HULL, Circuit Judge:
Jose Lopez appeals his convictions for (1) conspiring to encourage or induce an alien to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 1), (2) encouraging or inducing 17 aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) (Counts 2-18), and (3) and knowingly aiding or assisting an alien, who was inadmissible under 8 U.S.C. § 1182(a)(2) due to a prior aggravated felony conviction, to enter the United States, in violation of 8 U.S.C. § 1327 (Count 19). After careful review and oral argument, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lopez was indicted with two other codefendants, Jorge Carnet-Castro ("Carnet-Castro") and Carlos Monge ("Monge"), on a 19-count indictment alleging the three defendants conspired to encourage or induce 17 aliens to unlawfully enter the United States. The U.S. Coast Guard ("USCG") intercepted the defendants while they were traveling by a boat, driven by Lopez, from the Bahamas heading westward towards Miami. A search of the vessel revealed 17 aliens in the boat's forward cabin.
Lopez initially pleaded not guilty. Lopez later attempted to change his plea to guilty. During the plea colloquy, Lopez stated to the district court that when he went to the Bahamas by boat with the other two codefendants he was unaware that the purpose of their trip was to smuggle aliens to the United States, but that he became aware during the voyage that the aliens onboard were illegal. Based upon these statements, the district court refused to accept Lopez's guilty plea.
The case proceeded to trial, at which the following evidence was produced.
A. The Government's Evidence
The government presented the testimony of USCG Bosun's Mate First Class Matthew Parker, who captained the USCG vessel that stopped the boat Lopez was driving approximately a mile from Baker's Haulover Inlet, Miami. Officer Parker saw Lopez driving the boat, with approximately 8-10 people on the boat's deck. Upon being questioned in Spanish by another USCG officer, Lopez identified the others on deck as his friends from Miami and that they had returned from a fishing trip. USCG officers asked Lopez and the others to produce identification. Lopez and his codefendants Carnet-Castro and Monge produced identification, but Lopez stated that the other passengers had left their identifications at the boat ramp. Officer Parker boarded the vessel Lopez was
The government also presented the testimony of USCG officer Jonathan LaSalle, who was also on board the USCG vessel that stopped the boat Lopez was piloting. Officer LaSalle testified consistent with Parker. Officer LaSalle also stated he was told by Carnet-Castro that Lopez and his codefendants had picked the aliens up from a vessel in the ocean.
Special Agent Eric Moreno, of U.S. Immigrations and Customs Enforcement, testified that he questioned Lopez upon arriving at the scene. Lopez stated to Agent Moreno that he was driving the boat, which he did not own, from the Lucaya Freeport area in the Bahamas. Lopez stated they had gone to the Bahamas to test the boat. Lopez stated he was taking the aliens on board the boat to a marina in Miami, where two waiting vans were going to pick up the aliens, in exchange for which he would receive a gift. In an interview conducted the following day, Lopez told Moreno that he and the two other codefendants had met with a Bahamian while in the Bahamas, who directed them to an abandoned hotel to pick up the aliens. Moreno also testified that his investigation of the seventeen aliens on board the boat revealed that none of them had legal status to enter the United States and one, Pedro Valdez-Alvarado, had previously been deported for a felony drug conviction.
The government also presented the testimony of codefendant Carnet-Castro, who had pled guilty and agreed to cooperate with the government. Carnet-Castro testified that he met Lopez in connection with a business deal Lopez had made to smuggle aliens to the United States from Cuba. Carnet-Castro testified that he had made one previous alien-smuggling trip with Lopez from the Freeport area of the Bahamas, in October 2007. Carnet-Castro testified Lopez earned $20,000 for his participation in this previous smuggling trip.
