USCA11 Case: 20-10495 Date Filed: 03/09/2021 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-10495 Non-Argument Calendar ________________________
D.C. Docket No. 3:19-cr-00068-RV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIONDI JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(March 9, 2021)
Before MARTIN, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM: USCA11 Case: 20-10495 Date Filed: 03/09/2021 Page: 2 of 15
Kiondi Jones appeals his convictions and sentence for possession of a gun as
a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possession
of controlled substances with the intent to distribute in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C); and possession of a gun in furtherance of a drug-
trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i). Jones raises three
arguments on appeal. First, he says the government improperly impeached the sole
defense witness. Second, he argues that the district court abused its discretion
when it denied one of Jones’s requested jury instructions. And third, he says the
court erred when it increased his sentence based on a finding that he maintained a
premises for distributing drugs. After careful consideration, these arguments do
not warrant reversal. We therefore affirm Jones’s convictions and sentence.
I. BACKGROUND
A. Search
In November 2018, the Pensacola Police Department executed a warrant to
search a residence where a confidential informant had purchased narcotics. As
police entered the home, one of the officers saw a man, later identified to be Jones,
jump out of an open window.
The officers proceeded through the residence and found a single locked
door. The officers made forcible entry and discovered an empty bedroom with an
open window. This was the window Jones was seen jumping out of as police
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entered the home. Upon searching the locked bedroom, officers found a loaded
Colt .45-caliber semiautomatic pistol, two boxes of live ammunition, marijuana,
crystal methamphetamine, heroin, a digital scale, plastic baggies, scattered cash, a
bottle of Vitablend (a substance added to powder cocaine to increase its volume), a
prescription bottle of promethazine, a bag containing approximately one ounce of
powder cocaine, and a Department of Corrections property inventory with Jones’s
name on it. The officers also found several photographs, including an image of
Jones in the locked bedroom holding a bottle of promethazine, an image of Jones
in the locked bedroom holding a large stack of bills, and an image of two
identification cards—one belonging to Jones and the other belonging to his
brother.
B. Trial
Jones proceeded to a jury trial on charges that he possessed a gun as a
convicted felon, possessed controlled substances with the intent to distribute, and
possessed a gun in furtherance of a drug-trafficking offense. At trial, Jones called
a single witness, Hercules Jennings. Jennings lived next door to the house where
the search warrant was executed, which was owned by a man named Twaun
Stallworth. Jennings testified that he used to go over to Stallworth’s house to buy
marijuana and there he regularly saw the gun with which Jones was charged. He
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also testified that Jones did not live at Stallworth’s house, although Jennings had
seen Jones there before.
On cross-examination, the government asked Jennings if he was a drug
dealer and whether he dealt drugs with Jones. Jennings said he was not and did
not. The government then sought to impeach Jennings with a ten-second video
that showed him laughing and flashing a large stack of bills. The defense objected
on two grounds. First, it argued that the government failed to prove that the money
in the video was drug money. Second, it argued that the video was more
prejudicial than probative and did not impeach Jennings’s testimony. The district
court overruled the objections. Relevant here, the court noted that the video was
not prejudicial to Jones and that it did have probative value about “this witness’s
credibility in this case, by his testimony.” The government asked Jennings
whether the money he was holding in the video was real or fake, and Jennings
responded that it was real money from his income tax refund check.
The government also moved to admit images that it claimed to be from
Jennings’s Facebook page:
Government: I’m now going to show you what’s been marked Government Exhibits 21A and 21B for identification. . . . These are images . . . . You see 21A? You see yourself in all those? That’s your Facebook page, 21A and 21B. You see those with your name on it? That’s your name: Hercules Lee Jennings.
Jennings: Mm-hmm. 4 USCA11 Case: 20-10495 Date Filed: 03/09/2021 Page: 5 of 15
Government: Your Honor, the Government would move to admit 21A and 21B.
Defense: Objection, Your Honor. I don’t think they laid the proper foundation.
Government: Your Honor, he just said it’s his. He answered my question.
Court: He recognized—
Jennings: I didn’t say that’s mine.
Court: He recognizes some of those. I’m not sure that’s enough to authenticate it.
