warrant. He argues that the affidavit supporting this warrant
did not provide probable cause for a search because it included information from
two unreliable sources: a cooperating defendant (“CD”) and an anonymous source
of information (“SOI”). Probable cause depended on information from these
sources. But this information was sufficiently reliable because the DEA
independently was able to corroborate much of it, and the sources corroborated
each other. Robinson also argues that the affidavit established no nexus between
his residence and criminal activity. But both informants tied his residence to drug
trafficking. The district court’s denial of Robinson’s motion to suppress was
therefore proper.
A. The Search Warrant Affidavit
DEA Agent Paul Smith’s affidavit included information from three sources:
the CD, the SOI, and his investigation. The CD provided information about
Robinson’s drug trading activities. He also recorded phone calls with Robinson
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and set up a fake drug transaction at the DEA’s behest. The SOI provided further
information about Robinson’s activities and confirmed the CD’s information.
Based on the similarity of the information provided by the two informants and his
own investigation, Smith deemed both informants’ information to be reliable. All
the information that follows comes from the affidavit.
The CD had known and conducted cocaine transactions with Woodard and
Robinson for more than seven years. These transactions typically involved several
kilograms of cocaine at a time. During these transactions, Woodard usually would
travel from Orlando to Ocala with money to purchase the cocaine and provide the
money to the CD. The CD would use the money to purchase cocaine from his
source, which he then provided to Woodard.
According to the affidavit, when Woodard occasionally was unavailable, the
CD traveled to Robinson’s residence to pick up the money for purchasing cocaine
from his source in Ocala. When the CD’s source ran dry, he many times had
purchased small amounts of cocaine from Robinson at Robinson’s residence. The
CD told investigators that Robinson maintained storage units near Robinson’s
residence containing drug money and narcotics. When the CD visited Robinson’s
residence, Robinson always had a loaded pistol in sight and typically a small
amount of marijuana as well.
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The affidavit further detailed that with the CD’s permission, the DEA began
recording his phone calls with Woodard and Robinson. At the DEA’s prompting,
the CD led Robinson to believe that the CD had developed a new source of cocaine
in Ocala. Eventually, the CD agreed to sell Robinson two kilograms of cocaine for
$35,000 per kilogram. They agreed that Woodard would travel to the CD in Ocala
with the money and then return to Orlando with the drugs.
The affidavit related that on June 19, 2014 DEA agents surveilled
Robinson’s and Woodard’s residences in anticipation of the agreed-upon
transaction taking place. They observed Woodard travelling to Robinson’s
residence and then departing. Smith, the affiant, believed Woodard had obtained
the money for the transaction from Robinson at his residence and was headed to
Ocala to complete the transaction. Smith communicated with agents observing the
northbound Florida turnpike; he described the make and model of Woodard’s
vehicle. These agents observed Woodard driving north about an hour later,
stopped his vehicle, and seized approximately $70,000 and three loaded handguns
from the vehicle.2
The SOI confirmed much of the CD’s information. She accurately related
the events of June 19 as well as Robinson’s birthdate, his address, and two of his
previous phone numbers. She also told investigators Robinson’s daily schedule,
2
Woodard was not arrested, presumably to allow the investigation to continue.
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that he often had a semi-automatic pistol with him, and that he maintained storage
units to house money and weapons. She reported having observed him returning
from these units with more than $50,000. According to the SOI, these units
originally were in the name of Shuronda Manning, but after the June 19 money
seizure, they had been placed under a different name. The DEA confirmed that
Shuronda Manning was the mother of Robinson’s child. The SOI accurately
identified Robinson’s Ocala narcotics associate as the CD via an alias and provided
the CD’s phone number.
The affidavit also described the indictment and arrest of Woodard and
Robinson. Robinson was arrested in his residence. During the arrest, agents
observed what appeared to be marijuana as well as an empty handgun box
containing a handgun magazine. An agent advised Robinson of his Miranda3
rights and then asked Robinson where in his house the gun was located. Robinson
refused to answer and invoked his rights to remain silent and to have counsel.
B. Robinson’s Motion to Suppress
Before trial, Robinson moved to suppress the evidence derived from the
search of his house. Robinson challenged the sufficiency of the affidavit to
support a search warrant, arguing that it failed to establish the reliability of the
CD’s and the SOI’s information or a sufficient nexus between the drug conspiracy
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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and Robinson’s residence.4 The magistrate judge issued a Report and
Recommendation recommending the motion be denied to which Robinson
objected. The district court adopted the magistrate judge’s Report and
Recommendation and denied Robinson’s motion to suppress. For the reasons that
follow, we find no error.
When reviewing the denial of a motion to suppress, we review the district
court’s findings of fact for clear error and its application of the law to those facts
de novo, construing the facts in the light most favorable to the prevailing party
below—here, the government. United States v. Lewis, 674 F.3d 1298, 1302–03
(11th Cir. 2012). “We give great deference to a lower court’s determination of
probable cause.” United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir.