Codefendant Carnet-Castro also testified about the events that culminated in Lopez's arrest. Carnet-Castro, Lopez, and Monge, Carnet-Castro's nephew, left Miami in the morning. Lopez piloted the boat to the Bahamas, where the three defendants stayed in a hotel for the night. Carnet-Castro testified that they called their contact in the Bahamas, who advised them to pick up the aliens at an abandoned hotel in Port Lucaya. Carnet-Castro testified that he and Lopez were to split the proceeds of the trip—about $4,000 per person smuggled—after deducting expenses. Lopez drove the boat back from the Bahamas towards Miami, with the exception of about fifteen minutes. Carnet-Castro explained that when they were stopped by the USCG, he initially lied and said that the aliens were not illegal, when he knew they were, but that he later told the truth after being arrested. On cross-examination, Carnet-Castro testified that Lopez knew why they were going to the Bahamas.
The parties stipulated that the 17 aliens on board the boat Lopez was driving could not legally enter the United States, after which the government closed its case. Lopez moved for judgment of acquittal pursuant to Fed.R.Crim.P. 29, which the district court denied.
B. Lopez's Testimony
Lopez testified in his defense. Lopez testified that his brother-in-law introduced
In the Bahamas, the men attempted to purchase gas at a marina because they did not have enough fuel for the return trip, but the marina was out of gas. Lopez tied up the boat and left it to get some food. Lopez purchased sandwiches with money from Carnet-Castro and returned to the boat, where he saw Carnet-Castro conversing with a man, who left as soon as Lopez returned. Lopez used a satellite phone to call his wife and inform her that he would be home late and for her to call his brother-in-law at the clinic. Lopez did not tell his wife he was in the Bahamas. The men agreed to stay at a hotel in the Bahamas. While there, Carnet-Castro met up at a nearby bar with the same man Lopez had seen before. Carnet-Castro stated to Lopez that the man would provide gas to them in the morning and that Carnet-Castro had agreed as a favor to transport some people to Miami. Lopez asked Carnet-Castro if the people to be transported had papers to enter the United States. Carnet-Castro stated they did. Lopez agreed to transport the people, because Carnet-Castro was in charge of the boat.
The next morning, the same man Lopez had seen the night before led them to a marina with gas and gave Carnet-Castro approximately $400.00. The man then directed Carnet-Castro to an abandoned hotel. They met the aliens at this hotel. As the aliens boarded, Lopez intended to check their immigration status, but Carnet-Castro told him to take the boat's helm. Lopez was the driver of the boat during the entire voyage back to the United States, except for about ten minutes while he was changing his shirt.
During the voyage, but before being stopped by the USCG, codefendants Carnet-Castro and Monge spoke on the phone with the man they had met in the Bahamas, and Carnet-Castro informed Lopez that the aliens were illegal. Lopez stated that he and Carnet-Castro argued about the aliens' status. Lopez stopped the boat, but he did not know what to do because he was in the middle of the sea and was concerned Carnet-Castro, Monge, and the aliens might go against him. Lopez resumed driving the boat towards the United States and was eventually stopped by the USCG.
On cross-examination, Lopez admitted to knowing codefendant Carnet-Castro for
At the close of evidence, Lopez moved for judgment of acquittal pursuant to Fed. R.Crim.P. 29 as to Counts 1-18, but not 19. Lopez argued the government had failed to prove that he had "encouraged or induced" aliens to enter the United States, and that the government had instead shown only that Lopez attempted to smuggle aliens, a crime not charged. The district court denied Lopez's motion.
C. Closing Arguments and Jury Instructions
Lopez did not file proposed jury instructions. During the charge conference, the government proposed that two dictionary definitions be given for the definitions of "encourage" and "induce." Lopez objected.
During closing arguments, the prosecutor argued twice that Carnet-Castro and Monge had pled guilty and "accepted responsibility," while Lopez was "the only person in this case who has not accepted responsibility." After both comments, the district court sustained Lopez's counsel's objection, struck the statements, and denied Lopez's motions for a mistrial. After the second comment, the district court also instructed the jury not to consider the government's last argument.
