[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-11196 ELEVENTH CIRCUIT
MARCH 23, 2007
________________________
THOMAS K. KAHN
CLERK
D.C. Docket No. 02-00586-CR-4-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ADAN GIL MIRANDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 23, 2007)
Before DUBINA and WILSON, Circuit Judges, and HODGES,* District Judge.
HODGES, District Judge:
*Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
Adan Gil Miranda was convicted by a jury of conspiracy to distribute
methamphetamine and cocaine (21 U.S.C. § 846); possession with intent to distribute
both drugs (21 U.S.C. § 841); and possession of two firearms in relation to a drug
trafficking crime (18 U.S.C. § 924(c)). The district court, post verdict, granted
Miranda’s motion for a judgment of acquittal and treated his alternative motion for
a new trial as moot.1
On a prior appeal, another panel of this Court disagreed with the district court’s
evaluation of the evidence, found it to be sufficient to sustain the jury’s verdict, and
reversed the entry of judgment of acquittal United States v. Miranda, 425 F.3d 953
(11th Cir. 2005) (“Miranda I”).2 The case was then remanded to the district court for
a decision on the motion for a new trial predicated on alleged prosecutorial
misconduct. In ordering a remand, this Court expressly disclaimed any opinion on
the merits of that motion. Id. at 963.
After the remand the district court entered an order granting Miranda’s motion
for a new trial, and the United States has appealed that order. Two questions are
1
The district court overlooked Federal Rule of Criminal Procedure 29(d) requiring a
conditional ruling on a motion for a new trial when a post trial motion for judgment of acquittal is
granted. This mistake was not brought to the district court’s attention by counsel for either side.
2
The facts are recited in detail in Miranda I and need not be repeated here except as necessary
to a decision of the specific issues on this appeal.
2
presented: (1) Was the motion timely? (2) Was the prosecutor guilty of prejudicial
misconduct?
Standard of Review
We review a district court’s grant of a motion for new trial for abuse of
discretion. Butcher v. United States, 368 F.3d 1290, 1297 (11th Cir. 2004); United
States v. Pedrick, 181 F.3d 1264, 1266 (11th Cir. 1999); and when attorney
misbehavior is involved, “[t]his [C]ourt gives considerable weight to the district
court’s assessment of the prejudicial effect of the prosecutor’s remarks and conduct.”
United States v. Cordoba-Mosquera, 212 F.3d 1194, 1198 (11th Cir. 2000) ( internal
quotation marks and citation omitted).
A.The Timeliness of Miranda’s Motion for New Trial
After the verdict had been received at the conclusion of the trial, Miranda
orally moved for a judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29 and requested an extension of time to file a brief in support of his
motion. The district court granted the requested extension. Miranda did not move
at that time for a new trial pursuant to Federal Rule of Criminal Procedure 33, nor did
he request an extension of time within which to make a Rule 33 motion.
Two months after the jury’s verdict, Miranda filed a written “Motion for
Judgment of Acquittal and Brief in Support” in which he moved “pursuant to Federal
3
Rule of Criminal Procedure 29, to acquit him of his convictions by a jury . . . .”The
bulk of the motion and brief focused on his request for judgment of acquittal;
however, Miranda also stated that “in the alternative, [he] should be granted a new
trial.” His prayer for relief exhorted: “WHEREFORE, for all of the reasons stated
above Defendant Miranda prays that this Motion be granted and that he be acquitted
on Counts One, Six, Seven and Eight, or, in the alternative, that he be granted a new
trial.”
The Government responded to Miranda’s August 4, 2002 motion, focusing in
large part on his arguments concerning the sufficiency of the evidence. The
Government’s response acknowledged that Miranda’s August 4, 2002 motion
requested a new trial on the grounds of prosecutorial misconduct, but simply noted
that “the defendant’s motion for new trial should be denied” because his contentions
“are without merit.” The Government also incorporated by reference a prior motion
it had made seeking to “correct the record” concerning the merits of Miranda’s
prosecutorial misconduct claim. The Government did not raise any other defenses to,
or otherwise address, the motion for a new trial.
Rule 33 of the Federal Rules of Criminal Procedure provides that “[a]ny
motion for a new trial grounded on any reason other than newly discovered evidence
must be filed within 7 days after the verdict or finding of guilty.” Fed. R. Civ. P.
