[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10993 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:09-cr-60249-WJZ-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll
Plaintiff-Appellee,
versus
JASON CYRIL CUMMINGS,
llllllllllllllllll lll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 22, 2011)
Before TJOJFLAT, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Jason Cyril Cummings appeals his convictions, following a jury trial, for
possession of cocaine with intent to distribute and possession of a firearm during a
drug trafficking offense, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 924(c)(1)(A). On appeal, Cummings argues that the government
presented insufficient evidence at trial to overcome his defense of entrapment and
that multiple instances of error occurred at his trial, which, taken cumulatively,
deprived him of his right to a fair proceeding.
I.
Cummings first argues that the evidence at trial was insufficient to establish
his predisposition to committing both charged offenses beyond a reasonable doubt,
as necessary to overcome his entrapment defense. Specifically, he asserts that the
government’s sole evidence of predisposition came from a confidential informant
(“CI”) whose testimony was vague, unworthy of belief, and conflicted with the
case agent’s expression of shock at his arrest.
We review de novo a defendant’s conviction notwithstanding an entrapment
defense, viewing all facts and drawing all inferences in the government’s favor.
United States v. King, 73 F.3d 1564, 1568 (11th Cir. 1996).
2
An entrapment defense requires proof that: (1) the government induced the
defendant to commit the crime and (2) the defendant was not predisposed to
commit the crime before the government’s involvement. United States v.
Demarest, 570 F.3d 1232, 1240 (11th Cir.), cert. denied, 130 S.Ct. 1421 (2009).
If the defendant can prove inducement, the burden shifts to the government to
prove beyond a reasonable doubt that the defendant was predisposed to commit
the crime. Id.
Where, as here, the jury rejected an entrapment defense and government
inducement is not at issue, we limit our review to “whether the evidence was
sufficient for a reasonable jury to conclude that the defendant was predisposed to
take part in the illicit transaction.” United States v. Brown, 43 F.3d 618, 622 (11th
Cir. 1995). Regarding predisposition, the Supreme Court has observed that law
enforcement may not “implant in the mind of an innocent person the disposition to
commit the alleged offense and induce its commission in order that they may
prosecute.” Jacobson v. United States, 503 U.S. 540, 553, 112 S.Ct. 1535, 1543
(1992) (quotation and emphasis omitted). The Jacobson Court held, however, that
an entrapment defense will not succeed where the evidence shows that the
government merely provided the defendant with an opportunity to commit a crime.
Id. at 550, 112 S.Ct. at 1541. In such cases, “the entrapment defense is of little use
3
because the ready commission of the crime amply demonstrates the defendant’s
predisposition.” Id.
Predisposition is a fact-intensive inquiry, to which several “guiding
principles” apply. Those principles to be considered are: (1) a predisposition
finding is supported by the defendant’s post-arrest statements and evidence that
the defendant failed to take advantage of opportunities to back out of a
transaction; (2) evidence of prior related offenses is relevant, but not dispositive;
and (3) evidence of pertinent legal activity and non-criminal tendencies will not,
standing alone, support a conviction. Brown, 43 F.3d at 624. Additionally, the
jury’s credibility determination is a “pivotal factor.” Id. As such, a reasonable jury
could believe that a defendant’s statements suggesting prior involvement in drug
dealing actually referred to real events, as opposed to “puffery.” Id. at 626.
The government introduced evidence, primarily through the CI, that
Cummings had a preexisting knowledge of drug trafficking, that he carried
firearms without any encouragement, and that he persisted with the cocaine deal
despite a government-presented opportunity to back away from it. Viewing the
evidence with all inferences in the government’s favor, Cummings’s own
undisputed statements signaled his involvement with drug dealing prior to the
investigation. He told the CI that he only “fuck[ed] with . . . coke” and “moved a
4
couple of keys here and there.” See Brown, 43 F.3d at 626. He compared prices
between Florida and the Northeast, and inquired about the availability of local
testers. He discussed the quality of his cocaine, remarking that it could be cut
three times. Despite Cummings’s assertion to the jury that he was simply
“pretending,” and, even when corroborated with Gray’s testimony that he was a
“big talker,” the jury was entitled to construe his statements to the CI as truthful
indications that Cummings engaged in past drug trafficking and was
knowledgeable about the trade.
