Case: 14-11994   Date Filed: 07/29/2015   Page: 1 of 13


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11994
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:13-cr-00015-LGW-JEG-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,
                                  versus

CORTEZ TERRAIL HODGES,
a.k.a. Gator,

                                                          Defendant-Appellant.

                       ________________________

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

                              (July 29, 2015)



Before JORDAN, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
               Case: 14-11994      Date Filed: 07/29/2015     Page: 2 of 13


      Cortez Hodges appeals his convictions 1 imposed after a two-day jury trial

for possession of marijuana with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1) (Count One); possession of firearms by a convicted felon, in violation

of 18 U.S.C. § 922(g)(1) (Count Two); and possession of firearms in furtherance of

a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Three).

Hodges asserts several issues on appeal, and we address each one in turn. After

review, we affirm Hodges’ convictions.

                                     I. DISCUSSION

A. Motion to Suppress

      Hodges asserts the district court erred in denying his motion to suppress. He

asserts evidence obtained pursuant to two search warrants should have been

suppressed because the affidavits presented in support of the warrants contained

intentional or reckless misrepresentations and omissions. According to Hodges,

the affidavits omitted facts relevant to the confidential informant’s (CI’s) veracity

and made conclusory claims about the contents of two audio recordings of the CI’s

controlled purchases of marijuana at Hodges’ house, which did not offer reliable

support to verify the CI’s accounts of the two controlled purchases.

      The district court did not err in denying Hodges’ motion to suppress. See

United States v. Lindsey, 

, 1290 (11th Cir. 2007) (stating we review


      1
          Hodges does not appeal his sentence of 123 months’ imprisonment.
                                              2
              Case: 14-11994     Date Filed: 07/29/2015   Page: 3 of 13


a district court’s denial of a motion to suppress as a mixed question of law and fact,

reviewing rulings of law de novo and findings of fact for clear error). Even

assuming the affiant intentionally or recklessly omitted information about the CI

and misrepresented the content of the audio tapes, the affidavits established

probable cause absent the alleged errors. The circumstances of the two controlled

purchases of marijuana provided sufficient independent corroboration of the CI’s

account such that there was no need to establish his veracity. As the affidavits

stated, officers searched the CI and his car both before and after the purchases and

only discovered marijuana after the CI left Hodges’ house, which supports the CI’s

statement he purchased the marijuana while inside the house. Further, references

on the audio recordings to a “dime sack” and “something to smoke” also

corroborate the CI’s reports that he purchased marijuana while inside the house.

B. Prior Conviction Issues

      Hodges contends the district court abused its discretion by admitting

evidence of his prior convictions under Rule 404(b) as his defense strategy did not

put intent or lack of accident at issue, and the Government used his prior

convictions to show propensity. He next asserts the district court abused its

discretion in refusing to bifurcate his trial because introducing evidence of his past

crimes to support a conviction for possession of firearms by a convicted felon

created a high risk of unfair prejudice. Finally, Hodges asserts the district court


                                          3
              Case: 14-11994     Date Filed: 07/29/2015   Page: 4 of 13


abused its discretion by excluding evidence of third parties’ prior convictions

because those convictions were relevant to Hodges’ defense theory that someone

else was responsible for the drugs and guns police found in and outside the house.

      1. 404(b)

      The district court did not abuse its discretion by admitting evidence of

Hodges’ prior conviction for possession of marijuana with intent to distribute. See

United States v. Chavez, 

, 1316 (11th Cir. 2000) (stating we review

evidentiary decisions for abuse of discretion). By pleading not guilty to the instant

charge of possession of marijuana with intent to distribute and failing to stipulate

as to intent, Hodges made intent an issue in the case even though his defense was

focused on whether he possessed the marijuana found outside the house. See

United States v. Sterling, 

, 238 (11th Cir. 2013), cert. denied, 134 S.