During deliberations, the jurors sent a note to the court asking this question about "encourage" or "induce" with respect to Counts 2-18:
The government again requested that the court instruct the jury using the dictionary definitions already suggested by the government. Lopez objected to this, arguing that the proposed definition of "encourage" included "to help" and the term "encourage"
The jury also asked this question pertaining to the knowledge required as to the § 1327 offense in Count 19:
After discussing the issue with counsel and over Lopez's objection, the district court sent back its written answer that: "Section 1327 does not contain a temporal requirement."
After the jury submitted another note indicating that they were deadlocked on all but one count, the district court, over Lopez's objection and motion for a mistrial, gave a modified Allen charge.
Lopez's counsel filed a written motion for a new trial, predicated upon the argument that the district court's supplemental instruction on the definition of "encourage" impaired the effectiveness of defense counsel's arguments and that Lopez was prejudiced and entitled to have his convictions reversed. The district court denied Lopez's motion for a new trial. The district court sentenced Lopez to 63 months' concurrent imprisonment on Counts 1 and 19 and 60 months' concurrent imprisonment on Counts 2-18, followed by 2 years of supervised release. Lopez timely appealed his convictions.
A. Standard of Review for Jury Instructions
On appeal, Lopez raises several issues regarding the district court's jury instructions. We review a district court's response to a jury question for an abuse of discretion. United States v. Wright, 392 F.3d 1269, 1279 (11th Cir.2004). While the district court has considerable discretion
B. Supplemental Jury Instruction Defining Encourage in 8 U.S.C. § 1324(a)(1)(A)(iv)
Lopez argues that his convictions under Counts 1-18 should be vacated and the case remanded for a new trial because the district court's supplemental instruction, providing a definition of the term "encourage" in § 1324(a)(1)(A)(iv), was erroneous as a matter of law.
To establish violations of § 1324(a)(1)(A)(iv) in Counts 1-18, the government must prove beyond a reasonable doubt that the defendant "encourag[ed] or induc[ed] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law[.]" 8 U.S.C. § 1324(a)(1)(A)(iv). It is undisputed that the terms "encourage" and "induce" are undefined in the statute.
When a statutory term is undefined, courts give it its "ordinary meaning" or "common usage." United States v. Santos, ___ U.S. ___, 128 S.Ct. 2020, 2024, 170 L.Ed.2d 912 (2008); CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir.2001). To ascertain ordinary meaning, courts often turn to dictionary definitions for guidance. Santos, 128 S.Ct. at 2024 (noting the term "proceeds" can be defined through dictionary definitions as either "receipts" or "profits"); United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir.2004) (citing The American Heritage Dictionary of the English Language for the plain and ordinary meaning of "induce"); United States v. McNab, 331 F.3d 1228, 1237 (11th Cir. 2003) (citing Black's Law Dictionary and
Even if the district court's use of dictionary definitions is permissible, Lopez argues the district court should not have included "to help" in the definition of "encourage." This argument lacks merit, however, as multiple dictionaries include "to help" in the definition of "encourage." For example, in Black's Law Dictionary, "encourage" means "[t]o instigate; to incite to action; to give courage to; to inspirit; to embolden; to raise confidence; to make confident; to help; to forward; to advise." Black's Law Dictionary 620 (4th ed. 1968); see also Black's Law Dictionary 568 (8th ed. 2004) (defining "encourage" as "[t]o instigate; to incite to action; to embolden; to help."); Webster's Third New Int'l Dictionary 747 (1993) (defining "encourage" as "to give courage to: inspire with courage, spirit, or hope: to spur on: to give help or patronage to"). The dictionary definitions of "encourage" are internally consistent and also consistent with the district court's supplemental instruction.
