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                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                 No. 15-15550
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:14-cr-20527-MGC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff - Appellee,

versus

TIFFANY SMITH,
a.k.a. Tiffany Campbell,

                                                           Defendant - Appellant.

                           ________________________

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

                                 (June 15, 2017)

Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant Tiffany Smith (“Defendant”) appeals her conviction for access

device fraud and aggravated identity theft. She cites various errors by the district

court, including making incorrect evidentiary rulings, improperly limiting cross-

examination, and expressing disbelief in Defendant’s testimony through questions

posed to Defendant. Defendant also alleges prosecutorial misconduct, and

challenges the district court’s calculation of the victim’s losses in determining her

sentence. Finding no error by the court or misconduct by the prosecution, we

affirm.

                                 BACKGROUND

      Defendant was indicted by a grand jury for access device fraud, in violation

of 18 U.S.C. § 1029(a)(5), and aggravated identity theft, in violation of 18 U.S.C.

§ 1028A(a)(1). The indictment indicated that Defendant had knowingly, and with

the intent to defraud, used another person’s credit card, bank account numbers, and

means of identification to receive payment or things of value.

      During the five-day jury trial in November 2014, Dr. John Nordt, an

orthopedic spine surgeon and Defendant’s victim, testified that Defendant began

working as the office manager of his medical practice in September 2008. Dr.

Nordt added Defendant as an authorized signer to the office check book in

December, though Defendant’s authorization was limited to checks issued for

business purposes. The office also had several credit cards that Defendant was not


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authorized to use at all. By May 2009, Dr. Nordt had become concerned that there

was not enough money to run the office. By September 2009, Dr. Nordt became

aware that Defendant had written unauthorized checks from the office account.

Dr. Nordt later discovered that Defendant had used his name, birth date, and social

security number to open a “Bill-Me-Later” account.1 The Bill-Me-Later account,

as well as office credit cards, had been used without the doctor’s knowledge or

authorization to make online purchases that totaled thousands of dollars and that

included electronics, gifts, flowers, and furniture, much of which was shipped to

Defendant’s address or to her friends and family. Dr. Nordt reported Defendant’s

actions to the police and the United States Secret Service in September 2009,

shortly after he fired Defendant.

       Defendant testified in her own defense. According to Defendant, Dr.

Nordt’s office sent flowers to referral sources, and she was permitted to use

business accounts to purchase flowers and gifts for personal use so long as she

reimbursed Dr. Nordt. She claimed that she set up the Bill-Me-Later account at

Dr. Nordt’s request so that he could buy a gift for his wife, and Defendant never

used the account for personal purposes. Defendant testified that she only made

purchases using business accounts for office purposes or with Dr. Nordt’s

permission.

1
  Bill-Me-Later is a service that extends a line of credit and allows the account holder to make
online purchases without having to input personal credit card information directly.
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      The jury found Defendant guilty of both access device fraud and aggravated

identity theft. After adding various sentencing enhancements under the Sentencing

Guidelines, the court ultimately calculated a total offense level of 12 and a criminal

history category of I to arrive at a guideline range of 10 to 16 months. The court

imposed a 10-month sentence on the count charging access device fraud. It

imposed a statutorily mandated 24-month consecutive sentence for her aggravated

identity theft conviction. See 18 U.S.C. § 1028A(a)(1). Defendant appeals her

conviction and sentence.

                                   DISCUSSION

      On appeal, Defendant challenges several of the court’s evidentiary rulings.

Defendant also challenges the court’s limitation of her cross-examination of Dr.

Nordt, its refusal to allow her to enter what she claims to be a vital stipulation, and

its questioning of Defendant during her testimony. Defendant also argues that the

Government made inappropriate remarks during its closing statement that bolstered

witness testimony, argued facts not in evidence, and impermissibly shifted the

burden of proof to Defendant. Finally, Defendant challenges the district court’s

calculation of loss in determining her sentence.




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I.    Challenged District Court Rulings

      A.     Evidentiary Rulings

      A district court’s evidentiary rulings are reviewed for an abuse of discretion.

United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). Even if the

district court errs in its decision to admit or exclude evidence, we do not reverse if

the error was harmless. United States v. Azmat, 805 F.3d 1018, 1041 (11th Cir.

2015), cert. denied, 136 S. Ct. 2012 (2016). Errors are not harmless when “there is

a reasonable likelihood that they affected the defendant’s substantial rights,” but

“where an error had no substantial influence on the outcome, and sufficient

evidence uninfected by error supports the verdict, reversal is not warranted.”

United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990).

      B.     Check Printouts

      Defendant was not charged with fraud based on her writing office checks.

