Case: 19-11332 Date Filed: 06/18/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11332 Non-Argument Calendar ________________________
D.C. Docket No. 6:18-cr-00129-GAP-TBS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH LAMAR BELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 18, 2020)
Before WILSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM: Case: 19-11332 Date Filed: 06/18/2020 Page: 2 of 7
Kenneth Bell appeals his convictions for: (1) aiding and abetting the
possession of cocaine, cocaine base, and 40 grams or more of fentanyl with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (C), and 18
U.S.C. § 2; (2) possession of a firearm or ammunition by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (3) possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
On appeal Bell argues there was insufficient evidence presented at trial to support
all three of his convictions. After review, 1 we affirm.
As brief background, the charges against Bell arose out of his involvement
in a drug-distribution operation. On the day in question, an agent with the Orange
County Sheriff’s Office initiated a traffic stop of a vehicle. The two occupants of
the vehicle fled and were eventually apprehended. Upon searching the vehicle,
law enforcement recovered a significant amount of narcotics, $1,300 in cash, and a
magazine, discovered in the passenger-side door, for a 9-millimeter Smith &
1 Generally, the sufficiency of evidence presented at trial to support a criminal conviction is a question of law we review de novo. United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). The government, however, argues Bell failed to argue his motion for judgment of acquittal with sufficient specificity as to his conviction for aiding and abetting the possession of controlled substances and raised different arguments with respect to his firearms convictions than those raised on appeal. The government therefore argues we should reverse Bell’s convictions only if we find plain error. See United States v. Batson, 818 F.3d 651, 664 (11th Cir. 2016) (“When a defendant raises specific challenges to the sufficiency of the evidence in the district court, but not the specific challenge he tries to raise on appeal, we review his argument for plain error.”). At trial, Bell’s counsel stated his motion was “for each offense,” but he focused his argument on the two firearms offenses and offered specific arguments as to only those charges. We need not resolve the issue here, as we would affirm Bell’s convictions even reviewing the sufficiency of the evidence de novo. 2 Case: 19-11332 Date Filed: 06/18/2020 Page: 3 of 7
Wesson firearm. Along the route the two occupants had fled, law enforcement
recovered, among other items, a backpack containing cocaine, individual bags used
to package narcotics, lactose—which is typically used to mix and cut cocaine—and
about $2,000 in cash. A firearm was also recovered near the backpack on the
doorstep of a building, and the firearm contained a magazine identical to the one
recovered from the passenger-side door. Bell’s codefendant, Aaron Hinton, who
claimed to have been driving the vehicle, pled guilty and testified at Bell’s trial.
In evaluating the sufficiency of the evidence, we view the evidence in the
light most favorable to the government, with all reasonable inferences and
credibility choices made in the government’s favor. United States v. Frazier, 605
F.3d 1271, 1278 (11th Cir. 2010). This question involves whether a reasonable
fact-finder could have determined that the evidence proved the defendant’s guilt
beyond a reasonable doubt. United States v. Smith, 459 F.3d 1276, 1286 (11th Cir.
2006). We will not disturb the verdict unless no reasonable trier of fact could find
guilt beyond a reasonable doubt. United States v. Lee, 603 F.3d 904, 912 (11th
Cir. 2010).
We first address Bell’s conviction for aiding and abetting the possession of
controlled substances. Bell argues there was insufficient evidence to convict him
with aiding and abetting the distribution of cocaine because there was no evidence
that he helped his codefendant obtain the cocaine or that he exercised any control
3 Case: 19-11332 Date Filed: 06/18/2020 Page: 4 of 7
or possession over it. To be guilty of aiding and abetting, the prosecution must
show (1) that a substantive offense was committed; (2) the defendant contributed
to and furthered the offense; and (3) the defendant intended to aid in its
commission. United States v. Tagg, 572 F.3d 1320, 1324 (11th Cir. 2009). In
order to prove that a defendant possessed narcotics with an intent to distribute, the
government must show that the defendant had knowing possession of the drugs
and intent to distribute them. United States v. Capers, 708 F.3d 1286, 1301 (11th
Cir. 2013). Moreover, for possession and intent to distribute there must be
evidence connecting the defendant with both aspects of the crime, possession and
intent to distribute. Id. at 1307.