In addition, at least one of our sister circuits has considered the definition of "encourage" in § 1324(a)(1)(A)(iv) and reached the same conclusion to use dictionary definitions, including "to help," in formulating jury instructions. In United States v. He, 245 F.3d 954, 957 (7th Cir. 2001), the Seventh Circuit affirmed the district court's usage of a dictionary in defining the term "encourage" in § 1324(a)(1)(A)(iv) as "to knowingly instigate, help or advise." The Seventh Circuit reasoned: "[t]he supplemental instruction was a correct statement of the law.... These definitions were taken directly from Black's Law Dictionary and conform to other dictionary definitions of those words. See, e.g., Merriam Webster's Collegiate Dictionary 381 (10th ed. 1996) (defining "encourage" as "to inspire with courage, spirit, or hope ... to spur on ... to give help or patronage to")." He, 245 F.3d at 959-60.
Lopez alternatively argues that "encourage" cannot mean "to help" in § 1324(a)(1)(A)(iv) because construing "encourage" that broadly would render at least two other provisions of § 1324 superfluous—namely, 8 U.S.C. §§ 1324(a)(1)(A)(i) and 1324(a)(1)(A)(v)(II).
A dictionary definition of an undefined statutory term is not always dispositive, and we still may consider the statutory term as it is used in the context of the statute as a whole. Santos, 128 S.Ct. at 2024 ("Since context gives meaning, we cannot say [a statute] is truly ambiguous until we consider [the disputed statutory term] not in isolation but as it is used in the [statute]."); see also Murrell, 368 F.3d at 1287 (construing "induce" in 18 U.S.C. § 2422(b) as the second of two different
However, an examination of §§ 1324(a)(1)(A)(i) and 1324(a)(1)(A)(v)(II) shows that the definition of "to help" for "encourage" in § 1324(a)(1)(A)(iv) does not render superfluous these other two subsections of § 1324.
First, § 1324(a)(1)(A)(iv), with which Lopez was charged, criminalizes "encouraging or inducing" an alien to come to the United States knowing or in reckless disregard that the alien's coming to the United States is in violation of law. The elements of § 1324(a)(1)(A)(iv) are: (1) encouraging or inducing; (2) an alien; (3) to come to, enter, or reside in the United States; and (4) knowing or in reckless disregard that the alien's coming to, entering, or residing in the United States is illegal. The fourth element requires that the alien's coming to, entry, or residence in the United States is illegal and that the defendant knew or recklessly disregarded that.
In contrast, § 1324(a)(1)(A)(i) makes it a crime to knowingly bring or attempt to bring an alien to the United States at a place other than a designated port of entry, regardless of whether the alien can legally be admitted into the United States.
An examination of the elements of these two subsections shows that defining "encourage" as "to help" does not turn an offense under § 1324(a)(1)(A)(iv) into an offense under § 1324(a)(1)(A)(i). Subsection 1324(a)(1)(A)(i) criminalizes more than the mere act of bringing an alien to the United States because it also requires that the alien be brought to a place other than a port of entry, which is different conduct than what is covered by § 1324(a)(1)(A)(iv). And § 1324(a)(1)(A)(i) applies to aliens with prior official authorization to enter, whereas § 1324(a)(1)(A)(iv) applies to aliens whose entry is illegal. Accordingly, we do not agree with Lopez that his conviction under
In turn, § 1324(a)(1)(A)(v)(II) criminalizes aiding or abetting the commission of any of the preceding acts in subsection 1324(a)(1)(A), including both 1324(a)(1)(A)(i) and 1324(a)(1)(A)(iv). Subsection 1324(a)(1)(A)(v)(II) cannot be superfluous on its own without reference to the underlying subsections, and since subsection 1324(a)(1)(A)(i) is not rendered superfluous by the district court's interpretation of subsection 1324(a)(1)(A)(iv), neither is subsection 1324(a)(1)(A)(v)(II).