1999) (internal quotation marks omitted). A district court’s choice between two
permissible views of the evidence cannot be clear error. See United States v.
Smith, 821 F.3d 1293, 1302 (2016).
The Fourth Amendment provides that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
4
Robinson also contended that the search warrant improperly was based on his
invocation of his right to counsel and his refusal to consent to a search of his residence.
Although the affidavit mentioned these facts, neither the magistrate judge nor the district court
relied on them in denying Robinson’s motion to suppress. Indeed, the magistrate judge’s Report
and Recommendation, which the district court adopted, states that Robinson’s refusal to answer
questions was not a factor necessary to find probable cause. Although raised on appeal, this
issue lacks merit.
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place to be searched, and the persons or things to be seized.” U.S. Const. amend.
IV. Probable cause to support a search warrant exists when, under the totality of
the circumstances, there is a fair probability of finding contraband or evidence at a
particular location. Brundidge, 170 F.3d at 1352. “The focus in a warrant
application is usually on whether the suspect committed a crime and whether
evidence of the crime is to be found at his home or business.” United States v.
Martin, 297 F.3d 1308, 1314 (11th Cir. 2002). An affidavit in support of the
warrant application must contain information giving rise to a fair probability that
evidence will be found in the place police seek to search. Id. “Specifically, the
affidavit should establish a connection between the defendant and the residence to
be searched and a link between the residence and any criminal activity.” Id. If an
informant is mentioned in an affidavit, “the affidavit must also demonstrate the
informant’s veracity and basis of knowledge.” Id. (internal quotation marks
omitted). “However, when there is sufficient independent corroboration of an
informant’s information, there is no need to establish the veracity of the
informant.” Id. (internal quotation marks and alteration omitted).
The affidavit in this case provided ample independent corroboration for both
the CD’s and the SOI’s reliability. Both the CD and the SOI—corroborating each
other’s information—had knowledge of Robinson’s name, address, telephone
number, use of a firearm, and access to storage units nearby containing money
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from drug sales. The CD conducted numerous recorded phone calls with
Robinson, which confirmed for Smith what the CD told him about Robinson’s
involvement in cocaine transactions. The SOI reported the seizure of money and
guns from Woodard’s car on June 19 that Smith had worked with the CD to
arrange. Smith independently corroborated key parts of the information the CD
and SOI provided and determined, based on this corroboration, that their
information was reliable. See id. at 1315 (“[W]e recognize[] the significance of the
police officers’ investigation and corroboration of an informant’s tip in
determining whether probable cause existed on the basis of an informant’s
assertions.”).
Robinson argues that the affidavit nonetheless was insufficient to support
probable cause because its concession that no illegal activity had been observed at
Robinson’s residence negated the required nexus between the home and illegal
activity. 5 He is incorrect. The CD reported buying cocaine from and selling it to
Robinson at Robinson’s residence, as well as retrieving money from Robinson
there to use in purchasing drugs in Ocala. The DEA also observed Woodard at
Robinson’s residence about an hour before approximately $70,000 was found in
Woodard’s vehicle on the day that—according to the CD’s telephone calls—
5
Robinson does not argue that the affidavit failed to establish a sufficient nexus between
himself and his residence, only that there was no connection between his residence and illegal
activity.
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Woodard planned to purchase cocaine for Robinson in Ocala. During the course of
their arrest of Robinson at his residence, law enforcement observed what they
believed to be marijuana, as well as an empty handgun box and magazine, in plain
view inside the residence. These facts established a connection between
Robinson’s residence and unlawful drug distribution sufficient to provide probable
cause for a search warrant.
For these reasons, we conclude that the district court correctly denied
Robinson’s motion to suppress.
II. Woodard’s Evidentiary Challenge
Woodard challenges under Federal Rule of Evidence 106 the district court’s
refusal to admit a portion of a cooperator’s plea agreement. This cooperator, Josias
Reyes, testified for the government, and the district court admitted the terms of his
plea agreement on the government’s motion. But the portion of the plea agreement
admitted did not include the factual basis for Reyes’s plea. Woodard argues that
this factual basis should have been admitted under Rule 106, the so-called “rule of
completeness.” He is mistaken. The factual basis was not necessary to avoid
confusion or place the plea agreement in context. The district court’s exclusion of
the factual basis was therefore proper.