Government: Your Honor, I’ll proffer to the Court it has his name on it, and all of these pictures are of him, other than the cartoon of someone trying to assassinate the president. These pictures are him and his name is on it and he said it was his Facebook page when I asked him.
The Court conditionally admitted the images and cross examination
continued. When asked about an image featuring Jennings and “bags of weed,”
Jennings responded that the picture was photoshopped and from someone else’s
Facebook page. In response to Jennings’s insistence that the Facebook images
were photoshopped and he was not involved in drugs, the government asked
Jennings whether he had “any prior convictions involving cocaine?” Jennings
responded that he had a “[w]ithheld” adjudication but “[n]o prior convictions.”
When the government continued to inquire into Jennings’s criminal history,
defense counsel objected but was overruled. The government later called Special 5 USCA11 Case: 20-10495 Date Filed: 03/09/2021 Page: 6 of 15
Agent Mary Katherine Evans who testified that she found Jennings’s Facebook
page and personally printed off the photographs included in the government’s
exhibits.
At the charging conference, defense counsel requested that the standard
instruction on possession be modified as a theory of defense instruction to add the
following language:
In a joint possession case, a Defendant’s mere proximity alone to the item is insufficient to establish his knowledge of its presence. A Defendant’s knowledge of the item, however, may be inferred, but does not have to be inferred, by other circumstances, such as control over the place where the item is located.
The court declined the requested instruction, explaining that it was “not
relevant to the possession. It’s relevant to the ‘in furtherance of.’” After
deliberating, the jury returned a verdict of guilty on all three counts.
C. Sentencing
Jones’s Presentence Investigation Report (“PSR”) set the total offense level
at 26 with a criminal history category of IV. This resulted in a guideline range of
120 to 150 months’ imprisonment. Jones was also due to be sentenced to a
consecutive term of 60 months for the charge of possessing a firearm in
furtherance of a drug trafficking offense. His total offense level was the result of a
base level of 24 and a two-level increase for “maintain[ing] a premises for the
purpose of manufacturing or distributing a controlled substance.” 6 USCA11 Case: 20-10495 Date Filed: 03/09/2021 Page: 7 of 15
At sentencing, Jones objected to the two-level increase for maintaining a
drug premises. He argued that the government failed to carry its burden to prove
that one of the primary purposes of the home where the search warrant was
executed was the distribution of drugs, much less that the home had been operating
as a drug house under Jones’s direct control. Jones called Twaun Stallworth as a
witness. Stallworth testified that he lived at the home in question and that he knew
Jones because Jones has two children in common with Stallworth’s cousin.
Stallworth said that during Hurricane Michael he had allowed Jones to leave some
items at his house, but that Jones never lived there. He said Jones would come by
at least once a week to see his kids.
The district court rejected Stallworth’s testimony as not credible.
Specifically, the court noted that Stallworth’s testimony was inconsistent with his
prior statement to police, in which he said he had been allowing Jones to live at his
home—in the locked bedroom—for the last six months. Stallworth’s girlfriend
also told the police that Jones had been living at the home for the past six months
and selling drugs. The district court overruled Jones’s objection to the increase
based on the drug premises, finding that “[o]verwhelming evidence” established
that Jones lived in the room and used it for dealing drugs.
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II. DISCUSSION
A. Impeachment of Defense Witness
Jones argues the district court committed reversible error when it allowed
the government to improperly impeach Jennings’s claim that he was not a drug
dealer. We review a district court’s evidentiary rulings “for a clear abuse of
discretion.” United States v. Flanders, 752 F.3d 1317, 1334 (11th Cir. 2014). We
will reverse those rulings “only if the resulting error affected the defendant’s
substantial rights.” Id. (quotation marks omitted).
Jones says the impeachment was improper in four ways: (1) the government
played a video of Jennings holding money without evidence that the money was
from an illegal source; (2) the government showed the jury a Facebook photo of
marijuana that was not properly authenticated; (3) the government commented on a
Facebook photo of a political cartoon from Jennings’s page; and (4) the
government asked Jennings about his prior state criminal case for which
adjudication of guilt was withheld. We discuss each in turn.
