[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-11198

________________________

D.C. Docket No. 9:18-cr-80153-WPD-2

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

BALMY LINCOLN JOSEPH, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

 (October 27, 2020)

Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.

HULL, Circuit Judge: 

After a jury trial, Balmy Joseph appeals his four drug convictions and 

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sentences for conspiring to possess with intent to distribute heroin and possessing 

with intent to distribute heroin and fentanyl. After review, we affirm. 

I. FACTUAL BACKGROUND

As background, we first recount some of the evidence presented at trial

about how the officers searched Joseph’s apartment and garage.

A. July 7, 2018

While conducting surveillance in an unrelated investigation,

1 officers 

encountered Delson Marc driving a black SUV with defendant Balmy Joseph in 

the passenger seat. When Marc spotted the officers, he fled in the SUV. After a 

pursuit, Marc and Joseph abandoned the SUV and escaped on foot. Eventually, 

officers found the abandoned SUV and recovered nearby heroin capsules and a bag 

containing heroin and other narcotics on the ground. 

B. July 8–17, 2018

Officers began tracking down Marc. Data from a license plate reader 

indicated that the black SUV recently was at an apartment complex called Luma in

West Palm Beach.

2

 Following the lead, officers spoke to Stephanie Simmons, the 

1

The unrelated investigation was about a recent homicide on July 6, 2018, but the jury 

was not told that fact. On July 7, 2018, the police were surveilling a gray Honda Accord that 

was seen on surveillance videos that captured the murder. 

2

A license plate reader is a device that automatically reads and records the license plate 

numbers of vehicles that pass it. Based on this data, officers can know when certain vehicles 

were at certain locations. 

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assistant manager at the Luma apartments. Officers showed Simmons a 

photograph of Marc, Joseph, and others posing at a social gathering, and asked her 

if she recognized any of them. Simmons did not recognize Marc, but she did 

recognize defendant Joseph, whom she knew as “Wilbert Desir.” Simmons told 

the officers that “Desir” rented apartment number 5304 and a separate garage unit, 

both in the complex. Through Simmons, the government entered evidence of the 

rental application and lease in the name of Wilbert Desir. 

The real Wilbert Desir, who also testified at trial, had the same birthdate and 

social security number as those provided by defendant Joseph in his rental 

application. The real Wilbert Desir did not know Joseph, never authorized Joseph

to use his personal identifying information, and did not rent the apartment. 

C. July 18, 2018

On July 18, 2018, officers executed warrants to search Joseph’s apartment 

number 5304 and garage.

3

 As the officers approached the apartment to execute the 

warrants, they encountered defendant Joseph, who immediately removed two flipstyle cellphones from his pocket and broke them in half. When the officers

explained that they had a search warrant for his apartment, Joseph denied living 

3

As discussed later, the affidavits for the search warrants also included information 

obtained from a prior search of a black Audi sedan conducted as part of the unrelated homicide 

investigation. Since the jury did not know about the Audi search or the homicide investigation,

we discuss that information later only as to defendant Joseph’s motion to suppress. 

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there and said he was visiting a friend. Officers found a key to the apartment in 

Joseph’s pocket, along with over $700 in cash and two additional cellphones.

A search of the two-bedroom apartment revealed numerous documents in 

the name of Wilbert Desir, a utility bill addressed to “Balmy Joseph c/o Wilbert 

Desir” at that location, and other mail addressed to “Balmy Joseph” at his mother’s 

address. Inside Joseph’s bedroom, officers found Joseph’s jacket containing

multiple bags of heroin and fentanyl. In Joseph’s bathroom, officers found 

narcotics packaging materials, a digital scale, a blender, and three bottles of a 

cutting agent used to dilute narcotics. In the kitchen, officers found a computer 

bag containing a credit card scanner and two laptops. 

Inside the other bedroom, officers found $27,000 in cash, a backpack

containing a garage door remote control, and a set of keys near the backpack. It 

appeared that Marc lived in this other bedroom because the backpack that officers 

found also contained Marc’s belongings, and a medicine cabinet in that bedroom’s 

bathroom contained Marc’s prescription medication. 

Next, the officers went to defendant Joseph’s rented garage unit, which they 

opened with the garage door remote control. Inside, they found a locked freezer, 

which they opened with the keys they had found in Joseph’s apartment. The

freezer contained two scales similar to the scale found in Joseph’s bathroom. The 

freezer was packed with multiple bags containing over seven kilograms of heroin, 

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fentanyl, and other controlled substances, with a total estimated street value of $1.4 

million. 