4
33(b)(2).3 Until late 2005, it was the law of this Circuit that the seven-day time limit
of Rule 33 was jurisdictional. United States v. Renick, 273 F.3d 1009, 1019 (11th
Cir. 2001) (per curiam). On October 31, 2005, however, the Supreme Court issued
its decision in Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 163 L. Ed. 2d
14 (2005) (per curiam), which clarified the prior confusion concerning the meaning
of Rule 33 that “was generated by the ‘less than meticulous’ uses of the term
‘jurisdictional’ in our earlier cases.” 126 S.Ct. at 405 (quoting Kontrick v. Ryan, 540
U.S. 443, 454, 124 S. Ct. 906, 157 L. Ed. 2d 867 (2004)). According to Eberhart, the
time-limit of Rule 33 has always been “an inflexible claim-processing rule,” rather
than a rule “governing subject-matter jurisdiction.” 126 S. Ct. at 403. The timeliness
requirement of Rule 33 is therefore a defense to be raised by the party opposing the
motion for new trial, and it is a defense that can be waived. 126 S. Ct. at 407. In
particular, “where the Government failed to raise a defense of untimeliness until after
the District Court had reached the merits, it forfeited that defense.” Id.
Miranda concedes that he did not file his motion for a new trial within Rule
33's seven-day time period, or request an extension, but waited more than two months
after the conclusion of his trial and included it with his motion for judgment of
3
Rule 33(b)(2) was amended effective December 1, 2005 to remove a court’s authority to
extend the time for filing a motion for new trial. This deleted provision is not relevant in this case
because Miranda never requested an extension of time to file a motion for a new trial.
5
acquittal. Yet the Government never challenged in the district court the timeliness
of Miranda’s original motion. Instead, the Government focused on the substance of
the motion, stating that Miranda’s “contentions are without merit,” and incorporating
by reference its previously filed motion to correct the record concerning the
allegations of prosecutorial misconduct.
Under these circumstances, it would appear that the Government might have
waived its right to challenge Miranda’s motion as untimely. Unfortunately, the
answer is not that simple because the district court did not comply with the mandates
of Rule 29(d) to conditionally decide Miranda’s motion for a new trial at the same
time it granted the motion for judgment of acquittal. Instead, the district court did
not address the merits of the new trial motion until after remand, and after the
Government had been afforded an opportunity to file a response which included a
defense based on Rule 33.
There can be no doubt that had the district court ruled on Miranda’s original
motion for a new trial at the same time it ruled on the motion for judgment of
acquittal, the motion for a new trial would have been conditionally granted, and the
Government would have forfeited its defense under Rule 33 for failure to assert it.
The district court placed controlling weight on that circumstance, and upon its own
6
noncompliance with Rule 29(d), in deciding that Miranda should have this motion
heard.
We sympathize with the district court’s distress concerning the manner in
which these unfortunate events unfolded, but we nonetheless conclude that the
motion for a new trial was untimely and that granting it was an abuse of discretion.
It was, after all, Miranda’s tardiness in making the motion - not that of the
Government - that produces the result we reach. Indeed, prior to Eberhart, the
untimeliness of Miranda’s motion would have been jurisdictional under the law of
this Circuit, and nothing that the district court or the Government might have done,
or failed to do, could have altered that conclusion of the matter. Eberhart, to be sure,
removed the jurisdictional bar of a late filed motion under Rule 33, but the time
period allowed is still “an inflexible claim processing rule,” and the time bar is
available - under the holding of Eberhart - until the district court has reached the
merits of the motion. To hold otherwise, as the district court did here, is contrary to
Eberhart and an abuse of discretion. We repeat, for emphasis, that it was Miranda’s
initial failure to comply with the rule that precludes consideration of his motion.
B. Prosecutorial Misconduct
Even if we determined that the motion for a new trial was timely and not time
barred, we would still find it necessary to reverse the district court’s decision on the
7
merits of the motion. We will therefore address the merits as an alternative basis for
our ultimate holding.
There were several events during trial that factored into the district court’s
ultimate finding of prosecutorial misconduct.
