United States v. Balmy Lincoln Joseph

        USCA11 Case: 19-11198      Date Filed: 10/27/2020   Page: 1 of 28



                                                                      [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 19-11198
                         ________________________

                    D.C. Docket No. 9:18-cr-80153-WPD-2



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,


                                     versus


BALMY LINCOLN JOSEPH,

                                                            Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                               (October 27, 2020)

Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.

HULL, Circuit Judge:

     After a jury trial, Balmy Joseph appeals his four drug convictions and
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sentences for conspiring to possess with intent to distribute heroin and possessing

with intent to distribute heroin and fentanyl. After review, we affirm.

                             I. FACTUAL BACKGROUND

       As background, we first recount some of the evidence presented at trial

about how the officers searched Joseph’s apartment and garage.

A.     July 7, 2018

       While conducting surveillance in an unrelated investigation, 1 officers

encountered Delson Marc driving a black SUV with defendant Balmy Joseph in

the passenger seat. When Marc spotted the officers, he fled in the SUV. After a

pursuit, Marc and Joseph abandoned the SUV and escaped on foot. Eventually,

officers found the abandoned SUV and recovered nearby heroin capsules and a bag

containing heroin and other narcotics on the ground.

B.     July 8–17, 2018

       Officers began tracking down Marc. Data from a license plate reader

indicated that the black SUV recently was at an apartment complex called Luma in

West Palm Beach.2 Following the lead, officers spoke to Stephanie Simmons, the



       1
        The unrelated investigation was about a recent homicide on July 6, 2018, but the jury
was not told that fact. On July 7, 2018, the police were surveilling a gray Honda Accord that
was seen on surveillance videos that captured the murder.
       2
        A license plate reader is a device that automatically reads and records the license plate
numbers of vehicles that pass it. Based on this data, officers can know when certain vehicles
were at certain locations.


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assistant manager at the Luma apartments. Officers showed Simmons a

photograph of Marc, Joseph, and others posing at a social gathering, and asked her

if she recognized any of them. Simmons did not recognize Marc, but she did

recognize defendant Joseph, whom she knew as “Wilbert Desir.” Simmons told

the officers that “Desir” rented apartment number 5304 and a separate garage unit,

both in the complex. Through Simmons, the government entered evidence of the

rental application and lease in the name of Wilbert Desir.

       The real Wilbert Desir, who also testified at trial, had the same birthdate and

social security number as those provided by defendant Joseph in his rental

application. The real Wilbert Desir did not know Joseph, never authorized Joseph

to use his personal identifying information, and did not rent the apartment.

C.     July 18, 2018

       On July 18, 2018, officers executed warrants to search Joseph’s apartment

number 5304 and garage.3 As the officers approached the apartment to execute the

warrants, they encountered defendant Joseph, who immediately removed two flip-

style cellphones from his pocket and broke them in half. When the officers

explained that they had a search warrant for his apartment, Joseph denied living




       3
        As discussed later, the affidavits for the search warrants also included information
obtained from a prior search of a black Audi sedan conducted as part of the unrelated homicide
investigation. Since the jury did not know about the Audi search or the homicide investigation,
we discuss that information later only as to defendant Joseph’s motion to suppress.


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there and said he was visiting a friend. Officers found a key to the apartment in

Joseph’s pocket, along with over $700 in cash and two additional cellphones.

      A search of the two-bedroom apartment revealed numerous documents in

the name of Wilbert Desir, a utility bill addressed to “Balmy Joseph c/o Wilbert

Desir” at that location, and other mail addressed to “Balmy Joseph” at his mother’s

address. Inside Joseph’s bedroom, officers found Joseph’s jacket containing

multiple bags of heroin and fentanyl. In Joseph’s bathroom, officers found

narcotics packaging materials, a digital scale, a blender, and three bottles of a

cutting agent used to dilute narcotics. In the kitchen, officers found a computer

bag containing a credit card scanner and two laptops.

      Inside the other bedroom, officers found $27,000 in cash, a backpack

containing a garage door remote control, and a set of keys near the backpack. It

appeared that Marc lived in this other bedroom because the backpack that officers

found also contained Marc’s belongings, and a medicine cabinet in that bedroom’s

bathroom contained Marc’s prescription medication.

      Next, the officers went to defendant Joseph’s rented garage unit, which they

opened with the garage door remote control. Inside, they found a locked freezer,

which they opened with the keys they had found in Joseph’s apartment. The

freezer contained two scales similar to the scale found in Joseph’s bathroom. The

freezer was packed with multiple bags containing over seven kilograms of heroin,



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fentanyl, and other controlled substances, with a total estimated street value of $1.4

million.