In any event, in other decisions in this circuit, the act of "helping" aliens come to, enter, or remain in the United States were deemed violations of subsection 1324(a)(1)(A)(iv). United States v. Ndiaye, 434 F.3d 1270, 1278 (11th Cir. 2006); United States v. Kuku, 129 F.3d 1435 (11th Cir.1997) In Ndiaye, this Court affirmed a conviction under subsection 1324(a)(1)(A)(iv) for "assist[ing] over seventy Indonesian aliens in securing Social Security numbers." The defendant had argued his actions could not constitute a violation of the statute because "[a] Social Security card did not change anyone's status, and there was no evidence that anyone was `induced' to live here by obtaining such a card." Ndiaye, 434 F.3d at 1296. This Court affirmed Ndiaye's conviction because, "[a] jury could find that [the defendant's] assistance in helping [an alien] obtain a Social Security card, which the evidence established he is not entitled to have, encouraged or induced him to reside in this country in violation of the statute." Id. at 1298 (emphasis added). Similarly, in Kuku, we affirmed a conviction under subsection 1324(a)(1)(A)(iv) for approving applications for social security cards without proper documentation filed on behalf of illegal aliens. Kuku, 129 F.3d at 1437; see also Ndiaye, 434 F.3d at 1298 ("[I]n Kuku, this Court has implicitly recognized that conduct which involved helping an illegal alien obtain a Social Security card to which he was not entitled so that he could work and live in this country was sufficient to support a conviction under § 1324(a)(1)(A)(iv).").
Lopez argues that his conduct was not as extensive as the defendant in United States v. Hanna, 639 F.2d 192, 193 (5th Cir. Unit B 1980), another decision where we affirmed a defendant boat captain's
The trial evidence established that Lopez was more than a mere passive boat driver in this endeavor. That evidence showed that: (1) Lopez and Carnet-Castro made a previous alien-smuggling trip from the Bahamas shortly before the incidents in this case, for which Lopez earned $20,000; (2) Lopez and Carnet-Castro were to split the proceeds of this trip, and Lopez knew why they were going to the Bahamas; (3) Lopez lied to USCG officers when he was initially stopped, concocted a story about being out on a fishing trip, lied about whether the aliens had residency documentation, and pretended the only aliens on board were those up on deck; and (4) Lopez participated in picking up the aliens from an abandoned hotel, and he acquiesced in accepting money from an unidentified man in the Bahamas for doing so. Contrary to Lopez's characterization, this is not a case where he merely drove a boat full of aliens from the Bahamas to the United States. Rather, Lopez first had to take a boat to the Bahamas, refuel it, spend the night, pick up the aliens from an abandoned hotel, and then go to the marina and come back to the United States.
C. Federal Rule of Criminal Procedure 30
Lopez asserts a corollary argument that the district court's supplemental jury instruction violated Federal Rule of Criminal Procedure 30 because the district court contradicted its earlier decision not to define "encourage" as "to help," and therefore Lopez's counsel could not respond to the definition instruction during closing argument.
Federal Rule of Criminal Procedure 30 requires a district court, when requested, to inform counsel of its proposed action upon requested jury instructions prior to closing arguments. Fed. R.Crim.P. 30. "This Court has only required substantial compliance with Rule 30 and a defendant must show prejudice before
However, our precedent also affords district courts discretion to expand upon initial jury instructions when a jury question arises. United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir. 1991) ("A trial court's response to a jury's question is entrusted to its own sound discretion and a conviction will not be reversed in the absence of an abuse of discretion."); see also Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946) ("When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy."); United States v. Rodriguez, 765 F.2d 1546, 1553 (11th Cir.1985) ("A trial judge has some obligation to make reasonable efforts to answer a question from the jury."). This is particularly true here where the district court determined during the charge conference that the parties could argue their positions on the common meanings of "encourage" and "induce." Moreover, the supplemental instruction contained a correct definition of "encourage." Thus the fact that the district court acceded to Lopez's initial request not to define "encourage" did not bind or preclude the district court from expanding upon its instructions when the jury had questions.