1. Agent Cromer’s Trial Testimony
Prior to trial, Miranda and his co-defendants filed a motion in limine to
exclude the anticipated expert opinions of DEA Agent Cromer concerning, inter alia,
the structure and organization of Mexican drug trafficking conspiracies and, in
particular, that Mexican drug trafficking organizations generally do not allow persons
to be present during drug transactions, including at stash houses,4 unless those
persons are part of the organization. During the briefing process, counsel for Miranda
and counsel for co-defendant Hector Ubaldo Jacubo made clear their intention to rely
on a “mere presence” defense - that they were simply in the subject apartment at the
wrong time and were not aware of and did not participate in the drug trafficking
organization.
The district court conducted a hearing on the motion and found that Agent
Cromer was qualified to render an expert opinion on the organization, structure, and
4
Miranda was arrested in an apartment which served as a drug stash house. See Miranda I,
supra.
8
practices of Mexican drug trafficking organizations, but refused to allow the Agent
to testify “that they won’t let people be present if they are not part of the [Mexican
drug trafficking] organization.” The district court said:
Things may change at trial, but as a part of the Government’s case in
chief I’m going to rule his testimony out. . . . Agent Cromer’s testimony
. . . that they won’t let people be present if they are not part of the
organization, would tend to permit the jury to leap over what I
understand to be the law in this Circuit, and that is that mere presence
is not sufficient for a conviction, and that’s my ruling. . . . [A]s part of
the case in chief, I find that his testimony would not be of assistance to
the finder of fact. So the motions to exclude the expert testimony . . . are
hereby granted.
At trial, the Government did not elicit testimony during its direct examination
of Agent Cromer that violated the pretrial ruling in any way. At the conclusion of the
direct examination, the prosecutor repeated his request to the district court to present
the disputed expert testimony, primarily to counter statements Miranda’s counsel
made during his opening statement that Miranda “happened to be in the wrong place
at the wrong time.” The district court denied the Government’s request.
During Agent Cromer’s cross-examination, however, the following exchange
took place between counsel for co-defendant Jacubo and Agent Cromer:
Q: Now Agent Cromer, prior to the moment that you approached the
closet where Jacubo was - -
A: Yes, sir.
9
Q: - - you had no idea that Mr. Jacubo even existed, did you?
A: No, sir.
Q: And you had no way of knowing how long he had been in the apartment;
true?
A: That’s correct.
Q: You have no way of knowing whether he had any involvement in
the drug conspiracy you were trying to investigate?
A: I didn’t know who Mr. Jacubo was.
Q: Right. So your view of him as a guilty person was premised
entirely on the fact that you saw him in that closet when you were
in that drug processing center? (Emphasis supplied).
A: Just clearly because he was in the closet, no, sir. The person in
the closet is irrelevant. But you look at the totality of everything
that was going on, we knew the drugs came out of that apartment,
and knowing from my experience that stash houses people only
– only people closely associated with stash houses are going to be
allowed to be in there, especially a processing center with a large
quantity of drugs. We didn’t know at the time, but we believed
drugs were in there. And so Mr. Jacubo, he’s in the apartment,
he’s in the apartment where there’s clearly – the only furniture in
the apartment is the couch and the T.V. and the chair in the front
room. There’s no – there’s no furniture or anything in there.
He’s back where all the drugs, the drugs cooking out in the
microwave that’s in the back bedroom and not in the kitchen –
Counsel for Jacubo then objected, stating that: “Your honor, I have to object.
He’s giving a closing argument now. I have asked him a question and this isn’t the
answer to any questions that I asked.” Significantly, neither Miranda or any other
10
defendant objected on the basis that the question and answer contravened the district
court’s pre-trial ruling in limine.
Following some discussion about the exact phrasing of counsel’s question, the
district court stated: “The question was, your suspicion of him being guilty was
based on the fact that you saw him in the closet when you were in the drug processing
center.” Government counsel then noted that Agent Cromer’s answer was responsive
to that question, and asked that Agent Cromer be allowed to finish his answer. The
district court agreed, but the topic was abandoned after Agent Cromer offered no
elaboration.
2. The Testimony of Co-Defendant Cuevas
Co-defendant Cuevas, the alleged ringleader of the drug trafficking conspiracy,
previously pled guilty but refused to cooperate with the Government. He was then
granted use immunity and compelled to testify at trial pursuant to 18 U.S.C. § 6003.
During his direct examination, Cuevas testified, without objection, as follows:
Q: Mr. Cuevas, did you ever discuss your drug business in front of
people you did not trust?
A: Not as far as I can remember and being sane.
