[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-12241
APRIL 16, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK

D. C. Docket No. 08-00433-CR-T-27EAJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
DELORES VANILLA SHULER,
JOHN BAPTISTE PIERRE,

Defendants-Appellants.

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Appeals from the United States District Court
for the Middle District of Florida
_________________________
(April 16, 2010)
Before TJOFLAT, MARCUS and FAY, Circuit Judges.
PER CURIAM:

Delores Vanilla Shuler appeals from her conviction for possession of

cocaine, in violation of 21 U.S.C. 844, and John Baptiste Pierre appeals from his
convictions and 130-month sentences for four counts of possession with intent to
distribute, in violation of 21 U.S.C. 841, and one count of possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c). On
appeal, Shuler challenges only her conviction, arguing that the district court erred
in denying her motion for judgment of acquittal. Pierre, however, challenges both
his conviction and sentences, arguing that the district court: (1) erred in denying
his motion for judgment of acquittal; (2) erred in denying his motion to sever
counts; (3) abused its discretion when it refused to make the instruction for simple
possession applicable to Pierre for all five counts; and (4) clearly erredy when it
applied the obstruction-of-justice enhancement. After thorough review, we affirm.
1.
First, we reject the claims by Shuler and Pierre that the district court erred in
denying their motions for judgment of acquittal. We review de novo the district
courts denial of a motion for judgment of acquittal, viewing the evidence in the
light most favorable to the government and drawing all reasonable inferences and
credibility choices in favor of the jurys 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

governments proof need not exclude every reasonable hypothesis of innocence.
Id. at 1298 (citation and quotation omitted). We will affirm if a reasonable juror
could have concluded that the evidence established [the defendants] guilt beyond
a reasonable doubt. Id.
Under the waiver doctrine, a defendant waives his objection to the denial
of his motion for judgment of acquittal made at the close of the Governments
evidence if he presents evidence on his behalf following that denial. United States
v. White, 611 F.2d 531, 536 (5th Cir. 1980).1 If a defendant renews his motion
for judgment of acquittal at the end of all the evidence, the waiver doctrine
requires the reviewing court to examine all the evidence rather than to restrict its
examination to the evidence presented in the Governments case-in-chief. Id.
If a defendant chooses to testify on his own behalf, any statements he makes,
if disbelieved by the jury, may be considered as substantive evidence of the
defendants guilt.

United States v. Williams, 390 F.3d 1319, 1325 (11th Cir.

2004) (quotation omitted). Thus, the jury is entitled not only to disbelieve the
defendants testimony but also to conclude the opposite of what he said is true. Id.
at 1325-26. This rule applies with special force where the elements to be proved

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 Fifth Circuit issued before October 1, 1981.
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for a conviction include highly subjective elements: for example, the defendants
intent or knowledge. Id. at 1326 (citation omitted).
To establish the crime of possession with intent to distribute, the government
must establish three elements: (1) knowledge, (2) possession, and (3) intent to
distribute.

United States v. Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008).

Possession of a controlled substance is a lesser-included offense, which does not

require proof of intent to distribute. See United States v. Catchings, 922 F.2d 777,
780 (11th Cir. 1991). Possession may be established by showing either actual or
constructive possession. United States v. Hernandez, 433 F.3d 1328, 1333 (11th
Cir. 2005). Constructive possession may be exclusive or joint. United States v.
Tamargo, 672 F.2d 887, 890 (11th Cir. 1982). Constructive possession exists
when a defendant has ownership, dominion, or control over an object itself or
dominion or control over the premises . . . in which the object is concealed.
Hernandez, 433 F.3d at 1333 (quotation omitted).

There must be some nexus

between the defendant and the contraband. Holmes v. Kucynda, 321 F.3d 1069,
1080 (11th Cir. 2003).
[M]ere presence at the crime scene is insufficient to prove guilt beyond a
reasonable doubt but it is material, highly probative, and not to be discounted.
United States v. Gamboa, 166 F.3d 1327, 1331-32 (11th Cir. 1999) (quotation

omitted). Additionally, there is sufficient evidence to support a conviction when

presence is combined with other evidence from which guilt can be inferred.
United States v. Mejia, 97 F.3d 1391, 1393 (11th Cir. 1996).
Evidence showing a consciousness of guilt is sufficient to support an
inference that the defendant had the requisite knowledge.

United States v.

Leonard, 138 F.3d 906, 909 (11th Cir. 1998). Moreover, in order to sustain a
conviction for possession with intent to distribute a controlled substance, it need
not be proved that the defendant had knowledge of the particular drug involved, as
long as he knew he was dealing with a controlled substance. United States v.
Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990). Thus, we upheld a conviction for
possession with intent to distribute more than five kilograms of cocaine where the
defendant admitted that he knew drugs were hidden in the car but maintained that
he believed it to be only a small quantity of marijuana. Id.
To establish possession of a firearm in furtherance of a drug crime under 18
U.S.C. 924(c)(1)(A), the government must prove that the firearm helped,
furthered, promoted, or advanced drug trafficking.