II. PRE-TRIAL PROCEEDINGS

A second superseding indictment charged defendant Joseph with: (1)

conspiring to possess with intent to distribute over a kilogram of heroin, in 

violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); (2) possession with intent 

to distribute over a kilogram of heroin, in violation of § 841(a)(1), (b)(1)(A), and 

18 U.S.C. § 2 (Count 2); (3) possession with intent to distribute a detectable 

amount of fentanyl, in violation of § 841(a)(1), (b)(1)(C), and § 2 (Count 3); and 

(4) possession with intent to distribute a detectable amount of heroin, in violation 

of § 841(a)(1), (b)(1)(C), and § 2 (Count 4).

4

A. Joseph’s Motion to Suppress

Before trial, defendant Joseph filed a motion to suppress all evidence seized 

from his apartment and garage on July 18. Joseph argued that the affidavits for the

search warrants for his apartment and garage contained information unlawfully 

obtained during an earlier July 9 search of a black Audi that was conducted in an 

unrelated homicide investigation. Because the search of the Audi was illegal, 

4

Earlier indictments charged both Joseph and Delson Marc with narcotics offenses and 

Marc with firearm offenses. Codefendant Marc pled guilty to: (1) conspiracy to possess with 

intent to distribute heroin; (2) possession with intent to distribute heroin; and (3) possession of a 

firearm as a felon. The district court imposed 240 months’ imprisonment on the drug counts and 

a 120-month sentence on the firearm count, all to run concurrently. The second superseding 

indictment charged only Joseph. 

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Joseph argued, the search warrants containing information from the Audi search 

were also illegal. 

At the suppression hearing, Detective James Evans, the affiant for the search 

warrant for the Audi, testified. Detective Evans explained that he was conducting 

a homicide investigation of the July 6, 2018 murder of Frederick Stockton. 

Detective Evans learned that, on the morning of the murder, Stockton was

followed by a driver and a passenger in a black Audi sedan. Surveillance videos

captured that information and even the murder later that afternoon. The video of 

the murder showed two gunmen get out of a different car—a gray Honda Accord—

and kill Stockton. The police found the Honda and learned that Jason Jean-Gilles 

had been driving it. 

Tactical Agent Jimmy Francisco testified that he assisted with the Stockton 

homicide investigation. On July 8, with Jean-Gilles now a suspect, officers 

established surveillance at Jean-Gilles’s apartment complex. Jean-Gilles arrived at 

the apartment in the black Audi, the officers arrested him on an unrelated warrant,

and the officers had the Audi towed and impounded. 

The following morning, Detective Evans went to the impound lot to verify

the license plate and vehicle identification numbers of the Audi to support an 

application to search the car. Detective Evans looked through the front windshield

and driver’s side window of the Audi and saw a cellphone in the driver’s seat and 

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marijuana and a plastic bag containing suspected cocaine in the console cupholder. 

Detective Evans thought that the cellphone potentially belonged to Jean-Gilles 

because he was driving the Audi before it was impounded, and, when Jean-Gilles 

was arrested, he did not have a cellphone on his person. It was a “very sunny” 

morning, and, despite the windows being “somewhat” tinted, Detective Evans 

testified that he was able to “clearly look inside the vehicle” without “any 

difficulties.” 

On July 9, 2018, Detective Evans drafted an affidavit in support of a search

warrant for the Audi, based upon its connection to his homicide investigation and 

his observations of the cellphone and suspected drugs.

5

 His affidavit explained 

that, within 48 hours of the homicide, Evans connected Jean-Gilles to the two 

vehicles used to facilitate the murder. Evans’s thorough affidavit explained the 

details of the Stockton murder, the investigation, and how the officers found the 

Honda Accord, Jean-Gilles, and the Audi. Detective Evans wrote that he believed 

the Audi contained evidence relating to the murder, including fingerprint or DNA 

evidence, cellphone evidence, marijuana, and cocaine. 

At the suppression hearing, Detective Evans also testified that, even without 

his plain-view observations, he had enough probable cause to execute a search 

5

On the same day, Detective Evans drafted two other warrants to search the Audi, which 

were largely the same as the first warrant. 

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warrant on the Audi based on the car’s connection to his homicide investigation. 

During the search of the Audi, investigators discovered Joseph’s latent fingerprints

on the rearview mirror. Officers also discovered an envelope containing a

document referencing the Luma apartments and the name “Wilbert Desir.” 

