[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12-15113 Non-Argument Calendar

________________________ D.C. Docket No. 8:12-cr-00065-JDW-AEP-1

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus DEMETRIUS GREGORY FLOYD, Defendant-Appellant.

________________________ Appeal from the United St ates District Court for the Middle District of Florida

________________________ (June 12, 2013) Before TJOFLAT, MARCUS a nd PRYOR, Circuit Judges. PER CURIAM:

Case: 12-15113 Date Filed: 06/12/2013 Page: 1 of 82 Demetrius Floyd appeals his conviction for possession of crack cocaine with intent to distribute, in violation of 21 U.S .C. § 841(a)(1), claiming that the district court improperly admitted, under Fed.R. Evid. 403, 404(b), his 14-year-old conviction for possessing and de livering cocaine. The tr ial evidence showed that police found Floyd and several other i ndividuals inside a Florida residence containing drug paraphernalia and substantial amounts of crack cocaine, most of which was inside the bedroom that Fl oyd was seen exiting and that contained Floyd’s driver’s license and a document addressed to him. His prior conviction for possession and delivery of cocaine was presente d to the jury as an oral stipulation for the purposes of proving intent and kn owledge, after which, the court read two Rule 404(b) limiting instructions. Before trial and after the close of evidence, Floyd requested that a simple possession in struction be given to the jury along with his charged offense, but the court declined to issue the instructi on. The jury found Floyd guilty, and he was sentenced to 360 months’ imprisonment. On appeal, Floyd argues that the court abused its di scretion in admitting evidence of his prior cocaine conviction. After thorough review, we affirm. We review the district court’s ruling on the admission of evidence for abuse of discretion. United States v. Jimi nez, 224 F.3d 1243, 1249 (11th Cir. 2000). Rule 404(b) provides, in relevant part, that evidence of other crimes, wrongs, or acts is not admissible to prove the characterof a person in order to show action in

Case: 12-15113 Date Filed: 06/12/2013 Page: 2 of 83 conformity therewith. Fed.R.Evid. 404(b)(1 ). This evidence 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)(2). The following three-st ep test must be satisfied for evidence to be admitted under Rule 404(b): (1) the extr insic offense must be relevant to an issue other than the defendant’s charact er; (2) there must be proof that the defendant committed the offense; and (3 ) the evidence must possess probative value that is not substan tially outweighed by its undue prejudice and must meet the other requirements of Rule 403. Unite d States v. Matthews, 431 F.3d 1296, 1310- 11 (11th Cir. 2005). Rule 404(b) is a rule of inclusion, thus 404(b) evidence should generally be admitted wh en essential to establishi ng a case. United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). Concerning prong one, we ha ve held that, if the relevant issue is intent, the prior act must have required the same stat e of mind as the charged offense. United States v. Beechum, 582 F.2d 898, 914 (5th Cir. 1978). 1 Further, a defendant who enters a not guilty plea makes intent a material issue, espe cially when he presents a “mere presence” defense, thus “imposing a substantial burden on the government

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.Case: 12-15113 Date Filed: 06/12/2013 Page: 3 of 84 to prove intent,” which the government may do using qualifying Rule 404(b) evidence. United States v. Delgado, 56 F.3d 1357, 1365-66 (11th Cir. 1995). As for prong two, extrinsic evidence of a prior conviction provides sufficient proof that the defendant committed the prio r bad act. Id. at 1365. In addressing prong three, the district court must enga ge in “a common sense assessment of all the circumstances surrounding the extrinsic offense, in cluding prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness,” in determining whether Rule 404(b) evidence is more probative than prejudicial. United States v. Brown, 587 F.3d 1082, 1091 (11th Cir. 2009) (quotations omitted). We have declined to adopt a bright-l ine rule regarding temporal remoteness between the extrinsic act and the charged o ffense. Matthews, 431 F.3d at 1311-12. We have also held that an intervening pe riod of 15 years did not render extrinsic evidence of small-scale marijuana convictions inadmissible, despite the convictions’ “differing natu re and remoteness in tim e” from the defendant’s charged participation in a large-scale cocai ne deal. United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995). Evidence of prior drug dealings is highl y probative of intent in subsequent charges of conspiracy and distribution of a controlled substance. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1224 -25 (11th Cir. 1993). We have held that Rule