Ct. 2682 (2014) (stating a defendant who enters a not guilty plea and does not take

affirmative steps to remove intent as an issue makes intent a material issue the

government must prove). Hodges’ prior conviction for possession of marijuana

with intent to distribute was relevant to the issue of intent because both the

extrinsic offense and the charged offense involved the same mental state—intent to

distribute marijuana—which the Government was required to prove beyond a

reasonable doubt. See 

the state of mind required for the

charged and extrinsic offenses is identical, the evidence is relevant to an


                                           4
              Case: 14-11994     Date Filed: 07/29/2015   Page: 5 of 13


enumerated issue rather than solely to the defendant’s character). Because the

extrinsic and charged offenses were identical in nature and separated by less than

two years, the similarity between the offenses weighs in favor of admissibility.

See United States v. Dorsey, 

, 1061 (11th Cir. 1987) (stating when

the extrinsic offenses were similar in time and nature to the crimes charged, those

factors weigh in favor of admissibility).

      The district court also did not abuse its discretion by admitting evidence of

Hodges’ prior conviction for possession of a firearm during the commission of a

felony. To sustain a conviction for possession of firearms in furtherance of a drug

trafficking crime, the Government had to prove that Hodges knowingly possessed

firearms. See United States v. Howard, 

, 1341 (11th Cir. 2014). By

focusing his defense of this charge on whether he had any connection to the guns

found in the backpack, Hodges put both his knowledge of the guns and whether he

actually or constructively possessed the guns at issue. Although his prior

conviction did not require the same mental state required in this case, the fact

Hodges previously possessed a gun in connection with a felony makes it more

likely he knew about the guns found on property he was renting and in close

proximity to marijuana distribution implements. The prior conviction also makes

it more likely Hodges intended to exercise control over those guns. Finally, the

extrinsic offense was similar in both time and nature to the charged offense.


                                            5
              Case: 14-11994     Date Filed: 07/29/2015    Page: 6 of 13


      2. Bifurcation

      The district court did not abuse its discretion in refusing to bifurcate

Hodges’ trial. See United States v. Walser, 

, 385 (11th Cir. 1993)

(stating we review denials of motions to sever for abuse of discretion). First,

trying the offenses together did not create compelling prejudice. As discussed

above, evidence of his prior convictions would have been admissible in both stages

of the trial had it been bifurcated. See United States v. Gabay, 

,

1540 (11th Cir. 1991) (stating when evidence admissible to prove each charge is

also admissible to prove the other charge, joining the offenses does not create

compelling prejudice). Second, the district court gave limiting instructions that

cured any potential prejudice created by trying the charges together. See 

(explaining severance is not required when a limiting instruction

may cure any potential prejudice).

      3. Prior Convictions of Others

      Finally, the district court did not abuse its discretion in refusing to admit

evidence of the prior convictions of Deundre Carter and Ronnie Moore, two

persons who also had access to the house Hodges rented but who were neither

defendants nor witnesses at Hodges’ trial. While Moore’s and Carter’s prior

convictions were arguably relevant, Hodges presented ample evidence to ply his

theory the drugs and guns belonged to someone else (such as evidence other people


                                           6
              Case: 14-11994     Date Filed: 07/29/2015    Page: 7 of 13


stayed at the house and marijuana was found there well after Hodges was arrested).

Admitting the prior convictions might have created a risk of confusing the issues

because doing so would inject into the trial the issue of the potential guilt of third

parties not standing trial when the only relevant issue was whether Hodges was

guilty, regardless of whether others may have been complicit. Therefore, the

district court did not abuse its discretion in excluding the evidence.

C. Admission of Videos and Photographs

      Hodges contends the district court abused its discretion by admitting videos

found on a computer as well as photographs produced from them because the

evidence was neither authenticated nor relevant.

