FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 8, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15528

Non-Argument Calendar

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D. C. Docket No. 07-00145-CR-ORL-28-DAB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDMON JEROME BURTON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 8, 2009)

Before BIRCH, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

Edmon Jerome Burton appeals his convictions for conspiracy to possess

with intent to distribute cocaine base, 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A),

and (b)(1)(C) (“Count 1”); possession with intent to distribute cocaine and cocaine
base, 21 U.S.C. § 841(a)(1), (b)(1)(A), and (b)(1)(C) (“Count 2”); and possession

of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

(“Count 5”). On appeal, Burton argues that: (1) the evidence presented at trial was

insufficient to support his convictions for Counts 1, 2, and 5; and (2) the district

court erred under Rule 404(b) of the Federal Rules of Evidence by admitting into

evidence two prior state-court convictions he had for possession of cocaine and

carrying a concealed firearm. After thorough review, we affirm.

“We review de novo the denial of a motion for acquittal and the sufficiency

of the evidence to sustain a conviction, viewing the evidence in the light most

favorable to the government and drawing all reasonable inferences and credibility

choices in favor of the jury’s verdict.” United States v. Tampas, 493 F.3d 1291,

1297-98 (11th Cir. 2007) (quotation omitted). “The jury is free to choose among

alternative reasonable interpretations of the evidence, and the government’s proof

need not exclude every reasonable hypothesis of innocence.” Id. at 1298

(quotation and citation omitted). “We affirm if a reasonable juror could have

concluded that the evidence established [Burton’s] guilt beyond a reasonable

doubt.” Id. “[W]e review the evidentiary rulings of the trial court only for a clear

abuse of discretion.” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir.

2009). Under “the deferential abuse-of-discretion standard we must affirm unless

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we find that the district court has made a clear error of judgment, or has applied the

wrong legal standard.” Id. (quotation omitted).

First, we find no merit in Burton’s claim that the evidence presented at trial

was insufficient to support his convictions for Counts 1, 2, and 5. To support a

conspiracy conviction under 21 U.S.C. § 846 (Count 1), “the government must

prove beyond a reasonable doubt that: (1) a conspiracy existed; (2) appellant[]

knew of the essential objectives of the conspiracy; and (3) appellant[] knowingly

and voluntarily participated in the conspiracy.” United States v. Calderon, 127

F.3d 1314, 1326 (11th Cir. 1997) (quotation omitted). “To satisfy this burden, the

government need not prove that the defendant knew all of the details or

participated in every aspect of the conspiracy. Rather, the government must only

prove that the defendant knew the essential nature of the conspiracy.” United

States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (quotation and alterations

omitted). “Because the crime of conspiracy is predominantly mental in

composition, it is frequently necessary to resort to circumstantial evidence to prove

its elements.” United States v. Arias-Izquierdo, 449 F.3d 1168, 1182 (11th Cir.

2006) (quotation omitted). “[C]lose association with a co-conspirator or mere

presence at the scene of the illegal activity, standing alone, is insufficient to

support a conspiracy conviction.” United States v. Jiminez, 564 F.3d 1280, 1285

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(11th Cir. 2009) (quotation omitted). However, mere presence is “material, highly

probative, and not to be discounted.” United States v. Gamboa, 166 F.3d 1327,

1332 (11th Cir. 1999) (quotation omitted).

“To support a conviction for possession with intent to distribute [(Count 2)],

the government must prove (1) knowing (2) possession of a controlled substance

(3) with intent to distribute it.” United States v. Farris, 77 F.3d 391, 395 (11th Cir.

1996). “Possession can be either actual or constructive and can be either joint or

sole.” United States v. Iglesias, 915 F.2d 1524, 1528 (11th Cir. 1990). “A

defendant has actual possession of a substance when he has direct physical control

over the contraband.” United States v. Woodard, 531 F.3d 1352, 1360 (11th Cir.

2008) (quotation omitted). “A defendant’s constructive possession of a substance

can be proven by a showing of ownership or dominion and control over the drugs

or over the premises on which the drugs are concealed.” Id. (quotation omitted).

Where the presence of a large amount of drugs is undisputed, the proof required to

sustain a conviction for conspiracy to distribute narcotics also is sufficient to

uphold a conviction for possession. See United States v. Cruz-Valdez, 773 F.2d

1541, 1544 (11th Cir. 1985).

Finally, to prove a violation of § 922(g)(1) (Count 5), the government must

prove “beyond a reasonable doubt that the defendant knowingly possessed a

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firearm and had been previously convicted of a felony.” United States v. Gunn,

369 F.3d 1229, 1235 (11th Cir. 2004). Here, Burton does not dispute that he

previously had been convicted of a felony.