Q: Did you ever discuss your drug business in front of people who
weren’t involved in your drug business?
A: Supposedly I wasn’t very careful.
11
Q: I guess you’re here. That’s true. (Emphasis supplied).
Cuevas also testified that he did not store drugs in large amounts, and that “if
I had money or something, I tried to put it away so no one would see it.” No one
objected to this testimony.
3. Closing Arguments
In his closing argument, Government counsel referred to both the testimony of
Agent Cromer and Cuevas:
Now, the question, I think, was raised in opening, you know, Mr.
Miranda just happened to be there, he was just watching t.v., and clearly
that implication was raised in cross-examination. There’s a couple of
other things. He was there for the two other deals when Mojica Ramon,
the taxi driver, delivered and picked up the cocaine. And as Sebastian
Cuevas told you, he does not allow people to be around unless he trusts
them and they’re involved. And as Mr. Norton, [counsel for Jacubo]
asked – or brought out from Special Agent Cromer, in Special Agent
Cromer’s experience as a DEA Agent they don’t allow people in a stash
house unless they are involved, particularly in this situation. They’ve
already been ripped off once and they don’t know who did it, and, as
[defense counsel] Ms. Kelly touched on, this was the largest stash house
in the organization. Over 15 kilograms. . . .
At this point, counsel for co-defendant Jesus Alvear Uribe objected to the
characterization of the apartment as the largest stash house in the organization. The
district court overruled the objection, stating: “The jury heard it. I’m going to let
them sort it out. This is argument.” None of the defendants objected to this portion
12
of the closing argument on the grounds that it either improperly summarized Agent
Cromer’s testimony or violated the district court’s pre-trial ruling.
Later in summation, the Government again referred to the testimony of both
Agent Cromer and Cuevas:
He’s [Jacubo] back there with the drugs. Think back to what Sebastian
Cuevas told you. They don’t allow people in the stash house unless
they’re involved. And what that part of the house looked like, the stuff
wasn’t hidden. It was out in the middle of the room, the microwaves,
the blenders, the kilo presses, there were drugs on the floor, the scales
were there, the guns were there. If you’re conducting some kind of
illegal activity and there are innocent bystanders around, just send them
all the way to the back bathroom where the drugs are? Do you tell them
to go past one toilet to get to the back toilet so they’re as close as
possible to the guns, the drugs? You don’t know who stole your last
batch of drugs. You don’t know whether or not that person is going to
tell the police. You just don’t do that. Sebastian Cuevas told you and
Keith Cromer told you in his experience they don’t allow people into
that stash house.
Again, none of the defendants objected to this summation, the district court did
not sua sponte question the argument, and no defendant addressed it on rebuttal.
Instead, counsel for Jacubo and counsel for Miranda each relied on their defense that
their respective clients were “merely present” at the apartment and had nothing to do
with the drug trafficking organization.
4. Discussion
13
“In reviewing a claim of prosecutorial misconduct, we must assess (1) whether
the challenged comments were improper,5 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); see also United States v. Gonzalez, 122 F.3d
1383, 1389 (11th Cir.1997); United States v. Thomas, 62 F.3d 1332, 1343 (11th
Cir.1995). “A defendant's substantial rights are prejudicially affected when a
reasonable probability arises that, but for the remarks, the outcome of the trial would
be different.” United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006), petition
for cert. filed, (U.S. Dec. 19, 2006) (internal quotations and citations omitted). In
other words, the misconduct must be “so pronounced and persistent as to ‘permeate
the entire atmosphere of the trial.’” United States v. Elkins, 885 F.2d 775, 787 (11th
Cir. 1989).
5
It is important to note that we, like the district court, must determine the issue of prosecutorial
misconduct in the light of the district court’s ruling in limine, as the law of the case. Whether the
court was right or wrong it its evidentiary ruling in limine is not before us and is not decided. After
the ruling was made it was binding on the prosecutor during the ensuing trial. We do note for future
guidance, however, that the proffered opinion of Agent Cromer and the testimony of Cuevas may well
have been relevant, in conjunction with all of the other evidence, for the jury’s evaluation of whether
Miranda was “merely” present (as he claimed) or “willfully” present (as he was charged). See
Miranda I, 425 F.3d at 959 (“where large quantities of drugs are present a prudent smuggler is not
likely to suffer the presence of unaffiliated bystanders.”); United States v. Lynch, 934 F.2d 1226, 1231
(11th Cir. 1991) (“We think that a jury may conclude that it would be unreasonable for conspirators
openly to conduct a drug deal in the home of a someone not part of their conspiracy.”). See also
United States v. Alvarez, 837 F.2d 1024 (11th Cir. 1988) (admission of expert testimony of drug
enforcement administration agent in response to hypothetical question that it would be more risky to
drug-smuggling operation to use crew members who did not have knowledge of vessel’s drug cargo
than to use members with knowledge).