Detective Evans included this evidence—the fingerprints and the document 

referring to the Luma apartments and Desir—from the Audi in his affidavits in 

support of the search warrants of Joseph’s apartment and garage.6

 

In those same affidavits, Detective Evans also included: (1) the information 

from assistant manager Simmons that Joseph had used the false name of Wilbert

Desir in renting the apartment; and (2) the real Wilbert Desir’s interview 

statements that he had not rented the Luma apartment. Detective Evans testified 

that, independent of the evidence found in the Audi, he would have sought search 

warrants for Joseph’s apartment and garage based on assistant manager Simmons’s 

identification of Joseph as a tenant using a false identity and the real Desir’s 

interview statements that he had not rented the apartment and garage. The 

government introduced pictures of the Audi from the front and the driver’s side 

6

The record is not clear about exactly what type of document was found in the Audi. The 

apartment warrant affidavit says it was a cashier’s check and a statement of the amount of rent 

owed. At the suppression hearing, Detective Evans testified that it was “like a rental statement.” 

The government’s brief says it was a rental agreement. Joseph’s motion to suppress calls it 

“documents related to apartment 5304 in the Luma Apartment Complex.” Nonetheless, it is not 

disputed that the words of the document in the Audi referred to Wilbert Desir and the Luma 

apartments.

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taken on the day of the warrant applications. 

At the suppression hearing, defendant Joseph called two witnesses. First, 

Deborah Alexis testified that she was the record owner of the black Audi sedan. In 

reality though, the Audi belonged to Joseph, as he purchased it, drove it, possessed 

all the ownership paperwork, performed all maintenance, and had the only key. 

Alexis merely put the Audi in her name upon Joseph’s request, and she never 

possessed or drove it without Joseph’s consent. Alexis explained that the windows 

on the Audi were tinted very dark, so “you can’t really see through the windows,” 

even in the daylight. The second witness, Jean-Gilles’s brother, Jonathan JeanGilles, testified that the Audi windows were tinted, and he was unable to see 

through the Audi’s windows on the night that the car was impounded. 

Joseph’s counsel argued that Detective Evans lied in obtaining the Audi 

search warrant because the Audi’s tinted windows were too dark to see the 

narcotics. The government responded that Joseph lacked standing to challenge the 

Audi search because he was not its registered owner, and the homicide 

investigation was an independent basis to search the Audi. 

The district court denied defendant Joseph’s motion to suppress. The district 

court recounted the facts regarding the homicide investigation that led the officers 

to the black Audi and the document inside referring to the Luma apartments. The 

district court found that (1) Detective Evans did not make any false statements in 

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the search warrant affidavits, and (2) he “was able to see what he reasonably 

believed was contraband or evidence of a crime.” The district court also concluded 

that, independent of the plain-view observations of the inside of the Audi, probable 

cause existed to search the Audi, and probable cause existed to search Joseph’s

apartment and garage for evidence of identity theft. The district court declined to 

rule on the question of Joseph’s standing to challenge the Audi search. 

B. Joseph’s Motion in Limine

Before trial, Joseph also filed a motion in limine, under Federal Rule of

Evidence 404(b), to exclude evidence of his prior convictions for identity theft and 

possession and sale of narcotics. The government responded that it did not intend

to introduce his prior convictions; however, it would seek the admission of 

“inextricably intertwined” facts relating to Joseph’s use of a false identity to rent 

the apartment and garage. The government argued that such evidence was not 

being admitted pursuant to Rule 404(b), but rather as an integral and natural part of 

how the investigation unfolded and the story of the crime. 

The district court granted Joseph’s motion in limine to exclude his past 

criminal convictions. The district court noted that Joseph’s motion had not sought 

exclusion of the factual evidence of Joseph’s use of a false identity to rent the 

apartment and garage—which the government identified as “inextricably 

intertwined.” 

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III. TRIAL

At trial, the government presented evidence of the events recounted above 

through: (1) testimony from various officers and detectives, a fingerprint examiner, 

two forensic scientists, a prison records custodian, four drug experts, Desir, and 

assistant manager Simmons; (2) surveillance and dashcam videos; (3) Joseph’s 

rental application and lease; (4) drugs and other items seized from Joseph’s 

apartment and garage; and (5) photographs of the evidence. 

A. Opening Statement and Evidence Regarding Identity Theft

During opening statements, the prosecutor explained that Joseph rented his 

apartment using the stolen identity of Wilbert Desir, including his “name, Social 

Security number, and date of birth.” After the government’s opening statement, 

defense counsel, at a sidebar conference, moved for a mistrial. Joseph argued that

(1) the prosecutor’s statements about Joseph’s use of a stolen identity violated the 

district court’s order granting the defense’s motion in limine, and (2) the facts 

about Joseph’s use of a stolen identity were totally unrelated to the four charged 

drug crimes and were more prejudicial than probative. The district court denied 

the mistrial motion because the evidence was “inextricably intertwined into the 

drug[] charges.” 