In any event, we cannot say Lopez has shown that the district court's supplemental jury instruction repudiated Lopez's arguments or impaired their effectiveness. During closing arguments, before the supplemental instruction, Lopez's counsel argued that Lopez was guilty only of attempting to bring the aliens into the United States and not guilty of encouraging or inducing them to enter the United States, as follows:
Lopez's closing argument makes clear that even without the district court's supplemental jury instruction containing "to help," he argued to the jury precisely what he now argues should have prevented his conviction—that the act of piloting a boat full of aliens was only attempting to bring the aliens to the United States, which was another crime and was not a
D. Supplemental Jury Instruction on Temporal Requirement in 8 U.S.C. § 1327
Lopez next argues that the district court erred in instructing the jury that there is no temporal requirement in § 1327, which required proof that Lopez knew that the alien was inadmissible in the United States. Specifically, Lopez contends that § 1327's intent element requires that a defendant know that the alien was inadmissible at the time he boarded the boat. Lopez also claims that the absence of an express temporal requirement renders the statute ambiguous such that the rule of lenity should apply.
Section 1327 provides:
8 U.S.C. § 1327. The district court originally instructed that "[t]he defendant's knowledge of an alien's prior felony conviction is not an element of 8 U.S.Code § 1327. The Government need only prove that the defendant knew that the alien he aided or assisted was inadmissible to the United States." During deliberations, the jury asked if the knowledge requirement meant that the defendant had to know the alien was inadmissible in the United States at the time the alien boarded the boat outside of, or before it entered the United States. Lopez's counsel argued that the government had to prove Lopez knew at the time the aliens boarded the vessel that they were inadmissible. The district court rejected Lopez's counsel's argument and instructed the jury that § 1327 had no temporal requirement.
We first conclude that the district court properly instructed the jury that § 1327 did not require Lopez to know that the alien on board had a prior felony conviction but only that the alien he aided or assisted in entering the United States was inadmissible. United States v. Figueroa, 165 F.3d 111, 114 (2d Cir.1998); United States v. Flores-Garcia, 198 F.3d 1119, 1123 (9th Cir.2000). There is also no temporal requirement in § 1327. Rather, § 1327 requires only that Lopez knew the alien he aided or assisted was inadmissible at some point before the alien sought to enter the United States.
The Second Circuit directly addressed the question of "how much a defendant
The Ninth Circuit followed the Second Circuit's conclusion in Figueroa that "the defendant's knowledge of an alien's prior felony conviction is not an element of section 1327." Flores-Garcia, 198 F.3d at 1121. The Ninth Circuit concluded that "[t]he government need prove only that the defendant knew that the alien he was aiding or assisting was inadmissible to the United States." Id. at 1122. The Ninth Circuit explained that the rule of lenity did not apply because the statute's structure and its placement in the scheme of immigration law indicate that the defendant's knowledge of an alien's prior felony conviction is not an element of the offense. Id. at 1122.
Turning to this case, it is undisputed that Lopez knew at some point in the journey that his passengers were undocumented aliens seeking entry to the United States. Although the evidence did not show Lopez was aware that Pedro Valdez-Alvarado had a prior aggravated felony conviction, Lopez knew that Valdez-Alvarado was undocumented and sought illegal entry into the United States. The supplemental jury instruction correctly explained that there was no temporal requirement; Lopez's knowledge, regardless of when acquired, would suffice. See Figueroa, 165 F.3d at 119 ("[Section] 1327 thus places persons who would otherwise violate § 1324 at an increased risk if they happen to aid an alien who is excludable because of a conviction for an aggravated felony."). Accordingly, the district court's jury instruction regarding the lack of a temporal requirement in 8 U.S.C. § 1327 correctly stated the law and is not a basis for reversal.
E. Prosecutor's Comments During Closing Arguments
Lopez contends that the prosecutor impermissibly asked the jury to draw an adverse inference from Lopez's assertion of his constitutional right to trial, by improperly suggesting that Lopez should have pled guilty like Carnet-Castro, Monge, and the aliens who had all "accepted responsibility" and "admitted their involvement." Lopez also claims that the prosecutor improperly vouched for its witnesses, warranting a new trial.
The Sixth Amendment affords a criminal defendant the right to a speedy and public trial by an impartial jury. U.S.
