United States v. Niko Thompson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13653 APRIL 16, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-20264-JLK-3

UNITED STATES OF AMERICA,

lllllllllllllllllllll Plaintiff - Appellee,

versus

NIKO THOMPSON,

llllllllllllllllllll lDefendant - Appellant.

________________________

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

(April 16, 2012)

Before DUBINA, Chief Judge, MARCUS and FAY, Circuit Judges.

PER CURIAM:
 Niko Thompson appeals his convictions for conspiracy to possess with intent

to distribute 500 or more grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B)(ii)(II), 846, and for possession of a firearm and ammunition as a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). Thompson

contests the sufficiency of the evidence on both counts and further argues that three

trial errors merit reversal of the convictions: (1) a DEA agent’s testimony at trial that

Thompson was the “source of supply” for an indicted co-conspirator; (2) testimony

at trial concerning the procedures used by the government to obtain legal

authorization to conduct wiretaps and procure search warrants; and (3) allegedly

improper comments by the prosecution during its closing argument. After thorough

review, we affirm Thompson’s convictions on both counts.

I.

Since Thompson challenges the sufficiency of the evidence against him, we

consider the record in the light most favorable to the verdicts, drawing all reasonable

inferences and resolving all credibility determinations in their favor. See United

States v. White, 663 F.3d 1207, 1213 (11th Cir. 2011).

The essential facts are these. The case against Niko Thompson was the

byproduct of a long-term investigation of the drug-related activities of Emmanuel

Othello and Junior Sylvin by federal and state authorities. During the course of the

2
investigation, the defendant Thompson was released from prison in mid-November

2008, and his mother, Dakota Thompson, activated an iPhone around that time. The

address listed in public records for Dakota Thompson was the same address as the

one on Niko Thompson’s driver’s license.

On November 18, 2008, the DEA began a court-ordered wiretap interception

of Junior Sylvin’s cell phone calls. Law enforcement officials monitored some

10,000 calls on Sylvin’s phone during the course of the wiretap, which lasted less

than two months. Of particular note for our purposes is that approximately 123 of

these calls were linked to the Thompson iPhone. On the first several days of the

wiretap, Sylvin and Othello had at least two conversations in which they referred to

“shit” or “shits” (apparently referencing drugs), including one in which they

mentioned that the “shits” had been opened, that not all of them had been used, and

that two were left. In a later call during the wiretap, Sylvin and Othello compared the

“shit” they had received from both “Coach” and “Cut.” Othello additionally stated

that “Coach” had “just got out” and could not take certain chances.

On November 28, 2008, what appears to have been a drug transaction

involving Sylvin, Othello, and Thompson occurred. Sylvin instructed Othello to buy

“shit” and “keys” from “Coy.” Notably, Sylvin told Othello that the number to call

was the number registered to the Thompson iPhone. Several phone calls between

3
Sylvin and Thompson followed in which the defendant Thompson said that “Monk”

-- a nickname for Othello, according to a DEA agent’s testimony at trial -- had not yet

come to see him. Sylvin eventually said that he would meet Thompson and that he

would get the “shit” in exchange for “bread.” Thompson told Sylvin to meet him

where Sylvin had gone “yesterday,” seemingly referring to a house on N.W. 139th

Street in Miami to which Thompson had given Sylvin directions the day before. The

trial testimony of government agents described the residence on N.W. 139th Street

as a “stash house” in which several documents linked to Gordon Louis, an indicted

co-conspirator, had been found.

On December 5, 2008, another ostensible drug transaction took place. This

time, Sylvin told Othello that what he was “finna get from [Coach] today” was “out

of there” and that he was “gon’ make $1800.” An intercepted phone call shortly

thereafter showed that Sylvin agreed to “see what was up” for Ziv Bythol, an

individual whom Sylvin supplied with drugs. An hour later, Sylvin called the

defendant Thompson and told Thompson that he was outside the N.W. 139th Street

house. A DEA agent observed Sylvin enter the home, remain inside for fifteen

minutes, and then depart for Othello’s home. Sylvin and Othello traveled in separate

vehicles to Bythol’s home, where they stopped for approximately ten minutes. Upon

arriving back at Othello’s residence, Sylvin told Bythol on the phone that he didn’t

4
“know about the 18” but that he would “probably get half of the 18.” Sylvin called

Thompson immediately thereafter and asked, “half of that what I just hauled ass with,

right?” A few minutes later, Thompson told Sylvin that he would “give [Sylvin] what

[Sylvin] left with tomorrow.”