Reyes, a cocaine distributor cooperating with the government, testified at
trial about his relationship with Woodard. On cross-examination, Woodard’s
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counsel inquired about Reyes’s plea agreement. Defense counsel elicited
testimony that Woodard was not mentioned anywhere in the plea agreement or the
factual basis Reyes signed as part of that agreement. On redirect, the government
moved to admit into evidence a portion of Reyes’s plea agreement detailing his
agreement to cooperate. Woodard objected under the rule of completeness that the
partial document being introduced lacked the factual basis portion of the plea
agreement. The district court overruled the objection, explaining that it could be
misleading to the jury to suggest the testimony at trial was different than what was
written in the factual basis. Reyes then testified that he understood, per the
agreement, that he would face consequences if he falsely implicated another
person.
We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). Under Rule
106, “[i]f a party introduces all or part of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any other part . . . that
in fairness ought to be considered at the same time.” Fed. R. Evid. 106. Rule 106
“does not automatically make the entire document admissible” just because part of
that document is admitted. United States v. Lanzon, 639 F.3d 1293, 1302 (11th
Cir. 2011) (internal quotation marks omitted). “Rather, it is consistently held that
the rule permits introduction only of additional material that is relevant and is
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necessary to qualify, explain, or place into context the portion already introduced.”
Id. (internal quotation marks and alteration omitted).
Woodard argues that the plea agreement’s factual basis should have been
admitted to provide “context” to the remainder of the agreement. We disagree.
The government sought to admit the plea agreement to demonstrate the
consequences Reyes would face for falsely accusing somebody of a crime. The
factual basis portion of the plea agreement would not have contextualized “the
portion already introduced”—here, the terms of the plea agreement. Id.Woodard’s argument essentially concedes this point: he sought to admit the
factual basis of the plea agreement to impeach the substance of Reyes’s testimony,
not to clarify the terms of the plea deal. Thus, by his own argument Woodard was
not entitled to introduction of the factual basis pursuant to Rule 106.
Woodard cites in support of his argument United States v. Lopez-Medina,
596 F.3d 716 (10th Cir. 2010), in which the Tenth Circuit held the factual basis of
a plea agreement admissible under Rule 106. Id. at 735. But that case is
inapposite. There, the defendant introduced a co-defendant’s plea agreement to
suggest to the jury that the co-defendant had accepted sole responsibility for the
entire crime. Id. The court admitted the factual basis of that agreement under Rule
106 because the factual basis clarified that the co-defendant had not accepted sole
responsibility for the crime. Id. There, the factual basis was necessary to avoid
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misleading the jury about the true meaning of the plea agreement. In this case, by
contrast, there was no chance Reyes’s plea agreement would be similarly
misleading without admitting its factual basis, so the district court did not abuse its
discretion in excluding it.
III. Sufficiency of the Evidence
Robinson and Woodard were each convicted of multiple crimes. Both were
convicted of conspiracy to distribute cocaine for the seven years of cocaine
trafficking that the government was able to catalog at trial through the testimony of
other drug traffickers. Robinson challenges the sufficiency of the evidence
underlying the conspiracy conviction. Both Robinson and Woodard were also
convicted of aiding and abetting the attempted possession of cocaine with intent to
distribute. These convictions centered on the fake cocaine transaction that the
government arranged to take place on June 19, 2014. Robinson also challenges the
sufficiency of the evidence underlying his attempted possession conviction.
Woodard alone was convicted of possessing a firearm in furtherance of drug
trafficking. This charge, too, related to the events of June 19. Woodard challenges
the sufficiency of the evidence on this conviction.
We review the district court’s denial of a motion for judgment of acquittal de
novo; however, we note that “[e]vidence is sufficient to support a conviction where
after viewing the evidence in the light most favorable to the prosecution, any
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rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Miranda, 666 F.3d 1280, 1282 (11th Cir.
2012) (internal quotation marks omitted). “[W]e assume that the jury made all
credibility choices in support of the verdict.” United States v. Jiminez, 564 F.3d
1280, 1285 (11th Cir. 2009).
At trial, the government introduced testimony from more than a dozen
witnesses. We discuss here only the testimony relevant to the issues on appeal.
For ease of discussion, we break the evidence down into a different section for
each sufficiency challenge.
A. Robinson’s Conspiracy to Distribute Cocaine Conviction
Robinson challenges the sufficiency of the evidence underlying his
conviction for conspiracy to distribute cocaine. He argues that Tim Munnerlyn and
George Evans—drug traffickers who testified about his involvement in the
conspiracy—were not credible. But credibility determinations are for the jury, and
here the jury apparently believed Munnerlyn and Evans. Robinson also argues that
without their testimony, there was no direct evidence linking him to drug
trafficking. But the government need not prove conspiracy by direct evidence.
And in any event, there was ample evidence beyond Munnerlyn’s and Evans’s
testimony supporting Robinson’s conspiracy conviction. The evidence underlying
Robinson’s conspiracy conviction was therefore sufficient.