                            II. PRE-TRIAL PROCEEDINGS

       A second superseding indictment charged defendant Joseph with: (1)

conspiring to possess with intent to distribute over a kilogram of heroin, in

violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); (2) possession with intent

to distribute over a kilogram of heroin, in violation of § 841(a)(1), (b)(1)(A), and

18 U.S.C. § 2 (Count 2); (3) possession with intent to distribute a detectable

amount of fentanyl, in violation of § 841(a)(1), (b)(1)(C), and § 2 (Count 3); and

(4) possession with intent to distribute a detectable amount of heroin, in violation

of § 841(a)(1), (b)(1)(C), and § 2 (Count 4). 4

A.     Joseph’s Motion to Suppress

       Before trial, defendant Joseph filed a motion to suppress all evidence seized

from his apartment and garage on July 18. Joseph argued that the affidavits for the

search warrants for his apartment and garage contained information unlawfully

obtained during an earlier July 9 search of a black Audi that was conducted in an

unrelated homicide investigation. Because the search of the Audi was illegal,


       4
         Earlier indictments charged both Joseph and Delson Marc with narcotics offenses and
Marc with firearm offenses. Codefendant Marc pled guilty to: (1) conspiracy to possess with
intent to distribute heroin; (2) possession with intent to distribute heroin; and (3) possession of a
firearm as a felon. The district court imposed 240 months’ imprisonment on the drug counts and
a 120-month sentence on the firearm count, all to run concurrently. The second superseding
indictment charged only Joseph.


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Joseph argued, the search warrants containing information from the Audi search

were also illegal.

      At the suppression hearing, Detective James Evans, the affiant for the search

warrant for the Audi, testified. Detective Evans explained that he was conducting

a homicide investigation of the July 6, 2018 murder of Frederick Stockton.

Detective Evans learned that, on the morning of the murder, Stockton was

followed by a driver and a passenger in a black Audi sedan. Surveillance videos

captured that information and even the murder later that afternoon. The video of

the murder showed two gunmen get out of a different car—a gray Honda Accord—

and kill Stockton. The police found the Honda and learned that Jason Jean-Gilles

had been driving it.

      Tactical Agent Jimmy Francisco testified that he assisted with the Stockton

homicide investigation. On July 8, with Jean-Gilles now a suspect, officers

established surveillance at Jean-Gilles’s apartment complex. Jean-Gilles arrived at

the apartment in the black Audi, the officers arrested him on an unrelated warrant,

and the officers had the Audi towed and impounded.

      The following morning, Detective Evans went to the impound lot to verify

the license plate and vehicle identification numbers of the Audi to support an

application to search the car. Detective Evans looked through the front windshield

and driver’s side window of the Audi and saw a cellphone in the driver’s seat and



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marijuana and a plastic bag containing suspected cocaine in the console cupholder.

Detective Evans thought that the cellphone potentially belonged to Jean-Gilles

because he was driving the Audi before it was impounded, and, when Jean-Gilles

was arrested, he did not have a cellphone on his person. It was a “very sunny”

morning, and, despite the windows being “somewhat” tinted, Detective Evans

testified that he was able to “clearly look inside the vehicle” without “any

difficulties.”

       On July 9, 2018, Detective Evans drafted an affidavit in support of a search

warrant for the Audi, based upon its connection to his homicide investigation and

his observations of the cellphone and suspected drugs.5 His affidavit explained

that, within 48 hours of the homicide, Evans connected Jean-Gilles to the two

vehicles used to facilitate the murder. Evans’s thorough affidavit explained the

details of the Stockton murder, the investigation, and how the officers found the

Honda Accord, Jean-Gilles, and the Audi. Detective Evans wrote that he believed

the Audi contained evidence relating to the murder, including fingerprint or DNA

evidence, cellphone evidence, marijuana, and cocaine.

       At the suppression hearing, Detective Evans also testified that, even without

his plain-view observations, he had enough probable cause to execute a search



       5
        On the same day, Detective Evans drafted two other warrants to search the Audi, which
were largely the same as the first warrant.


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warrant on the Audi based on the car’s connection to his homicide investigation.

During the search of the Audi, investigators discovered Joseph’s latent fingerprints

on the rearview mirror. Officers also discovered an envelope containing a

document referencing the Luma apartments and the name “Wilbert Desir.”