The record shows there was sufficient evidence from which a reasonable
jury could find beyond a reasonable doubt Bell aided and abetted the possession of
controlled substances with the intent to distribute. The jury heard testimony from
several witnesses, including two law-enforcement officers from the Orange County
Sheriff’s Office and Bell’s codefendant, Hinton. That testimony showed Bell at
one point possessed the backpack that was found to have drugs, small bags, and
cash in it; he helped “serve customers” out of the backpack in a car that had a large
amount of drugs, small bags, and cash in it; and he helped bag the drugs in a hotel
room that he rented. Bell argues the backpack that contained the contraband was
not tested for his DNA, but this is not a reason to disturb the jury’s verdict. The
4 Case: 19-11332 Date Filed: 06/18/2020 Page: 5 of 7
government was under no obligation to tie Bell to the backpack through anything
beyond the testimony it presented.
Moving on to Bell’s firearms convictions, Bell argues there was insufficient
evidence that he possessed a firearm because law enforcement officials never
observed him with an actual firearm, nor were his fingerprints found on any of the
guns recovered. Under § 922(g)(1), the government must prove that (1) the
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Case: 19-11332 Date Filed: 06/18/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11332 Non-Argument Calendar ________________________
D.C. Docket No. 6:18-cr-00129-GAP-TBS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH LAMAR BELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 18, 2020)
Before WILSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM: Case: 19-11332 Date Filed: 06/18/2020 Page: 2 of 7
Kenneth Bell appeals his convictions for: (1) aiding and abetting the
possession of cocaine, cocaine base, and 40 grams or more of fentanyl with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (C), and 18
U.S.C. § 2; (2) possession of a firearm or ammunition by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (3) possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
On appeal Bell argues there was insufficient evidence presented at trial to support
all three of his convictions. After review, 1 we affirm.
As brief background, the charges against Bell arose out of his involvement
in a drug-distribution operation. On the day in question, an agent with the Orange
County Sheriff’s Office initiated a traffic stop of a vehicle. The two occupants of
the vehicle fled and were eventually apprehended. Upon searching the vehicle,
law enforcement recovered a significant amount of narcotics, $1,300 in cash, and a
magazine, discovered in the passenger-side door, for a 9-millimeter Smith &
1 Generally, the sufficiency of evidence presented at trial to support a criminal conviction is a question of law we review de novo. United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). The government, however, argues Bell failed to argue his motion for judgment of acquittal with sufficient specificity as to his conviction for aiding and abetting the possession of controlled substances and raised different arguments with respect to his firearms convictions than those raised on appeal. The government therefore argues we should reverse Bell’s convictions only if we find plain error. See United States v. Batson, 818 F.3d 651, 664 (11th Cir. 2016) (“When a defendant raises specific challenges to the sufficiency of the evidence in the district court, but not the specific challenge he tries to raise on appeal, we review his argument for plain error.”). At trial, Bell’s counsel stated his motion was “for each offense,” but he focused his argument on the two firearms offenses and offered specific arguments as to only those charges. We need not resolve the issue here, as we would affirm Bell’s convictions even reviewing the sufficiency of the evidence de novo. 2 Case: 19-11332 Date Filed: 06/18/2020 Page: 3 of 7
Wesson firearm. Along the route the two occupants had fled, law enforcement
recovered, among other items, a backpack containing cocaine, individual bags used
to package narcotics, lactose—which is typically used to mix and cut cocaine—and
about $2,000 in cash. A firearm was also recovered near the backpack on the
doorstep of a building, and the firearm contained a magazine identical to the one
recovered from the passenger-side door. Bell’s codefendant, Aaron Hinton, who
claimed to have been driving the vehicle, pled guilty and testified at Bell’s trial.
In evaluating the sufficiency of the evidence, we view the evidence in the
light most favorable to the government, with all reasonable inferences and
credibility choices made in the government’s favor. United States v. Frazier, 605
F.3d 1271, 1278 (11th Cir. 2010). This question involves whether a reasonable
fact-finder could have determined that the evidence proved the defendant’s guilt
beyond a reasonable doubt. United States v. Smith, 459 F.3d 1276, 1286 (11th Cir.
2006). We will not disturb the verdict unless no reasonable trier of fact could find
guilt beyond a reasonable doubt. United States v. Lee, 603 F.3d 904, 912 (11th
Cir. 2010).
