                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             OCT 25, 2006
                              No. 05-16118                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 03-20972-CR-MGC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

FREDERICK THOMAS HARRINGTON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                             (October 25, 2006)

Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

     Appellant Frederick Thomas Harrington appeals his convictions and
sentences for his role in a marijuana trafficking operation in which he sailed boats

from Jamaica to south Florida with hidden compartments full of marijuana.

Harrington was also involved in a conspiracy that was the subject of a different

prosecution in which he trafficked marijuana in Hernando County, Florida. On

appeal, Harrington argues that the district court: (1) erred in denying his motion to

suppress wiretap evidence; (2) abused its discretion in instructing the jury venire;

(3) abused its discretion in allowing the government to introduce evidence pursuant

to Fed. R. Evid. 404(b); (4) abused its discretion in denying his motion for a

mistrial based on prosecutorial misconduct; and (5) erred in sentencing Harrington

based on a larger drug amount than the one found in the jury’s special verdict.

A. Wiretap Evidence

      1. Staleness

      Harrington first argues that the district court erred in finding that stale

information provided by the confidential informant (“CI”) was updated and

corroborated. The information was stale because the CI had not been involved in

the conspiracy for a year, surveillance revealed only that Harrington had minimal

contacts with some of his “customers,” and there was no evidence that he was

involved in a continuous conspiracy.

      We review de novo the legal sufficiency of a wiretap application presented



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to a district court. See United States v. Butler, 102 F.3d 1191, 1199 (11th Cir.

1997) (reviewing de novo the sufficiency of an affidavit supporting a search

warrant). We review the district court’s findings of fact on a motion to suppress

only for clear error, but review its application of law to those facts de novo. United

States v. Jackson, 120 F.3d 1226, 1228 (11th Cir. 1997).

      “[T]he probable cause needed to obtain a wiretap must exist at the time

surveillance is authorized.” United States v. Domme, 753 F.2d 950, 953 (11th Cir.

1985) (citations omitted). The probable cause standard is not satisfied if:

             the government can demonstrate only that the items to be
             seized could have been found at the specified location at
             some time in the past. Rather, the government must
             reveal facts that make it likely that the items being sought
             are in that place when the warrant issues. . . . The length
             of time between the date on which all of the facts
             supporting probable cause were known and the date the
             warrant was issued is only one factor. Probable cause is
             not determined merely by counting the number of days
             between the facts relied upon and the warrant’s issuance.
             Rather, the probable cause standard is a practical,
             nontechnical one. When criminal activity is protracted
             and continuous, it is more likely that the passage of time
             will not dissipate probable cause. In such circumstances,
             it is reasonable to assume that the activity has continued
             beyond the last dates mentioned in the affidavit, and may
             still be continuing. Time becomes less significant in the
             wiretap context, because the evidence sought to be seized
             is not a tangible object easily destroyed or removed.
             Therefore, when police describe telephone activity
             occurring over an extended period of time, the stale
             information issue should be construed less rigorously.

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Id. (citations omitted). Even assuming that an affidavit is stale, “such information

is not fatal where the government’s affidavit updates, substantiates, or corroborates

the stale material.” United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000)

(quoting United States v. Magluta, 198 F.3d 1265, 1272 (11th Cir. 1989)).

      After reviewing the record, we conclude that the district court did not err in

denying Harrington’s motion to suppress the wiretap based on facts found in the

affidavit. First, the affidavit for the wiretap stated that Harrington was involved in

two continuing drug importation conspiracies, so it was reasonable for the issuing

magistrate to assume that the activity mentioned in the affidavit was ongoing.

Further, the government updated and corroborated the information presented by the

CI by surveilling Harrington and determining that he: (1) regularly met with people

that the CI named as his customers; (2) traveled to Montego Bay, Jamaica; (3)

traveled to Miami at least once and returned with a large cardboard box in the bed

of his truck; and (4) had a freezer in his garage for storing the marijuana, as

previously stated by the CI. Thus, the district court did not err because there was

probable cause for the wiretap.

      2. Omissions and Misrepresentations

      Harrington further argues that the affidavit omitted the fact that the CI was a

drug addict and former employee of Harrington’s shrimping business. Further, the

                                           4
CI’s information was not corroborated because the surveillance merely confirmed

that Harrington was in contact with his fellow shrimpers. Harrington asserts that

the affiant knowingly and intentionally made false representations in the wiretap

application.

