FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 18, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-12285

Non-Argument Calendar

________________________

D. C. Docket No. 03-00105-CR-T-24MSS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DONNELL HESTER, 

WALLACE REED, 

Defendants-Appellants. 

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(September 18, 2006)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
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Donnell Hester and Wallace Reed appeal their convictions for conspiring to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B)(ii)(II) and 846; and possessing with intent to distribute 500 grams or

more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii)(II). Hester

also appeals his conviction for possessing a firearm in furtherance of a drug crime,

in violation of 18 U.S.C. § 924(c). Hester and Reed have adopted each others’

arguments on appeal. They argue the district court: (1) erred in denying their

motions to strike the jury venire; (2) erred in denying their motions for judgment of

acquittal and Hester’s motion for a new trial; (3) violated their due process rights

by interfering with Reed’s defense witness; and (4) erred by failing, sua sponte, to

declare a mistrial based on the Government “vouching” for its witness. Reed also

argues his trial counsel provided ineffective assistance. We affirm.

I. DISCUSSION

A. Motions to strike jury venire

Reed first argues the underrepresentation of African-Americans in the jury

venire prevented a fair cross-section of the community from sitting on the jury.

Hester has adopted Reed’s argument.

We review de novo constitutional challenges to the jury selection process. 

United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir. 1995). The Supreme
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Court has held while “petit juries must be drawn from a source fairly representative

of the community,” there is “no requirement that petit juries actually chosen must

mirror the community and reflect the various distinctive groups in the population. 

Defendants are not entitled to a jury of any particular composition.” Holland v.

Illinois, 110 S. Ct. 803, 808 (1990) (quotation omitted). A defendant claiming a

violation of the fair-cross-section requirement has the burden of proving the

underrepresented group: (1) is distinctive; (2) is systematically excluded from the

jury source; and (3) its underrepresentation is unfair and unreasonable. Berryhill v.

Zant, 858 F.2d 633, 638 (11th Cir. 1988). 

Hester and Reed failed to prove a violation of the Sixth Amendment faircross-section jury-selection requirement. Although they identified a distinctive

group in the community, African-Americans, they failed to present evidence that

African-Americans are systematically underrepresented in the jury pool. 

Moreover, Hester and Reed acknowledged in the district court that they could not

show bad will in the process as a whole, and in their briefs that the district court’s

jury-selection process is “widely accepted as fair, reasonable and [c]onstitutional.”

B. Motions for judgment of acquittal and for a new trial

Hester argues the evidence against him was insufficient as to all three counts

and further argues the district court abused its discretion in denying his motion for
 Because Hester limits his motion for a new trial arguments to the same arguments he 1

presented to support his motion for judgment of acquittal, he has abandoned all arguments raised

below in his motion for a new trial. See United States v. Ford, 270 F.3d 1346, 1347 (11th Cir.

2001) (“[O]ur well established rule is that issues and contentions not timely raised in the briefs

are deemed abandoned.”). 

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a new trial. Hester’s arguments as to why the denial of his motion for a new trial

should be granted are identical to those regarding the denial of his motion for a

judgment of acquittal. 

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As an initial matter, although Reed has adopted Hester’s arguments, we have

explained the fact-specific nature of an insufficiency of evidence claim requires

independent briefing if we are to reach the merits of the defendant’s claim. United

States v. Khoury, 901 F.2d 948, 963 n.13 (11th Cir. 1990). A defendant’s

challenge to the sufficiency of the evidence should not be addressed on appeal in

the absence of briefing, even though the defendant has adopted a co-defendant’s

arguments. Id. We thus do not address Reed’s motion for judgment of acquittal. 

We review a district court’s denial of a motion for judgment of acquittal de

novo, viewing the facts and drawing all inferences in the light most favorable to

the Government. United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). 

“[W]e need only determine that a reasonable fact-finder could conclude that the

evidence established the defendant’s guilt beyond a reasonable doubt.” Id.

(quotation omitted). “We review the denial of a motion for a new trial for abuse of
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discretion.” United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005),

cert. denied, 126 S. Ct. 1635 (2006). “On a motion for a new trial based on the

weight of the evidence, the court need not view the evidence in the light most

favorable to the verdict. It may weigh the evidence and consider the credibility of

the witnesses.” Id. at 1335 (quotation omitted). “If the court concludes that,

despite the abstract sufficiency of the evidence to sustain the verdict, the evidence

preponderates sufficiently heavily against the verdict that a serious miscarriage of

justice may have occurred, it may set aside the verdict, grant a new trial, and

submit the issues for determination by another jury.” Id. (quotation omitted).