Nonetheless, she attempted to introduce into evidence a printout copy of checks

written from the doctor’s business account, some of which were annotated with

“F” or “fraud.” Defendant had received these printouts during Dr. Nordt’s civil

suit against her. Dr. Nordt testified that he did not make the annotations himself,

and acknowledged that some of the checks were proper charges. Defendant

claimed that this showed that Dr. Nordt had lied about Defendant’s unauthorized




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writing of checks because some checks that Dr. Nordt said were legitimate had

been marked fraudulent on the printout.

       The district court ruled that Defendant had not established that it was Dr.

Nordt who had marked the checks and, absent that showing, there could be no

inference that Dr. Nordt had made a prior inconsistent statement. Accordingly, the

court excluded the check printouts as irrelevant. Defendant argues on appeal that

the check printouts were necessary for the presentation of her defense because they

gave the jury a complete picture of what happened and impeached Dr. Nordt’s

credibility.

       A defendant has the constitutional right to present her defense, which

includes the right to “to introduce evidence that, while not directly or indirectly

relevant to an element of an offense or affirmative defense, attacks the credibility

of important government witnesses” or to “complete the picture” when the

“government’s selective presentation of entirely truthful evidence can cast a

defendant in an inaccurate, unfavorable light.” United States v. Hurn, 368 F.3d

1359, 1366–67 (11th Cir. 2004). Still, the extent of a defendant’s rights are not

unlimited. Such evidence must be relevant. See Taylor v. Illinois, 484 U.S. 400,

410 (1988) (“The accused does not have an unfettered right to offer testimony that

is . . . otherwise inadmissible under standard rules of evidence.”); see also Hurn,

368 F.3d at 1367 (“[E]vidence introduced to ‘complete’ a potentially misleading


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story offered by the government is pertinent only when it might color a jury’s

assessment of the material facts of the case.”). Further, the court has wide

discretion to limit cross-examination that would result in “confusing . . . issues”

and “interrogation that is repetitive or only marginally relevant.” Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986).

      Defendant was given wide latitude in questioning Dr. Nordt about the

printouts and whether he marked them, which resulted in the jury learning that the

checks were annotated in a way that indicated someone’s view that certain checks

were fraudulent even though some of these checks were properly written. Even

without admission of the printouts themselves, Defendant’s cross-examination of

Dr. Nordt revealed her theory that it was he who had incorrectly annotated the

checks and who has thus lied about Defendant’s wrongdoing. Thus, Defendant’s

right to present a defense was not infringed. Further, Defendant never established

who actually annotated the check copies or that Dr. Nordt had alleged through the

annotations that the checks were fraudulent. Thus, the checks would not have

helped Defendant impeach Dr. Nordt’s testimony. Nor is it the case that admitting

the checks would have changed the outcome of the trial, as Defendant’s conviction

rested on her creation and use of the Bill-Me-Later account and company credit

cards, not her unauthorized writing of checks. Accordingly, the district court did

not abuse its discretion in declining to admit the check printouts.


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      C.     Police Reports

      In another effort to impeach Dr. Nordt, Defendant sought to introduce

evidence of police reports filed by Dr. Nordt alleging theft, trespass, and property

damage against four former employees between 2010 and 2013. Defendant argued

that these records showed Dr. Nordt had a pattern of “crying wolf” by going to the

police and claiming to be a victim of his employees. Such behavior, Defendant

argued, made less believable Dr. Nordt’s claim that Defendant had defrauded him.

Notably, Defendant acknowledged that she did not intend to show that Dr. Nordt’s

allegations against these employees were actually false. With no evidence or even

an allegation that the reports were false, the district court disallowed inquiry into

the police reports, though it eventually allowed limited inquiry into one allegation

of credit card theft in 2013 (which Dr. Nordt admitted to making), as it was

factually similar to Defendant’s case.

      Defendant argues the reports should have been admitted to allow Defendant

to present a defense and cross-examine and impeach Dr. Nordt, as well as under

Fed. R. Evid. 404. We disagree. First, the reports describe conduct that happened

after Defendant left Dr. Nordt’s employ, and none of them shed any light on the

facts at issue. Admittedly, a defendant can be allowed to present evidence that

attacks the credibility of a government witness like Dr. Nordt. Hurn, 368 F.3d at




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1366. Yet, without evidence that these reports were false, the reports do not

support an attack on Dr. Nordt’s credibility.

       As to Rule 404(a), while evidence of a person’s character trait is usually

inadmissible to show that a person acted in accordance with that trait, a criminal

defendant can offer evidence of an alleged victim’s pertinent trait. Fed. R. Evid.

