FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 2, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15284

Non-Argument Calendar

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D. C. Docket No. 07-20242-CR-WJZ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO CONCEPCION,

FREDDIE LARA,

Defendants-Appellants.

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Appeals from the United States District Court

for the Southern District of Florida

_________________________

(March 2, 2009)

Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:

Defendants Francisco Concepcion and Freddie Lara appeal their convictions

for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841, 846. Lara also appeals his 216-month sentence. No reversible error has

been shown; we affirm.

Both Defendants challenge the sufficiency of the evidence to support their

convictions and argue that no “meeting of the minds” occurred. We review de

novo a preserved sufficiency-of-the-evidence challenge, “viewing the evidence in

the light most favorable to the government, with all reasonable inferences and

credibility choices made in the government’s favor.” United States v. Wright, 392

F.3d 1269, 1273 (11th Cir. 2004) (internal quotation omitted).

To convict Defendants for drug distribution conspiracy, the government had

to establish the following things beyond a reasonable doubt: (1) the existence of

an illegal agreement; (2) Defendants’ awareness of the illegal agreement; and (3)

that Defendants knowingly and voluntarily joined the agreement. United States v.

Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005); see also United States v.

Arbane, 446 F.3d 1223, 1229 (11th Cir. 2006) (government must prove that

defendant came to a “meeting of the minds” with someone else to achieve the

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unlawful result). The agreement can be proven by circumstantial evidence,

including conduct of the alleged participants. United States v. Obregon, 893 F.2d

1307, 1311 (11th Cir. 1990).

We conclude that sufficient evidence existed for a jury reasonably to infer

that Concepcion and Lara conspired with each other to possess with intent to

distribute cocaine. A confidential informant (“CI”) who contacted Lara to conduct

a cocaine transaction testified about the negotiations for this transaction, which

were conducted through controlled meetings and phone calls. The statements and

acts of Lara and Concepcion revealed these things: (1) Lara insisted that

Concepcion be present at one of the meetings with the CI before they began

discussing terms of the drug deal; and, at a separate meeting, Lara conferred with

Concepcion after the CI proposed payment terms; (2) Concepcion and Lara told the

CI that they did not pay for drugs up front, were very careful in their drug

activities, and never had been arrested; and (3) Conception agreed to provide a car

to the CI with a secret compartment to facilitate the transportation of the drugs to

New York.

Based on these statements and acts, it is sufficiently clear that Lara and

Concepcion actively participated together in the drug deal negotiation with the CI.

Lara considered Concepcion as someone with an interest in the deal. And

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Concepcion clearly facilitated the drug distribution agreement by offering the car,

explaining previous drug transactions, and participating in meetings with Lara and

the CI.

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After the CI’s testimony, the government revealed that agents were planning

to arrest Lara no matter the outcome of the controlled meeting because he had an

outstanding arrest warrant. Concepcion moved to sever their trials because the

joint trial prevented him from cross-examining the arresting agent about the reason

for the arrest. On appeal, Concepcion argues that he was prejudiced by not being

able to question the agent about the reason for the arrest, maintaining that he was

arrested because of Lara’s warrant and not the alleged conspiracy.

Motions for severance raised during trial more accurately are classified as

motions for a mistrial; and we review their denial for an abuse of discretion. See

United States v. Blankenship, 382 F.3d 1110, 1119 n.20 (11th Cir. 2004). To show

that a new trial is warranted by the district court’s denial of a mid-trial motion to

sever, a defendant must establish that he was prejudiced by the joint trial. Id. at

1122. We conclude that Concepcion’s inability to cross-examine the arresting

Concepcion maintains that his statement -- made at the controlled meeting where the 1

two were arrested -- that he was not part of the drug deal but, instead, was just helping Lara “get

around” shows there was no meeting of the minds. Concepcion’s other acts and statements

during meetings and phone calls belie this single statement. We reject Lara’s argument that any

agreement was not for more than 5 kilograms of cocaine; the discussions with the CI were about

50 kilograms of cocaine. 

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agent about Lara’s warrant caused him no prejudice. The government stated -- and

the evidence showed -- that Concepcion’s arrest was based on his conspiring with

Lara, which was independent of the agents’ reasons for arresting Lara. In addition,

Lara’s warrant never was mentioned during trial.

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Lara argues that the district court violated Fed.R.Evid. 404(b) by allowing

testimony about his connections to the Cali Cartel and previous drug deals because

this evidence was irrelevant and prejudicial. Because Lara did not object to the

admission of this evidence in the district court, we review his present claim for

plain error. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005).

Evidence of uncharged criminal activities and prior bad acts generally is

considered inadmissible extrinsic evidence, but it is admissible to show, among

other things, intent. Fed.R.Evid. 404(b). And evidence of uncharged crimes is not

extrinsic under Rule 404(b) if it is inextricably intertwined with evidence about the

charged offense. Wright, 392 F.3d at 1276.