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1. The Conspiracy
At trial, the government adduced evidence of a drug trafficking ring going
back at least seven years. Robinson—usually acting through his colleague
Woodard—acted as both a purchaser and a distributor during this time. The
government’s most important witness was Evans, the aforementioned CD, who
cooperated with the DEA. Munnerlyn, a cocaine distributor cooperating with the
government, also testified about his relationship with Woodard and Robinson,
which, over time, led to drug transactions.
Evans testified about his drug transactions with both defendants, whom he
identified in court. Evans, a convicted felon, admitted he hoped for a reduced
sentence based on his cooperation. He testified that he met Woodard and sold him
cocaine at a house in Ocala. He later met Robinson through cocaine deals with
Woodard. Evans testified that although Robinson never came to the house in
Ocala for cocaine deals, the two did meet to straighten things out after a man
working with Robinson gave Evans $5,000 in counterfeit money. When they
bought cocaine from him, Evans testified that Woodard and Robinson purchased
three to four kilograms at a time.
Evans testified that eventually he and the defendants swapped roles, and he
began buying cocaine from Woodard and Robinson. He explained that the pair
would “front” him—that is, give him on consignment—cocaine at $1,100 to
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$1,200 an ounce. Evans would drive from Ocala to Orlando to pick up the
cocaine, first at Woodard’s house then, as time went on, at Robinson’s.
Munnerlyn also identified Woodard and Robinson in court and explained
that he had been introduced to Woodard by another drug trafficking associate.
Over time, he built a relationship with Woodard and, later, with Robinson.
Typically, Munnerlyn would contact one of his cocaine sources and facilitate a sale
from that source to Woodard. Eventually, Munnerlyn began to sell cocaine
directly to Woodard. As time went on, the size of these transactions got larger—
up to 10 kilograms at a time. Robinson was not present at these transactions, but
Munnerlyn testified that Woodard would call Robinson when there was a
problem—specifically the several times the cocaine did not weigh as much as it
should have. And Munnerlyn reported meeting with Robinson on one occasion to
discuss “straightening out” a watered down kilogram of cocaine that Munnerlyn
had purchased from a supplier. Eventually, Munnerlyn began to travel to
Woodard’s house to purchase cocaine from him and Robinson rather than sell it to
them.
2. Robinson’s Conspiracy Sufficiency Challenge
“To sustain a conviction for conspiracy to distribute [cocaine] in violation of
21 U.S.C. § 846, the government must prove that 1) an agreement existed between
two or more people to distribute drugs, 2) that the defendant knew of the
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conspiratorial goal, and 3) that he knowingly joined or participated in the illegal
venture.” United States v. Reeves, 742 F.3d 487, 497 (11th Cir. 2014) (internal
quotation marks omitted). “In assessing whether the record is sufficient to sustain
a conviction, we consider whether a common goal existed, the nature of the
underlying scheme, and the overlap of participants.” Id. Circumstantial evidence
can be used to prove conspiracy, and “repeated transactions between participants
buying and selling large quantities of illegal drugs” may be sufficient to find the
participants were involved in a single conspiracy to distribute those drugs. Id.Moreover, even if a defendant did not know all the details of a conspiracy,
participate in every stage thereof, or have direct contact with each of the other co-
conspirators, he can still be convicted if he was aware of the conspiracy’s essential
nature. Id. at 497–98. The record here is sufficient to sustain Robinson’s
conspiracy conviction.
First, the evidence at trial demonstrated an agreement between Robinson and
others to distribute cocaine. Munnerlyn and Evans both testified to selling cocaine
to and buying cocaine from Robinson over the course of years. Both also testified
to Robinson’s longtime use of Woodard as a go-between when buying and selling
cocaine. Each of these relationships alone—Robinson-Munnerlyn, Robinson-
Evans, and Robinson-Woodard—demonstrated Robinson’s agreement with others
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to distribute cocaine. Together, they are more than sufficient proof to sustain his
conviction.
Second, the evidence proves Robinson’s knowledge that he, Munnerlyn,
Evans, and Woodard were distributing cocaine. Evans testified to purchasing
cocaine directly from Robinson at his residence. Munnerlyn testified to meeting
with Robinson to discuss straightening out a transaction between them involving
watered-down cocaine. This testimony established that Robinson must have
known his compatriots were involved in distributing cocaine.
Third, the evidence sufficed to show that Robinson knowingly participated
in the cocaine distribution scheme. Indeed, the evidence suggested that he hatched
the scheme in the first place. Both Munnerlyn and Evans testified that Woodard
called in Robinson when things went wrong. Both also testified that Robinson
directed Woodard’s actions. This testimony supported the inference that Robinson
was in charge of the conspiracy—at least vis-à-vis Woodard—so it certainly
supports his knowing participation therein.
Robinson contends the evidence was insufficient to support his conviction
for two interrelated reasons. First, he argues that Munnerlyn and Evans, who
testified about his involvement in the conspiracy, were not credible because they
were “career offenders and professional drug traffickers.” Robinson’s Br. at 21.