404(a). Without evidence of their falsity, however, the police reports do not show

Dr. Nordt’s tendency to “cry wolf” or “play” a victim, as opposed to actually being

a victim. Being an actual victim of crime is not a character trait that would affect

Dr. Nordt’s credibility, and so Rule 404(a) does not help Defendant here.

       Nor does Rule 404(b) support Defendant’s argument. Defendant argues that

Rule 404(b) allowed admission of the records to show Dr. Nordt’s intent to blame

former employees for his financial problems and his motive to lie. 2 Again, without

evidence of falsity, there is no indication that these reports demonstrate such intent.

In short, the district court did not abuse its discretion in excluding the police

reports.




2
  Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove
a person’s character in order to show that on a particular occasion the person acted in accordance
with the character,” though in a criminal case, “[t]his evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b).


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       D.      Delivery Slips

       The court admitted as a Government exhibit documents certified as business

records by the vendors from whom Defendant made purchases. For a few of these

business records, vendors had certified documents that the Government had

collected and shown to the company. Included in these documents were delivery

confirmation slips for cameras and two GPS devices, which investigating agents

had attached to the subpoena and submitted to the vendors to determine whether

the latter could certify these as business records. Defendant challenges the

admission of the proofs of delivery, arguing that they were not regularly kept

business records, as required by Fed. R. Evid. 803(6) to constitute a valid hearsay

exception.3

       “[T]he touchstone of admissibility under Rule 803(6) is reliability,” and the

district court has “broad discretion to determine the admissibility of such

evidence.” United States v. Arias-Izquierdo, 449 F.3d 1168, 1183 (11th Cir. 2006)

(quoting United States v. Bueno–Sierra, 99 F.3d 375, 378–79 (11th Cir. 1996)).

Indeed, the court’s factual finding of reliability in this context is reversible only if

clearly erroneous. United States v. Petrie, 302 F.3d 1280, 1288 (11th Cir. 2002).

As we have noted, it is not required that the records be prepared by the business
3
  Rule 803(6) allows records of a regularly conducted activity to be admitted as an exception to
the hearsay rule, provided that, among other requirements, the record was kept in the course of a
regularly conducted activity of a business and making the record was a regular practice of that
activity. Certification that the requirements of the rule are met is required before the evidence
can be admitted. Fed. R. Evid. 803(6)(D).
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possessing them, or that a witness have first-hand knowledge of their preparation,

as “other circumstantial evidence and testimony [can] suggest their

trustworthiness.” United States v. Parker, 749 F.2d 628, 633 (11th Cir. 1984)

(quotation marks omitted).

      Notably, although Defendant objected at trial to admission of these delivery

slips, her counsel had announced at the pre-trial conference that Defendant had no

objection. Explaining this change of course at trial, defense counsel indicated that

he had purposely ambushed the Government, with the goal of lulling it into

thinking there was no objection and then springing that objection at trial when

there was no time to fix any problem.

      Although critical of this behavior, the district court nevertheless ruled on the

merits of Defendant’s objection to admission of this handful of delivery slips and

concluded that these records were admissible. After reviewing the process through

which the records were obtained and certified, the district court made a factual

finding that the vendors kept this shipping and delivery information in the course

of their regularly conducted business activities, and had so certified that these

documents were business records. The court’s ruling was not clearly erroneous.

Indeed, defense counsel acknowledged that Defendant was not challenging the

authenticity of the proofs of delivery or that the vendors kept shipping and delivery




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information.4 It was not an abuse of discretion for the district court to admit

business records that it found to be relevant and properly certified.

       E.     Limiting Cross-Examination of Dr. Nordt

       During cross-examination of Dr. Nordt, Defendant attempted to question

him about his divorce and the financial disclosures he made as part of that divorce

proceeding, which began in April 2010, months after Dr. Nordt had fired

Defendant because of her theft. Defendant wanted to be able to argue that Dr.

Nordt had a motive to falsely portray himself as an embezzlement victim and

thereby reduce his alimony payments. The district court initially sustained the

Government’s objection that this information was irrelevant, although the court

eventually allowed limited testimony on the matter. Defendant faults the district

court for interfering with her ability to probe in more detail Dr. Nordt’s divorce.

       Limitations on the scope of cross-examination are reviewed for clear abuse

of discretion. United States v. Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009). A

court’s otherwise broad discretion to rule on evidentiary issues and limit cross-

examination is cabined by the constitutional guarantee that a criminal defendant

has a right to cross-examine prosecution witnesses. Id. “In particular, ‘[c]ross-

examination of a government ‘star’ witness is important, and a presumption favors


4
  As the Government notes, had the district court sustained Defendant’s objection as to these
shipping documents, the Government would have simply called a live witness to authenticate the
information.
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free cross-examination on possible bias, motive, ability to perceive and remember,

and general character for truthfulness.’” Id. at 1295–96 (alteration in original)

(quoting United States v. Phelps, 733 F.2d 1464, 1472 (11th Cir. 1984)).