Detective Evans included this evidence—the fingerprints and the document

referring to the Luma apartments and Desir—from the Audi in his affidavits in

support of the search warrants of Joseph’s apartment and garage. 6

       In those same affidavits, Detective Evans also included: (1) the information

from assistant manager Simmons that Joseph had used the false name of Wilbert

Desir in renting the apartment; and (2) the real Wilbert Desir’s interview

statements that he had not rented the Luma apartment. Detective Evans testified

that, independent of the evidence found in the Audi, he would have sought search

warrants for Joseph’s apartment and garage based on assistant manager Simmons’s

identification of Joseph as a tenant using a false identity and the real Desir’s

interview statements that he had not rented the apartment and garage. The

government introduced pictures of the Audi from the front and the driver’s side



       6
        The record is not clear about exactly what type of document was found in the Audi. The
apartment warrant affidavit says it was a cashier’s check and a statement of the amount of rent
owed. At the suppression hearing, Detective Evans testified that it was “like a rental statement.”
The government’s brief says it was a rental agreement. Joseph’s motion to suppress calls it
“documents related to apartment 5304 in the Luma Apartment Complex.” Nonetheless, it is not
disputed that the words of the document in the Audi referred to Wilbert Desir and the Luma
apartments.


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taken on the day of the warrant applications.

      At the suppression hearing, defendant Joseph called two witnesses. First,

Deborah Alexis testified that she was the record owner of the black Audi sedan. In

reality though, the Audi belonged to Joseph, as he purchased it, drove it, possessed

all the ownership paperwork, performed all maintenance, and had the only key.

Alexis merely put the Audi in her name upon Joseph’s request, and she never

possessed or drove it without Joseph’s consent. Alexis explained that the windows

on the Audi were tinted very dark, so “you can’t really see through the windows,”

even in the daylight. The second witness, Jean-Gilles’s brother, Jonathan Jean-

Gilles, testified that the Audi windows were tinted, and he was unable to see

through the Audi’s windows on the night that the car was impounded.

       Joseph’s counsel argued that Detective Evans lied in obtaining the Audi

search warrant because the Audi’s tinted windows were too dark to see the

narcotics. The government responded that Joseph lacked standing to challenge the

Audi search because he was not its registered owner, and the homicide

investigation was an independent basis to search the Audi.

      The district court denied defendant Joseph’s motion to suppress. The district

court recounted the facts regarding the homicide investigation that led the officers

to the black Audi and the document inside referring to the Luma apartments. The

district court found that (1) Detective Evans did not make any false statements in



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the search warrant affidavits, and (2) he “was able to see what he reasonably

believed was contraband or evidence of a crime.” The district court also concluded

that, independent of the plain-view observations of the inside of the Audi, probable

cause existed to search the Audi, and probable cause existed to search Joseph’s

apartment and garage for evidence of identity theft. The district court declined to

rule on the question of Joseph’s standing to challenge the Audi search.

B.    Joseph’s Motion in Limine

      Before trial, Joseph also filed a motion in limine, under Federal Rule of

Evidence 404(b), to exclude evidence of his prior convictions for identity theft and

possession and sale of narcotics. The government responded that it did not intend

to introduce his prior convictions; however, it would seek the admission of

“inextricably intertwined” facts relating to Joseph’s use of a false identity to rent

the apartment and garage. The government argued that such evidence was not

being admitted pursuant to Rule 404(b), but rather as an integral and natural part of

how the investigation unfolded and the story of the crime.

      The district court granted Joseph’s motion in limine to exclude his past

criminal convictions. The district court noted that Joseph’s motion had not sought

exclusion of the factual evidence of Joseph’s use of a false identity to rent the

apartment and garage—which the government identified as “inextricably

intertwined.”



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                                    III. TRIAL

      At trial, the government presented evidence of the events recounted above

through: (1) testimony from various officers and detectives, a fingerprint examiner,

two forensic scientists, a prison records custodian, four drug experts, Desir, and

assistant manager Simmons; (2) surveillance and dashcam videos; (3) Joseph’s

rental application and lease; (4) drugs and other items seized from Joseph’s

apartment and garage; and (5) photographs of the evidence.

A.    Opening Statement and Evidence Regarding Identity Theft

      During opening statements, the prosecutor explained that Joseph rented his

apartment using the stolen identity of Wilbert Desir, including his “name, Social

Security number, and date of birth.” After the government’s opening statement,

defense counsel, at a sidebar conference, moved for a mistrial. Joseph argued that

(1) the prosecutor’s statements about Joseph’s use of a stolen identity violated the

district court’s order granting the defense’s motion in limine, and (2) the facts

about Joseph’s use of a stolen identity were totally unrelated to the four charged

drug crimes and were more prejudicial than probative. The district court denied

the mistrial motion because the evidence was “inextricably intertwined into the

drug[] charges.”