We first address Bell’s conviction for aiding and abetting the possession of
controlled substances. Bell argues there was insufficient evidence to convict him
with aiding and abetting the distribution of cocaine because there was no evidence
that he helped his codefendant obtain the cocaine or that he exercised any control
3 Case: 19-11332 Date Filed: 06/18/2020 Page: 4 of 7
or possession over it. To be guilty of aiding and abetting, the prosecution must
show (1) that a substantive offense was committed; (2) the defendant contributed
to and furthered the offense; and (3) the defendant intended to aid in its
commission. United States v. Tagg, 572 F.3d 1320, 1324 (11th Cir. 2009). In
order to prove that a defendant possessed narcotics with an intent to distribute, the
government must show that the defendant had knowing possession of the drugs
and intent to distribute them. United States v. Capers, 708 F.3d 1286, 1301 (11th
Cir. 2013). Moreover, for possession and intent to distribute there must be
evidence connecting the defendant with both aspects of the crime, possession and
intent to distribute. Id. at 1307.
The record shows there was sufficient evidence from which a reasonable
jury could find beyond a reasonable doubt Bell aided and abetted the possession of
controlled substances with the intent to distribute. The jury heard testimony from
several witnesses, including two law-enforcement officers from the Orange County
Sheriff’s Office and Bell’s codefendant, Hinton. That testimony showed Bell at
one point possessed the backpack that was found to have drugs, small bags, and
cash in it; he helped “serve customers” out of the backpack in a car that had a large
amount of drugs, small bags, and cash in it; and he helped bag the drugs in a hotel
room that he rented. Bell argues the backpack that contained the contraband was
not tested for his DNA, but this is not a reason to disturb the jury’s verdict. The
4 Case: 19-11332 Date Filed: 06/18/2020 Page: 5 of 7
government was under no obligation to tie Bell to the backpack through anything
beyond the testimony it presented.
Moving on to Bell’s firearms convictions, Bell argues there was insufficient
evidence that he possessed a firearm because law enforcement officials never
observed him with an actual firearm, nor were his fingerprints found on any of the
guns recovered. Under § 922(g)(1), the government must prove that (1) the
defendant was a convicted felon; (2) that the defendant knew he was in possession
of a firearm; and (3) that the firearm affected or was in interstate commerce.
United States v. Jernigan, 341 F.3d 1273, 1279 (11th Cir. 2003). In order to
sustain a conviction under § 924(c)(1), the government must prove three elements:
that the defendant (1) used or carried a firearm; (2) during; and (3) in relation to
any . . . drug trafficking crime. 18 U.S.C. § 924(c)(1)(A).
Here, again, there was sufficient evidence from which the jury was entitled
to find Bell guilty of possessing a firearm as a convicted felon and in furtherance
of a drug trafficking crime. Hinton testified that when they were pulled over and
decided to flee, Bell said he was taking “the bag and the fire”—“fire” meaning
gun—with him. Hinton further testified he heard something hit the roof of a
building and then slide off as they fled, and an officer later recovered a firearm on
a doorstep near where the backpack was recovered. Hinton identified the
recovered firearm as one he had seen on the passenger-side floorboard of the
5 Case: 19-11332 Date Filed: 06/18/2020 Page: 6 of 7
vehicle, and a magazine was found in the passenger-side door that matched the
magazine found in the recovered firearm.
From this evidence, the jury was entitled to conclude that Bell, at the very
least, constructively possessed the firearm and did so in furtherance of the drug-
trafficking crime discussed above. See United States v. Wright, 392 F.3d 1269,
1273 (11th Cir. 2004) (noting a defendant may possess a firearm either actually or
constructively and that “[t[he firearm need not be on or near the defendant's person
in order to amount to knowing possession”). That the evidence giving rise to this
reasonable conclusion was circumstantial is of no moment. See id. (“Possession
can be shown by circumstantial as well as direct evidence.”). And, as with the
above-discussed controlled-substance conviction, there is no requirement that the
government present forensic evidence tying Bell to the firearm.
Bell also generally argues, as to all his convictions, that we should discount
his codefendant’s testimony because he testified in exchange for a lesser sentence.
However, the jury was aware Hinton had pled guilty and agreed cooperate with the
government, and it was for the jury to decide if and how that information affected
his credibility. See United States v. Clay, 832 F.3d 1259, 1294 (11th Cir. 2016)
(“The jury has exclusive province over the credibility of witnesses, and we may
not revisit the question.”).
6 Case: 19-11332 Date Filed: 06/18/2020 Page: 7 of 7
Accordingly, and for the reasons stated above, we affirm Bell’s convictions
and sentences.
AFFIRMED.