Later, assistant manager Simmons testified that she dealt directly with 

residents when receiving their rental applications at the Luma apartments. The 

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paperwork was kept and maintained in filing cabinets in the ordinary course of 

business. The government showed Simmons Joseph’s rental application and lease

for his apartment and garage. Defense counsel objected to their admission under

Federal Rules of Evidence 403, 404, and 803(6). The district court overruled the 

objections and admitted the rental application and lease into evidence. Simmons 

testified that Joseph filled out the paperwork in front of her in her office using the 

name Wilbert Desir, and she began to process the rental application that day. 

Next, Wilbert Desir testified, over the defense’s objection, that he never 

filled out a rental application for an apartment in the Luma complex, and he never 

gave Joseph permission to use his identity. Joseph moved for a mistrial, which the 

district court denied. The district court ruled that Desir’s identity-theft testimony 

was admissible because it was relevant to Joseph’s guilty knowledge and showed 

how the investigation unfolded as to who rented the apartment and the basis for the 

search. After Desir’s testimony and upon defense counsel’s request, the district 

court gave the jury a limiting instruction about the identity-theft evidence and 

cautioned the jury that Joseph “[was] on trial only for the specific narcotics crimes

charged in the indictment.”7

7

The district court’s limiting instruction cautioned: 

Regarding the testimony that you heard yesterday about Mr. Desir, I caution you 

that the defendant is on trial only for the specific narcotics crimes charged in the 

indictment. You’re here to determine from the evidence in this case whether the 

defendant is guilty or not guilty of those specific crimes. 

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A forensic DNA expert, Brandy Plean, testified that DNA evidence collected 

from the credit card scanner, in a computer bag in Joseph’s kitchen, originated 

from two contributors. It was 87 times more likely that the DNA originated from 

Joseph and an unknown individual, than from two unknown individuals. 

Additionally, DNA evidence collected from a laptop, in the same computer bag as 

the credit card scanner, originated from four contributors. It was two billion times 

more likely that the DNA originated from Joseph and three unknown individuals,

than from four unknown individuals. 

B. Fentanyl Testimony

Also in the government’s case-in-chief, Detective Charles Booth testified 

that fentanyl is “responsible for the majority of overdose deaths in the recent 

years,” and law enforcement personnel employ extra precautions when handling 

suspected fentanyl because “it could kill you.” At a sidebar conference, defense 

counsel moved for a mistrial, arguing that Booth’s testimony was “highly 

prejudicial” because the jury might conclude that Joseph was responsible for 

dealing deadly drugs. The district court denied the motion and stated, “[i]f 

anybody on that jury doesn’t know that heroin and fentanyl are dangerous and 

responsible for deaths, they’ve been living under a rock for a long period of time.” 

Later, a narcotics expert testified—without objection—about the dangers of 

fentanyl, that the drug was “a hundred times more powerful than heroin,” and that 

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officers use extra caution when handling suspected fentanyl because death can 

result if just a small amount makes contact with a person’s skin. 

C. Outburst of Joseph’s Brother

During a break in the government’s case-in-chief, some jurors witnessed 

Joseph’s brother yelling in the hallway. While flailing his arms, he screamed, 

“That’s my brother, man, that’s my brother.” His family had to restrain him. 

Because Joseph’s brother was so emotional and loud, defense counsel requested

that the district court ask the jurors if they saw the episode and if it would affect 

their ability to be fair. Joseph also moved for a mistrial based on the impact he 

suspected the outburst had on the jurors. 

Five jurors indicated that they saw the outburst by Joseph’s brother and 

described his loud, emotional shouting. After being individually questioned by the 

district court, two jurors stated that seeing the outburst made them “nervous” or “a 

little shook up.” However, all five jurors confirmed they could be fair, put aside 

what they had seen, and base their verdict solely on the law and the evidence 

presented in the courtroom. 

Outside the presence of the jury, Joseph’s counsel reiterated his motion for a 

mistrial and argued that some of the jurors were “shook up, upset, or frightened.” 

Joseph’s counsel acknowledged that all of the jurors stated that they could be fair 

and impartial. Nevertheless and “in an abundance of caution,” Joseph’s counsel

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moved for a mistrial because he believed that the jurors would associate Joseph

with his brother’s violent nature. The district court denied the motion. After the 

jury returned to the courtroom, the district court reiterated that the jurors should 

base their verdict only on the law and evidence and asked them to not discuss 

anything that may have happened outside of the courtroom. 