A member of the Miami Police Department’s narcotics squad stopped Sylvin’s

vehicle on December 8, 2008. The officer called a K-9 unit; upon arrival, the dog

alerted vigorously to the vehicle. A search revealed twenty-one individually wrapped

bags of cocaine and a firearm. The officers seized 581 grams of cocaine and the

firearm but did not arrest Sylvin. Sylvin and Thompson had still another conversation

three days later where Sylvin mentioned “the shit [I] just lost.”

On January 10, 2009, law enforcement agents executed a court-ordered search

warrant at Emmanuel Othello’s residence. Othello, along with his brother and

another woman, were present during the search. Inside the main house, the

authorities found $4,000 in cash, a gun holster, a strobe light similar to those used by

unmarked police vehicles, and a digital scale. A separate court-ordered search

warrant of another structure in the back of that property revealed $37,790 in cash

bound with rubber bands, orange baggies, a heat sealer, rubber bands, ammunition,

a kilogram press, a room deodorizer, and a large white bag containing a substance

used to dilute cocaine.

5
 On April 6, 2009, law enforcement officials executed an arrest warrant for the

defendant Thompson and a court-ordered search warrant at the house where he was

staying. At approximately 6:40 A.M., an ATF team forcibly entered the residence

and arrested Thompson in a back bedroom. The search of the house revealed a

Beretta firearm underneath the right side of the mattress and a loaded magazine in the

nightstand in the same bedroom. Next to the nightstand was the iPhone with the

phone number registered to Dakota Thompson. Billing statements from several

companies (FP&L, AT&T, and ADT) were addressed to Niko Thompson at the

address being searched. Several children and April Walker, Thompson’s fiancée,

were also present at the scene.

Thompson was tried individually in May 2010. The only witness called by the

defense was Walker. She said that the gun was underneath her side of the bed and

that she slept closest to the nightstand. She added that “two or three days prior” to

the raid she had found the gun in the glove compartment of a rental car that Gordon

Louis had borrowed from Walker. Walker claimed that she told Louis to retrieve the

firearm and that she then hid it from the children. She offered that Thompson had

been out of town for approximately one week “doing music” in Tampa and did not

know about the firearm because he returned at 3:00 or 4:00 A.M. on the morning of

the raid. Walker also claimed that the authorities at the scene were trying to coerce

6
her to say that the gun belonged to Thompson.

The Government sought to rebut Walker’s testimony by calling ATF Agent

Stefani Stankiewicz. According to Stankiewicz, Walker said on the the morning of

Thompson’s arrest that she had found the gun in one of Thompson’s rental vehicles

approximately three weeks before the raid, called Thompson to find out what to do

with it, and then placed the firearm inside the house pursuant to Thompson’s

instructions. Walker observed on the morning the search warrant was executed that

the firearm could have belonged to “G,” a nickname for Gordon Louis, since Louis

and Thompson would go shooting at a gun range together.

The defendant was convicted on the felon in possession charge and the

conspiracy to possess with the intent to distribute 500 or more grams of cocaine

involving Sylvin and Othello, but he was acquitted on a separate charge of conspiracy

to possess with intent to distribute 500 or more grams of cocaine involving alleged

co-conspirator Gordon Louis. Thompson was sentenced to a total of twenty years

imprisonment and eight years of supervised release, in addition to being assessed

$200. This timely appeal followed.

II.

A.

Several standards of review govern this appeal. Thompson’s challenges to the

7
sufficiency of the evidence are reviewed de novo. United States v. White, 663 F.3d

1207, 1213 (11th Cir. 2011). In reviewing the sufficiency of the evidence, “we look

at the record in the light most favorable to the verdict and draw all reasonable

inferences and resolve all questions of credibility in its favor.” Id. (internal quotation

marks omitted). A jury’s guilty verdict will not be disturbed unless no reasonable

trier of fact could have found guilt beyond a reasonable doubt. Id. All of the

purported trial errors cited by Thompson are reviewed for plain error because none

of them was accompanied by a contemporaneous objection. See United States v.