1. Money video
We understand Jones to argue that the government’s introduction of the
video of Jennings holding money was improper because the government had not
laid a sufficient foundation such that the evidence violated Federal Rule of
Evidence 608. Indeed, the government did fail to lay a proper foundation for the
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video to serve as evidence to impeach Jennings’s testimony that he did not deal
drugs. Although the government proffered that the video showed Jennings with
drug money, the government asked Jennings only whether the video showed him
with a large sum of money. Jennings testified that the money came from his
income tax refund check, and there was no evidence that Jennings got the money
from illegal sources. There was thus no evidence tying the money in the video to
drug dealing.
Nevertheless, we think this error was harmless. An error is harmless if
“sufficient evidence uninfected by error supports the [jury] verdict, and the error
did not have a substantial influence on the outcome of the case.” United States v.
Langford, 647 F.3d 1309, 1323 (11th Cir. 2011) (quotation marks omitted). There
was considerable evidence here linking Jones to the bedroom where drugs and a
gun were found. For instance, Jones was seen jumping out of the bedroom’s
window, and officers found photos of Jones in the room as well as his
identification card and Department of Corrections property inventory. On this
record, we are satisfied that the admission of the money video did not have a
substantial influence on the outcome of the trial. The error was therefore harmless.
See id.
Because we determine that admission of the money video, even if erroneous,
was harmless, we need not (and do not) address whether it violated Rule 608.
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2. Facebook photos of marijuana
Jones argues that the Facebook photos of marijuana from Jennings’s page
were likewise not properly authenticated. This argument fails. Under Federal
Rule of Evidence 901(a), “[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” Fed. R. Evid.
901(a). Here, there was evidence that the Facebook page belonged to Jennings,
including: the page had Jennings’s name on it; Special Agent Evans testified that
the page belonged to Jennings; and Jennings acknowledged seeing pictures of
himself in exhibit 21A. There was also evidence that the photos in fact showed
marijuana, including that the images depicted packages with the weight of the drug
written on the bag. Considering this evidence, the district court did not abuse its
discretion in ruling that the photos were adequately authenticated.
3. Comment about political cartoon
In response to a defense objection regarding foundation for the Facebook
images, the government stated:
I’ll proffer to the Court that [the Facebook page] has [Jennings’s] name on it, and all of these pictures are of him, other than the cartoon of someone trying to assassinate the president.
Jones argues that by commenting on the political cartoon, the government
improperly attacked Jennings’s character. To establish prosecutorial misconduct, 10 USCA11 Case: 20-10495 Date Filed: 03/09/2021 Page: 11 of 15
“(1) the remarks must be improper, and (2) the remarks must prejudicially affect
the substantial rights of the defendant.” United States v. Eckhardt, 466 F.3d 938,
947 (11th Cir. 2006) (quotation marks omitted). Jones has shown neither here.
Other than simply stating that the comment was an attack on Jennings’s character,
Jones has not provided any argument about the impropriety of the comment that
described a political cartoon, and which the jury ultimately saw when the Facebook
images were admitted. And, in any event, Jones has not shown a reasonable
probability that, but for the comment, the outcome of his trial would have been
different. See id. We find no abuse of discretion as to this issue.
4. Questions about criminal history
In response to the government’s question regarding prior convictions
involving cocaine, Jennings stated he had only a “[w]ithheld” adjudication but
“[n]o prior convictions.” Jones says this was improper because the withheld
adjudication was part of a Florida case and Florida courts do not allow
impeachment based on convictions where adjudication was withheld. However,
the trial transcript makes clear that it was Jennings who raised the withheld
adjudication—not the government. The government’s questioning was thus not
improper and the district court did not abuse its discretion in permitting it.
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B. Requested Jury Instruction
Jones says that the district court erred when it denied his proposed jury
instruction. We review a district court’s decision to refuse to give a requested jury
instruction for abuse of discretion. United States v. Klopf, 423 F.3d 1228, 1241
(11th Cir. 2005). We will reverse a decision about a jury charge only if “(1) the
requested instruction correctly stated the law; (2) the actual charge to the jury did
not substantially cover the proposed instruction; and (3) the failure to give the
instruction substantially impaired the defendant’s ability to present an effective
defense.” United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008) (per
curiam) (quotation marks omitted), abrogated on other grounds by Rehaif v. United
States, 588 U.S. __, 139 S. Ct. 2191, 2195–97 (2019). In reviewing whether a
charge substantially covers the proposed instruction, we need only determine
whether the charge, viewed as a whole, fairly and correctly stated the issues and
the law. Klopf, 423 F.3d at 1241.