D. Verdict

After the government rested, the defense did not present any evidence. The 

jury found Joseph guilty on all counts. 

IV. SENTENCING

Joseph’s presentence investigation report (“PSI”) assigned him a base 

offense level of 32 because his offense involved at least 3,000 kilograms but less 

than 10,000 kilograms of converted drug weight. See U.S.S.G. § 2D1.1(a)(5). The 

PSI added a two-level increase because Joseph maintained a premises for the 

purpose of manufacturing or distributing a controlled substance. See U.S.S.G. 

§ 2D1.1(b)(12). Based on a total offense level of 34 and a criminal history 

category of IV, Joseph’s advisory guidelines range was 210 to 262 months’ 

imprisonment. The statutory maximum sentence was life imprisonment for Counts 

1 and 2 and 20 years’ imprisonment for Counts 3 and 4. See 21 U.S.C 

§ 841(b)(1)(A), (b)(1)(C). 

At the sentencing hearing, Joseph, through counsel, conceded that the 

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advisory guidelines range was properly calculated. Joseph asked the district court 

to sentence him at the bottom of or below the advisory guidelines range. 

The government argued for an upward variance based on the nature and 

circumstances of the offenses. The government introduced photographic evidence 

of identity theft found during the search of Joseph’s apartment, which was not 

introduced at trial. The images showed a bag full of driver’s licenses, credit cards, 

debit cards, correspondence from credit card companies, and receipts found in 

Joseph’s kitchen. The government explained that Joseph clearly was engaging in 

identity theft and tax fraud for many years. Based on the identity-theft evidence,

the government argued that Joseph deserved a more severe sentence than 

codefendant Marc’s 240 months, and it asked the district court to vary upward to 

360 months’ imprisonment. 

Joseph pointed out that the government already had warned it would be

bringing additional identity-theft charges against him. Joseph asserted he should 

not be punished twice for the same conduct. He also argued that he should be 

presumed innocent of a pending firearm charge. Joseph submitted letters showing

that he had supported his family. In allocution, Joseph maintained his innocence 

and asked the district court for leniency. 

The district court stated that it (1) had considered the advisory guidelines 

range and the 18 U.S.C. § 3553(a) factors, (2) presumed Joseph was innocent of 

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any other charges, and (3) could consider the evidence of identity theft found 

during the search of Joseph’s apartment, but that it would not “give [the evidence] 

the weight that the government would like to attach to [it].” The district court 

denied the government’s request for an upward variance but explained that it 

would consider the government’s highlighted factors in choosing a withinguidelines-range sentence. The district court also noted the large quantity of drugs 

involved and explained that it must impose a sentence that promotes respect for the 

law and deters others from similar conduct. The district court sentenced Joseph to

262 months’ imprisonment on each of Counts 1 and 2 and 240 months’ 

imprisonment on each of Counts 3 and 4, all to run concurrently. 

V. MOTION TO SUPPRESS

On appeal, Joseph challenges the district court’s denial of his motion to 

suppress.8

 

The Fourth Amendment secures the right of the people “against

unreasonable searches and seizures,” and mandates that “no Warrants shall issue, 

but upon probable cause, supported by Oath or affirmation.” U.S. Const. amend. 

8

In reviewing a district court’s denial of a motion to suppress, we review the district 

court’s findings of fact for clear error and its application of law to those facts de novo. United 

States v. Yeary, 740 F.3d 569, 579 n.25 (11th Cir. 2014). We construe all facts in the light most 

favorable to the party that prevailed in the district court and afford substantial deference to a 

factfinder’s credibility determinations. United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir.

2012). We defer to and accept the trial court’s choice of whom to believe because it is the finder 

of fact who personally observes the witness’s testimony and is in a better position to assess 

witness credibility. United States v. Ramirez–Chilel, 289 F.3d 744, 749 (11th Cir. 2002).

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IV. “Probable cause exists when under the totality-of-the-circumstances . . . there 

is a fair probability that contraband or evidence of a crime will be found in a 

particular place.” United States v. Albury, 782 F.3d 1285, 1292 (11th Cir. 2015)

(alteration in original) (quotation marks omitted).

Here, Joseph argues that Detective Evans lied when he stated in his 

affidavits that he could see suspected narcotics inside the Audi and that the 

poisonous fruits of the Audi search formed the basis for the later warrants to search 

Joseph’s apartment and garage.

