United States v. Carlos Kerney

USCA11 Case: 23-11614   Document: 30-1    Date Filed: 11/06/2024   Page: 1 of 7




                                                [DO NOT PUBLISH]
                                 In the
                United States Court of Appeals
                        For the Eleventh Circuit

                         ____________________

                              No. 23-11614
                         Non-Argument Calendar
                         ____________________

       UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellee,
       versus
       CARLOS KENTRAL KERNEY,
       a.k.a. CARLOS KENTRAIL KEARNEY,
       a.k.a. CARLOS KANTREL KERNEY,


                                                Defendant-Appellant.
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       2                     Opinion of the Court                23-11614

                           ____________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                  D.C. Docket No. 1:22-cr-00022-AW-MAL-1
                          ____________________

       Before JORDAN, BRANCH, and ANDERSON, Circuit Judges.
       PER CURIAM:
               Carlos Kerney appeals his convictions for possessing various
       controlled substances (including marijuana) with the intent to dis-
       tribute, carrying a firearm during a drug trafficking offense, and
       possessing a firearm as a convicted felon. He argues that the dis-
       trict court erred in admitting testimony under Federal Rule of Evi-
       dence 404(b) from Mark McNeil that he had previously sold mari-
       juana to Mr. McNeil and may have done so the night of the arrest.
       First, Mr. Kerney argues that Mr. McNeil’s testimony was not rel-
       evant to a contested issue because the government offered the tes-
       timony to prove his intent and he did not contest the “intent to
       distribute” allegation as to the narcotics charges; instead, he only
       defended on the ground that he did not knowingly possess the con-
       trolled substances. Second, Mr. Kerney argues that Mr. McNeil’s
       testimony was insufficient to establish that he had previously sold
       Mr. McNeil marijuana. Third, Mr. Kerney argues that the proba-
       tive value of Mr. McNeil’s testimony was outweighed by its poten-
       tial for unfair prejudice and confusing or misleading the jury.
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       23-11614               Opinion of the Court                          3

              Ordinarily, we review a district court’s evidentiary rulings
       for an abuse of discretion. See United States v. Turner, 474 F.3d 1265,
       1275 (11th Cir. 2007). But when a defendant fails to preserve an
       evidentiary issue by not contemporaneously objecting to the evi-
       dence’s admission or raises an argument for the first time on ap-
       peal, we review the evidentiary rulings for plain error only. See id.;
       United States v. Harris, 886 F.3d 1120, 1127 (11th Cir. 2018). To es-
       tablish plain error, a defendant must show that there is “(1) error,
       (2) that is plain and (3) that affects substantial rights. If all three
       conditions are met, an appellate court may then exercise its discre-
       tion to notice a forfeited error, but only if (4) the error seriously
       affects the fairness, integrity, or public reputation of judicial pro-
       ceedings.” Turner, 474 F.3d at 1276 (quotations marks omitted).
               Rule 103 of the Federal Rules of Evidence requires a party to
       timely object to the admission of evidence to preserve a claim of
       error for appeal. See Fed. R. Evid. 103(a)(1)(A). A party must renew
       its objection unless and until the district court definitively rules on
       the issue to preserve a claim of error. See Fed. R. Evid. 103(b); see
       also United States v. Wilson, 788 F.3d 1298, 1313 (11th Cir. 2015)
       (holding that the defendant did not preserve a claim of error for
       appeal when he objected to the admission of evidence before trial,
       the district court only issued a provisional ruling, and the defendant
       did not renew the objection at trial).
             The Federal Rules of Evidence prohibits the introduction of
       evidence of a “crime, wrong, or act” to “prove a person’s character
       in order to show that on a particular occasion the person acted in
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       4                      Opinion of the Court                 23-11614

       accordance with the character.” Fed. R. Evid. 404(b)(1). Evidence
       of prior bad acts may be introduced, however, to prove “motive,
       opportunity, intent, preparation, plan, knowledge, identity, ab-
       sence of mistake, or lack of accident.” Fed R. Evid. 404(b)(2). Such
       evidence is admissible when: (1) it is relevant to an issue other than
       the defendant’s character; (2) sufficient evidence is presented that
       would allow a jury to find that the defendant committed the act by
       a preponderance of the evidence; and (3) its probative value is not
       substantially outweighed by the potential for undue prejudice or
       any other factor listed in Rule 403. See United States v Edouard, 485
       F.3d 1324, 1344 (11th Cir. 2007). As to the second prong, the gov-
       ernment can satisfy the preponderance of the evidence standard
       even when the evidence that the defendant committed the prior
       bad act lacks detail and is uncorroborated. See United States v.
       Shores, 966 F.2d 1383, 1386 (11th Cir. 1992) (“A juror is free to dis-
       believe the proffered testimony based on its lack of detail and cor-
       roboration; however, this does not mean that there is not sufficient
       evidence for a reasonable juror to find that the defendant could have
       indeed committed the offense.”) (emphasis in original).
             Rule 404(b) does not apply when evidence is intrinsic to the
       charged offense in that the evidence is: “(1) an uncharged offense
       which arose out of the same transaction or series of transactions as
       the charged offenses, (2) necessary to complete the story of the
       crime, or (3) inextricably intertwined with the evidence regarding
       the charged offenses.” United States v. Ford, 784 F.3d 1386, 1393
       (11th Cir. 2015) (internal quotations omitted and alterations
       adopted). If evidence “pertain[s] to the chain of events explaining
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       23-11614               Opinion of the Court                         5