      The district court did not abuse its discretion in admitting the videos and

photographs produced from the videos. First, the Government properly

authenticated the videos and photographs. See Fed. R. Evid. 901(a) (explaining

before being admitted, evidentiary items must be properly authenticated by

evidence sufficient to support a finding that the item is what the proponent claims

it is). The Government presented evidence sufficient to establish that the videos

and photographs were what the Government claimed they were: videos retrieved

from the seized computer or external hard drive founds in Hodges’ house and

photographs produced from the videos. Two witnesses with knowledge testified as

to the contents and the circumstances of discovery of the videos and photographs.


                                           7
              Case: 14-11994     Date Filed: 07/29/2015   Page: 8 of 13


The contents of the videos and photographs also support a finding they were taken

from a computer or external hard drive found in Hodges’ house. Second, the

evidence was admissible under Federal Rule of Evidence 404(b). The video

showing Hodges sitting beside what appears to be marijuana and a digital scale and

the video showing marijuana displayed alongside cash, a digital scale, and guns

were relevant to Hodges’ intent to distribute the marijuana found in the house. The

remaining video was relevant to Hodges’ intent to exercise control over the guns

found outside. The photographs produced from the videos were relevant for the

same reasons.

D. Closing Argument

      Hodges contends that during closing arguments, the Government made an

improper propensity argument and suggested Hodges needed further punishment

for his prior convictions.

      By leading its closing argument with a reference to Hodges’ prior crimes

and “jail sentence [that] was on paper,” the Government arguably made an

improper remark during the trial. See United States v. Lopez, 

, 1256

(11th Cir. 2009) (describing improper remarks as including suggestions,

insinuations, and assertions calculated to mislead the jury or appeal to the jury’s

passion or prejudice). However, the error did not affect Hodges’ substantial rights.

See United States v. Eckhardt, 

, 947 (11th Cir. 2006) (stating to


                                          8
              Case: 14-11994     Date Filed: 07/29/2015   Page: 9 of 13


establish prosecutorial misconduct, the defendant must show the improper remarks

prejudicially affected the defendant’s substantial rights). The Government’s

improper remark was a brief, isolated comment and the district court sua sponte

instructed the Government to proceed to the evidence in the case. The evidence of

Hodges’ guilt was strong, and does not suggest there is a reasonable probability

that, but for the Government’s remark, the outcome of the trial would have been

different.

E. Sufficiency of the Evidence

      Hodges contends the district court erred in denying his renewed motion for

judgment of acquittal because the evidence was insufficient to convict him with

respect to each count. We review the evidence presented on each Count de novo.

See United States v. Browne, 

, 1253 (11th Cir. 2007) (reviewing de

novo a district court’s denial of a motion for judgment of acquittal on sufficiency

of the evidence grounds).

      1. Count One

      First, Hodges asserts he should have been acquitted of Count One because

the Government failed to prove the substance at issue was Cannabis sativa L., as

opposed to another species of marijuana. Marijuana is statutorily defined as “all

parts of the plant Cannabis sativa L.” 21 U.S.C. § 802(16). We have rejected the




                                          9
               Case: 14-11994       Date Filed: 07/29/2015      Page: 10 of 13


argument the government must prove the marijuana was Cannabis sativa L. United

States v. Henley, 

(5th Cir. 1974).2

       Second, Hodges contends the Government failed to link him to the

marijuana found in a backpack outside his house and therefore did not prove

Hodges possessed the marijuana or had intent to distribute it. In order to convict a

defendant of possession of marijuana with intent to distribute, the government

must prove knowledge, actual or constructive possession, and intent to distribute.

United States v. Poole, 

, 1391-92 (11th Cir. 1989). As discussed

more fully below, the items found in the bedroom, such as the .38 caliber bullets

and .22 caliber ammunition, were sufficient to link Hodges to the backpack, which

contained a substantial quantity of marijuana and a set of digital scales.