1. Conspiracy to possess with intent to distribute 

“To sustain a conviction for conspiracy to possess cocaine with intent to

distribute, the government must prove beyond a reasonable doubt that (1) an illegal

agreement existed; (2) the defendant knew of it; and (3) the defendant, with

knowledge, voluntarily joined it.” Hernandez, 433 F.3d at 1333 (quotation

omitted). “Participation in a conspiracy can be inferred from a development and

collocation of circumstances.” Id. “Although mere presence at the scene of a

crime is insufficient to support a conspiracy conviction, presence nonetheless is a

probative factor which the jury may consider in determining whether a defendant

was a knowing and intentional participant in a criminal scheme.” Id. (quotation
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omitted). We have also noted “evidence of resistance to arrest and flight is

admissible to demonstrate consciousness of guilt and thereby guilt.” Ventura v.

Attorney Gen., Fla., 419 F.3d 1269, 1290 (11th Cir. 2005). 

The evidence presented at trial showed: (1) prior to the arrest of Dixon,

Reed, and Hester, Collins had purchased drugs from three individuals on numerous

occasions; (2) on January 5, 2003, Dixon, Reed, and Hester were in a vehicle that

was stopped by police for speeding and contained $25,000; (3) on the day before

the arrest, Collins bought a half-kilo of cocaine from Dixon, Reed, and Hester;

(4) on the day of the arrest, January 30, 2003, Hester and Reed waited in the

vehicle while Dixon brought the cocaine to Collins; and (5) the amount of cocaine

recovered, 995 grams, was consistent with distribution, not personal use. When

the arrest occurred, Hester also fled and attempted to dispose of his gun. Viewing

the evidence in the light most favorable to the government, a reasonable jury could

find Hester guilty of conspiracy to possess with intent to distribute beyond a

reasonable doubt. The district court did not err in denying Hester’s motion for

judgment of acquittal or his motion for a new trial as to the conspiracy count.

2. Possession with intent to distribute

“To sustain a conviction for possession of a controlled substance with intent

to distribute, the government must show that a defendant knowingly possessed the
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controlled substance with the intent to distribute it.” Hernandez, 433 F.3d at 1333

(quotation omitted). “The government may prove possession by showing actual or

constructive possession.” Id. “Constructive possession exists when a defendant

has ownership, dominion, or control over an object itself or dominion or control

over the premises or the vehicle in which the object is concealed.” Id. “Intent to

distribute may be inferred from the amount of [the drug] involved.” Id.

The Government presented sufficient evidence to support the conclusion that

Hester constructively possessed the cocaine with an intent to distribute it. Collins

positively identified Hester as the third individual in the Miami Boys, who, along

with Dixon and Reed, sold him a half-kilo of cocaine on the day before the arrest. 

On the day of the arrest, both Reed and Hester were in the vehicle with the cocaine. 

Also, the amount of cocaine, 995 grams, was sufficient to support a finding of an

intent to distribute the drugs. Accordingly, a reasonable jury could find Hester

guilty of the possession count, and the district court did not err in denying his

motion for judgment of acquittal or his motion for a new trial.

3. Possessing a firearm in furtherance of a drug crime

To sustain a conviction under § 924(c), the government must show, during

and in relation to the conspiracy to possess with intent to distribute cocaine, Hester

used, carried, or possessed a firearm in furtherance of that conspiracy. United
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States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004) (citing 18 U.S.C. § 924(c)). 

“The government must also establish some nexus between the firearm and the drug

trafficking offense to show possession was in furtherance of the crime.” Id.

Hester admitted the gun found at the scene of the crime was his, and several

officers testified that they saw Hester carrying the gun and then toss it when he fled

from the scene. Viewing the evidence in the light most favorable to the

Government, a reasonable jury could find Hester guilty of carrying a firearm in

furtherance of a drug transaction beyond a reasonable doubt. The district court did

not err in denying his motion for judgment of acquittal or motion for a new trial. 

C. Interference with a defense witness

Reed argues the district court singled out Dixon to admonish him about

possible perjury and obstruction of justice charges when no other witness was so

admonished. Reed contends this resulted in judicial interference with his sole

witness by having a chilling effect on that witness’s testimony and violating

Reed’s due process rights. Hester has adopted Reed’s argument. 

