United States v. Taurus Geter

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

April 21, 2008

No. 07-10727 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 05-20818-CR-ASG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TAURUS GETER,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 21, 2008)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:

Taurus Geter appeals his conviction and sentence for conspiring to possess

with the intent to distribute at least five grams of heroin, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C). Geter argues that the district court improperly admitted

unfairly prejudicial testimony from a confidential informant (“CI”) and

cooperating witness Elston Orjuna concerning activities that occurred outside the

dates of the conspiracy as charged in the indictment. Geter contends that the

testimony was not inextricably intertwined with the charged conspiracy and asserts

that any probative value was outweighed by its highly prejudicial effect. Second,

Geter argues that, at best, the evidence presented at trial established his presence in

the area where drug transactions occurred and his association with another accused

person. Geter contends that, excluding the prejudicial testimony concerning events

outside the scope of the charged conspiracy, this evidence, without more, is

insufficient to prove that he participated in an illegal agreement to distribute

heroin.

Third, Geter argues that the CI’s testimony concerning a co-conspirator’s

statement referencing an earlier federal indictment gave the jurors the false

impression that he had committed other crimes and should not be permitted to

escape justice. Geter asserts that the lapse between the statement and the district

court’s curative instruction was too great to remedy any potential prejudice and

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contends that, as a result, the district court erred by denying his motion for mistrial.

Last, Geter argues that his 210-month sentence, based on his status as a career

offender, was unreasonable in light of the amount of drugs actually involved in the

offense.

For the reasons set forth more fully below, we affirm Geter’s conviction and

sentence.

I. Admission of Testimony Concerning Events

Outside the Dates of the Charged Conspiracy

We review the district court’s evidentiary rulings for abuse of discretion.

United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006), cert. denied, 127

S.Ct. 1305 (2007). “[W]hen employing an abuse-of-discretion standard, we must

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

has applied the wrong legal standard.” United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (en banc). Rule 404(b) provides that “[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show action in conformity therewith.” Fed.R.Evid. 404(b). Rule 404(b) is not

applicable, however, “where the evidence concerns the context, motive, and set-up

of the crime and is linked in time and circumstances with the charged crime, or

forms an integral and natural part of an account of the crime, or is necessary to

complete the story of the crime for the jury.” United States v. Smith, 122 F.3d

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1355, 1359 (11th Cir. 1997). “[E]vidence is inextricably intertwined with the

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

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

defendant was indicted.” United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir.

2007) (quotation omitted). “Nonetheless, evidence of criminal activity other than

the charged offense, whether inside or outside the scope of Rule 404(b), must still

satisfy the requirements of Rule 403.” Id. (citation omitted). Under Rule 403,

relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice . . . .” Fed.R.Evid. 403.

a. Geter’s Violent Threats to Competitors

At trial, the CI testified that Geter protected his “territory” by threatening

competitors. The CI further testified that, one week after a controlled buy on

December 15, 2004, he observed Geter threatening a man, noting that the man had

been selling drugs marked with the symbol of another supplier. Although this

testimony concerned events that were, admittedly, outside the time frame of the

charged conspiracy, it was nevertheless “on or about” December 16, 2004, the date

charged in the indictment. See United States v. Pope, 132 F.3d 684, 688-89 (11th

Cir. 1998) (holding that “time is not an essential element of the offense, so long as

the government establishes that the conduct occurred reasonably near the date that

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the indictment mentions”). Thus, the CI’s testimony is, arguably, linked in time

with the charged conspiracy, and the district court did not abuse its discretion in

admitting it as intrinsic evidence. See Edouard, 485 F.3d at 1346; Smith, 122 F.3d

at 1359. Moreover, even accepting Geter’s argument that the probative value of

such testimony was outweighed by its prejudicial effect, “it is doubtful that [the

CI’s] testimony caused any unfair prejudice.” Edouard, 485 F.3d at 1346. “[I]n a

criminal trial, relevant evidence is inherently prejudicial; it is only when unfair

prejudice substantially outweighs probative value that [Rule 403] permits

exclusion.” Id. (quotation and alteration omitted). This is particularly true in light

of the remaining evidence of Geter’s guilt, discussed below.

b. Geter’s Pre-2004 Drug Distribution

Here, the indictment alleged that Geter conspired with others to possess with

the intent to distribute heroin “on or about October 21, 2004, and continuing

through on or about December 16, 2004.” At trial, Orjuna testified that, from 1998

until October 2003, he sold heroin for Geter on a daily basis. Orjuna noted that

Geter led an organization consisting of two lieutenants and multiple sellers, who

sold specifically-marked heroin at various locations in Overtown. Orjuna noted

that Geter gave drugs to the lieutenants, who distributed them to the sellers and

collected the drugs proceeds, which they returned to Geter. Orjuna also identified

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the key participants in the organization, including Geter and his two lieutenants,

“Zeus” and Thomas Jerry. Orjuna’s testimony is consistent with the CI’s account

of the events that occurred within the time frame of the charged conspiracy. The

CI testified that he contacted Geter and, eventually, began to sell drugs for him on

14th Street in Overtown. Geter employed two lieutenants, Zeus and Jerry, who

coordinated the distribution of the drugs, which Geter packaged in specially-

marked bags, and collected the drug proceeds at the end of each shift. Jerry

provided the CI with packs of heroin, and assigned him to work on a specific street

corner with another seller, Dominick Jagne. The CI sold the heroin as instructed

and returned the proceeds to Jerry.