Hoffman-Vaile, 568 F.3d 1335, 1340 (11th Cir. 2009) (evidentiary issues); United

States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002) (improper closing

argument); United States v. DeJean, 613 F.2d 1356, 1360 (5th Cir. 1980) (alleged

comment on defendant’s failure to testify).1 “Plain error occurs where (1) there is

an error; (2) that is plain or obvious; (3) affecting the defendant’s substantial rights

in that it was prejudicial and not harmless; and (4) that seriously affects the fairness,

integrity or public reputation of the judicial proceedings.” United States v. Hall, 314

F.3d 565, 566 (11th Cir. 2002). “In most cases, a determination of whether error

affects a substantial right turns upon whether it affected the outcome of the

1
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.

8
proceedings.” Id. (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “It is

the defendant rather than the Government who bears the burden of persuasion with

respect to prejudice.” Olano, 507 U.S. at 734. Although the claimed trial errors are

reviewed for plain error, Thompson’s claim that the cumulative impact of the errors

requires reversal is reviewed de novo. See United States v. Dohan, 508 F.3d 989, 993

(11th Cir. 2007) (per curiam).

B.

Thompson challenges the sufficiency of the evidence as to both the conspiracy

charge and the felon in possession charge. We analyze each charge in turn.

“To support a conspiracy conviction under 21 U.S.C. § 846, the government

must prove that there is an agreement by two or more persons to violate the narcotics

laws,” which requires proving beyond a reasonable doubt the defendant’s

“knowledge, intent, and participation.” United States v. Parrado, 911 F.2d 1567,

1570 (11th Cir. 1990). “Because a conspiracy is generally secretive, a reasonable

factfinder may infer its existence from the surrounding circumstances.” United States

v. High, 117 F.3d 464, 468 (11th Cir. 1997) (per curiam).

We begin with the obvious: the defendant does not contest that co-conspirators

Sylvin and Othello operated a drug business. Morever, it was perfectly reasonable

for the jury to find on this record that the iPhone activated by Thompson’s mother

9
around the time of his release from prison -- and later discovered within Thompson’s

reach when he was arrested -- was, in fact, Thompson’s phone. The fact that the

unique numerical identifier located on the phone’s SIM card matched the phone

records dating from the original purchase further supports this inference. Moreover,

a DEA agent testified at trial that Thompson’s voice, which the agent heard during

Thompson’s arrest, matched the voice he heard repeatedly on the wiretapped

conversations that were linked to the iPhone. There was also ample evidence to

conclude that “Coy” and “Coach” referred to the defendant, since the phone number

linked to the iPhone was given by Sylvin to Othello as “Coy’s” phone number.

Sylvin also told Othello that “Coach” could not take any chances because “he just got

out,” an obvious, if inferential, reference to the fact that Thompson was just released

from prison two to three weeks earlier.

There were also many phone calls involving coded discussions of drugs that

were linked to Thompson’s nicknames -- such as Othello “mak[ing] more bread off

of Coach’s shit,” Sylvin instructing Othello to purchase “shit” from “Coy,” and the

defendant Thompson stating that he would “give [Sylvin] what [Sylvin] left with

tomorrow.” This was more than sufficient to enable the jury to find beyond a

reasonable doubt that Thompson had conspired as charged with Sylvin and Othello

to possess cocaine with the intent to distribute. Finally, we believe that the admission

10
of Thompson’s two prior convictions for possession of cocaine with intent to deliver

also support the finding that the defendant had the requisite intent to commit the

charged drug offense.2 See United States v. Calderon, 127 F.3d 1314, 1332-33 (11th

Cir. 1997).

To support a conviction for a felon in possession charge, the United States had

to prove beyond a reasonable doubt: (1) that Thompson was a convicted felon; (2)

that he knowingly possessed a firearm or ammunition; and (3) that the firearm or

ammunition was in or affected interstate commerce. See United States v. Wright, 392

F.3d 1269, 1273 (11th Cir. 2004). Thompson contests only the second element,

knowing possession. It is by now hornbook law that possession of a firearm may be

“either actual or constructive.” United States v. Sweeting, 933 F.2d 962, 965 (11th

Cir. 1991). “Constructive possession exists when the defendant exercises ownership,

dominion, or control over the item or has the power and intent to exercise dominion

or control.” United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006).