      Later, assistant manager Simmons testified that she dealt directly with

residents when receiving their rental applications at the Luma apartments. The



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paperwork was kept and maintained in filing cabinets in the ordinary course of

business. The government showed Simmons Joseph’s rental application and lease

for his apartment and garage. Defense counsel objected to their admission under

Federal Rules of Evidence 403, 404, and 803(6). The district court overruled the

objections and admitted the rental application and lease into evidence. Simmons

testified that Joseph filled out the paperwork in front of her in her office using the

name Wilbert Desir, and she began to process the rental application that day.

      Next, Wilbert Desir testified, over the defense’s objection, that he never

filled out a rental application for an apartment in the Luma complex, and he never

gave Joseph permission to use his identity. Joseph moved for a mistrial, which the

district court denied. The district court ruled that Desir’s identity-theft testimony

was admissible because it was relevant to Joseph’s guilty knowledge and showed

how the investigation unfolded as to who rented the apartment and the basis for the

search. After Desir’s testimony and upon defense counsel’s request, the district

court gave the jury a limiting instruction about the identity-theft evidence and

cautioned the jury that Joseph “[was] on trial only for the specific narcotics crimes

charged in the indictment.” 7



      7
       The district court’s limiting instruction cautioned:
      Regarding the testimony that you heard yesterday about Mr. Desir, I caution you
      that the defendant is on trial only for the specific narcotics crimes charged in the
      indictment. You’re here to determine from the evidence in this case whether the
      defendant is guilty or not guilty of those specific crimes.


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      A forensic DNA expert, Brandy Plean, testified that DNA evidence collected

from the credit card scanner, in a computer bag in Joseph’s kitchen, originated

from two contributors. It was 87 times more likely that the DNA originated from

Joseph and an unknown individual, than from two unknown individuals.

Additionally, DNA evidence collected from a laptop, in the same computer bag as

the credit card scanner, originated from four contributors. It was two billion times

more likely that the DNA originated from Joseph and three unknown individuals,

than from four unknown individuals.

B.    Fentanyl Testimony

      Also in the government’s case-in-chief, Detective Charles Booth testified

that fentanyl is “responsible for the majority of overdose deaths in the recent

years,” and law enforcement personnel employ extra precautions when handling

suspected fentanyl because “it could kill you.” At a sidebar conference, defense

counsel moved for a mistrial, arguing that Booth’s testimony was “highly

prejudicial” because the jury might conclude that Joseph was responsible for

dealing deadly drugs. The district court denied the motion and stated, “[i]f

anybody on that jury doesn’t know that heroin and fentanyl are dangerous and

responsible for deaths, they’ve been living under a rock for a long period of time.”

      Later, a narcotics expert testified—without objection—about the dangers of

fentanyl, that the drug was “a hundred times more powerful than heroin,” and that



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officers use extra caution when handling suspected fentanyl because death can

result if just a small amount makes contact with a person’s skin.

C.    Outburst of Joseph’s Brother

      During a break in the government’s case-in-chief, some jurors witnessed

Joseph’s brother yelling in the hallway. While flailing his arms, he screamed,

“That’s my brother, man, that’s my brother.” His family had to restrain him.

Because Joseph’s brother was so emotional and loud, defense counsel requested

that the district court ask the jurors if they saw the episode and if it would affect

their ability to be fair. Joseph also moved for a mistrial based on the impact he

suspected the outburst had on the jurors.

      Five jurors indicated that they saw the outburst by Joseph’s brother and

described his loud, emotional shouting. After being individually questioned by the

district court, two jurors stated that seeing the outburst made them “nervous” or “a

little shook up.” However, all five jurors confirmed they could be fair, put aside

what they had seen, and base their verdict solely on the law and the evidence

presented in the courtroom.

      Outside the presence of the jury, Joseph’s counsel reiterated his motion for a

mistrial and argued that some of the jurors were “shook up, upset, or frightened.”

Joseph’s counsel acknowledged that all of the jurors stated that they could be fair

and impartial. Nevertheless and “in an abundance of caution,” Joseph’s counsel



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moved for a mistrial because he believed that the jurors would associate Joseph

with his brother’s violent nature. The district court denied the motion. After the

jury returned to the courtroom, the district court reiterated that the jurors should

base their verdict only on the law and evidence and asked them to not discuss

anything that may have happened outside of the courtroom.