Case: 12-15113 Date Filed: 06/12/2013 Page: 4 of 85 404(b) evidence is especially probative when the government lacks credible witnesses to testify as to a defendant’s intent to distribute, and when the defendant’s defense relies on mere presence or “non-participation.” Id. at 1225. Further, any unfair prejudice caused by ad mitting extrinsic evidence is mitigated by the issuance of a limiting instruction to the jury. Id. We will reverse an erroneous evidentiary ruling “only if the resulting error was not harmless.” United States v. Ha nds, 184 F.3d 1322, 1 329 (11th Cir. 1999), modified by 194 F.3d 1186 ( 11th Cir. 1999); see also Fed.R.Crim.P. 52(a). An error in admitting Rule 404(b) eviden ce is harmless unless it caused “actual prejudice because it had substantial and injuri ous effect or influence in determining the jury’s verdict.” United States v. Ph aknikone, 605 F.3d 1099, 1109 (11th Cir. 2010) (quotations omitted). Lastly, to establish a violation of 21 U.S.C. § 841(a)(1), the offense with which Floyd was charged, the government must prove beyond a reasonable doubt that the defendant (1) knowingly (2) posse ssed a controlled substance (3) with the intent to distribute that substance. See United States v. Woodward, 531 F.3d 1352, 1360 (11th Cir. 2008). In this case, Floyd has failed to establis h that the district court abused its discretion in concluding that Floyd’s prio r conviction for possession and delivery of cocaine was admissible for the non-prope nsity purposes of establishing Floyd’s

Case: 12-15113 Date Filed: 06/12/2013 Page: 5 of 86 intent and knowledge. See Fed.R.Evid. 404( b). First, the court was justified in concluding that, because Floyd pled not gu ilty and did not expressly remove intent as an issue, he thereby made intent an i ssue. See Delgado, 56 F.3d at 1365-66. Although Floyd criticizes the rule that a not -guilty plea necessarily places intent at issue, arguing that the subject should be addressed on a case-by-case basis, we have repeatedly held to the contrary. See, e.g., Matthew s, 431 F.3d at 1311. At trial, Floyd relied on the defense that he was merely present at the house and also requested a jury instruction on simple possession, which would have placed his intent directly at issue. Th e government made clear that its primary reason for admitting the conviction was to refute the foreseeable argument regarding simple possession, a nd, after the court denied to give the instruction, the government intentionally refrained fro m emphasizing the conviction during its closing arguments. Floyd argues that, be cause the parties did not know whether the court would grant his request, and because the court, in fact, denied his request, his intent never became an issue. Howeve r, since Floyd made the request before trial and renewed it after a ll the evidence had been presented, including his prior conviction, the fact that the court ultimatel y denied his request was irrelevant to the government’s apparent need for the eviden ce while the matter was unresolved. Second, it reasonable for the court to conclude that Floyd was contesting his knowledge of the characteristics of the su bstance found in his possession. Indeed,

Case: 12-15113 Date Filed: 06/12/2013 Page: 6 of 87 Floyd presented a mere presence defense, which implied that he had no unlawful mindset regarding the crack cocaine. See Diaz-Lizaraza, 981 F.2d at 1225. Further, Floyd failed to demonstrate that the court abused its discretion in conducting the Rule 403 balancing test. Becau se an intervening period of as much as 15 years does not, alone, render evidence of prior convictions inadmissible, the 14-year gap between Floyd’s prior conv iction and his current offense did not preclude the admission of his prior convic tion. See Lampley, 68 F.3d at 1300. Additionally, since both the prior and curr ent offenses involved possession, with intent to distribute or deliver, cocaine in some form in street-l evel transactions, the past offense is similar enough to provide si gnificant probative value in this case. Though Floyd emphasizes the differe nce in relevance between admitting prior offenses to prove intent versus know ledge, he fails to address that one of the government’s purposes for admitting the pr ior offense was to prove that he knowingly possessed crack cocaine. For the same reasons, Floyd’s argument -- that his prior conviction was irrelevant to proving possession -- is also flawed. Moreover, the court mitigated any unfa ir prejudice by presenting the prior conviction orally, as a factual stipulation, rather than admitting a paper copy, and by giving the jury multiple limiting instru ctions regarding the proper use of the evidence. See Diaz-Li zaraza, 981 F.2d at 1225.

Case: 12-15113 Date Filed: 06/12/2013 Page: 7 of 88 Regardless, even if the court abused its discretion in admitting the evidence of Floyd’s prior conviction, any error wa s harmless. The alleged error was not reasonably likely to have affected Flo yd’s substantial rights, since there was sufficient evidence supporting the verdict unr elated to his prior conviction. See Phaknikone, 605 F.3d at 1109. In fact, other evidence showed that: (1) officers detained Floyd as he walked out of a be droom containing, in plain view, recently cooked crack cocaine and para phernalia consistent with distribution; (2) Floyd had $1,465 in small bills bundled in his pockets, which was consistent with street-level distribution; (3) in that bedroom, Floyd’ s driver’s license and a court document addressed to him were discove red in the same chest of drawers as several bags of crack cocaine; and (4) Floyd’s DNA was consistent with the DNA recovered from several of the bags of crack cocaine found in that bedroom. See id. Based on this evidence, a reasonable jury could have fo und beyond a reasonable doubt that Floyd possessed crack cocaine with intent to distribute it. See id. In short, because the district court’s admission of the Rule 404(b) evidence was not an abuse of discreti on and, moreover, did not in fluence the outcome of the case, we affirm. AFFIRMED. Case: 12-15113 Date Filed: 06/12/2013 Page: 8 of 8