Possession may also be “joint or sole.” United States v. Gunn, 369 F.3d 1229, 1234

(11th Cir. 2004) (per curiam). “The defendant may exercise . . . dominion and control

either directly or through others.” Id. at 1235. Finally, possession may be shown

2
Thompson had twice pled guilty in Florida state court, once in 2004 and again in 2007,
to felony charges of possession of cocaine with intent to deliver.

11
either circumstantially or by direct evidence. United States v. Crawford, 906 F.2d

1531, 1535 (11th Cir. 1990).

On this record, there was ample evidence for a reasonable factfinder to

conclude beyond a reasonable doubt that Thompson knowingly possessed the

weapon. Even if Thompson possessed the gun in conjunction with Walker, he would

still be guilty of joint constructive possession of the weapon. There was a strong

body of evidence linking Thompson to the house and the bedroom where the gun was

found. That the defendant was sleeping on the very bed under which the firearm was

secreted, in addition to having his iPhone confiscated from the nightstand where the

ammunition was found, amply supports the conclusion that he “ha[d] the power and

intent to exercise dominion or control” over the weapon. See Greer, 440 F.3d at

1271. DEA Agent D’Ambrosio also testified that both the gun and the ammunition

were found on the same side of the bed where D’Ambrosio first observed the

defendant five to ten minutes after the search began.

III.

We turn then to three different sets of statements made at trial that the

defendant claims amount to reversible error and to cumulative error. We review them

individually for plain error only because there were no contemporaneous objections

interposed at the trial.

12
 First, Thompson says that a DEA agent’s testimony that Thompson was Junior

Sylvin’s “source of supply” was reversible error. During the direct examination of

the agent by the United States, the prosecutor asked how Thompson became a subject

of the investigation into Sylvin. The agent answered that “we determined that Mr.

Thompson was Junior Sylvin’s source of supply” after surveillance and phone

conversations suggested Thompson’s involvement.

The government suggests that the statement was made simply to provide the

jury with a brief background explaining how it came to focus on the defendant, and

that, at all events, the fact that Thompson was actually Sylvin’s source of supply was

amply established by independent evidence at trial. But even if we were to assume

that this singular comment was error, it was not plain error. The agent’s remark was

an isolated one that was not used by the prosecution in its closing argument or in any

other way, and it arguably did have some explanatory value as to how Thompson

became involved in the investigation. Moreover, the core of the prosecutor’s theory

of the case and the overwhelming amount of independent evidence suggesting that

Thompson was indeed Sylvin’s cocaine supplier vitiates any finding that Thompson’s

substantial rights were affected by the statement, let alone that the fairness or integrity

of the judicial proceedings were seriously affected. See Hall, 314 F.3d at 567.

Thompson also claims that two instances where federal agents testified at trial

13
concerning the procedures involved in obtaining wiretap and search warrant

authorization were plain errors mandating the reversal of his convictions. The first

occurred when the government asked DEA Agent Rainwater on direct examination

about how wiretap authorization works. The agent answered that he typed an

affidavit “reviewed by the U.S. Attorney” and said that a federal judge authorized the

monitoring of Sylvin’s cell phone. The second putative error involved DEA Agent

Rosenfeld, who testified, albeit only on redirect examination, that law enforcement

officers first had to obtain a warrant before conducting house searches, a process that

he described as “writ[ing] an affidavit . . . to prove to a Judge that there is probable

cause.” Notably, Agent Rosenfeld’s testimony regarding the process of obtaining

search warrants and wiretap authorization occurred in response to defense counsel’s

cross-examination questions, which had established that the authorities were unable

to visually confirm who or what they suspected to be inside buildings during the

course of the wiretaps.