D.    Verdict

      After the government rested, the defense did not present any evidence. The

jury found Joseph guilty on all counts.

                                IV. SENTENCING

      Joseph’s presentence investigation report (“PSI”) assigned him a base

offense level of 32 because his offense involved at least 3,000 kilograms but less

than 10,000 kilograms of converted drug weight. See U.S.S.G. § 2D1.1(a)(5). The

PSI added a two-level increase because Joseph maintained a premises for the

purpose of manufacturing or distributing a controlled substance. See U.S.S.G.

§ 2D1.1(b)(12). Based on a total offense level of 34 and a criminal history

category of IV, Joseph’s advisory guidelines range was 210 to 262 months’

imprisonment. The statutory maximum sentence was life imprisonment for Counts

1 and 2 and 20 years’ imprisonment for Counts 3 and 4. See 21 U.S.C

§ 841(b)(1)(A), (b)(1)(C).

      At the sentencing hearing, Joseph, through counsel, conceded that the



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advisory guidelines range was properly calculated. Joseph asked the district court

to sentence him at the bottom of or below the advisory guidelines range.

      The government argued for an upward variance based on the nature and

circumstances of the offenses. The government introduced photographic evidence

of identity theft found during the search of Joseph’s apartment, which was not

introduced at trial. The images showed a bag full of driver’s licenses, credit cards,

debit cards, correspondence from credit card companies, and receipts found in

Joseph’s kitchen. The government explained that Joseph clearly was engaging in

identity theft and tax fraud for many years. Based on the identity-theft evidence,

the government argued that Joseph deserved a more severe sentence than

codefendant Marc’s 240 months, and it asked the district court to vary upward to

360 months’ imprisonment.

      Joseph pointed out that the government already had warned it would be

bringing additional identity-theft charges against him. Joseph asserted he should

not be punished twice for the same conduct. He also argued that he should be

presumed innocent of a pending firearm charge. Joseph submitted letters showing

that he had supported his family. In allocution, Joseph maintained his innocence

and asked the district court for leniency.

      The district court stated that it (1) had considered the advisory guidelines

range and the 18 U.S.C. § 3553(a) factors, (2) presumed Joseph was innocent of



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any other charges, and (3) could consider the evidence of identity theft found

during the search of Joseph’s apartment, but that it would not “give [the evidence]

the weight that the government would like to attach to [it].” The district court

denied the government’s request for an upward variance but explained that it

would consider the government’s highlighted factors in choosing a within-

guidelines-range sentence. The district court also noted the large quantity of drugs

involved and explained that it must impose a sentence that promotes respect for the

law and deters others from similar conduct. The district court sentenced Joseph to

262 months’ imprisonment on each of Counts 1 and 2 and 240 months’

imprisonment on each of Counts 3 and 4, all to run concurrently.

                              V. MOTION TO SUPPRESS

       On appeal, Joseph challenges the district court’s denial of his motion to

suppress.8

       The Fourth Amendment secures the right of the people “against

unreasonable searches and seizures,” and mandates that “no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation.” U.S. Const. amend.


       8
         In reviewing a district court’s denial of a motion to suppress, we review the district
court’s findings of fact for clear error and its application of law to those facts de novo. United
States v. Yeary, 

740 F.3d 569

, 579 n.25 (11th Cir. 2014). We construe all facts in the light most
favorable to the party that prevailed in the district court and afford substantial deference to a
factfinder’s credibility determinations. United States v. Lewis, 

674 F.3d 1298

, 1303 (11th Cir.
2012). We defer to and accept the trial court’s choice of whom to believe because it is the finder
of fact who personally observes the witness’s testimony and is in a better position to assess
witness credibility. United States v. Ramirez–Chilel, 

289 F.3d 744

, 749 (11th Cir. 2002).


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IV. “Probable cause exists when under the totality-of-the-circumstances . . . there

is a fair probability that contraband or evidence of a crime will be found in a

particular place.” United States v. Albury, 

782 F.3d 1285

, 1292 (11th Cir. 2015)

(alteration in original) (quotation marks omitted).

       Here, Joseph argues that Detective Evans lied when he stated in his

affidavits that he could see suspected narcotics inside the Audi and that the

poisonous fruits of the Audi search formed the basis for the later warrants to search

Joseph’s apartment and garage.9 We recognize that Joseph called two witnesses

who testified the windows were tinted very dark. One witness said, “you can’t

really see through the windows.” The other witness said that he could not see

through the windows on the night the Audi was impounded. In contrast, Detective

Evans testified that he was able to see through the tinted windows in the daylight.