9

 We recognize that Joseph called two witnesses 

who testified the windows were tinted very dark. One witness said, “you can’t 

really see through the windows.” The other witness said that he could not see 

through the windows on the night the Audi was impounded. In contrast, Detective 

Evans testified that he was able to see through the tinted windows in the daylight.

The district court expressly found that Detective Evans did not make any 

false statements and “was able to see what he reasonably believed was contraband 

or evidence of a crime.” The witness’s credibility was for the fact finder to 

determine. See United States v. Ramirez–Chilel, 289 F.3d 744, 749 (11th Cir.

2002). Because Joseph has shown no clear error in the district court’s findings, the 

9

The district court did not rule on Fourth Amendment “standing” as to the Audi. 

“Because Fourth Amendment standing is subsumed under substantive Fourth Amendment 

doctrine, it is not a jurisdictional question and hence need not be addressed before addressing 

other aspects of the merits of a Fourth Amendment claim.” Byrd v. United States, 584 U.S. __, 

__, 138 S. Ct. 1518, 1530 (2018). 

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district court properly denied Joseph’s motion to suppress.10

VI. MOTIONS FOR MISTRIAL

Joseph next contends that the district court erred by denying three of his 

motions for a mistrial, which we address separately.11

A. Identity-Theft Evidence

Joseph argues that the prosecutor’s opening statements—referencing his use 

of a false identity to rent the Luma apartment—warranted a mistrial because he 

was not charged with an identity-theft crime, and thus this evidence was 

inadmissible under Rule 404(b). 

Rule 404(b) prohibits the admission of “[e]vidence of a crime, wrong, or 

other act . . . 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). 

This Court repeatedly has held, however, that evidence of criminal activity other 

than the offense charged may be admissible “as intrinsic evidence outside the 

10Joseph also points to a date discrepancy in Detective Evans’s affidavits, which Evans 

explained and clarified on redirect-examination during the suppression hearing. Detective Evans 

testified that agents encountered and seized the Audi as they were surveilling Jean-Gilles’s 

apartment on July 8. But the affidavits said that the surveillance occurred on Sunday the 9th. 

Evans acknowledged the error in the affidavits, explained that Sunday was the 8th, and 

confirmed he saw the cellphone and suspected drugs the next morning (July 9) at the impound lot 

and not on the night of the seizure. 

11We review for abuse of discretion the denial of a motion for a mistrial. United States v. 

Valois, 915 F.3d 717, 723 n.2 (11th Cir. 2019). “A trial judge has discretion to grant a mistrial 

since he [or she] is in the best position to evaluate the prejudicial effect of a statement or 

evidence on the jury.” United States v. Delgado, 321 F.3d 1338, 1346-47 (11th Cir. 2003) 

(alteration in original) (quotation marks omitted).

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scope of Rule 404(b).” United States v. Horner, 853 F.3d 1201, 1214-15 (11th Cir. 

2017) (quotation marks omitted). Evidence is intrinsic if it is “(1) an uncharged 

offense which arose out of the same transaction or series of transactions as the 

charged offense, (2) necessary to complete the story of the crime, or 

(3) inextricably intertwined with the evidence regarding the charged offense.” 

United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (quotation marks 

omitted); United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000)

(quotation marks omitted). Evidence is “inextricably intertwined” with the 

evidence of the charged offense if it forms an “integral and natural part of the 

witness’s accounts of the circumstances surrounding the offenses for which the 

defendant was indicted.” Edouard, 485 F.3d at 1344 (quotation marks omitted).

Here, Joseph’s use of Desir’s false identity to rent the property in which he 

stored the narcotics was inextricably intertwined with the narcotics offenses and 

was not inadmissible under Rule 404(b). That evidence established that Joseph, 

not Desir, leased the property and exercised dominion and control over the drugs. 

The use of a false identity was also (1) relevant as a step Joseph took to conceal the 

criminal activity, and (2) necessary to complete the story of how officers

discovered Joseph was renting the apartment and garage. Further, the district court 

gave a limiting instruction about the identity-theft evidence: that Joseph “[was] on 

trial only for the specific narcotics crimes charged in the indictment.” 

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Because the details of Joseph’s impersonation of Desir were properly 

admitted at trial, there was no error in the prosecutor’s opening remarks

referencing that evidence or in the district court’s denial of Joseph’s mistrial 

motion. 

