                Case: 14-13149      Date Filed: 10/30/2015      Page: 1 of 8


                                                                    [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-13149
                              ________________________

                        D.C. Docket No. 0:11-cr-60285-RSR-1



UNITED STATES OF AMERICA,


                                                                        Plaintiff-Appellee,

                                           versus


TERRANCE BROWN,

                                                                     Defendant-Appellant.

                              ________________________

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

                                    (October 30, 2015)

Before ED CARNES, Chief Judge, MARTIN, Circuit Judge, and THAPAR, ∗
District Judge.

       ∗
       Honorable Amul Roger Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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PER CURIAM:

       Terrance Brown was convicted on two counts of attempting to commit

Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), one count of committing a

Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), two counts of possessing a

firearm in furtherance of a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A), and one count of possessing a firearm in furtherance of a crime of

violence resulting in death in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(j)(1).

This is his appeal from those convictions. 1 All of his arguments arise from a single

question the government asked Brown’s wife during the trial.

       Before trial, Brown and the government entered into a pretrial agreement

barring the government from asking his wife about privileged marital

communications. At trial, the following transpired during the government’s direct

examination of Brown’s wife:

       Q     Do you recall telling Officer Starkey that Mr. Brown called you
       from a telephone number that you didn’t recognize?

       A      No.

       Q      Do you recall telling Officer Starkey that when — that Mr.
       Brown said to you during that call, I’m not going back to prison, I
       can’t come home?


       1
         In an earlier trial involving the same facts, Brown was convicted on one count of
conspiring to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). He does not
challenge his conviction on that count.


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            [DEFENSE]:          Objection.

            THE WITNESS: No, I didn’t tell him that.

            [DEFENSE]:          Reserve a motion.

            THE COURT:          Sidebar, please.

At the sidebar, defense counsel moved for a mistrial on the ground that the

government’s question fell within the marital communications privilege and thus

violated the pretrial agreement. After hearing arguments from both sides, the court

excused the jury and took a ten-minute recess. After the recess, the court again

heard arguments from both sides outside the presence of the jury.

      The court reserved judgment on the motion for a mistrial but decided to

issue a curative instruction before the jury heard anything else. Defense counsel

recommended language for use in that instruction and, when the jurors returned,

the court used defense counsel’s proposed language to instruct the jury as follows:

      THE COURT:           Welcome back, everybody. Please be seated. And
      before we continue with Ms. Brown’s testimony, I need to give you
      all an instruction.
              I am instructing the jury to disregard the last question that was
      asked before the break. There has been and there will be no evidence
      that the statement alluded to in the question asked by the government
      was ever made. Is there anybody who doesn’t understand this
      question — this instruction or has any question about the instruction,
      if so, go ahead and raise your hand for me now. Yes.

      THE JUROR:          What was the question because I forgot it.

      THE COURT:          All right. Just one moment. Come sidebar, please.



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During that sidebar, defense counsel recommended telling the juror that he had

“already followed the direction,” and the government’s attorney agreed. The court

then told the jury:

      THE COURT:          Well done, good following of the instruction. I’m
      not going to actually repeat the question at this time because there is
      no evidence of any of the information that was alluded to in the
      question and so I don’t want to compound any kinds of
      misunderstandings that anyone might have. So if you don’t remember
      the question, then you are doing great following my instruction and I
      thank you for that.
            Is there anybody who cannot follow the instruction? If so, go
      ahead and raise your hand for me. I see no hands. Thank you all for
      that.

The trial then continued.

      The next day, the court denied Brown’s motion for a mistrial. The court

stated the following rationale for its decision:

      First of all, I think that the jury’s reaction when I instructed them to
      please disregard the prior question and they said, what was the prior
      question, reflects that it wasn’t as big of a deal as we may have
      thought at that time. But even if it had been, I think that the
      instruction should have taken care of it. The jury was instructed that
      there’s no evidence and that there will be no evidence of the alleged
      statements. And I think that it’s not — I don’t think that a mistrial is
      appropriate under the circumstances.

The trial concluded later that day and the jury began deliberating. The following

day, the jury returned a verdict convicting Brown on the six counts that resulted in

the judgment he is appealing.