Eckhardt, 466 F.3d at 947 (internal quotations and citations omitted). This Court has identified four factors to consider in determining whether a prosecutor's conduct had a reasonable probability of changing the outcome of a trial:
Davis v. Zant, 36 F.3d 1538, 1546 (11th Cir.1994).
Prosecutorial misconduct must be considered in the context of the entire trial, along with any curative instruction. United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.1997). "Because statements and arguments of counsel are not evidence, improper statements can be rectified by the district court's instruction to the jury that only the evidence in the case be considered." United States v. Smith, 918 F.2d 1551, 1562 (11th Cir.1990). If the district court takes a curative measure, we will reverse only if the evidence is so prejudicial as to be incurable by that measure. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir.1998). We presume that the jury followed the district court's curative instructions. United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir.2005).
A prosecutor's remarks are improper if they attempt to bolster the credibility of a witness based on the government's reputation or through alluding to evidence not admitted at trial. United States v. Chandler, 996 F.2d 1073, 1094 (11th Cir.1993). To determine if the government improperly vouched for a witness, the court must decide whether a "jury could reasonably believe that the prosecutor was indicating a personal belief in the witness' credibility." United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983). This prohibition against vouching does not, however, forbid prosecutors from arguing credibility; rather, it forbids arguing credibility based on the reputation of the government office or on evidence not before the jury. United States v. Eyster, 948 F.2d 1196, 1207 (11th Cir.1991). "[We] ha[ve] recognized an exception to this prohibition, the so-called `fair response' rule, that entitles a prosecutor to respond to arguments advanced by defense counsel in his or her statement to the jury." United States v. Smith, 700 F.2d 627, 634 (11th Cir.1983).
Having reviewed the record and the parties' arguments and applying the above principles, we find no reversible error from the government's comments during closing argument.
In rebuttal closing, the government sought to counter Lopez's counsel's contentions that Carnet-Castro did not accept responsibility for his actions and was not credible, and challenged the arguments that Lopez testified truthfully:
Lopez's counsel objected to both statements and moved for mistrials; the district court sustained both objections, struck the government's statements, and denied the mistrial requests. In response to Lopez's second objection, the district court instructed the jury to disregard the prosecutor's last argument.
Examining the prosecutor's challenged comments in context, it is clear that she did not engage in reversible misconduct. Lopez's counsel had argued that Lopez's version of events was truthful and that Carnet-Castro had not accepted responsibility for his actions and had lied extensively. The government was permitted to demonstrate not only that Carnet-Castro had accepted responsibility (by discussing his plea agreement), but also to call into question Lopez's credibility, which had been put at issue by his counsel. In any event, even if we were to assume the prosecutor's comments were improper, when examined in the context of the entire trial Lopez has not shown "a reasonable probability ... that, but for the remarks, the outcome of the trial would have been different." Eckhardt, 466 F.3d at 947.
The district court also took adequate curative measures. It sustained Lopez's objections to the two prosecutor comments and struck them from the record. In addition, the district court explained that what the lawyers said was not evidence in the case three separate times during the trial—during the initial instructions at the beginning of trial, immediately before the parties gave their closing arguments, and during the jury instructions. The court also advised the jury that "every defendant is presumed by law to be innocent" and "[t]he law does not require a defendant to prove innocence or to produce any evidence at all." The court also instructed the jury that Lopez "ha[d] a right not to testify," but because he did, the jury "should decide in the same way as that of any other witness whether you believe the defendant's testimony."
Further, the prosecutor's comments were not improper witness vouching. The prosecutor was permitted to comment on the credibility of her own witnesses without personally vouching for the witness's credibility or bolstering the witness's credibility through the government's reputation. The prosecutor properly
Taken in context, these two comments were a minor portion of a lengthy trial in which there was substantial evidence against Lopez from multiple eyewitnesses, and we find no reversible error from the government's comments.