      In order to suppress evidence obtained using a wiretap, a defendant must

carry his burden of proving that (1) the alleged misrepresentations or omissions

were knowingly or recklessly made by the affiant, and (2) the result of excluding

the alleged misrepresentations and including the alleged omissions would have

been a lack of probable cause for issuance of the warrant. United States v.

Novaton, 271 F.3d 968, 986-987 (11th Cir. 2001) (citations omitted). Even though

law enforcement officers observe circumstances which could have innocent

explanations, it does not mean that probable cause does not exist. See United

States v. Reeh, 780 F.2d 1541, 1544-1545 (11th Cir. 1986) (holding that apparently

innocent circumstances can justify an officer’s reasonable suspicion of illegal

activity when considered, in light of the officer’s experiences, with all of the

circumstances).

      We conclude from the record that the district court correctly found that the

wiretap application did not omit or misrepresent any information that resulted in a

lack of probable cause. Harrington did not present any evidence to support his



                                           5
argument that the affidavit contained omissions and misrepresentations. Further,

Harrington did not present any evidence to show that the affiant knew that: (1) the

CI was one of Harrington’s former shrimping employees or that he was fired from

that position; (2) the CI received immunity for the information he provided; or (3)

information about the location of a freezer in Harrington’s garage was false.

Contrary to Harrington’s assertion, the affidavit did state that the information was

reliable. Harrington’s claim that the affidavit misrepresented his fellow shrimpers

as customers is meritless because the affidavit stated that his marijuana customers

were mainly in the shrimping industry.

B. Jury Venire Instructions

      Next, Harrington argues that the district court abused its discretion in stating

to the jury venire during voire dire that a jury could only convict him using

evidence brought against him in court. Harrington claims that this statement,

coupled with the district court’s comments that “CSI” evidence would not be

required to convict Harrington, lessened the burden of proof and undermined the

court’s reasonable doubt instruction.

      Where a party timely objects, we review the legal correctness of a jury

instruction de novo, but defer to the district court on questions of phrasing absent

an abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir.



                                           6
2000). We review a “district court’s determination whether to strike an entire jury

panel for manifest abuse of discretion.” United States v. Trujillo, 146 F.3d 838,

842 (11th Cir. 1998) (citations omitted).

      “Generally, district courts have broad discretion in formulating jury

instructions provided that the charge as a whole accurately reflects the law and the

facts, and we will not reverse a conviction on the basis of a jury charge unless the

issues of law were presented inaccurately, or the charge improperly guided the jury

in such a substantial way as to violate due process.” Prather, 205 F.3d at 1270

(citations and internal quotations omitted). A jury is presumed to have followed

the district court’s comprehensive instructions. United States v. Ramirez, 426 F.3d

1344, 1352 (11th Cir. 2005).

      Here, we conclude from the record that the district court did not abuse its

discretion by telling the jury venire that it could only convict Harrington based on

evidence presented in court. The district court’s use of the word “convict” was a

matter of phrasing and did not change the burden of proof. Additionally, the

district court did not err by questioning jurors about whether they would be able to

separate television shows from the facts of the case and stating that there may not

be “CSI” evidence presented to them. The district court’s statements were not

actual instructions and did not inaccurately reflect the law. Further, the district



                                            7
court instructed the paneled jury, before opening arguments, on the applicable

burden of proof, and the jury is presumed to have followed this instruction. Thus,

the district court did not abuse its discretion.

C. Rule 404(b) Evidence

       Harrington also argues that the district court abused its discretion in

allowing the government to introduce seized marijuana and other items relating to

the Hernando Conspiracy from the Le Club apartment.

       We review properly preserved challenges to the district court’s rulings on

admission of evidence for an abuse of discretion. Jiminez, 224 F.3d at 1249. A

court abuses its discretion when its decision “rests upon a clearly erroneous finding

of fact, an errant conclusion of law, or an improper application of law to fact.”

United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005), cert. denied, Pless v.

United States, 126 S. Ct. 1809 (2006).