It is not altogether clear that the admission of these statements constituted

error, much less plain error. Compare United States v. Hendrix, 509 F.3d 362, 372-73

(7th Cir. 2007) (finding that reference to search warrant authorization was proper in

situation involving “no extensive testimony proffered to explain the procedure of

obtaining a search warrant”), with United States v. Cunningham, 462 F.3d 708, 712-

14
14 (7th Cir. 2006) (concluding that lengthy discussion of procedures used in

obtaining legal authorization for wiretap was irrelevant, unfairly prejudicial, and

constituted impermissible bolstering, requiring reversal of conviction). Although the

existence of legal authority to conduct a search or wiretap is, of course, a legal

determination for the district court to make in the first instance, the fact that there is

legal authorization for a search or wiretap may be germane at trial, particularly where

the defense has attacked, confronted, or cross-examined the agent’s good faith or the

nature and quality of the investigative process itself. After all, a brief reference

noting that a neutral and detached magistrate authorized a search or wiretap

demonstrates that a court had permitted the intrusions at issue, which may be a fact

of considerable relevance to a jury. See Hendrix, 509 F.3d at 372-73; Cunningham,

462 F.3d at 714 (finding admissible a statement by “a government witness, when

telling his story to the jury, to say a search warrant had been obtained, and then the

search was made”).

In this case, the lengthier discussion between the prosecution and Agent

Rosenfeld was clearly in response to defense counsel’s attempt to question the quality

and thoroughness of the investigation conducted by law enforcement officials. But,

even if we were to assume that it was error to admit this testimony, on the facts of this

case it is not clear that the error was plain or obvious, particularly when it came after

15
the defendant’s lengthy cross-examination of the agent. Perhaps more significantly

here, the defendant Thompson cannot show that his substantial rights were affected,

much less that the putative errors “seriously affect[ed] the fairness, integrity or public

reputation of the judicial proceedings.” Hall, 314 F.3d at 566. The prosecution did

not argue to the jury in closing that the legal authorization for the searches and

wiretaps constituted evidence of Thompson’s guilt; only Thompson’s attorney used

this testimony in his closing argument to ask the jurors rhetorically whether law

enforcement lacked probable cause to seek a wiretap of Thompson’s phone.

Moreover, the jury’s acquittal of Thompson on the charge of having conspired with

Gordon Louis is “telling proof” that the jury was not prejudiced by this testimony and

that any claimed “impropriety was isolated and certainly did not permeate the entire

trial.” See United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985).

Finally, Thompson claims that three different statements by the prosecutor in

his closing argument either standing alone or in concert require reversal. The

purported errors include: (1) the prosecution’s comment allegedly regarding

Thompson’s failure to testify; (2) the prosecution’s statement about the credibility of

Walker, the defense’s only witness; and (3) the prosecution’s comment about the

defendant Thompson supposedly telling Walker to lie on the stand on his behalf. All

three closing remarks at issue again are reviewed only for plain error because defense

16
counsel raised no objections to any of them at trial. See United States v. Schmitz, 634

F.3d 1247, 1259 (11th Cir. 2011); United States v. Bailey, 123 F.3d 1381, 1400 (11th

Cir. 1997) (citing Fed. R. Crim. P. 52(b)) (“When a defendant fails to object to the

prosecutor’s closing argument, relief is available to rectify only plain error . . . .”);

United States v. DeJean, 613 F.2d 1356, 1360 (5th Cir. 1980) (reviewing putative

comment on defendant’s failure to testify for plain error in the absence of a

contemporaneous objection).

First, Thompson claims that the prosecution violated the Fifth Amendment by

commenting on his failure to testify. See Griffin v. California, 380 U.S. 609, 613

(1965). The prosecutor said, “[Thompson’s attorney] and Niko Thompson[,] for that

matter, cannot answer . . . what is inside this binder [of phone conversation

transcripts], what the defendant’s own words are.” This statement by the prosecutor

was not error at all. “A prosecutor’s statement violates the defendant’s right to

remain silent if either (1) the statement was manifestly intended to be a comment on

the defendant’s failure to testify; or (2) the statement was of such a character that a

jury would naturally and necessarily take it to be a comment on the failure of the

accused to testify.” United States v. Thompson, 422 F.3d 1285, 1299 (11th Cir.