Mercer, 541 F.3d at 1076

(quotation omitted). The government must show a nexus between the firearm and
the drug trafficking.

Id.

The nexus may be established by the kind of drug

activity that is being conducted, accessibility of the firearm, the type of firearm,

whether the firearm is stolen, the status of the possession (legitimate or illegal),
whether the firearm is loaded, proximity of the firearm to the drugs or drug profits,
and the time and circumstances under which the firearm is found. Id. at 1076-77
(citation omitted).
As an initial matter, because both Pierre and Shuler chose to present
evidence after the close of the governments case-in-chief, the waiver doctrine
applies, and we must consider all of the evidence presented at trial rather than
limiting our review to the evidence presented in the governments case-in-chief.
See White, 611 F.2d at 536. Additionally, because they both testified as part of
their defense, if the jury disbelieved their testimony, it was free to conclude that the
opposite of what was testified to was true and use that as substantial evidence
against the testifying defendant. See Williams, 390 F.3d at 1325-26.
On the record here, there was sufficient evidence to sustain Shulers
conviction because she (1) evidenced a consciousness of guilt when she hid the
drugs in her body, see Leonard, 138 F.3d at 909, and (2) admitted that she knew
that she was hiding marijuana. See Gomez, 905 F.2d at 1514.2
2

We need not address whether there was sufficient evidence for a jury to find that she
intended to distribute that cocaine. Even if we were to conclude on de novo review that there
was not sufficient evidence to establish Shulers intent, that conclusion would not necessitate a
new trial. The district court recognized at the time it issued its ruling that an instruction on the
lesser-included offense might be appropriate, the government could have sought an instruction
on the lesser-included offense if Shulers motion for judgment of acquittal had been granted, and
there was sufficient evidence to support the conviction actually imposed. See Fed. R. Crim. P.
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There also was sufficient evidence to sustain Pierres conviction on Count

One because he admitted he intended to sell the cocaine. As for Counts Two to
Five, Pierre argues that the evidence was insufficient to establish that he possessed
either the drugs or the firearms. While mere presence at the scene is insufficient to
convict him, it is a relevant consideration when combined with other evidence
from which guilt can be inferred. See Mejia, 97 F.3d at 1393. Thus, the evidence
showing that he spent a considerable amount of time at 226 Century Boulevard,
had previously conducted drug transactions at that location, and had some of his
personal belongings there all suggest that he exercised some degree of possession
and control over the premises.

Moreover, the jury was free to disbelieve his

denials and conclude the opposite of what he claimed, including that the drugs and
firearms belonged to him. See Williams, 390 F.3d at 1325-26. Therefore, there
was sufficient evidence to sustain both Shulers and Pierres convictions.
2.
Next, we are unpersuaded by Pierres claim that his motion to sever should
have been granted. We typically undertake a two-step review when determining
whether separate counts were properly tried together. United States v. Hersh, 297
F.3d 1233, 1241 (11th Cir. 2002). First, we review de novo whether the initial

31(c)(1).
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joinder was proper under Federal Rule of Criminal Procedure 8(a). Id. Second, we
determine whether the district court abused its discretion under Federal Rule of
Criminal Procedure 14 when denying the motion to sever. Id.
The district court abuses its discretion when compelling prejudice results
from the joinder. Id. at 1243. The test for compelling prejudice is whether under
all the circumstances of a particular case it is within the capacity of jurors to follow
a courts limiting instructions and appraise the independent evidence against a
defendant solely on that defendants own . . . conduct in relation to the allegations
contained in the indictment and render a fair and impartial verdict. Id. (citation
and quotation omitted; alteration in original).

If this is within the capacity of

jurors, then there is no compelling prejudice even if it is difficult for them. Id.
If any possible prejudice resulting from the joinder can be cured through a
limiting instruction, then severance is not required. Id. at 1244. Accordingly, we
held that a district court did not abuse its discretion where the jury was expressly
instructed that it was to consider each count of the Indictment separately and was
further instructed that merely finding [the defendant] guilty of one charged offense
was not to influence its verdict as to the other charged offenses. United States v.
York, 428 F.3d 1325, 1334 (11th Cir. 2005). We presume the jury was able to
follow the courts instructions and properly evaluate the separate evidence absent

proof to the contrary. Hersh, 297 F.3d at 1244. We also require the defendant to
present some proof of actual prejudice or jury confusion. Id.
Pierre has not shown compelling prejudice with respect to Count One.3 He
conceded his guilt to that count when he testified at trial, and asserts in his brief
that he wanted to plead guilty with respect to that count. However, compelling
prejudice is not established merely because the defendant would like to testify
regarding some counts but not others. Id. at 1243 n.15.
Pierres argument that the district courts refusal to sever the counts allowed
the jury to consider proof applicable to only one offense to find him guilty of the
other offenses, even though such proof would not have been admissible in a
separate trial, also fails. Evidence of prior and subsequent bad acts is admissible
under Federal Rule of Evidence 404(b) to prove intent, and the government made
clear that even if the counts were severed, it would seek to introduce all of the
evidence in both trials.
We likewise disagree with Pierres claim that the jury was unable to follow
the courts limiting instructions. He offers the fact that it was revealed during voir
dire that some jurors would find the defendant guilty of all the charges if he