Second, Robinson asserts that, without the testimony of Evans and Munnerlyn,
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there was no direct evidence linking him to the conspiracy. Robinson’s challenges
lack merit.
With respect to Robinson’s first argument, it is well established that
“credibility determinations are the exclusive province of the jury” and “a judgment
of acquittal is not required because the government’s case includes testimony by an
array of scoundrels, liars, and brigands.” United States v. Calderon, 127 F.3d
1314, 1325 (11th Cir. 1997) (internal quotation marks alteration omitted). “By
bringing back a verdict of guilty, . . . the jury found that the testimony . . . was
credible.” Id. (internal quotation marks omitted). Such credibility determinations
will only be disturbed on appeal if the testimony in question was “incredible as a
matter of law,” meaning “it relates to facts that the witness could not have possibly
observed or events that could not have occurred under the laws of nature.” United
States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (internal quotation marks
omitted). Robinson does not argue that Munnerlyn’s and Evans’s testimony was
incredible as a matter of law. We therefore will not disturb the jury’s credibility
determinations.
As to Robinson’s second argument, he may be right that the government
adduced no direct evidence linking him to the conspiracy except the testimony of
Evans and Munnerlyn. But the government did not have to do so. As explained
above, there is no reason to discount Evans’s and Munnerlyn’s testimony when the
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jury apparently credited it. And there is no need for direct evidence when binding
precedent tells us that circumstantial evidence will do. See, e.g., Reeves, 742 F.3d
at 497 (“It is by now axiomatic that participation in a criminal conspiracy need not
be proved by direct evidence.” (internal quotation marks and alteration omitted)).
The evidence was therefore sufficient to sustain Robinson’s conspiracy conviction.
B. Robinson’s Aiding and Abetting the Attempted Possession of Cocaine
with Intent to Distribute Conviction
Robinson also challenges the sufficiency of the evidence underlying his
conviction for aiding and abetting attempted possession of cocaine with intent to
distribute. He argues that without Evans’s testimony, there was nothing linking
him to attempted possession of cocaine. He further argues that Woodard’s
unimpeached testimony established that they planned to purchase marijuana, not
cocaine, on June 19. These arguments fail. The jury was free to credit Evans’s
and Munnerlyn’s testimony over Woodard’s. The evidence underlying Robinson’s
aiding and abetting attempted possession charge was therefore sufficient.
1. The June 19 Transaction
As part of his cooperation with the government, Evans made phone calls and
had conversations with Woodard and Robinson. At the government’s behest, he
used these calls to arrange a fake cocaine transaction on June 19, 2014. The DEA
recorded the phone calls leading to the transaction, and these recordings along with
a transcript were admitted into evidence. Evans explained that conversations in the
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drug trade are conducted in code to evade detection by law enforcement, and he
“translated” the recorded calls from code into plain English. He explained one
recorded conversation in which he informed Robinson that he had cocaine
available and Robinson stated he was running low. He then explained several
more conversations in which the pair negotiated the sale of cocaine. They set a
price of $35,500 per kilogram, and Robinson agreed to purchase two kilograms.
Though the conversations were in code and the word cocaine was never used,
Evans twice made clear to the jury that he and Robinson were talking about
cocaine rather than marijuana.
Robinson told Evans that Woodard agreed to make a single round trip from
Orlando to Ocala with the money to purchase the cocaine. Evans explained that on
the morning of June 19, 2014, he and Robinson re-negotiated to $35,000 per
kilogram, for a total of $70,000 for two kilograms. He then got confirmation from
Robinson and Woodard that Woodard was headed toward Ocala. Smith testified
that when law enforcement pulled Woodard over, they found $69,880 in cash,
along with $120 in counterfeit currency, in his car.
After the government rested, Woodard testified in his own defense, denying
participation in a conspiracy involving cocaine. Woodard admitted driving toward
Ocala on June 19 but testified that he intended to purchase marijuana, not cocaine.
When asked about the large amount of money he was transporting, he explained
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that half of it belonged to a friend. His half came from an insurance payout for his
stolen truck and two payments for a car accident. On cross-examination, Woodard
stated that he intended to become a marijuana dealer, though he had never done it
before.
2. Robinson’s Attempted Possession Sufficiency Challenge
To sustain a conviction for attempted possession with intent to distribute
cocaine, the government must have proven that a defendant “(1) acted with the
kind of culpability required to possess cocaine knowingly and willfully and with
the intent to distribute it” and “(2) engaged in conduct which constitute[d] a
substantial step toward the commission of the crime under circumstances strongly
corroborative of their criminal intent.” United States v. McDowell, 250 F.3d 1354,
1365 (11th Cir. 2001). To sustain a conviction under an aiding and abetting
theory, the government must have proven “that the defendant associated himself
with a criminal venture, participated in it as something he wished to bring about,
and sought by his actions to make it succeed.” United States v. Pantoja-Soto, 739
F.2d 1520, 1525 (11th Cir. 1984). The evidence indicates that Robinson did all of
the above.