B. Booth’s Testimony About Fentanyl 

Joseph argues that Detective Booth’s testimony about the dangers of and 

overdoses from fentanyl was inadmissible under Rule 403 because it was

“shocking” and had low probative value. Rule 403 permits a district court to 

“exclude relevant evidence if its probative value is substantially outweighed by the 

danger of one or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” Fed. R. Evid. 403.12

Here, Detective Booth’s testimony about his familiarity with fentanyl was 

relevant and probative because Joseph was charged with a crime involving 

fentanyl. The district court reasonably observed that the general public already is 

aware that heroin and fentanyl can be deadly. Given that reality, Joseph could not 

show unfair prejudice, let alone that any such prejudice outweighed the evidence’s 

12We review evidentiary rulings for an abuse of discretion. United States v. Troya, 733 

F.3d 1125, 1131 (11th Cir. 2013). If the district court abused its discretion, we apply the 

harmless error standard and may reverse only if “the error had a substantial influence on the 

outcome of a case or left grave doubt as to whether [it] affected the outcome of a case.” United 

States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (alterations adopted) (quotation 

marks omitted). 

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probative value.

13 The district court did not abuse its discretion by admitting the 

fentanyl evidence and denying a mistrial. 

C. Outburst During Trial

Joseph also argues that his brother’s outburst negatively impacted the jury’s 

impression of Joseph himself, requiring a mistrial. Two of the five jurors who 

witnessed Joseph’s brother’s outburst said that it made them “nervous” or “a little 

shook up.” However, all five of the jurors indicated that they could be fair and that 

the outburst would not affect their verdict. Further, the district court reiterated that 

the jurors should base their verdict only on the law and evidence admitted at trial

and asked them not to discuss the outburst. See United States v. Delgado, 321 F.3d 

1338, 1347 (11th Cir. 2003); United States v. Almanzar, 634 F.3d 1214, 1222 

(11th Cir. 2011) (“We presume that jurors follow the instructions given by the 

district court.”). The district court was in the best position to evaluate the 

prejudicial effect, if any, of the outburst and acted well within its broad discretion 

in denying the mistrial motion. Joseph has not shown that the district court abused 

its discretion. 

13A narcotics expert testified that fentanyl is “a hundred times more powerful than 

heroin” and that coming into contact with a small amount of fentanyl can cause death, to which 

Joseph did not object. The fact that similar evidence was admitted through another witness, 

without any objection or mistrial motion, further indicates a lack of unfair prejudice.

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VII. EVIDENTIARY ISSUES

A. DNA Testimony

Joseph argues that the district court erred by permitting the government’s 

DNA expert to testify that Joseph’s DNA was matched to DNA found on a laptop 

and credit card scanner discovered in a computer bag in his apartment. He argues 

that the DNA evidence erroneously revealed to the jury that Joseph engaged in 

identity theft. Joseph ignores that no trial testimony or evidence revealed the 

contents of the laptop or the credit card scanner or that either contained evidence of 

stolen identities. Rather, the DNA evidence was intrinsic and properly served to 

connect Joseph to the apartment and the charged offenses. See Edouard, 485 F.3d 

at 1344. Accordingly, the district court did not abuse its discretion by admitting

the DNA testimony.14

B. Rental Application and Lease 

Next, Joseph contends that the admission of his rental application and lease

was inadmissible hearsay that did not qualify under the business record exception

in Rule 803(6) because the testifying witness was not the record custodian for the 

business. 

Generally, a statement is inadmissible hearsay if it was made outside of 

14It is unclear whether defense counsel adequately raised this objection in the district 

court. We need not decide whether plain error review applies because there was no abuse of 

discretion in any event. 

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court and is offered to prove “the truth of the matter asserted.” Fed. R. Evid. 

801(c), 802. Rule 803(6) provides an exception to the rule against hearsay for a 

record made at or near the time of an act by a person with knowledge if the record 

“was kept in the course of regularly conducted activity of a business” and “making 

the record was a regular practice of that activity.” Fed. R. Evid. 803(6)(A)-(C). A 

proponent may establish the requirements of Rule 803(6) through “the testimony of 

the custodian or another qualified witness.” Fed. R. Evid. 803(6)(D). “The 

touchstone of admissibility under [Rule 803(6)] is reliability, and a trial judge has 

broad discretion to determine the admissibility of such evidence . . . .” United 

States v. Bueno–Sierra, 99 F.3d 375, 378-79 (11th Cir. 1996). 

Here, assistant manager Simmons testified that the Luma apartments’ 

business practice was to maintain lease documents that it received and processed. 

