United States Court of Appeals
For the Eighth Circuit
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No. 16-3547
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Juan Francisco Herrera-Rodriguez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Sioux Falls
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Submitted: October 16, 2017
Filed: November 28, 2017
[Unpublished]
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Before WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Juan Francisco Herrera-Rodriguez appeals his conviction by a jury for one
count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and 846. Herrera-Rodriguez contends that a mistrial should have been
granted because the prosecution's law enforcement witness testified about his belief
that Herrera-Rodriguez had been untruthful during his post-arrest interview. Trial
counsel objected and moved for a mistrial after the comment. The district court1
sustained the objection, reserved ruling on the motion for mistrial, and after
consulting with the attorneys about the particular wording, instructed the jury to
disregard the witness's testimony regarding whether a defendant or other witness was
truthful or untruthful, reminding it that a veracity determination was in the exclusive
province of the jury. At the close of the evidence, Herrera-Rodriguez renewed his
motion for mistrial. The district court denied the renewed motion, finding that the
comment happened once, and "any error was cured by the curative instruction."
We review the district court's decision on whether to grant a mistrial for an
abuse of discretion. United States v. Coleman, 349 F.3d 1077, 1087 (8th Cir. 2003).
Admission of a prejudicial statement is "ordinarily cured by striking the testimony
and instructing the jury to disregard the remark." Id. (quotation omitted). We
presume a jury will follow such an instruction unless there is an "overwhelming
probability" that it would be unable to do so. United States v. Uphoff, 232 F.3d 624,
626 (8th Cir. 2000) (quoting Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)).
Having reviewed the record, we find that the district court did not abuse its
discretion in refusing to grant the mistrial. The district court immediately conducted
a sidebar with counsel, struck the offending statement, instructed the jury to disregard
it, and reminded the jury of its job to decide whether a defendant or witness was
truthful or untruthful. Nothing in the record suggests there was an overwhelming
probability that the jury was unable to follow this instruction. Additionally, the
evidence of Herrera-Rodriguez's guilt was substantial. In addition to the officer's
testimony, the jury heard evidence in the form of confidential informant testimony
and audio recordings about a number of controlled buys involving Herrera-
Rodriguez. Accordingly, any possible prejudice from the jury hearing the improper
1
The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
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comment was minimal and therefore harmless. United States v. Encee, 256 F.3d 852,
854 (8th Cir. 2001) ("Whether a curative instruction is sufficient must be evaluated
in the context of the entire trial, including the strength of the government's
evidence."). We affirm.
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