Here, the evidence at trial surrounding the June 19 transaction was
sufficient to convict Robinson of aiding and abetting the attempted possession of
cocaine with intent to distribute. First, with respect to attempted possession with
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intent to distribute, his actions demonstrated his intent. Over the course of several
phone calls, Robinson negotiated with Evans about the quantity, price, and driving
arrangements required for Robinson to purchase cocaine from Evans’s source.
These conversations demonstrated his intention to acquire a large amount of
cocaine. During these conversations, Robinson spoke in code, suggesting that he
knew the planned transaction to be illegal. And he eventually agreed to purchase
two kilograms. The large quantity of cocaine involved suggested a plan to
distribute it. Cf. United States v. Tinoco, 304 F.3d 1088, 1123 (11th Cir. 2002) (“A
defendant’s intent to distribute . . . may be inferred from the large quantity of
narcotics that were seized.”). He thus acted with the culpability necessary to
knowingly possess and distribute cocaine.
Second, Robinson completed a substantial step toward possessing the
cocaine. The evidence suggests that on June 19 Robinson obtained about $70,000
and gave it to Woodard. The evidence also indicates that Robinson intended
Woodard to drive the money to Ocala and use it to buy two kilograms of cocaine
from Evans’s source. Giving Woodard the $70,000 was a substantial step toward
possessing cocaine with the intent to distribute it.
This evidence was thus sufficient to prove attempted possession with intent
to distribute cocaine: Robinson intended to possess two kilograms of cocaine, and
he gave about $70,000 to an accomplice toward that end.
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But Robinson was charged under a theory of aiding and abetting. The
evidence was more than sufficient to meet the aiding and abetting elements as well.
First, by communicating with Woodard and arranging for him to purchase cocaine
from Evans’s source, Robinson associated himself with Woodard’s attempted
possession of cocaine with intent to distribute. Second, Robinson arranged the
transaction between himself, Woodard, and Evans’s source; the evidence suggests
that he wished to cause the transaction to occur. Third, in making those
arrangements and in giving Woodard $70,000, Robinson sought to make the
scheme succeed. He thus aided and abetted Woodard’s attempted possession of
cocaine with intent to distribute.
Robinson challenges the sufficiency of the evidence on the grounds that,
aside from Evans’s testimony, there was no direct evidence that any transaction
involving cocaine was afoot. By contrast, he argues, Woodard’s unimpeached
testimony established that he and Woodard were planning to purchase marijuana
only. This argument fails for four reasons.
First, the jury was free to credit Evans’s testimony. Evans testified to the
meaning of various coded terms he used in his phone calls to set up the June 19
transaction with Robinson. This testimony, along with the recorded conversations
themselves, established that the planned transaction involved cocaine.
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Second, binding precedent tells us that circumstantial evidence is sufficient
to sustain both attempted possession of narcotics with intent to distribute, see
McDowell, 250 F.3d at 1365, and liability on a theory of aiding and abetting, see
Pantoja-Soto, 739 F.2d at 1525. Here, the recorded phone calls between Evans
and Robinson never explicitly used the word “cocaine,” but Evans twice testified
that they were talking about cocaine rather than marijuana. This evidence was
circumstantial—Evans was explaining his inference as to Robinson’s meaning—
and it sufficed to support Robinson’s conviction.
Third, the jury was not required to accept at face value Woodard’s testimony
that the June 19 transaction involved marijuana rather than cocaine. They were
free not only to discredit this testimony, but also to use it as substantive evidence
against Woodard and Robinson if they believed Woodard was lying. See United
States v. Hough, 803 F.3d 1181, 1188 (11th Cir. 2015) (“[H]aving seen and heard
[the defendant’s] testimony, the jury was free to discredit [his] explanation, to infer
that the opposite of what [he] said was true, and to consider that inference as
substantive evidence of [his] guilt.”). Certainly, Woodard’s testimony to the
contrary does not undermine the sufficiency of the evidence supporting Robinson’s
conviction.
Fourth, based on the testimony of Munnerlyn and Evans, the jury reasonably
could have inferred that a drug transaction involving Evans, Robinson, and
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Woodard would involve cocaine rather than marijuana. These witnesses testified
to years’ worth of cocaine transactions among them but only ever mentioned small
amounts of marijuana.
For the foregoing reasons, the evidence presented at trial was sufficient to
sustain Robinson’s conviction for aiding and abetting attempted possession of
cocaine with intent to distribute.