       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,” it is independently admissible.
       See United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (in-
       ternal quotations omitted). Evidence of prior bad acts, whether
       intrinsic evidence or extrinsic evidence offered pursuant to Rule
       404(b), is always subject Rule 403 of the Federal Rules of Civil Pro-
       cedure. Ford, 784 F.3d at 1393.
               Rule 403 states that district courts “may exclude relevant ev-
       idence if its probative value is substantially outweighed by a danger
       of one or more of the following: unfair prejudice, confusing the is-
       sues, misleading the jury, undue delay, wasting time, or needlessly
       presenting cumulative evidence.” Fed. R. Evid. 403. Rule 403 is an
       extraordinary remedy that courts should employ “only sparingly
       since it permits the trial court to exclude concededly probative ev-
       idence.” United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006)
       (quotation marks omitted). Accordingly, we view the disputed ev-
       idence “in a light most favorable to its admission, maximizing its
       probative value and minimizing its undue prejudicial impact.” Id.
       (quotation marks omitted). All relevant evidence in a criminal case
       is inherently prejudicial to some extent, so “it is only when unfair
       prejudice substantially outweighs probative value that the rule per-
       mits exclusion.” United States v. King, 713 F.2d 627, 631 (11th Cir.
       1983) (emphasis in original). “‘[U]nfair prejudice,’ as to a criminal
       defendant, speaks to the capacity of some concededly relevant evi-
       dence to lure the factfinder into declaring guilt on a ground
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       6                        Opinion of the Court                    23-11614

       different from proof specific to the offense charged.” Old Chief v.
       United States, 519 U.S. 172, 180 (1997).
               A conviction for possessing a controlled substance with in-
       tent to distribute under 21 U.S.C. § 841(a)(1) requires the govern-
       ment to prove both that the defendant knowingly and willfully pos-
       sessed a controlled substance and that he did so with the intent to
       distribute it. See United States v. Anderson, 289 F.3d 1321, 1325 (11th
       Cir. 2002). A defendant who pleads not guilty makes intent a ma-
       terial issue, even if his defense at trial is not explicitly related to his
       intent. See United States v. Cochran, 683 F.3d 1314, 1321 (11th Cir.
       2013) (upholding the admission of evidence of a prior drug offense
       under Rule 404(b) in a possession with intent to distribute case as
       relevant to the defendant’s intent even through his defense was
       that he did not reside at the home where the drugs were found and
       evidence of the prior drug crime did not establish his residence).
       Evidence of prior drug dealings can be highly probative of intent to
       distribute a controlled substance, even if the prior crime involved
       a different kind or amount of drug. See United States v. Colston, 4
       F.4th 1179, 1191 (11th Cir. 2021). We have also held that extrinsic
       drug offenses do not tend to incite a jury to an irrational decision.
       See United States v. Delgado, 56 F.3d 1357, 1366 (11th Cir. 1995).
               At trial, Mr. Kerney lodged only a Rule 403 objection to Mr.
       McNeil’s testimony about the marijuana sales. The district court
       did not err—plainly or otherwise—in permitting Mr. McNeil to tes-
       tify that, if Mr. Kerney had been to his home the night of the arrest,
       it would have been to sell him marijuana, because it was intrinsic
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       23-11614              Opinion of the Court                        7

       evidence, not subject to Rule 404(b), and its probative value was
       not outweighed by its potential for unfair prejudice under Rule 403.
       The district court also did not plainly err in permitting Mr. McNeil
       to testify that Mr. Kerney had sold him marijuana on 20 to 25 prior
       occasions under Rule 404(b) because the prior sales were relevant
       to the issue of intent, were established by a preponderance of the
       evidence, and their probative value was not outweighed by the po-
       tential for unfair prejudice or confusing or misleading the jury.
             Accordingly, we affirm Mr. Kerney’s convictions.
             AFFIRMED.