Moreover, even without those statements, Cummings behaved in a way that
signaled his predisposition. Rather than report the CI to police or otherwise avoid
a drug deal, Cummings met with the CI, searched him for a wire, asked him if he
was a police officer, and showed him a gun. See King, 73 F.3d at 1568.
Convinced of the CI's trustworthiness, Cummings then provided him with a
sample of cocaine in preparation for a larger, future deal involving kilogram
quantities. He ultimately delivered nearly a kilogram of cocaine, later admitting to
investing $20,000 of his own money in the deal, setting a resale price of $38,000,
and wanting to complete the deal. Such actions supported an inference that
Cummings was willing and ready to participate in a cocaine deal—and to bring a
gun to the deal—at the first opportunity, irrespective of the government's
5
participation. Cummings has failed to establish that the CI’s testimony was
incredible as a matter of law. Moreover, the jury was entitled to consider
Cummings’s testimony on his own behalf as substantive evidence of his
predisposition. Accordingly, we conclude that the evidence at trial was sufficient
to prove Cummings’s predisposition to commit both offenses beyond a reasonable
doubt, notwithstanding his defense of entrapment.
II.
Cummings next argues that a number of evidentiary and procedural defects
at trial amounted to cumulative error. Cummings identifies errors at three stages
of his trial. First, he asserts that the district court made erroneous rulings during
the presentation of evidence by: (i) permitting the government to elicit hearsay
testimony from a law enforcement agent, (ii) permitting the government to ask the
agent inflammatory questions about the CI’s conduct, (iii) permitting a prejudicial
line of cross-examination regarding Cummings’s military service, and
(iv) precluding him from cross-examining witnesses about material matters.
Second, he asserts that the government improperly vouched for witnesses during
its opening statement and closing argument. Last, Cummings asserts that the
district court inadequately answered a question posed by the jury during
deliberations.
6
We review de novo the cumulative impact of multiple, allegedly improper
trial court rulings. United States v. Hoffman-Vaile, 568 F.3d 1335, 1340 (11th Cir.
2009). Under the cumulative error doctrine, even if individual judicial errors or
prosecutorial misconduct would not suffice to warrant reversal, their effect may be
evaluated cumulatively to determine if they denied the defendant a fair trial.
United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009), cert. denied, 130
S.Ct. 413 (2010). “In addressing a claim of cumulative error, we must examine the
trial as a whole to determine whether the appellant was afforded a fundamentally
fair trial.” Id. (quotation omitted). If there is but a single error, there cannot be any
cumulative error. United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).
With respect to Cummings’s alleged evidentiary errors, the Federal Rules of
Evidence generally prohibit admission of hearsay, but if hearsay evidence may be
potentially offered for both its truth and for other purposes, the district court may
instruct the jury that it must not consider the evidence for its truth. See Fed.R.Evid.
105, 802. A jury is presumed to follow a court’s instructions. United States v. De
La Cruz Suarez, 601 F.3d 1202, 1218 (11th Cir.), cert. denied, 130 S.Ct. 3532
(2010). Thus, “[w]hen a district court issues a curative instruction, we will reverse
only if the evidence is so highly prejudicial as to be incurable by the trial court’s
7
admonition.” United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998)
(quotation omitted).
An exception to the general hearsay rules exists for a “statement of the
declarant’s then existing state of mind, emotion, sensation, or physical condition.”
Fed.R.Evid. 803(3). This exception, however, only pertains to the state of mind of
the declarant, not the listener. De La Cruz Suarez, 601 F.3d at 1216. It does not
apply to the declarant’s after-the-fact statements made about his past state of mind.