       Evidence showing “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would [otherwise] be” is “[r]elevant evidence,” and “[a]ll relevant evidence is

[generally] admissible” at trial. Fed. R. Evid. 401, 402. However, even if evidence

is relevant, it “may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”



                                            8
Fed. R. Evid. 403. However, this rule is an “extraordinary remedy. . . which

should be used sparingly since it permits the trial court to exclude concededly

probative evidence.” United States v. Wright, 392 F.3d 1269, 1276 (11th Cir.

2004), cert. denied, 544 U.S. 968, 125 S. Ct. 1751 (2005) (quoting United States v.

Fallen, 256 F.3d 1082, 1091 (11th Cir. 2001)). Rule 404(b) prohibits all evidence

of “other crimes, wrongs, or acts” to prove that a person is of a character that

would commit the crime charged, but it permits such evidence to prove, among

other things, motive, intent, or absence of mistake or accident. Baker, 432 F.3d at

1204; Fed. R. Evid. 404(b).

      We apply a three-part test for determining the admissibility of evidence

under Rule 404(b). United States v. Calderon, 127 F.3d 1314, 1330 (11th Cir.

1997). “First, the evidence must be relevant to an issue other than the defendant’s

character.” Id. Second, the government must show, by a preponderance of the

evidence, that the defendant actually committed the extrinsic act. United States v.

Bowe, 221 F.3d 1183, 1192 (11th Cir. 2000). “Third, the probative value of the

evidence must not be substantially outweighed by unfair prejudice.” Calderon,

127 F.3d at 1330. As for the third prong of the test, “[i]n measuring the probative

value of the evidence, the judge should consider the overall similarity of the

extrinsic and charged offenses.” United States v. Beechum, 582 F.2d 898, 915 (5th



                                           9
Cir. 1978). “If they are dissimilar except for the common element of intent, the

extrinsic offense may have little probative value to counterbalance the inherent

prejudice of this type of evidence.” Id. Also, we have stated that “[t]he greater the

government’s need for evidence of intent, the more likely that the probative value

will outweigh any possible prejudice.” United States v. Delgado, 56 F.3d 1357,

1366 (11th Cir. 1995) (citation omitted).

      In the context of a conspiracy charge, when the defendant pleads not guilty,

he has made his intent a material issue. United States v. Matthews, 431 F.3d 1296,

1311 (11th Cir. 2005), petition for cert. filed, 74 U.S. L.W. 3619 (U.S. April 24,

2006) (No. 05-1355). (quotations omitted). “Evidence of such extrinsic evidence

as may be probative of a defendant’s state of mind is admissible unless [the

defendant] affirmatively take[s] the issue of intent out of the case.” Id. (citation

omitted).

      After reviewing the record, we conclude that the district court did not abuse

its discretion by allowing the government to introduce the Hernando conspiracy

evidence seized from the Le Club apartment. First, the marijuana, yellow note

pads, satellite phone box, and other items seized from the Le Club apartment are

relevant because they show that Harrington knew that there was marijuana onboard

the Blue Moon, the boat used in the Jamaican conspiracy, and that he intended to



                                            10
bring it into the United States. Second, these items were found during a search of

the Le Club apartment, which was rented by Harrington. This satisfies the

preponderance of the evidence standard and fulfills the second prong of the 404(b)

admissibility test. Further, the probative value of the Hernando conspiracy

outweighed any possible prejudice because the two acts were similar in that they

both involved the smuggling and distribution of large quantities of marijuana in

south Florida. Lastly, the district court provided an extensive limiting instruction.

D. Prosecutorial Misconduct

      Harrington argues that the government violated his Fifth Amendment rights

by stating, during its closing argument, that he lied. Harrington alleges that the

government also violated his right to a fair trial by stating that defense counsel was

attempting to distract the jury. Lastly, the government improperly shifted the

burden of proof by arguing that Harrington had subpoena powers.

      “In reviewing a claim of prosecutorial misconduct, we must assess (1)

whether the challenged comments were improper, and (2) if so, whether they

prejudicially affected the substantial rights of the defendant.” United States v.

Arias-Izquierdo, 449 F.3d 1168, 1177 (11th Cir. 2006). “In order to assess the

prejudicial impact of a prosecutor’s statements, we must evaluate them in the

context of the trial as a whole and assess their probable impact on the jury.”