       The district court expressly found that Detective Evans did not make any

false statements and “was able to see what he reasonably believed was contraband

or evidence of a crime.” The witness’s credibility was for the fact finder to

determine. See United States v. Ramirez–Chilel, 

289 F.3d 744

, 749 (11th Cir.

2002). Because Joseph has shown no clear error in the district court’s findings, the



       9
        The district court did not rule on Fourth Amendment “standing” as to the Audi.
“Because Fourth Amendment standing is subsumed under substantive Fourth Amendment
doctrine, it is not a jurisdictional question and hence need not be addressed before addressing
other aspects of the merits of a Fourth Amendment claim.” Byrd v. United States, 584 U.S. __,
__, 

138 S. Ct. 1518

, 1530 (2018).


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district court properly denied Joseph’s motion to suppress.10

                           VI. MOTIONS FOR MISTRIAL

       Joseph next contends that the district court erred by denying three of his

motions for a mistrial, which we address separately.11

A.     Identity-Theft Evidence

       Joseph argues that the prosecutor’s opening statements—referencing his use

of a false identity to rent the Luma apartment—warranted a mistrial because he

was not charged with an identity-theft crime, and thus this evidence was

inadmissible under Rule 404(b).

       Rule 404(b) prohibits the admission of “[e]vidence of a crime, wrong, or

other act . . . to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b).

This Court repeatedly has held, however, that evidence of criminal activity other

than the offense charged may be admissible “as intrinsic evidence outside the


       10
           Joseph also points to a date discrepancy in Detective Evans’s affidavits, which Evans
explained and clarified on redirect-examination during the suppression hearing. Detective Evans
testified that agents encountered and seized the Audi as they were surveilling Jean-Gilles’s
apartment on July 8. But the affidavits said that the surveillance occurred on Sunday the 9th.
Evans acknowledged the error in the affidavits, explained that Sunday was the 8th, and
confirmed he saw the cellphone and suspected drugs the next morning (July 9) at the impound lot
and not on the night of the seizure.
       11
          We review for abuse of discretion the denial of a motion for a mistrial. United States v.
Valois, 

915 F.3d 717

, 723 n.2 (11th Cir. 2019). “A trial judge has discretion to grant a mistrial
since he [or she] is in the best position to evaluate the prejudicial effect of a statement or
evidence on the jury.” United States v. Delgado, 

321 F.3d 1338

, 1346-47 (11th Cir. 2003)
(alteration in original) (quotation marks omitted).


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scope of Rule 404(b).” United States v. Horner, 

853 F.3d 1201

, 1214-15 (11th Cir.

2017) (quotation marks omitted). Evidence is intrinsic if it is “(1) an uncharged

offense which arose out of the same transaction or series of transactions as the

charged offense, (2) necessary to complete the story of the crime, or

(3) inextricably intertwined with the evidence regarding the charged offense.”

United States v. Edouard, 

485 F.3d 1324

, 1344 (11th Cir. 2007) (quotation marks

omitted); United States v. Jiminez, 

224 F.3d 1243

, 1249 (11th Cir. 2000)

(quotation marks omitted). Evidence is “inextricably intertwined” with the

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

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

defendant was indicted.” 

Edouard, 485 F.3d at 1344

(quotation marks omitted).

      Here, Joseph’s use of Desir’s false identity to rent the property in which he

stored the narcotics was inextricably intertwined with the narcotics offenses and

was not inadmissible under Rule 404(b). That evidence established that Joseph,

not Desir, leased the property and exercised dominion and control over the drugs.

The use of a false identity was also (1) relevant as a step Joseph took to conceal the

criminal activity, and (2) necessary to complete the story of how officers

discovered Joseph was renting the apartment and garage. Further, the district court

gave a limiting instruction about the identity-theft evidence: that Joseph “[was] on

trial only for the specific narcotics crimes charged in the indictment.”



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       Because the details of Joseph’s impersonation of Desir were properly

admitted at trial, there was no error in the prosecutor’s opening remarks

referencing that evidence or in the district court’s denial of Joseph’s mistrial

motion.