Here, Jones requested that the standard instruction on possession be
modified to add the following language:
In a joint possession case, a Defendant’s mere proximity alone to the item is insufficient to establish his knowledge of its presence. A Defendant’s knowledge of the item, however, may be inferred, but does not have to be inferred, by other circumstances, such as control over the place where the item is located.
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We think this proposed instruction was “substantially cover[ed]” by the
actual charge given. See Palma, 511 F.3d at 1315 (quotation marks omitted). The
district court charged the jury using this circuit’s pattern instruction for
constructive possession: “‘Constructive possession’ of a thing occurs if a person
doesn’t have actual possession of it, but has both the power and the intention to
take control over it later.”1 See Eleventh Circuit Pattern Jury Instructions,
Criminal Cases S6. This instruction accurately captures the substance of Jones’s
requested charge because it makes clear that more than simple proximity to an item
(instead, “both the power and the intention to take control of it later”) is required to
find constructive possession. And it notes specifically that control over the item is
relevant to determining constructive possession. Thus, because Jones’s proposed
instruction was substantially covered by the actual charge given to the jury, the
district court did not abuse its discretion in refusing it.
C. Drug Premises Increase
Jones argues the district court erred when it found that he maintained a
premises for the distribution of drugs and increased his sentence as a result.
“Whether a defendant maintained a premises for the manufacture or distribution of
drugs is a finding of fact that we review under the clear-error standard.” United
1 Although Jones framed his request as a joint possession instruction, the substance of his proposed instruction is more in line with constructive possession and Jones ultimately requested it under a constructive possession theory as well. 13 USCA11 Case: 20-10495 Date Filed: 03/09/2021 Page: 14 of 15
States v. George, 872 F.3d 1197, 1205 (11th Cir. 2017). When reviewing for clear
error, we will reverse only where we are “left with a definite and firm conviction a
mistake has been made.” United States v. Dimitrovski, 782 F.3d 622, 628 (11th
Cir. 2015).
Section 2D1.1(b)(12) of the Guidelines calls for a two-level increase in
offense level “[i]f the defendant maintained a premises for the purpose of
manufacturing or distributing a controlled substance.” United States Sentencing
Guidelines § 2D1.1(b)(12). This increase is properly applied where a defendant
“knowingly maintains a premises (i.e., a building, room, or enclosure) for the
purpose of manufacturing or distributing a controlled substance, including storage
of a controlled substance for the purpose of distribution.” Id. § 2D1.1(b)(12) cmt.
n.17. To determine if a defendant “maintained” the premises, we consider whether
he had a possessory interest in the premises and the extent to which he controlled
access to, or activities at, the premises. Id. Drug manufacturing or distribution
“need not be the sole purpose” of the premises, “but must be one of the defendant’s
primary or principal uses for the premises, rather than one of the defendant’s
incidental or collateral uses for the premises.” Id. When making a drug premises
determination, courts look to the totality of the circumstances. See George, 872
F.3d at 1205–06.
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The district court did not clearly err in finding that Jones maintained the
bedroom for the purposes of dealing drugs. As the Guidelines note, a longer
sentence can be imposed for a single room used for storing drugs for distribution.
See USSG § 2D1.1(b)(12) cmt. n.17. Given the amount of drugs—including what
appeared to be distribution levels for some—and distribution paraphernalia found
in the room, it was not clear error for the district court to find this room was being
used for distribution of drugs. Beyond that, while the record does not reveal that
Jones had a legal possessory interest in the bedroom, evidence recovered from the
room and the statements from both Stallworth and his girlfriend indicated that
Jones was staying there. See United States v. Baptiste, 935 F.3d 1304, 1308 (11th
Cir. 2019) (“[T]he Sentencing Guidelines permit use of hearsay testimony so long
as the overall record provides ‘sufficient indicia of reliability’”). Stallworth’s
girlfriend also indicated that Jones sold various drugs and, while not all of the
drugs she listed were found in the room, some were. It was thus not clear error for
the district court to find that Jones used the room to distribute drugs and increase
his sentence as a result.
AFFIRMED.