As with drugs, “[a] defendant has constructive possession if he exercises

ownership, dominion, or control over the firearm. A defendant also has

constructive possession if he has the power and intention to exercise dominion or

control. The defendant may exercise that dominion and control either directly or

through others.” Id. (citations omitted). “[A] person who owns or exercises

dominion and control over a residence in which contraband is concealed may be

deemed to be in constructive possession of the contraband.” United States v.

Molina, 443 F.3d 824, 829 (11th Cir. 2006) (quotation and ellipsis omitted).

“However, a defendant’s mere presence in the area of contraband or awareness of

its location is not sufficient to establish possession.” United States v. Thompson,

473 F.3d 1137, 1142 (11th Cir. 2006) (quotation omitted).

As for Count 1, the government put on evidence that: (1) Burton lived at, or

had dominion or control over, the residence where the drugs were found, see

United States v. Faust, 456 F.3d 1342, 1346 (11th Cir. 2006) (holding that

sufficient evidence supported that the defendant had dominion or control over the

premises when, inter alia, Faust appeared at the door when police arrived, police

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discovered items that belonged to him in the house, another individual stated that

he lived there, and he could gain access to the residence at will); (2) officers found

over 50 grams of cocaine base, over 400 grams of cocaine hydrochloride, cash,

guns, and various items consistent with drug distribution, including plastic bags,

razor blades, two digital scales, and beakers, in the home, and Burton was found

with 2.7 grams of cocaine base on his person, which supports that Burton knew of

and was a part of the drug distribution, see Miranda, 425 F.3d at 959 (holding that,

“where large quantities of drugs are present a prudent smuggler is not likely to

suffer the presence of unaffiliated bystanders” (quotation omitted)); and (3)

officers found Burton in the room where over 50 grams of cocaine base were in

plain view on the floor, and an agent testified that Burton would have had to be

within 10 feet of the crack cocaine, see id. at 960 (analyzing evidence of Miranda’s

habitation in an apartment and his running to a bedroom where drugs and guns

were located and determining that the “jury was . . . free to infer from the totality

of the circumstances that Mr. Miranda’s role in the conspiracy was to guard the

large quantity of drugs stored in the back bedroom, and that his motive in running

to that room, which had no outside exit, was to attempt to arm himself and to

conceal or destroy the drugs”). This evidence, taken in a light most favorable to

1

 Although Burton argues that it was a “reasonable hypothesis” that he did not know of 1

the crack cocaine until he ran into the room, we have said that, “[i]n rebutting the government’s

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the government, was sufficient for a reasonable juror to conclude that Burton

conspired to distribute and to possess with intent to distribute over 50 grams of

cocaine base and a quantity of cocaine hydrochloride. See United States v. Lynch,

934 F.2d 1226, 1231 (11th Cir. 1991) (“[T]he jury may have inferred, from

Lynch’s attendance at a drug deal in his own home and evidence demonstrating his

knowledge that cocaine was present in his home, that Lynch knowingly and

voluntarily participated, with criminal intent, in the conspiracy to distribute

cocaine.”); Tampas, 493 F.3d at 1297-98.

As for Count 2, because the evidence was sufficient to sustain Burton’s

drug-conspiracy conviction in Count 1, the evidence was sufficient to support his

conviction for possession with intent to distribute 50 grams or more of cocaine

base and a detectable amount of cocaine hydrochloride. See Cruz-Valdez, 773

F.2d at 1544; Lynch, 934 F.2d at 1231 (“Because the presence of cocaine was

uncontested, the evidence establishing Lynch’s participation in the conspiracy also

sufficed to prove his possession of the cocaine with intent to distribute.”). As

discussed above, the evidence was also sufficient to conclude that Burton had

dominion or control over the residence, so that the jury could find that he had

evidence it 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.” Jiminez, 564 F.3d at 1285 (quotation and

alteration omitted).

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constructive possession of the cocaine base and cocaine hydrochloride present in

the house. See Woodard, 531 F.3d at 1360; Tampas, 493 F.3d at 1298. Thus,

sufficient evidence supported Burton’s conviction as to Count 2.

Likewise, as for Count 5, because the evidence was sufficient to support that

Burton had dominion or control over the residence and participated in the drug

conspiracy, the evidence also supports that Burton constructively possessed the

three firearms that were in the kitchen drawer, which were near the items

associated with drug distribution, as the jury could infer that he had the power to

exercise dominion or control over the firearms. See Thompson, 473 F.3d

at 1143-44 (upholding convictions for possession of firearms by a convicted felon

and possession of firearms in furtherance of a drug-trafficking crime because, inter

alia, two handguns were “readily available, although hidden, in the living room

where drugs were being packaged for sale”); Faust, 456 F.3d at 1346 (holding that

the government presented sufficient evidence that Faust lived at the residence, or at

least maintained dominion or control over the premises, such that sufficient

evidence supported his conviction for constructively possessing drugs found

throughout the house). In short, construing the evidence in the light most favorable

to the government, a reasonable juror could find beyond a reasonable doubt that

Burton was guilty of Counts 1, 2, and 5. See Tampas, 493 F.3d at 1298.