See Fed. R. Evid. 803(6). At a minimum, Simmons was a “qualified witness”

because she: (1) was an assistant manager at the Luma apartments; (2) was familiar 

with the business’s creation and maintenance of lease records; (3) accepted rental 

applications daily and kept them in a filing cabinet in the ordinary course of 

business; and (4) provided first-hand knowledge that Joseph filled out a rental

application—containing Desir’s name, social security number, and date of birth—

in her office and submitted it to her directly for processing. See id. Joseph has not 

shown that Simmons’s testimony was otherwise unreliable. See Bueno–Sierra, 99 

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F.3d at 378-79. The district court clearly did not abuse its discretion in admitting 

the rental application and lease under Rule 803(6).15

VIII. CUMULATIVE ERROR

Joseph also contends that cumulative error by the district court requires 

reversal of his convictions. Joseph has not established a single error, let alone the 

aggregation of many errors. See United States v. Gamory, 635 F.3d 480, 497 (11th 

Cir. 2011). Joseph’s cumulative error claim therefore lacks merit.

IX. SENTENCES

On appeal, Joseph challenges only the substantive reasonableness of his 

sentences.

16 We examine whether a sentence is substantively unreasonable in light 

of the § 3553(a) factors and the totality of the circumstances.17 United States v. 

Cubero, 754 F.3d 888, 892 (11th Cir. 2014). The party challenging the sentence 

15To the extent Joseph claims these documents were not admissible under Rule 404(b) 

because they showed he used the false identity of Wilber Desir, those documents were intrinsic 

evidence (1) connecting Joseph to possessing the apartment and garage, and the drugs therein; 

(2) telling part of the story as to why the officers searched the apartment and garage; and 

(3) revealing steps Joseph took to hide his criminal activity. There was no Rule 404(b) error. 

16We review the substantive reasonableness of a sentence for abuse of discretion. See

United States v. Rosales–Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).

17The § 3553(a) factors include: (1) the nature and circumstances of the offense and the 

history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, 

to promote respect for the law, and to provide just punishment for the offense; (3) the need for 

deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed 

educational or vocational training or medical care; (6) the kinds of sentences available; (7) the 

Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; 

(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution 

to victims. 18 U.S.C. § 3553(a).

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bears the burden to show it is unreasonable. United States v. Alvarado, 808 F.3d 

474, 496 (11th Cir. 2015). The weight given to any particular § 3553(a) factor is 

within the district court’s discretion, and this Court will not substitute its judgment 

for that of the district court. Id. We will reverse a sentence only if we are “left 

with the definite and firm conviction that the district court committed a clear error 

of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies 

outside the range of reasonable sentences dictated by the facts of the case.” United 

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted). 

Although this Court does not automatically presume a sentence falling within the 

advisory guidelines range is reasonable, we ordinarily expect such a sentence to be 

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

Here, Joseph does not dispute that the district court properly calculated his 

advisory guidelines range. Rather, Joseph contends that the sentences were

substantively unreasonable because the district court considered an unrelated 

charge of firearm possession and relied on the identity-theft evidence. We 

disagree. 

First, the district court said it would presume Joseph innocent of the pending 

firearm charge. Second, the district court declined the government’s request for an 

upward variance based on the identity-theft evidence and stated that it was not 

giving that evidence “the weight that the government would like to attach to [it].” 

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Third, the district court explained that the top-of-the-guidelines range sentence was 

based on the large quantity of drugs attributed to Joseph and the consideration of 

the need to promote respect for the law and deter others from similar criminal 

conduct. See 18 U.S.C. § 3553(a). To the extent that the district court gave any 

weight to the identity-theft evidence, the district court was permitted to do so under 

a consideration of the nature and circumstances of the offenses, and the weight 

given to that factor was well within the district court’s discretion. See 18 U.S.C. 

§ 3553(a); Alvarado, 808 F.3d at 496. 

Fourth, Joseph’s 262-month sentences on Counts 1 and 2 are within the 

advisory guidelines range and well below the statutory maximum penalty of life 

imprisonment, both of which are indicators of reasonableness. See Hunt, 526 F.3d 

at 746; United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). His 240-

month sentences on Counts 3 and 4 are also appropriate because the Sentencing 

Guidelines reduced his top-end of 262 months to the statutory maximum of 240 

months for those two counts. See U.S.S.G. § 5G1.1(c)(1) (restricting the top end 

of a guidelines range to the statutory maximum). The district court did not abuse 

its discretion in imposing Joseph’s sentences.

X. CONCLUSION

For all of the foregoing reasons, we affirm Joseph’s convictions and

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sentences.

AFFIRMED.

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