Id. It similarly does not apply to the “declarant’s statements as to why he held the
particular state of mind.” United States v. Duran, 596 F.3d 1283, 1297 (11th Cir.),
cert. denied, 131 S.Ct. 210 (2010).
“A district court has wide discretion to control the cross-examination of
witnesses.” United States v. Guzman, 167 F.3d 1350, 1352 (11th Cir. 1999).
Cross-examination is limited by the relevance of the material. United States v.
Maxwell, 579 F.3d 1282, 1296 (11th Cir. 2009).
Generally, inflammatory testimony is prohibited and may be grounds for
reversal if considered unduly prejudicial. United States v. Baker, 432 F.3d 1189,
1230-31 (11th Cir. 2005) (holding that the admission of “highly inflammatory”
evidence of the defendant’s participation in a double murder cast doubt enough to
warrant reversal on the defendant’s firearms convictions). But where a defendant
8
raises an entrapment defense, he places his character at issue, and, as such, cannot
complain when the government introduces character-related rebuttal evidence.
Duran, 596 F.3d at 1298-99; Fed.R.Evid. 404(a)(1).
Improper vouching, a form of prosecutorial misconduct, occurs when the
prosecutor, while arguing, either: (1) places the prestige of the government behind
the witness by making explicit personal assurances of the witness’s credibility; or
(2) implicitly vouches by implying that the witness’s credibility is supported by
evidence outside the record. De La Cruz Suarez, 601 F.3d at 1218. Improper
vouching does not exist where a prosecutor “simply [makes] explicit an inference
that the jury could have drawn from the evidence.” United States v. Epps, 613 F.3d
1093, 1101 (11th Cir. 2010) (quotation omitted), cert. denied 131 S. Ct. 1526
(2011). Even where vouching occurs, it only warrants reversal if it prejudicially
affects the substantial rights of the defendant. Cargill v. Turpin, 120 F.3d 1366,
1379 (11th Cir. 1997) (recognizing that the defense’s response argument at closing
can ameliorate the improper prosecutorial comments).
Finally, with respect to Cummings’s assertion that the district court’s
answer to the jury’s question was improper, trial courts have “some obligation” to
make reasonable efforts to answer jury questions. United States v. Rodriguez, 765
F.2d 1546, 1553 (11th Cir. 1985). As such, “[w]hen a jury makes explicit its
9
difficulties a trial judge should clear them away with concrete accuracy.” Id.
(quotation omitted). Nevertheless, we have held that no error occurred when the
district court, through no fault of its own, failed to answer the jury’s question prior
to the verdict. Id. at 1554.
Cummings has failed to establish multiple errors in his trial proceedings. To
the extent the district court allowed the government to ask an agent questions
about the CI’s out-of-court statements and conduct, it gave specific limiting
instructions, admonishing the jury not to consider the declarant’s statement for the
truth of the matter. Moreover, Cummings largely fails to identify specific
instances of inadmissible hearsay, relying instead on an alleged cumulative effect.
To the extent specific instances are identified, any error is clearly harmless. And
Cummings wholly fails to demonstrate any cumulative harmful effect. Because
the government’s cross-examination regarding Cummings’s military service was
proper rebuttal to the inferences of good character he attempted to create on direct
examination, and Cummings’s own cross-examination of other witnesses
implicated irrelevant issues, the district court rulings regarding the questioning of
witnesses were within its discretion. Insofar as Cummings identified an error in
the government’s reference to law enforcement’s “experience” during its closing
argument, this error caused him no undue prejudice. Finally, Cummings fails to
10
support his proposition that the district court’s response to the jury’s questions was
inadequate. Error in this case, if any, was harmless in any event. Accordingly, we
hold that he received a fair trial.
Upon review of the record, and consideration of the parties’ briefs, we
affirm.
AFFIRMED. 1
1
Cummings’s request for oral argument is denied.
11