C. Woodard’s Possession of a Firearm in Furtherance of Drug Trafficking
Conviction
Woodard challenges his 18 U.S.C. § 924(c) conviction for possessing a
firearm in furtherance of drug trafficking. Although he admits to possessing
firearms, he testified at trial and argues now that he possessed the firearms for
legitimate purposes and not in furtherance of drug trafficking. But the location of
the firearms, their proximity to cocaine “buy money,” and Munnerlyn’s and
Evans’s testimony that Woodard frequently carried a firearm during cocaine
transactions counseled otherwise. So, too, did Woodard’s testimony, which the
jury was free to treat as evidence of his guilt. The evidence underlying Woodard’s
possession of a firearm charge was therefore sufficient.
1. Woodard’s Firearms
At trial, the government adduced evidence of Woodard’s firearms usage.
Evans reported seeing Woodard with a black firearm every time they transacted
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business. And Munnerlyn testified that he had seen Woodard with a black nine
millimeter handgun both on his person and in his vehicle.
Woodard had several loaded firearms in his possession when his car was
stopped by law enforcement on June 19. Officer Boyce Rainey, a police officer for
the Ocala Police Department, testified to pulling Woodard over that day. He
testified that inside the car police found a hidden backpack with money inside, two
handguns in the glove compartment, and another handgun in the center console.
On cross-examination, Rainey conceded that Woodard had a concealed handgun
permit, the firearms had not been brandished, and they were being lawfully carried.
Smith testified that the three firearms seized from Woodard’s vehicle had been
loaded. Additionally, he testified that law enforcement found approximately
$70,000 in the car.
Woodard testified in his own defense. He acknowledged possessing
firearms but denied that he did so to further drug trafficking. He also explained
that he had worked as an armed security guard for a short while.
2. Woodard’s Sufficiency Challenge
To sustain a conviction under § 924(c), the government was required to
prove that Woodard “(1) knowingly (2) possessed a firearm (3) in furtherance of
any drug trafficking crime for which he could be prosecuted in a court of the
United States.” United States v. Williams, 731 F.3d 1222, 1232 (11th Cir. 2013).
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Woodard does not contest that he knowingly possessed the three firearms
recovered from his vehicle but argues that his possession was not in furtherance of
a drug trafficking offense.
“A firearm is possessed in furtherance of a drug trafficking crime when the
firearm helped, furthered, promoted, or advanced the drug trafficking.” Id.(internal quotation marks omitted). “[T]he presence of a gun within the
defendant’s dominion and control during a drug trafficking offense is not sufficient
by itself” to prove the gun was possessed in furtherance of that crime. United
States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002). Factors relevant to the
whether the government proved the “in furtherance of” element include:
(1) the type of drug activity that is being conducted; (2) accessibility
of the firearm; (3) the type of the weapon; (4) whether the weapon is
stolen; (5) the status of the possession (legitimate or illegal); (6)
whether the gun is loaded; (7) proximity to the drugs or drug profits;
and (8) the time and circumstances under which the gun is found.
Williams, 731 F.3d at 1232 (alteration and internal quotation marks omitted).
A significant amount of evidence suggested that Woodard possessed the
firearms in furtherance of drug trafficking. Factors (2), (6), (7), and (8) above
support this conclusion. His firearms were found in his car within easy reach,
loaded, and in close proximity to roughly $70,000 in cash that the jury reasonably
could have concluded was intended to be used to purchase cocaine. The jury also
heard testimony from Evans and Munnerlyn that Woodard frequently brought a
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firearm with him to drug transactions. Moreover, Woodard testified at trial that he
did not possess the firearms in furtherance of drug trafficking, and “having seen
and heard [the defendant’s] testimony, the jury was free to discredit [his]
explanation, to infer that the opposite of what [he] said was true, and to consider
that inference as substantive evidence of [his] guilt.” Hough, 803 F.3d at 1188.
Based on evidence the jury heard, an opposite inference was reasonable.
There was also some evidence supporting Woodard’s innocence. Woodard
argues that the three firearms police seized legitimately were in his possession
pursuant to a concealed weapons permit (factor (5) above), that he was a former
security guard (perhaps factor (8)), and that all the evidence above is equally
susceptible to the interpretation that Woodard carried firearms only for legal
purposes.
But a rational trier of fact could have inferred that he possessed firearms to
further drug trafficking—for protection, for example. See, e.g., United States v.
Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (“[T]he fact finder is free to consider the
numerous ways in which a firearm might further or advance drug trafficking. For
example, . . . . a gun could serve as protection in the event that a deal turns sour.”).
Drawing all inferences in the government’s favor, the evidence underlying
Woodard’s § 924(c) conviction was sufficient. See Jiminez, 564 F.3d at 1285.
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IV. The Jury Instruction
Robinson challenges the district court’s failure to instruct the jury in the
manner he requested. Specifically, he challenges the instruction given on the
inability of government cooperators to be co-conspirators. Robinson argues the
instruction given might have led the jury to believe Evans was conspiring with
Robinson while planning the fake June 19 drug transaction. But the district court’s
instruction, though shorter than the one Robinson proposed, substantially covered
the subject matter of Robinson’s requested instruction. The court’s instruction was
therefore proper.