 We review questions of constitutional law de novo. United States v. Noel,

231 F.3d 833, 836 (11th Cir. 2000). “[A] criminal defendant has a constitutional

right to present his own witnesses to establish a defense.” Unites States v.

Terzado-Madruga, 897 F.2d 1099, 1108 (11th Cir. 1990) (quotation omitted). 
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“Substantial interference with a defense witness’ free and unhampered choice to

testify violates due process rights of the defendant.” Demps v. Wainwright, 805

F.2d 1426, 1433 (11th Cir.1986). “When such a violation of due process rights

occurs, a court must reverse the conviction without regard to prejudice to the

defendant.” Id. For example, the Supreme Court has reversed a defendant’s

conviction where the “the judge’s threatening remarks, directed only at the single

witness for the defense, effectively drove that witness off the stand.” Webb v.

Texas, 93 S. Ct. 351, 353 (1972).

The court did not substantially interfere with Reed’s right to present his

witness. The court did not single out Dixon for perjury warnings; in fact, it

specifically advised Hester and Reed as to the dangers of providing untrue

testimony. The court explained it was advising Dixon of potential perjury issues

because he, unlike Reed and Hester, had entered into a plea agreement and thus

risked contradicting his plea colloquy with his trial testimony. Neither the

Government nor the court made any threatening remarks to Dixon. Most

importantly, Dixon was not hindered by the court’s warnings because he testified. 

D. Government “vouching” for its witness

Reed argues the Government committed prosecutorial misconduct by

vouching for Collins. Reed asserts the Government inaccurately contended in
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closing arguments that Collins had no reason to lie since there was nothing the

Government could do for him. 

Because this issue was raised for the first time on appeal, we review it for

plain error. United States v. Rahim, 431 F.3d 753, 756 (11th Cir. 2005), cert

denied, 126 S. Ct. 1820 (2006). “To establish plain error, a defendant must show

there is (1) error, (2) that is plain, and (3) that affects substantial rights.” United

States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). “If all three conditions

are met, we may exercise our discretion to recognize a forfeited error, but only if

the error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. (quotation omitted).

We reverse a defendant’s conviction on the basis of prosecutorial

misconduct only where the remarks “(1) were improper and (2) prejudiced the

defendant’s substantive rights.” United States v. Delgado, 56 F.3d 1357, 1368

(11th Cir.1995). “When reviewing a defendant’s ‘vouching’ claim, we examine

whether (1) the prosecutor placed the prestige of the government behind the

witness by making explicit personal assurances of the witness’s credibility, or

(2) the prosecutor implicitly vouched for the witness’s credibility by implying that

evidence not formally presented to the jury supports the witness’s testimony.” 

United States v. Arias-Izquierdo, 449 F.3d 1168, 1177-78 (11th Cir. 2006). “The
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prohibition against vouching does not forbid prosecutors from arguing credibility,

which may be central to the case; rather, it forbids arguing credibility based on the

reputation of the government office or on evidence not before the jury.” United

States v. Hernandez, 921 F.2d 1569, 1573 (11th Cir. 1991). 

The district court did not plainly err by failing, sua sponte, to declare a

mistrial based on the Government’s allegedly vouching for Collins during its

closing argument. The Government did not argue Collins’s credibility based on

the Government’s reputation, but based on his having “nothing to gain” by

testifying about his prior drug deals. Moreover, the Government’s argument was

based on evidence before the jury since both Collins and Mosley had testified as to

Collins’ agreement with the Government, and the court informed the jury to

disregard the Government’s statement as to when Collins would complete his

current prison term. 

E. Ineffective assistance of trial counsel

Finally, Reed argues his counsel provided ineffective assistance. Although

Hester adopted all of Reed’s arguments, he presented no arguments as to the

ineffectiveness of his counsel or explained how Reed’s arguments applied to his

counsel. Thus, we do not review an ineffective assistance of counsel claim on

Hester’s behalf. 
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As for Reed’s claim, we generally do not review claims of ineffective

assistance of counsel raised on direct appeal when the district court did not

entertain the claim or develop a factual record. Massaro v. United States, 123 S.

Ct. 1690, 1694 (2003); United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.

2002). Because the record is not sufficiently developed as to Reed’s ineffectiveassistance-of-counsel claim, we decline to consider it on direct appeal, without

prejudice to his ability to raise it later in a 28 U.S.C. § 2255 motion. 

AFFIRMED.