Case: 12-14444        Date Filed: 03/14/2014      Page: 1 of 3


                                                                     [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-14444
                               ________________________

                          D.C. Docket No. 3:12-cr-00010-LC-7

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

WARREN G. CHARLTON,

                                                                       Defendant-Appellant.

                               ________________________

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

                                      (March 14, 2014)

Before WILSON, Circuit Judge, and BUCKLEW, * and LAZZARA, ** District
Judges.

PER CURIAM:

       *
          Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
       **
           Honorable Richard A. Lazzara, United States District Judge for the Middle District of
Florida, sitting by designation.
               Case: 12-14444     Date Filed: 03/14/2014    Page: 2 of 3


      Warren Charlton appeals his conviction for conspiracy to possess with intent

to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)(ii), and 846. On appeal, Charlton argues that the district

court abused its discretion in denying his motion for a mistrial because of a

reference by the prosecutor during closing argument to an evidentiary objection by

defense counsel causing a violation of his Sixth Amendment right to counsel and

his Fifth Amendment due process right to a fair trial.

      After thorough review of the briefs and the record on appeal, and after the

benefit of oral argument, we find that the district court did not abuse its discretion

in denying the motion for a mistrial because any constitutional error in this case

was harmless beyond a reasonable doubt. See Chapman v. California, 

, 24, 

, 828 (1967). Based on the testimony of the government’s

witnesses, phone recordings, and photographic evidence, the evidence of

Charlton’s guilt was overwhelming.

      Moreover, because Charlton chose to testify, the jury was entitled to

disbelieve him and consider his testimony as substantive evidence of his guilt. See

United States v. Brown, 

, 314 (11th Cir. 1995). And because

corroborative evidence of Charlton’s guilt existed in the form of testimony,

photographs, and recorded telephone calls, Charlton’s testimony, denying his guilt,

was sufficient by itself to establish the elements of the offense. 

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(holding that, where some corroborative evidence of guilt exists for the charged

offense and the defendant testifies and denies guilt, that testimony, by itself, may

establish elements of the offense). This rule applies with special force here

because Charlton was charged with an offense that involved intent to distribute.

See 

(holding that this rule applies with special force where the elements

to be proved are highly subjective, such as intent or knowledge). Thus, the

evidence overwhelmingly showed that a conspiracy to possess with intent to

distribute cocaine existed, that Charlton knew of the conspiracy, and that Charlton

voluntarily joined the conspiracy. See 21 U.S.C. §§ 841(a)(1) and 846; United

States v. Iglesias, 

, 1527 (11th Cir. 1990). Finally, the court

instructed the jury that the attorneys’ statements were not evidence, and we

presume that the jury followed this instruction. See United States v. Lopez, 

, 1256 (11th Cir. 2009). Accordingly, we affirm.

      AFFIRMED.




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