14
The district court found that the prosecutor’s reference during closing argument
to Agent Cromer’s response on cross-examination that Mexican drug traffickers
“don’t allow people in a stash house unless they are involved, particularly in this
situation,” was improper because it violated the district court’s pre-trial ruling
prohibiting the Government from introducing such testimony. The district court also
found that the prosecutor misstated the substance of Cuevas’ testimony concerning
the same subject, and that such misstatement was material and improper. The district
court then concluded that these improper statements had a reasonable probability of
changing the outcome of Miranda’s trial.
After careful review, we have an abiding conviction that the prosecutor’s
comments were not improper. The district court’s pre-trial ruling excluding Agent
Cromer’s expert testimony was clear: the Government could not introduce the
evidence. The district court’s ruling also made clear that if circumstances changed
during the trial, she would reconsider her ruling and perhaps allow the testimony. At
trial, the disputed testimony was not introduced by the Government; rather, co-
defendant Jacubo’s counsel asked the key question on cross-examination and opened
the door through which Cromer passed, without objection by Miranda, and gave an
entirely responsive answer which remained on the record and was available to all
15
counsel during closing arguments. The district court gave no indication that
Cromer’s testimony was either non-responsive or inappropriate, and did not raise the
issue of the pre-trial ruling at any time prior to or during closing arguments. Nor did
counsel for any defendant, including Miranda. Thus it is entirely reasonable for the
prosecutor to have believed not only that he did not violate the district court’s pre-
trial ruling, but that the evidence had at last been admitted and was fair game - i.e.
circumstances had changed. Moreover, no one, including the district court, raised any
concerns when the prosecutor summarized this admitted evidence during closing.
And, as the district court recognized, there is no evidence to suggest that Agent
Cromer was coached, or that the prosecutor failed to inform him of the district court’s
pre-trial ruling. Moreover, we cannot find anything in the record to support the
district court’s finding that the prosecutor’s comments misled the jury. Rather, the
prosecutor was simply summarizing Agent Cromer’s unchallenged and admitted
testimonial evidence that the jury had already heard without objection.
Also, the verdicts in this case make clear that the jury did follow the district
court’s instructions, applied the correct standard for the “mere presence” defense and,
16
in fact, found co-defendant Jacubo not guilty on all charges based on the same “mere
presence” defense as that asserted by Miranda.6
It is also noteworthy that the prosecutor’s comments concerning Agent Cromer
and Cuevas were limited to three isolated statements during a lengthy trial and
closing argument. They were not extensive discussions repeated throughout the trial
and closing, and two of the remarks were directed specifically at co-defendant
Jacubo, not Miranda. We also find that there is no indication in the record that the
prosecutor committed an intentional violation of the district court’s pre-trial ruling
or an intentional misrepresentation of Cuevas’ testimony.7
Finally, as we discussed at length in Miranda I, there was ample admissible
evidence to support Miranda’s conspiracy convictions. Miranda knew several of his
6
See, e.g., United States v. Gonazalez, 122 F.3d 1383 (11th Cir. 1997) (any error based on the
prosecutor’s misstatements during closing was cured by the district court which, as in this case,
instructed the jury that the prosecutor’s arguments were not evidence and the jury was to decide guilt
based solely on the evidence.); United States v. Wilson, 149 F.3d 1298 (11th Cir. 1998) (finding no
substantial prejudice based on prosecutor’s closing argument in part because district court informed
jury multiple times that lawyer argument is not evidence).