B.     Booth’s Testimony About Fentanyl

       Joseph argues that Detective Booth’s testimony about the dangers of and

overdoses from fentanyl was inadmissible under Rule 403 because it was

“shocking” and had low probative value. Rule 403 permits a district court to

“exclude relevant evidence if its probative value is substantially outweighed by the

danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403.12

       Here, Detective Booth’s testimony about his familiarity with fentanyl was

relevant and probative because Joseph was charged with a crime involving

fentanyl. The district court reasonably observed that the general public already is

aware that heroin and fentanyl can be deadly. Given that reality, Joseph could not

show unfair prejudice, let alone that any such prejudice outweighed the evidence’s


       12
          We review evidentiary rulings for an abuse of discretion. United States v. Troya, 

733 F.3d 1125

, 1131 (11th Cir. 2013). If the district court abused its discretion, we apply the
harmless error standard and may reverse only if “the error had a substantial influence on the
outcome of a case or left grave doubt as to whether [it] affected the outcome of a case.” United
States v. Henderson, 

409 F.3d 1293

, 1300 (11th Cir. 2005) (alterations adopted) (quotation
marks omitted).


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probative value. 13 The district court did not abuse its discretion by admitting the

fentanyl evidence and denying a mistrial.

C.     Outburst During Trial

       Joseph also argues that his brother’s outburst negatively impacted the jury’s

impression of Joseph himself, requiring a mistrial. Two of the five jurors who

witnessed Joseph’s brother’s outburst said that it made them “nervous” or “a little

shook up.” However, all five of the jurors indicated that they could be fair and that

the outburst would not affect their verdict. Further, the district court reiterated that

the jurors should base their verdict only on the law and evidence admitted at trial

and asked them not to discuss the outburst. See United States v. Delgado, 

321 F.3d 1338

, 1347 (11th Cir. 2003); United States v. Almanzar, 

634 F.3d 1214

, 1222

(11th Cir. 2011) (“We presume that jurors follow the instructions given by the

district court.”). The district court was in the best position to evaluate the

prejudicial effect, if any, of the outburst and acted well within its broad discretion

in denying the mistrial motion. Joseph has not shown that the district court abused

its discretion.




       13
         A narcotics expert testified that fentanyl is “a hundred times more powerful than
heroin” and that coming into contact with a small amount of fentanyl can cause death, to which
Joseph did not object. The fact that similar evidence was admitted through another witness,
without any objection or mistrial motion, further indicates a lack of unfair prejudice.


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                              VII. EVIDENTIARY ISSUES

A.     DNA Testimony

       Joseph argues that the district court erred by permitting the government’s

DNA expert to testify that Joseph’s DNA was matched to DNA found on a laptop

and credit card scanner discovered in a computer bag in his apartment. He argues

that the DNA evidence erroneously revealed to the jury that Joseph engaged in

identity theft. Joseph ignores that no trial testimony or evidence revealed the

contents of the laptop or the credit card scanner or that either contained evidence of

stolen identities. Rather, the DNA evidence was intrinsic and properly served to

connect Joseph to the apartment and the charged offenses. See 

Edouard, 485 F.3d at 1344

. Accordingly, the district court did not abuse its discretion by admitting

the DNA testimony.14

B.     Rental Application and Lease

       Next, Joseph contends that the admission of his rental application and lease

was inadmissible hearsay that did not qualify under the business record exception

in Rule 803(6) because the testifying witness was not the record custodian for the

business.

       Generally, a statement is inadmissible hearsay if it was made outside of


       14
         It is unclear whether defense counsel adequately raised this objection in the district
court. We need not decide whether plain error review applies because there was no abuse of
discretion in any event.


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         USCA11 Case: 19-11198       Date Filed: 10/27/2020    Page: 24 of 28



court and is offered to prove “the truth of the matter asserted.” Fed. R. Evid.

801(c), 802. Rule 803(6) provides an exception to the rule against hearsay for a

record made at or near the time of an act by a person with knowledge if the record

“was kept in the course of regularly conducted activity of a business” and “making

the record was a regular practice of that activity.” Fed. R. Evid. 803(6)(A)-(C). A

proponent may establish the requirements of Rule 803(6) through “the testimony of

the custodian or another qualified witness.” Fed. R. Evid. 803(6)(D). “The

touchstone of admissibility under [Rule 803(6)] is reliability, and a trial judge has

broad discretion to determine the admissibility of such evidence . . . .” United

States v. Bueno–Sierra, 

99 F.3d 375

, 378-79 (11th Cir. 1996).

      Here, assistant manager Simmons testified that the Luma apartments’

business practice was to maintain lease documents that it received and processed.