2005). The “prosecution is entitled to refer to the fact that the defense has failed to

rebut a natural inference that may be drawn from the facts in evidence.” United

17
States v. Griggs, 735 F.2d 1318, 1323 (11th Cir. 1984) (per curiam) (emphasis

added). The prosecutor’s statement clearly fits this use, and thus Thompson cannot

meet the first prong of this test. The “natural inference” drawn from the phone calls

was that they referred to drug trafficking. The prosecutor’s comment went to the

proceeds of the wiretap intercepts, not to the defendant’s failure to testify. Moreover,

our case law also holds that a jury must view the comment “necessarily” as

commenting upon the defendant’s failure to testify; the mere possibility or probability

that the jury could so construe the comment is insufficient. United States v. Knowles,

66 F.3d 1146, 1163 (11th Cir. 1995). The jury could readily have interpreted this

comment as emphasizing that the defense had not countered the clear factual

inference that the phone calls referred to drugs, and thus Thompson cannot meet the

second prong of the test, either. In short, we can discern no error in this statement,

let alone plain error that substantially affected the defendant’s rights, or seriously

affected the fairness or integrity of the proceedings. The focus was on the contents

of the transcripts, and their evidential value was obvious.

Thompson also says that it was error for the prosecutor to say in closing that,

“in my opinion, the biggest lie of all that [April Walker] told” was that Thompson

was out of town the week prior to his arrest, a fact that was contradicted by

surveillance of Thompson in South Florida by law enforcement during the same

18
timeframe. It is well-settled that an attorney “must refrain from interjecting personal

beliefs into the presentation of his case.” United States v. Young, 470 U.S. 1, 8-9

(1985). However, “the prosecutor may suggest what the jury should find from the

evidence before it.” United States v. Bernal-Benitez, 594 F.3d 1303, 1315 (11th Cir.

2010). Whether the prosecutor’s assertion was improper is not clear, since the

comment preceded a detailed factual recitation providing the foundation for the

government’s argument that Walker was lying. See United States v. Schmitz, 634

F.3d 1247, 1270 (11th Cir. 2011). But, even if the prosecutor’s statement were error,

this was not in context plainly so, and it did not affect Thompson’s substantial rights.

Walker’s testimony was weakened significantly by the testimony of Agent

Stankiewicz, who said that Walker had told her that Thompson knew of the gun and

instructed Walker what to do with it. It was wholly unlikely that the prosecutor’s

statement would have affected the jury. Moreover, there was a substantial body of

evidence to convict Thompson on the felon in possession charge (including sleeping

on the very bed under which the gun was found) -- the only count for which Walker’s

testimony was relevant. See United States v. Molina, 443 F.3d 824, 830 (11th Cir.

2006). The prosecutor’s statement was not plainly erroneous.

Finally, Thompson contends that the prosecutor’s statement that Walker

“completely and absolutely perjured herself” and that Thompson induced Walker

19
prior to the trial to “make up a story” on his behalf -- an assertion without any factual

support -- constituted reversible error. The admission of the statement that the

defendant induced witness Walker to lie was an obvious error, which the United

States has conceded. See Oliver v. Wainwright, 795 F.2d 1524, 1532 (11th Cir.

1986) (per curiam) (“While a prosecutor may point out that record evidence suggests

that a witness may have had some reason to testify as the defendant wished, he or she

may not suggest that the defendant has suborned perjury where such a suggestion

finds no support in the record.”). However, Thompson has not made the requisite

showing that his substantial rights were affected, let alone that “the error seriously

affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quoting United States v.

Cotton, 535 U.S. 625, 631 (2002)). As in Oliver, the alternative scenario offered by

Walker “was so weak and full of inconsistencies that the prosecutor’s insinuation

could not have rendered the trial fundamentally unfair.” 795 F.2d at 1532. “Given

the inconsistency and vagueness of the defense, the jury could have disbelieved the

alibi testimony altogether,” and it “had ample reason” to do so in light of Agent

Stankiewicz’s testimony. Id. In short, as for this comment, we cannot find that there

was “a reasonable probability that the error affected the outcome of the trial,” United

States v. Marcus, 130 S. Ct. 2159, 2164 (2010), and thus the defendant’s substantial

20
rights were unaffected. This comment, while improper, did not amount to plain error.

We add that the judge instructed the jury that the lawyers’ comments and arguments

were not evidence in the case.

Thompson also says that the cumulative impact of the alleged errors requires

reversal. We remain unpersuaded. Here the whole is not greater than the sum of its

parts. The defendant either has failed to show error at all, or that any error was plain,

or, finally, that it affected his substantial rights individually or cumulatively. See

United States v. Baker, 432 F.3d 1189, 1223-24 & n.40 (11th Cir. 2005).

AFFIRMED.

21