7
With respect to Cuevas’ testimony, the admitted misstatements by the prosecutor were both
minor and unremarkable. Cuevas testified that “Not as far as I can remember and being sane,” he did
not discuss his drug business in front of people he did not trust. He also implicitly acknowledged that
he did not discuss his drug business in front of people who were not involved in the business. During
closing, the prosecutor described Cuevas’ testimony by stating: (1) “Mr. Cuevas does not allow
people to be around unless he trusts them and they’re involved,” and (2) “they [the conspirators] don’t
allow people in the stash house unless they’re involved.” The first statement is a fairly accurate
recitation of Cuevas’ testimony and cannot be held to be an intentional misrepresentation. The second
statement reaches a bit further, but is also an appropriate inference to be drawn from Cuevas’
testimony with respect to his own cautious habits.
17
co-conspirators and had a pre-existing relationship with co-defendant Cambras; he
had been present in the apartment stash house and was believed to have lived there;
on at least two prior occasions Miranda was in the apartment when drug transactions
were discussed in front of him; a large quantity of methamphetamine and cocaine was
found in the apartment, as well as equipment used to make, package, and disguise the
narcotics; the one room Miranda ran into was the room which contained all of the
narcotics, equipment, and firearms; and there was a pervasive smell of acetone in the
apartment.8 See Miranda I, 425 F.3d at 961 (“In combination with the evidence of
8
The district court discounted the pervasive smell of acetone. According to the district court,
acetone is commonly used as nail polish remover and therefore is not persuasive evidence that
Miranda was aware of drug activities in the apartment. This could possibly be true if there had been
any evidence, or even a suggestion, that any sort of nail polishing activities took place at the
apartment, or if any bottl
es of nail polish remover (full or empty), had been recovered from the apartment. Instead, the only
evidence submitted at trial was that the cans of acetone were used for drug trafficking activities.
The district court was also influenced by the fact that the evidence supporting Miranda’s
conviction was circumstantial, but, of course, it is the law of this Circuit that circumstantial evidence
may have the same weight as direct evidence and is sufficient to prove a conspiracy offense. “To
prove participation in a conspiracy, the government must have proven beyond a reasonable doubt,
even if only by circumstantial evidence, that a conspiracy existed and that the defendant knowingly
and voluntarily joined the conspiracy.” Miranda I,, 425 F.3d at 959 (quoting United States v. Garcia,
405 F.3d 1260, 1269 (11th Cir. 2005)) (emphasis added). “Whether [the defendant] knowingly
volunteered to join the conspiracy may be proven by direct or circumstantial evidence, including
inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.”
Id. Circumstantial evidence is also sufficient to support a conviction for possession of a firearm in
furtherance of a drug trafficking crime. Id. at 962; see also United States v. Timmons, 283 F.3d 1246,
1252 (11th Cir. 2002) (“the nexus between the gun and the drug operation can be established by the
type of the drug activity that is being conducted, accessibility of the firearm, the type of weapon . . .
proximity of the gun to the drugs or drug profits, and the time and circumstances under which the gun
is found.”).
18
Mr. Miranda’s knowledge of the drug dealing at the apartment, his presence during
drug transactions, his relationship with Mr. Cambray [a co-defendant and primary
player in the conspiracy], and his conduct in attempting to prevent the officers from
entering the room where the drugs were processed and stored, a rational jury could
find from this conduct that Mr. Miranda knowingly and voluntarily joined the
Cuevas conspiracy.”). While the standard of review for a judgment of acquittal is
more favorable to the Government than the abuse of discretion standard, see e.g.,
United States v. Hernandez, 433 F.3d 1328, 1335 (11th Cir. 2005), the fact that we
previously found sufficient evidence to support Miranda’s conviction must be given
at least some consideration at this stage, particularly when we reached our decision
without considering or even mentioning Agent Cromer’s or Cuevas’ testimony. For,
“[w]hen the record contains sufficient evidence of guilt, any error is harmless.”
Eckhardt, 466 F.3d at 947. We disagree, therefore, with the district court’s
conclusion that the prosecutor’s closing arguments influenced the outcome of
Miranda’s trial even if such arguments were improper.9
Conclusion
9
Rather than granting a new trial, there are other remedies available to deal with prosecutorial
misconduct that does not affect the outcome of the trial.
19
The order of the district court granting Miranda’s motion for a new trial is
VACATED. The case is REMANDED to the district court for adjudication of guilt
upon the jury’s verdict with imposition of sentence and entry of judgment to follow.
20
United States v. Adan Gil Miranda
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2007-03-23
Citations: 220 F. App'x 965
Copy CitationsCombined Opinion