Because Pierre has not challenged the propriety of the initial joinder of the offenses, we
need only consider whether the district court abused its discretion in denying the motion to
sever.
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admitted guilt to one of those charges, as evidence of the jurys inability to follow
those instructions. However, none of the questionable jurors actually sat on the
jury. Therefore, Pierre has not contradicted the presumption that the jury follows
the courts instructions. See Hersh, 297 F.3d at 1244. We therefore affirm the
district courts denial of Pierres motion to sever.
3.
We also find no merit in Pierres claim that the district court abused its
discretion when it refused to make the instruction for simple possession, a lesserincluded offense for the possession with intent to distribute charged in the
indictment, applicable to Pierre for all five counts. We review a district courts
refusal to give a requested jury instruction for abuse of discretion. United States v.
Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). An abuse of discretion may occur
where the evidence would permit a rational jury to find the defendant guilty of the
lesser offense and not the greater.

Id.

However, a lesser-included offense

instruction is not proper where the factual issues to be resolved by the jury are the
same as to both the lesser and greater offense.

Catchings, 922 F.2d at 780.

Moreover, [w]hen a defendant relies on an exculpatory defense that, if believed,

would lead to acquittals on both the greater and lesser charges, it is no abuse of
discretion to refuse to instruct the jury on a lesser included offense. United States

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v. Brown, 26 F.3d 119, 120 (11th Cir. 1994).

Here, although Pierre argues that the district court abused its discretion by
not instructing the jury that they could find Pierre guilty of simple possession
rather than possession with intent to distribute on Count One, at trial he admitted
his intent to distribute the cocaine. As a result, no rational jury could find him
guilty of simple possession but not possession with intent to distribute as to Count
One. See Lee, 68 F.3d at 1273.
As for Counts Two through Four, Pierres defense rested on the theory that
he did not possess the drugs seized from 226 Century Boulevard. If the jury found
that the government had not established possession, then it could not convict him
of either crime. Therefore, a lesser-included offense instruction would not have
been proper. See Brown, 26 F.3d at 120.
4.
Finally, we disagree with Pierres argument that the district court committed
clear error when it applied the obstruction-of-justice enhancement because it did
not make specific findings concerning which trial testimony amounted to perjury
and voiced doubts as to whether Pierre was the drug dealer the government
painted him to be. We review a district courts application and interpretation of
the Guidelines de novo, and its factual findings for clear error. United States v.

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Rhind, 289 F.3d 690, 693 (11th Cir. 2002). For a factual finding to be clearly
erroneous, . . . after reviewing all of the evidence, [we] must be left with a definite
and firm conviction that a mistake has been committed.

United States v.

Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (quotation omitted).
Under the Sentencing Guidelines, a two-level enhancement is applied for
obstruction of justice if the defendant, among other things, commits perjury.
U.S.S.G. 3C1.1. For purposes of applying this enhancement, perjury is defined
as false testimony concerning a material matter with the willful intent to provide
false testimony, rather than as a result of confusion, mistake, or faulty memory.
United States v. Dunnigan, 507 U.S. 87, 94 (1993). A matter is material where if
believed, [it] would tend to influence or affect the issue under determination.
United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002).
If it determines that the obstruction of justice enhancement applies, the
district court should make specific findings as to each alleged instance of
obstruction by identifying the materially false statements individually.

Id.

(citation and quotation omitted). However, a general finding that an enhancement

is warranted suffices if it encompasses all of the factual predicates necessary for a
perjury finding. Id. (quotation omitted). Finally, we afford great deference to
the district courts credibility determinations. Id. at 763-64 (quotation omitted).

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As the record shows, the district court made sufficient factual findings to
justify the imposition of the enhancement.

At the sentencing hearing, the

government argued that Pierre perjured himself by denying possession of the drugs
and firearms at 226 Century Boulevard. The district court then pointed out a list of
facts tending to contradict his testimony and noted that the jury did not believe
Pierres testimony. The facts relied on by the district court were gleaned from the
testimony of the governments witnesses. The district courts determination that
the testimony of those witnesses was more credible than Pierres testimony is
entitled to deference. See id. at 763. The district court then specifically found by a
preponderance of the evidence that Pierre had perjured himself through his
testimony. Therefore, the district courts findings were sufficiently detailed.
Moreover, his false testimony concerned a material matter.

One of the

elements that the government had to establish was his possession of the drugs and
firearms. His denials, if believed, would have led the jury to conclude that the
government had not established the element of possession. Accordingly, we affirm
the district courts application of the obstruction of justice enhancement.
AFFIRMED.

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