Additionally, a reasonable jury could have inferred intent to distribute from the

items found in the bedroom and in Hodges’ car, which included marijuana; a

grinder; a digital scale; vacuum sealed bags, mason jars, and Ziploc bags

containing suspected marijuana residue; and small plastic bags commonly used to

distribute marijuana. See 

to distribute can be proven

circumstantially by the quantity of drugs or by the existence of implements




       2
          In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
                                               10
             Case: 14-11994    Date Filed: 07/29/2015    Page: 11 of 13


commonly used to distribute drugs). In sum, the district court did not err in

denying Hodges’ renewed motion for judgment of acquittal as to Count One.

      2. Count Two

      Hodges argues he should have been acquitted of Count Two because the

Government did not prove a nexus between Hodges and the guns found in the

backpack. To convict a defendant for possession of firearms by a convicted felon,

the government must prove (1) the defendant was a convicted felon (2) who

knowingly actually or constructively possessed a firearm (3) that was in or affected

interstate commerce. United States v. Howard, 

, 1341 (11th Cir.

2014).

      Because he was renting and living on the premises, Hodges had the power

and intent to exercise control over the premises on which the guns were located.

See 

establish constructive possession, the government must show

that the defendant exercised ownership, dominion, or control over the firearm, or

that the defendant had the power and intent to exercise dominion or control over

it). Officers also found .38 caliber bullets and an ammunition box for .22 caliber

bullets inside the same room in which they found Hodges’ wallet and a dollar bill

marked with Hodges’ alias, “Gator.” In Hodges’ backyard, police found two .38

caliber revolvers and one .22 caliber handgun. Because the bullets and

ammunition box found in the bedroom matched the calibers of three of the four


                                         11
             Case: 14-11994     Date Filed: 07/29/2015    Page: 12 of 13


guns found in Hodges’ backyard, a reasonable jury could infer Hodges had the

power and intent to exercise control over those guns and therefore constructively

possessed the guns. Additionally, in one of the videos admitted during trial,

Hodges waved around an apparently loaded revolver similar to one of the revolvers

found outside, further suggesting he had the power and intent to exercise control

over at least one of the guns found outside. The district court did not err in

denying Hodges’ renewed motion for judgment of acquittal as to Count Two.

      3. Count Three

      Finally, Hodges contends he should have been acquitted of Count Three

because the Government did not present any evidence suggesting the guns

furthered a drug trafficking crime. To support a conviction for possession of a

firearm in furtherance of a drug trafficking crime, the government must show the

firearm helped, furthered, promoted, or advanced the drug trafficking. United

States v. Timmons, 

, 1252 (11th Cir. 2002). The government must

establish a nexus between the firearm and the drug trafficking. 

      The Government’s evidence supported a finding there was an ongoing

marijuana distribution operation at Hodges’ house and that Hodges had

constructive possession of the guns. The guns were found in the same backpack as

several mason jars full of marijuana and a large digital scale. Officers also found

.38 caliber bullets and a .22 caliber ammunition box next to marijuana and a digital


                                          12
               Case: 14-11994        Date Filed: 07/29/2015        Page: 13 of 13


scale in the same room as other implements commonly used in marijuana

distribution, such as vacuum sealed bags and small plastic bags. While the guns

were not immediately accessible to anyone in the house given that the backpack

was found near the property line, they were just as accessible as the drugs, and a

reasonable jury could find a sufficient nexus between the guns and the drug

trafficking offense. The district court did not err in denying Hodges’ renewed

motion for judgment of acquittal as to Count Three.

                                      II. CONCLUSION

       The district court did not err in denying Hodges’ renewed motion for

acquittal, motion to suppress, or motion to bifurcate. The district court also did not

abuse its discretion by admitting Hodges’ prior convictions and videos and

photographs obtained from a computer or in the exclusion of third parties’ prior

convictions. Finally, although the Government arguably made an improper remark

during closing arguments, the remark did not affect Hodges’ substantial rights.

Accordingly, we affirm Hodges’ convictions.3

       AFFIRMED.




       3
          Hodges also argues that the cumulative error in his case had a substantial influence on
the verdict. If there are no errors or only a single error, there can be no cumulative error. United
States v. Gamory, 

, 497 (11th Cir. 2011).
                                                 13