Although Orjuna’s employment with Geter ended with his arrest in October

2003, before the time frame of the charged conspiracy, this separation does not

automatically make his testimony extrinsic. See United States v. Muscatell, 42

F.3d 627, 630 (11th Cir. 1995). In Muscatell, we held that testimony regarding a

continuing course of conduct “involving the same principal actors, in the same

roles, employing the same modus operandi,” was properly admissible as intrinsic

evidence, despite the fact that some of the acts occurred outside the time frame of

the charged offenses. Id. at 630-31. We reasoned that “[o]ther transactions

connected with the offenses charged have long been used to show a general

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pattern, the necessary criminal intent, or the guilty knowledge of the defendant.”

Id. at 631 (quotation omitted). Moreover, evidence of prior drug dealings is highly

probative of intent in later charges of conspiracy to distribute a controlled

substance. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th Cir. 1993).

Accordingly, the district court did not abuse its discretion in admitting Orjuna’s

testimony because it established the intent and motive behind the instant

conspiracy, demonstrated a pattern of ongoing conduct involving Geter and his co-

conspirators, and was integral to the explanation of the circumstances surrounding

the charged conspiracy.

II. Sufficiency of the Evidence

We review de novo “whether there is sufficient evidence to support the

jury’s verdict.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We

will affirm the jury’s verdict “if a reasonable trier of fact could conclude that the

evidence establishes guilt beyond a reasonable doubt.” Id. (quotation omitted). On

review, the evidence is viewed “in the light most favorable to the government, with

all reasonable inferences and credibility choices made in the government’s favor.”

Id. (quotation omitted). We are “bound by the jury’s credibility determinations,

and by its rejection of the inferences raised by the defendant.” United States v.

Peters, 403 F.3d 1263, 1268 (11th Cir. 2005). “The evidence need not exclude

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every hypothesis of innocence or be completely inconsistent with every conclusion

other than guilt because a jury may select among constructions of the evidence.”

United States v. Bailey, 123 F.3d 1381, 1391 (11th Cir. 1997).

Conspiracy to possess heroin with the intent to distribute requires the

government to prove beyond a reasonable doubt “(1) that a conspiracy existed;

(2) that the defendant knew of it; and (3) that the defendant, with knowledge,

voluntarily joined it.” United States v. Molina, 443 F.3d 824, 828 (11th Cir. 2006)

(quotation omitted).

Although presence is a permissible factor to be considered in determining

whether a defendant conspired with another, “it is well settled that mere presence

will not support a conviction.” United States v. Charles, 313 F.3d 1278, 1284

(11th Cir 2002). “Mere presence, guilty knowledge, even sympathetic

observation” and close association with a co-conspirator are insufficient, without

more, to support a conviction for conspiracy to distribute drugs. United States v.

Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995). Yet, such factors may raise a

permissible inference of participation in a conspiracy, which the jury may consider

as a “material and probative factor . . . in reaching its decision.” United States v.

Hernandez, 896 F.2d 513, 518 (11th Cir. 1990).

Here, the evidence presented at trial, viewed in the light most favorable to

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the government, supports a finding that the jury in this case could reasonably

conclude that Geter was more than a “sympathetic observer” and, thus, that a

conspiracy between Geter and the CI existed. See Lyons, 53 F.3d at 1201. The

record indicates that the CI contacted Geter, who eventually asked him to sell

heroin at 1943 Northwest 2nd Court. The CI asked Geter if he could sell drugs on

14th Street instead and Geter consented. The CI met Geter and one of his

lieutenants, Jerry, at 1971 Northwest 2nd Court (“the 1971 building”). Jerry

coordinated the distribution of drugs to the sellers and collected the drug proceeds

at the end of each shift. Jerry assigned the CI to work with another seller, Jagne,

on 14th Street.

The CI set up two controlled buys with undercover officers from the DEA

and the City of Miami Police Department. The CI arrived at the 1971 building at

the beginning of each shift, where Jerry instructed him to see Jagne, who had

already picked up the drugs that were to be sold that night. The CI sold the drugs,

which were marked with symbols identifying Geter as the source, to the

undercover officers and brought the proceeds back to Jerry. The CI requested

additional drugs after the first controlled buy, but Jerry advised that he had to wait

for Geter to package the drugs. Geter did not fulfill the CI’s request. Undercover

officers observed Geter at the 1971 building during each of the controlled buys.