Evidence of Lara’s involvement with the Cali cartel and of his prior drug

deals was relevant to the charged conspiracy. Lara mentioned the cartel and his

Concepcion also argues that he was prejudiced because he was unable to cross-examine 2

Lara about the warrant. But Concepcion did not base his motion to sever on his desire to have

Lara testify. Still, we discern no error because Concepcion neither offered any bona fide need

for Lara’s testimony nor explained the substance and exculpatory nature of the desired

testimony. See United States v. Browne, 505 F.3d 1229, 1269 (11th Cir. 2007), cert. denied, 128

S.Ct. 2962 (2008).

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prior drug deals while negotiating with the CI for cocaine; thus, the evidence

helped establish Lara’s intent to possess cocaine. The references also were

inextricably intertwined with evidence introduced to prove the conspiracy because

they were made by Lara and Concepcion during negotiations over the deal’s

payment terms. We conclude that the probative value of this evidence was high,

and any prejudicial impact was minor. Thus, the evidence was not subject to

exclusion under Fed.R.Evid. 403.

Both Defendants raise challenges to jury instructions. Concepcion argues

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that the district court erred in giving the jury an aiding and abetting instruction

because it was not charged in the indictment nor was evidence of aiding and

abetting presented at trial. But a district court commits no error by instructing a

jury on aiding and abetting when the indictment charges only conspiracy offenses.

United States v. Walker, 621 F.2d 163, 166 (5th Cir. 1980).

About Lara, the district court instructed the jury that he had to join

“knowingly and intentionally” the conspiracy; but Lara argues that the court should

have instructed the jury that his participation in the conspiracy had to be willful.

The court’s instruction tracks the statutory language of the offense. 21 U.S.C. §§

We review de novo the legal correctness of a district court’s jury instructions, but a 3

district court has broad discretion in phrasing jury instructions. United States v. Mintmire, 507

F.3d 1273, 1292-93 (11th Cir. 2007).

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841, 846. We discern no error. See United States v. Polar, 369 F.3d 1248, 1252-

53 (11th Cir. 2004) (a district court does not err by failing to instruct the jury on

“willfulness” when a statute makes it a crime to commit “knowingly” a crime and

pattern jury instructions do not trump a statute’s plain language).

We turn to Lara’s challenges to his sentence. He argues that the district

court erred in considering his New York convictions in calculating his criminal

history score because the record does not indicate that counsel was present during

the state court proceedings. Lara did not raise this claim in the district court; so we

review it for plain error. United States v. Mangaroo, 504 F.3d 1350, 1353 (11th

Cir. 2007). A defendant can collaterally attack, during sentencing, the validity of a

prior conviction used to enhance his sentence if such conviction was obtained in

violation of the right to counsel. Custis v. United States, 114 S.Ct. 1732 (1994).

But here, Lara offered no evidence that the state court denied his right to counsel.

Therefore, we conclude that the district court committed no error, plain or

otherwise.

Lara also argues that he should not have received points for the New York

convictions because was not present at the start of his trial. But Lara relies on

Crosby v. United States, 113 S.Ct. 748 (1993), which construed Fed.R.Crim.P. 43:

Rule 43 is not applicable to Lara’s state convictions. See Scruggs v. Williams, 903

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F.2d 1430, 1434 (11th Cir. 1990) (concluding that the Federal Rules of Criminal

Procedure do not apply in state courts).

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Lara also argues that his sentence is procedurally unreasonable because the

district court did not analyze adequately his case under the 18 U.S.C. § 3553(a)

factors. When reviewing a sentence, we must, in pertinent part, ensure that no

procedural error occurred, such as the district court improperly calculating the

guidelines, basing a sentence on clearly erroneous facts, failing to consider the

section 3553(a) factors, or failing to explain a variation from the guidelines.

United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). The district court

must adequately explain the reasons for the sentence imposed so that we can

conduct meaningful appellate review, but this does not require the district court to

discuss each of the section 3553(a) factors. Id. at 1090.

We conclude that no procedural error occurred. In pronouncing sentence,

the district court stated that it had considered the arguments of the parties, the facts

and circumstances surrounding the crime, the statements contained in the PSI, the

advisory guidelines range, and the section 3553(a) factors. The court noted that an

Lara also challenges the district court’s drug quantity determination. But he is precluded 4

from challenging this determination because he did not object to the court’s adoption of the

factual statement -- contained in the presentence investigation report (“PSI”) -- that he conspired

with Concepcion to possess 15 kilograms of cocaine. United States v. Wade, 458 F.3d 1273,

1277 (11th Cir. 2006) (defendant is precluded from challenging district court’s factual findings

when he fails to object to the court’s findings).

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in-range guidelines sentence provided just punishment, protection to the public and

deterrence to future criminal conduct. The district court’s statement of reasons was

sufficient. See United States v. Rita, 127 S.Ct. 2456, 2468-69 (2007) (a lengthy

explanation is not necessarily required when a judge decides to follow the

guidelines in a particular case, especially where a sentencing judge has listened to

the arguments of the parties, considered the supporting evidence, and was aware of

the special conditions of the defendant).

AFFIRMED.

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