See Fed. R. Evid. 803(6). At a minimum, Simmons was a “qualified witness”

because she: (1) was an assistant manager at the Luma apartments; (2) was familiar

with the business’s creation and maintenance of lease records; (3) accepted rental

applications daily and kept them in a filing cabinet in the ordinary course of

business; and (4) provided first-hand knowledge that Joseph filled out a rental

application—containing Desir’s name, social security number, and date of birth—

in her office and submitted it to her directly for processing. See

id. Joseph has not

shown that Simmons’s testimony was otherwise unreliable. See Bueno–Sierra, 99



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of 28 F.3d at 378-79

. The district court clearly did not abuse its discretion in admitting

the rental application and lease under Rule 803(6).15

                              VIII. CUMULATIVE ERROR

       Joseph also contends that cumulative error by the district court requires

reversal of his convictions. Joseph has not established a single error, let alone the

aggregation of many errors. See United States v. Gamory, 

635 F.3d 480

, 497 (11th

Cir. 2011). Joseph’s cumulative error claim therefore lacks merit.

                                      IX. SENTENCES

       On appeal, Joseph challenges only the substantive reasonableness of his

sentences.16 We examine whether a sentence is substantively unreasonable in light

of the § 3553(a) factors and the totality of the circumstances. 17 United States v.

Cubero, 

754 F.3d 888

, 892 (11th Cir. 2014). The party challenging the sentence


       15
          To the extent Joseph claims these documents were not admissible under Rule 404(b)
because they showed he used the false identity of Wilber Desir, those documents were intrinsic
evidence (1) connecting Joseph to possessing the apartment and garage, and the drugs therein;
(2) telling part of the story as to why the officers searched the apartment and garage; and
(3) revealing steps Joseph took to hide his criminal activity. There was no Rule 404(b) error.
       16
         We review the substantive reasonableness of a sentence for abuse of discretion. See
United States v. Rosales–Bruno, 

789 F.3d 1249

, 1254 (11th Cir. 2015).
       17
          The § 3553(a) factors include: (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 unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).


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bears the burden to show it is unreasonable. United States v. Alvarado, 

808 F.3d 474

, 496 (11th Cir. 2015). The weight given to any particular § 3553(a) factor is

within the district court’s discretion, and this Court will not substitute its judgment

for that of the district court.

Id. We will reverse

a sentence only if we are “left

with the definite and firm conviction that the district court committed a clear error

of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Pugh, 

515 F.3d 1179

, 1191 (11th Cir. 2008) (quotation marks omitted).

Although this Court does not automatically presume a sentence falling within the

advisory guidelines range is reasonable, we ordinarily expect such a sentence to be

reasonable. United States v. Hunt, 

526 F.3d 739

, 746 (11th Cir. 2008).

      Here, Joseph does not dispute that the district court properly calculated his

advisory guidelines range. Rather, Joseph contends that the sentences were

substantively unreasonable because the district court considered an unrelated

charge of firearm possession and relied on the identity-theft evidence. We

disagree.

      First, the district court said it would presume Joseph innocent of the pending

firearm charge. Second, the district court declined the government’s request for an

upward variance based on the identity-theft evidence and stated that it was not

giving that evidence “the weight that the government would like to attach to [it].”



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Third, the district court explained that the top-of-the-guidelines range sentence was

based on the large quantity of drugs attributed to Joseph and the consideration of

the need to promote respect for the law and deter others from similar criminal

conduct. See 18 U.S.C. § 3553(a). To the extent that the district court gave any

weight to the identity-theft evidence, the district court was permitted to do so under

a consideration of the nature and circumstances of the offenses, and the weight

given to that factor was well within the district court’s discretion. See 18 U.S.C.

§ 3553(a); 

Alvarado, 808 F.3d at 496

.

      Fourth, Joseph’s 262-month sentences on Counts 1 and 2 are within the

advisory guidelines range and well below the statutory maximum penalty of life

imprisonment, both of which are indicators of reasonableness. See 

Hunt, 526 F.3d at 746

; United States v. Gonzalez, 

550 F.3d 1319

, 1324 (11th Cir. 2008). His 240-

month sentences on Counts 3 and 4 are also appropriate because the Sentencing

Guidelines reduced his top-end of 262 months to the statutory maximum of 240

months for those two counts. See U.S.S.G. § 5G1.1(c)(1) (restricting the top end

of a guidelines range to the statutory maximum). The district court did not abuse

its discretion in imposing Joseph’s sentences.

                                X. CONCLUSION

      For all of the foregoing reasons, we affirm Joseph’s convictions and




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sentences.

      AFFIRMED.




                                    28
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