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Geter often sat in a car parked in front of the building, and was also seen sitting

under the stairwell. The officers also observed Jerry as he collected the drug

proceeds and gave them to a person sitting in a car in front of the building. Based

on these facts, the jury could conclude that Geter employed the CI and others in a

heroin distribution operation, packaged the heroin in specially-marked baggies,

provided those drugs to lieutenants, oversaw the distribution of those drugs to

various sellers, and ultimately received the proceeds from each sale. Accordingly,

the evidence was sufficient to establish that an agreement existed between Geter

and the CI to possess with the intent to distribute at least five grams of heroin.

III. Denial of Motion for Mistrial

We review the denial of a motion for a mistrial for abuse of discretion.

United States v. Diaz, 248 F.3d 1065, 1101 (11th Cir. 2001). “If a district court

issues a curative instruction, we will reverse only if the evidence is so highly

prejudicial as to be incurable by the trial court’s admonition.” Id. (quotation and

citation omitted). Jurors are presumed to follow the court’s instructions. United

States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005). In addition, “prejudicial

testimony will not mandate a mistrial when there is other significant evidence of

guilt which reduces the likelihood that the otherwise improper testimony had a

substantial impact on the verdict of the jury.” United States v. Saget, 991 F.2d

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702, 708 (11th Cir. 1993) (quotation omitted).

During questioning by the government, the CI testified that one of Geter’s

lieutenants, Zeus, told him not to refer to Geter by his last name, noting that “a

federal indictment come out every three years and that they done previously beat

the federal indictment.” The district court gave curative instructions as to the CI’s

testimony, directing the jury to disregard any statements regarding federal

indictments. Moreover, as discussed above, there was significant evidence of

Geter’s guilt which reduces the likelihood that the testimony had a substantial

impact on the jury’s verdict. Saget, 991 F.2d at 708. Accordingly, the CI’s

statement regarding a previous federal indictment in the instant case is not so

highly prejudicial as to be incurable by the district court’s curative instructions,

and the district court did not abuse its discretion in denying a mistrial based on this

testimony.

IV. Reasonableness of Geter’s 210-month Sentence

We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).

Unreasonableness may be procedural, when the court’s procedure does not follow

Booker’s requirements, or substantive. See Gall v. United States, 552 U.S. ___,

128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Hunt, 459 F.3d 1180,

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1182 n.3 (11th Cir. 2006). The Supreme Court has explained that a sentence may

be procedurally unreasonable if the district court improperly calculates the

guideline imprisonment range, treats the Guidelines as mandatory, fails to consider

the appropriate statutory factors, bases the sentence on clearly erroneous facts, or

fails to adequately explain its reasoning. Gall, 552 U.S. at ___, 128 S.Ct. at 597.

The Court also has explained that the substantive reasonableness of a sentence is

reviewed under an abuse-of-discretion standard. Id. It has suggested that review

for substantive reasonableness under this standard involves inquiring whether the

factors in 18 U.S.C. § 3553(a) support the sentence in question. Id. at ___, 128

S.Ct. at 600.

When imposing a sentence, the district court must first correctly calculate

the Guidelines. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).

Second, the district court must consider the following factors to determine a

reasonable sentence:

(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 unwanted sentencing disparities; and (10) the need to provide

restitution to victims.

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Id. (citing 18 U.S.C. § 3553(a)).

“[T]here is a range of reasonable sentences from which the district court may

choose” and the burden of establishing that the sentence is unreasonable in light of

the record and the § 3553(a) factors lies with the party challenging the sentence.

Talley, 431 F.3d at 788. We have held that a sentence within the guidelines range

is neither per se reasonable, nor entitled to a presumption of reasonableness. See

id. at 786-88; Hunt, 459 F.3d at 1185.

Geter does not challenge the district court’s finding that he qualified as a

career offender or otherwise challenge the procedural reasonableness of his

sentence on appeal. Nevertheless, the record demonstrates that the district court

correctly calculated the advisory guideline range, expressly considered the

§ 3553(a) factors, and sufficiently explained its reasons for imposing a 210-month

sentence. See Gall, 552 U.S. at ___, 128 S.Ct. at 597.

Similarly, Geter also has not established that his sentence is substantively

unreasonable. See Hunt, 459 F.3d at 1182 n.3; Gall, 552 U.S. at ___, 128 S.Ct. at

597. Geter’s 210-month sentence was at the low-end of the advisory guideline

range. The record indicates that the district court considered several factors,

including the nature and seriousness of the instant offense and the relatively small

amount of heroin involved, along with Geter’s significant criminal history in

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determining that a Guidelines sentence, within the career offender range, was

appropriate. Therefore, the § 3553(a) factors supported the district court’s

sentence, and the court did not abuse its discretion. See Gall, 552 U.S. at ___, 128

S.Ct. at 597. Thus, viewing the sentencing proceeding as a whole, Geter’s

sentence is reasonable.

In light of the foregoing, Geter’s conviction and sentence are

AFFIRMED.

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