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We also reject Burton’s claim that the district court erred under Federal

Rule of Evidence 404(b) by admitting into evidence his two prior state-court

convictions. Rule 404(b) provides,

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident . . . .

Fed.R.Evid. 404(b). “Rule 404(b) is a rule of inclusion, and that accordingly

404(b) evidence, like other relevant evidence, should not lightly be excluded when

it is central to the prosecution’s case.” United States v. Jernigan, 341 F.3d 1273,

1280 (11th Cir. 2003) (quotation omitted).

In reviewing 404(b) decisions, we apply a three-part test for

admissibility of such evidence: (1) the evidence must be relevant to an

issue other than the defendant’s character; (2) there must be sufficient

proof so that the factfinder could find that the defendant committed

the extrinsic act; and (3) the evidence must possess probative value

that is not substantially outweighed by undue prejudice.

United States v. Perez, 443 F.3d 772, 779 (11th Cir. 2006). Here, Burton does not

challenge the second prong of the three-part test.

We have said that “in every conspiracy case, a not guilty plea renders the

defendant’s intent a material issue” and that “[e]vidence of such extrinsic evidence

as may be probative of a defendant’s state of mind is admissible unless the

defendant affirmatively takes[] the issue of intent out of the case.” United States v.

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Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005) (quotation, alterations, and

ellipsis omitted); see also United States v. Butler, 102 F.3d 1191, 1195 (11th Cir.

1997) (“Intent is always at issue when a defendant pleads not guilty to a conspiracy

charge.”); Calderon, 127 F.3d at 1330-31 (determining that intent was at issue

when the defendant argued that he was “merely present at the scene of the drug

activity”).

Under the third prong of the balancing test, “the probative value of the

evidence must not be substantially outweighed by unfair prejudice.” Jernigan, 341

F.3d at 1282 (quotation omitted) (emphasis in original). “This determination lies

within the sound discretion of the district judge and calls for a common sense

assessment of all the circumstances surrounding the extrinsic offense, including

prosecutorial need, overall similarity between the extrinsic act and the charged

offense, as well as temporal remoteness.” Id. (quotation and alteration omitted).

We have noted that “temporal remoteness is an important factor” and that a

defendant “bears a heavy burden in demonstrating an abuse of the court’s broad

discretion in determining if an extrinsic offense is too remote to be probative.”

Matthews, 431 F.3d at 1311 (quotation omitted).

Here, under the first prong of our Rule 404(b) test, Burton’s prior

convictions for possession of cocaine and carrying a concealed firearm were

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relevant to show Burton’s intent, knowledge, or lack of accident or mistake with

respect to the instant drug-conspiracy and drug- and gun-possession charges. See

id. (holding that an “arrest for distribution of cocaine was relevant to the intent at

issue in the charged conspiracy to distribute cocaine”); Jernigan, 341 F.3d at 1282

(noting that “the fact that Nelson knowingly possessed a firearm in a car on a

previous occasion makes it more likely that he knowingly did so this time as well,

and not because of accident or mistake” (emphasis in original)).

Burton has also failed to meet the third prong of the test, which requires a

showing that the district court abused its discretion in determining that the

probative value of his prior convictions was not substantially outweighed by unfair

prejudice. See Perez, 443 F.3d at 779. As an initial matter, the prior convictions

for possession of cocaine and carrying a concealed firearm were similar to the

drug-conspiracy and drug- and gun-possession charges for which Burton was being

tried. See Matthews, 431 F.3d at 1311 (noting that our “precedent regards virtually

any prior drug offense as probative of the intent to engage in a drug conspiracy”).

In addition, the prior offenses took place two years or less before the grand jury

handed down the indictment on the instant charges. See id. at 1312 (holding that

the district court did not abuse its discretion in finding than an eight-year period

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from an arrest to the beginning of the charged conspiracy was “proximate enough

to be more probative than prejudicial”).

Moreover, pursuant to a request by defense counsel, the district court gave

the jury a limiting instruction after admitting the evidence of the prior convictions,

stating that the prior convictions were “admitted for the sole purpose of

establishing defendant’s guilt, intent and lack of mistake,” and “must not be

considered [] as proof of defendant’s character or of his propensity to commit

crime.” This limiting instruction further supports that the district court did not

abuse its discretion in allowing the evidence to be admitted. See United States v.

Lamons, 532 F.3d 1251, 1267 (11th Cir.) (“Any prejudicial value was further

reduced by the limiting instruction given by the district court during the jury

charge.”), cert. denied, 129 S. Ct. 524 (2008). Because Burton’s prior convictions

were relevant to an issue other than his character and their probative value was not

substantially outweighed by unfair prejudice, the district court did not abuse its

discretion under Rule 404(b) in allowing the prior convictions to be admitted into

evidence.

AFFIRMED.

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