                                          11
United States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998). “[W]hile a

prosecutor may not comment about the absence of witnesses or otherwise attempt

to shift the burden of proof, it is not improper for a prosecutor to note that the

defendant has the same subpoena powers as the government, ‘particularly when

done in response to a defendant’s argument about the prosecutor’s failure to call a

specific witness.’” Id. at 1439. (quotations omitted). “To warrant reversal of a

verdict prosecutorial misconduct must be so pronounced and persistent that it

permeates the entire atmosphere of the trial.” United States v. Thomas, 8 F.3d

1552, 1561 (11th Cir. 1993). “[We have] noted that an unflattering

characterization of a defendant will not provoke a reversal when such descriptions

are supported by the evidence.” United States v. Tisdale, 817 F.2d 1552, 1555

(11th Cir. 1987) (quotations omitted).

      We conclude that the district court did not err in denying Harrington’s

motion for a mistrial because the government’s statements that Harrington had lied

were supported by the evidence. Harrington lied to the authorities by stating that

he departed from the Dry Tortugas and then lied again by stating that he was

coming from the Cayman Islands. Testimony presented at trial established that the

Blue Moon actually had departed Jamaica. Therefore, the government’s statements

that Harrington lied were supported by the evidence and were not prosecutorial



                                           12
misconduct. Further, while the government’s comments during closing argument

that defense counsel was employing “smoke” to distract the jury from the facts of

the case were improper, they were not so pronounced or persistent that they

permeated the entire trial atmosphere. Lastly, the government’s statements that

Harrington had subpoena powers did not constitute prosecutorial misconduct

because the government was responding to Harrington’s argument that the

government chose not to call several witnesses.

E. Booker Error

      Finally, Harrington argues that the district court violated his Sixth

Amendment rights, pursuant to United States v. Booker, 543 U.S. 220, 125 S. Ct.

738, 160 L. Ed. 2d 621 (2005), when it increased his base offense level based on a

drug amount that was higher than that found by the jury’s special verdict.

      If, as here, a defendant raises his Booker objection to the district court’s

application of the Sentencing Guidelines at his sentencing, we review the issue de

novo, and reverse “only if any error was harmful.” United States v. Paz, 405 F.3d

946, 948 (11th Cir. 2005). We have held that there are two types of Booker errors:

(1) constitutional error resulting from enhancements based on judicial fact-finding;

and (2) non-constitutional statutory error resulting from mandatory application of

the Sentencing Guidelines. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th



                                          13
Cir. 2005).

       There is no error, as is the case here, when a sentencing court, after Booker,

makes factual determinations, or extra-verdict enhancements, that go beyond a

defendant’s admissions if the sentencing guidelines are applied in an advisory

manner. United States v. Chau, 426 F.3d 1318, 1323-1324 (11th Cir. 2005)

(holding that a sentencing court did not err in finding facts that went beyond those

found in the indictment by a preponderance of the evidence in an advisory

guidelines scheme). A district court must, however, find these facts by a

preponderance of the evidence. Id. We have noted that it is not Booker error for a

sentencing court to find facts that differ with those found by a jury in a special

verdict form. United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert.

denied, 126 S. Ct. 432 (2005) (reviewing for plain error, and holding that it is not

Booker error for a sentencing court to consider acquitted conduct outside of a

special verdict if the conduct is proven by a preponderance of the evidence and the

ultimate sentence does not exceed the statutory maximum for the offense contained

in the jury verdict).

       Here, the record demonstrates that Harrington was sentenced after Booker,

under an advisory guidelines system, and, thus, there was no Booker error. The

jury’s special verdict held Harrington accountable for only 100 kilograms or more



                                          14
of marijuana as to each count, and, thus, the statutory maximum for Harrington’s

offense is 40 years imprisonment. See 21 U.S.C. §§ 841 (b)(1)(B)(vii) and

960(b)(2)(G). The district court considered the advisory guidelines and the 18

U.S.C. § 3553(a) factors in imposing sentence. Harrington’s 151-month sentence

was well below the statutory maximum authorized by the jury’s verdict and at the

low end of the guideline range of 151-188 months imprisonment. Thus,

Harrington’s sentences were reasonable.

      For the above-stated reasons, we affirm Harrington’s convictions and

sentences.

      AFFIRMED.




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