F. Cumulative Error
Lopez lastly argues his conviction must be reversed because the cumulative effects of the district court's erroneous supplemental instructions and the prosecutor's misconduct denied him a fair trial.
Even where individual judicial errors or prosecutorial misconduct may not be sufficient to warrant reversal alone, we may consider the cumulative effects of errors to determine if the defendant has been denied a fair trial. United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987). "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." United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir.1997).
Having already determined that the district court did not err in instructing the jury with the two supplemental instructions and that the government's closing argument did not violate Lopez's Sixth Amendment rights, we also conclude, from our review of the trial as a whole, that the cumulative effects of those alleged errors did not deny Lopez a fair trial.
For all of these reasons, we affirm Lopez's convictions.
BARKETT, Circuit Judge, concurring in part and dissenting in part:
While I concur with the majority that the district court did not err in instructing the jury that there is no temporal requirement in 8 U.S.C. § 1327, I dissent because I believe the district court's supplemental instruction on 8 U.S.C. § 1324(a)(1)(A)(iv) is per se reversible error. By defining "encourage" so generally to mean "help," the district court rendered at least one other statutory subsection superfluous and also constructively amended the indictment.
Jose Lopez drove the boat in which seventeen aliens were being smuggled into the United States. This conduct appears to violate another provision of the same statute, 8 U.S.C. § 1324(a)(2), which prohibits the knowing transportation of an alien who has not received prior official authorization to enter the United States. However, Lopez was not charged with violating this subsection. Rather, he was charged with violating § 1324(a)(1)(A)(iv), which prohibits the "encouragement" or "inducement" of an alien to come to the United States with the knowledge or reckless disregard of the fact that the alien's entry into the United States is in violation of the law.
The majority's decision eschews the ordinary and common sense meaning of the word "encourage" in favor of the most general and least meaningful possible interpretation,
Reading the statute as a whole—with "encouragement" or "inducement" in context—demonstrates that "encourage" must be read to mean something more than mere "help" in order to avoid rendering (a)(2) redundant.
The ordinary and common sense meaning of "encourage" implies an affirmative act that serves as a catalyst or trigger that drives, motivates, or spurs another individual to embark on a course of action that he might not have otherwise. Indeed, dictionaries define "encourage" as "[t]o instigate; to incite to action; to give courage to; to inspirit; to embolden; to raise confidence; to make confident; to help; to forward; to advise." Black's Law Dictionary 620 (4th ed. 1968); see also Black's Law Dictionary 568 (8th ed. 2004) (defining "encourage" as "[t]o instigate; to incite to action; to embolden; to help"); Webster's Third New Int'l Dictionary 747 (1993) (defining "encourage" as "to give courage to; inspire with courage, spirit, or hope; to spur on; to give help or patronage to."). "Help" is the least preferred definition for "encourage." It appears last (or towards the end of the list) and, unlike the more preferred meanings of "encourage," "help" is vague and provides the least descriptive context for the meaning of "encourage."
Applying the ordinary and most preferred meanings of "encourage" (i.e. not
Under the facts of this case, the government chose the wrong statutory provision under which to prosecute Lopez and then attempted to cure this defect by broadening the basis of the indictment by defining "encourage" in a way that swallows the other subsections.
However, the government's error does not change the fact that the undisputed evidence is that Lopez followed Carnet-Castro and Monge's directions regarding where to drive the boat. There is no evidence that Lopez ever approached or communicated with the aliens prior to or even during the voyage. The jury recognized the inherent and critical difference between encouragement or inducement and mere transportation when it sent its note to the district judge, asking whether Lopez had to communicate with the aliens either "orally or by gesture" in order to be convicted of "encouraging" or "inducing" them.
8 U.S.C. § 1324(a)(1)(A)(i).
8 U.S.C. § 1324(a)(4) (1976 & Supp. IV 1981).
As the Supreme Court has emphasized, after an indictment has been returned, its charges may be broadened only by the grand jury itself. Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). This is because
Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 30 L.Ed. 849 (1887).