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      Brown contends that the district court abused its discretion in failing to grant

his motion for a mistrial and that we should reverse his convictions because of the

question that the government asked his wife. We review a denial of mistrial only

for an abuse of discretion. United States v. Khan, 794 F.3d 1288, 1313 (11th Cir.

2015). The district court enjoys broad discretion in deciding whether to grant a

mistrial because the judge who presides over the trial “is in the best position to

evaluate the prejudicial effect of a statement or evidence on the jury.” United

States v. Mendez, 117 F.3d 480, 484 (11th Cir. 1997) (quotation marks omitted).

We must therefore affirm unless the “decision not to grant a mistrial was a clear

error of judgment.” United States v. Dominguez, 226 F.3d 1235, 1247 (11th Cir.

2000).

      When evidence or statements are erroneously presented to the jury, we will

not reverse if those errors were harmless. See United States v. Langford, 647 F.3d

1309, 1323 (11th Cir. 2011); United States v. Gonzalez, 921 F.2d 1530, 1549 (11th

Cir. 1991). Errors are harmless when they “ha[ve] no substantial influence on the

outcome.” United States v. Emmanuel, 565 F.3d 1324, 1335 (11th Cir. 2009).

Where the district court instructed the jury to disregard evidence or statements, we

will reverse only if they were “so highly prejudicial as to be incurable by the trial

court’s admonition.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994)

(quotation marks omitted). Those are high bars.


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      In contending that we should reverse his convictions, Brown argues that the

government violated its pretrial agreement not to ask questions covered by the

marital privilege, that the statement the government’s question attributed to him

(“I’m not going back to prison, I can’t come home.”) was a “de facto confession,”

which may have carried a lot of weight with the jury, and that asking the question

was prosecutorial misconduct. All of those characterizations amount to the same

thing, which is that the government asked a question that it should not have. The

standard for determining whether the district court abused its broad discretion, the

heavy deference we owe the judge who was present in the courtroom, and the

harmlessness test are all the same regardless of how the claimed error is

characterized. Even the admission of a coerced confession is subject to harmless

error review, Arizona v. Fulminante, 499 U.S. 279, 296, 111 S. Ct. 1246, 1257

(1991), and by asking the question the government did not come close to

introducing a coerced confession.

      Assuming that asking the question was error, however characterized, it was

harmless. There was strong evidence against Brown. Nathaniel Moss, one of the

alleged co-conspirators, testified at length about Brown’s participation in the

robberies, providing a host of details about the crimes and Brown’s role in them.

Many of the details that Moss testified to were corroborated by other evidence,

including surveillance videos and cell phone records. The government also


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presented evidence of Brown’s participation in prior robberies using the same

modus operandi. Brown’s wife testified about his unexplained and unusual

absence on the evening of, and days after, the final robbery. And she did answer

the question in question in a way that favored Brown, not the government.

      After the question was asked, the court gave the jury a specific curative

instruction, framed in large part by defense counsel, instructing the jury to

disregard the question and informing it that “[t]here has been and there will be no

evidence that the statement alluded to in the question asked by the government was

ever made.” The question was not “so highly prejudicial as to be incurable by the

trial court’s admonition.” Perez, 30 F.3d at 1410. And the closing charge to the

jury instructed it that anything the lawyers said was not evidence and was not

binding on the jury. We presume, of course, that juries follow their instructions.

See Penry v. Johnson, 532 U.S. 782, 799, 121 S. Ct. 1910, 1922 (2001); Greene v.

Upton, 644 F.3d 1145, 1157 (11th Cir. 2011); Hammond v. Hall, 586 F.3d 1289,

1334 (11th Cir. 2009).

      Given the fact that the answer to the question favored Brown, that the court

instructed the jury to disregard it, that the evidence against Brown was strong, and

that the district court judge was in the best position to evaluate the prejudicial

effect of the question, we conclude that asking the question had no “substantial

influence on the outcome” of the trial, Emmanuel, 565 F.3d at 1335. It was


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harmless. The district court did not abuse its broad discretion by denying Brown’s

motion for a mistrial.

      AFFIRMED.




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