At the charge conference, Robinson sought an instruction on the inability of
government cooperators to enter into a conspiracy. Given Evans’s long period of
cooperation with the government, Robinson wanted to make sure Evans was not
viewed as a co-conspirator in setting up the June 19 transaction. He submitted the
following proposed instruction:
Members of the jury, you are hereby instructed that after [Evans]
agreed to cooperate with the government he became a government
agent and informer. Once he became a government agent and
informer, he could not be a co-conspirator with either or both of the
defendants. Someone who acts as a government agent and enters into
a purported conspiracy in the secret role of an informer or cooperating
individual cannot be a co-conspirator.
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The district court acknowledged that Robinson’s proposed instruction was a
correct statement of the law but indicated that such a lengthy instruction was
unwarranted. The court instead instructed the jury:
[A]nd someone who acts as a government agent or cooperator and
purports to enter a conspiracy in the secret role of an informer cannot
be a co-conspirator.
Robinson argues the district court’s instruction on the inability of
government cooperators to be co-conspirators given in lieu of his requested
instruction was “incomplete and inadequate” and could have led the jury to believe
it could convict him of conspiring with Evans during the time Evans was
cooperating with the DEA and recording his phone calls. Robinson’s Br. at 20.
We review the district court’s refusal to give a requested jury instruction for
an abuse of discretion. United States v. Jordan, 582 F.3d 1239, 1247 (11th Cir.
2009). Such refusal constitutes reversible error if:
(1) the requested instruction was a correct statement of the law, (2) its
subject matter was not substantially covered by other instructions, and
(3) its subject matter dealt with an issue in the trial court that was so
important that failure to give it seriously impaired the defendant's
ability to defend himself.
United States v. Paradies, 98 F.3d 1266, 1286 (11th Cir. 1996). This test is all-or-
nothing, so failure to satisfy one of its prongs means the district court committed
no reversible error. See Jordan, 582 F.3d at 1248; Paradies, 98 F.3d at 1287. “A
district court has broad discretion in formulating” the jury instructions it gives.
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United States v. Snipes, 611 F.3d 855, 867 (11th Cir. 2010) (internal quotation
marks omitted).
Under the Paradies test’s first prong, Robinson’s requested instruction was a
correct statement of the law. Indeed, it closely tracks language we approved in
United States v. Lively, 803 F.2d 1124, 1126 (11th Cir. 1986), to instruct the jury
on the so-called “Sears rule.” 6
And under the third prong of Paradies, refusal to give an instruction on the
inability of a government informant to be a co-conspirator would likely be
reversible error. The Lively case is instructive. There, as here, a government
informer planned a drug transaction with the defendant during the period he was
charged with conspiring to distribute cocaine. See Lively, 803 F.2d at 1125–26. In
Lively, we held the district court’s failure to provide a Sears instruction to be
reversible error. See id. at 1128.
But we need not reach that question here because under the second prong,
the district court’s given instruction substantially covered the subject matter of
Robinson’s requested instruction. This Court recently explained that whether a
given instruction substantially covered a requested one depended on “the size of
the logical leap that a juror would need to make to get from the instruction the
6
Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965), was the case in which our
predecessor court announced the rule. Decisions of the former Fifth Circuit rendered prior to
close of business on September 30, 1981 are binding on this Court. See Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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court gave to the instruction the defendant re quested.” United States v. Takhalov,
827 F.3d 1307, 1318 (11th Cir. 2016).
The only practical difference between the instructions here was that
Robinson’s proposed instruction made explicit that a person became a government
agent after agreeing to cooperate with the government and at that moment became
ineligible to enter into a conspiracy. The logical leap between the given and
requested instructions was well within the ability of the jury to make. Cf. United
States v. Hill, 643 F.3d 807, 852–54 (11th Cir. 2011) (upholding jury instructions
where jury had to infer that a person cannot lie “willfully” if he speaks what he
believes to be the truth); United States v. Martinelli, 454 F.3d 1300, 1315–16 (11th
Cir. 2006) (upholding instructions where jury had to infer that mail fraud was not
legitimate business).
This logical leap was far smaller than the leap we found problematic in
Takhalov. See 827 F.3d at 1318 (holding the inference “that a person is not
‘deceived or cheated out of money or property’ if he gets exactly what he paid for
even though he is deceived into paying in the first place” required too great a
logical leap). The district court’s instruction substantially covered the subject
matter of Robinson’s proposed instruction, so there was no abuse of discretion.
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V. Conclusion
For all of the foregoing reasons, we affirm Woodard and Robinson’s
convictions and sentences.
AFFIRMED.
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