United States v. Orasama Andrews

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10053 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 9, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:08-cr-00072-HL-CWH-1
USA,
lllllllllllllllllllllPlaintiff - Appellee,
versus
ORASAMA ANDREWS,
lllllllllllllllllllllDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(November 9, 2010)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Orasma Andrews appeals his drug convictions, 21 U.S.C. § 841(a)(1). No
reversible error has been shown; we affirm.
On appeal, Andrews argues that the district court erred in denying his
motion for a directed verdict because the government produced insufficient
evidence of his guilt. He contends that the audio and video recordings did not
clearly show a drug transaction and that the confidential informants were not
credible. We review “the sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the government.” United States v. Garcia,
405 F.3d 1260, 1269 (11th Cir. 2005). We draw all reasonable inferences and
credibility choices in favor of the government and the jury’s verdict. Id.To support a conviction for possession of drugs with intent to distribute
under section 841(a)(1), the government had to prove (1) knowledge of
possession; (2) possession of a controlled substance; and (3) intent to distribute.
United States v. Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008). All three
elements may be proved by either direct or circumstantial evidence. United States
v. Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989).
Here, evidence showed that police officers began investigating Andrews
after receiving several complaints that Andrews was selling drugs in a certain area
of Jackson, Georgia. Officers used two confidential informants to make two
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controlled buys from Andrews. Andrews met with only one of the informants to
complete both drug sales because he did not know the other informant. After each
sale, the informant reported back to the officers with the drugs he had purchased.
An audio recording of the first transaction and a video recording of the second
transaction were played to the jury. Both informants and the investigating officers
testified consistently about the drug transactions.
Based on this evidence (and drawing all reasonable inferences in the
government’s favor), we conclude that sufficient evidence supports Andrews’s
conviction. Testimony about the two controlled drug buys -- along with the audio
and video evidence documenting these buys -- showed that Andrews possessed
and distributed the drugs. While Andrews points out that the video and audio
transmissions did not completely capture both transactions, the witnesses’
testimony provided sufficient evidence of the transactions without the video and
audio recordings; and the testimony also explained what may have been unclear in
the recordings.
Andrews also challenges the credibility of the informants. But we are
“bound by the jury’s credibility determinations and by the jury’s rejection of the
inferences raised by the defendant.” United States v. Hernandez, 433 F.3d 1328,
1334 (11th Cir. 2005) (citation omitted). And here, the jury had full knowledge of
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the informants’ criminal histories and of the benefits they received for cooperating
with the investigation. The evidence was sufficient for the jury to find Andrews
guilty beyond a reasonable doubt. See United States v. Thompson, 473 F.3d 1137,
1142 (11th Cir. 2006) (explaining that “[i]t is not enough for a defendant to put
forth a reasonable hypothesis of innocence, because the issue is not whether a jury
reasonably could have acquitted but whether it reasonably could have found guilt
beyond a reasonable doubt”).
Andrews also argues that the district court abused its discretion in not
granting his motion for a mistrial; the motion was based on witness testimony that
Andrews earlier had served time in federal prison. We review the district court’s
denial of a motion for a mistrial for an abuse of discretion. United States v. Perez,
30 F.3d 1407, 1410 (11th Cir. 1994).
On cross-examination, one of the informants testified about his telephone
conversation with Andrews.1 The informant noted that Andrews explained to him
that he was trying to be careful about his drug transactions and that Andrews told
him Andrews was “watching out for the FBI because he had been in the fed
before.”
1
The audio recording of this conversation only recorded the informant’s side of the
conversation.
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We conclude that the district court abused no discretion in denying
Andrews’s motion for a mistrial. The comment about Andrews’s prior time in
federal prison was isolated, inadvertent, and vague. The comment provided no
information about prior crimes by Andrews. We generally uphold a district
court’s refusal to grant a mistrial where, as here, the comments presented to the
jury were “spontaneous and singular.” United States v. Funt, 896 F.2d 1288, 1295
n.5 (11th Cir. 1990). Furthermore, as discussed above, the government produced
other significant evidence of Andrews’s guilt; and we cannot say that the comment
had a substantial impact on the government’s verdict. Improper and prejudicial
testimony “is less likely to mandate a mistrial when there is other significant
evidence of guilt which reduces the likelihood that the otherwise improper
testimony had a substantial impact” on the jury’s verdict. United States v. Rouco,
765 F.2d 983, 992 (11th Cir. 1985) (internal quotation and citation omitted).2
AFFIRMED.
2
Andrews faults the district court for not sua sponte issuing a curative instruction about
the comment. But the decision not to give a curative instruction was within the court’s
discretion. See United States v. Anderson, 782 F.2d 908, 916 (11th Cir. 1986); see also Willis v.
Kemp, 838 F.2d 1510, 1519 n.19 (11th Cir. 1988) (the court is not required to give a sua sponte
curative instruction every time the jury hears improper evidence).
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