      Nevertheless, information sought by cross-examination must be relevant,

and allowing questioning beyond what is sufficient to satisfy the Sixth

Amendment’s Confrontation Clause is in the court’s discretion. Id. at 1296. All

that is required under the Sixth Amendment is a cross-examination broad enough

to expose the jury to facts sufficient to evaluate the witness’s credibility and to

create a record that allows defense counsel to argue why the witness might be

unreliable. Id. Beyond this, “the district court enjoys wide latitude to impose

reasonable limits on cross-examination based on, among other things, confusion of

the issues and interrogation that is repetitive or only marginally relevant.” Id.

(internal quotation marks omitted) (citing Delaware v. Van Arsdall, 475 U.S. 673,

679 (1986)).

      Defendant complains that she did not get to cross-examine Dr. Nordt to the

extent that she wanted, but she is not entitled to unlimited cross-examination. Id.

(quoting United States v. Baptista–Rodriguez, 17 F.3d 1354, 1366 (11th Cir.

1994)) (noting that a defendant is not entitled to cross-examination “that is

effective in whatever way, and to whatever extent, the defendant might wish”).

Defendant was allowed some questioning of Dr. Nordt regarding his debts and


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divorce. Defendant elicited from Dr. Nordt that the office had maxed-out credit

cards when Defendant was working there, that a large balloon payment was

upcoming on the office mortgage, and that Dr. Nordt had personal expenses from

three yacht club memberships, two planes, and two mortgages on his home. Dr.

Nordt also testified that divorce proceedings began in April 2010 and ended in

December 2011, and that he claimed $450,000 in losses from Defendant’s actions

as part of the divorce proceedings (which is significantly more than he claimed in

his initial police report regarding Defendant’s actions), but that he did not recall

any argument during the divorce proceedings regarding alimony. Defense counsel

pointed to these facts during closing arguments and argued that Dr. Nordt had a

motivation to lie. Defendant was thus able to raise and argue credibility issues

before the jury, and it was not a clear abuse of discretion for the district court to

limit further cross-examination on peripheral matters relating to Dr. Nordt’s

divorce.

      F.     Disallowing Defendant’s Requested “Stipulation”

      When cross-examining Defendant, the Government played a portion of an

audio recording from Defendant’s unemployment hearing. In the recording,

Defendant was asked, “Is it true that you wrote your husband a check―,” to which

Defendant replied, “Absolutely not. Absolutely not. And I’d like to see proof of

that because that is—that’s all lies.” Defendant testified that this exchange


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concerned a specific check for $10,000, and was not a denial that she had written

other office checks payable to her husband. The Government questioned whether

Defendant had actually so qualified this response in the hearing. Nevertheless,

after reviewing the transcript, the court determined that Defendant likely was

referring only to a specific $10,000 check, and said “[t]he parties will stipulate that

the question referred to a check and that the prior conversation had been about a

$10,000 check.” When defense counsel later requested to enter the stipulation on

redirect examination, the court said, “It’s not a stipulation. You’re going to read in

that one question that puts it into context as part of your redirect.” Defendant then

testified that the discussion during the hearing about a check written out to her

husband related to a specific check for $10,000 and did not relate to payroll

checks.

      Defendant argues that the court erred by not allowing her to enter the

stipulation that her comments during the unemployment hearing referred

specifically to a specific $10,000 check. As Defendant had previously testified,

when the office stopped using a payroll company for paychecks, Defendant began

writing paper checks for the staff, and she properly wrote paychecks to her

husband. In not allowing the stipulation, Defendant says the court violated

Defendant’s due process rights by leaving the jury with a possible misimpression

that Defendant may have been denying at the hearing that she wrote payroll checks


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to her husband, when in fact she was only denying that she wrote a $10,000 check

to him. This misinformation, according to Defendant, led the jury to believe that

she was not truthful.

       Yet, Defendant did not object when the court did not allow her to enter a

stipulation5 as to the above, and so we review for plain error. United States v.

Chafin, 808 F.3d 1263, 1268 (11th Cir. 2015), cert. denied, 136 S. Ct. 1391 (2016).

Under plain-error review, we may only correct an error when it is plain, affects

substantial rights, and “seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. (quoting United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir. 2005)). An error affects substantial rights if the judicial

proceeding's outcome would have been different but for the error. Id. This

standard is difficult to meet and should be exercised sparingly, and “only in those

circumstances in which a miscarriage of justice would otherwise result.” United

States v. DiFalco, 837 F.3d 1207, 1220–21 (11th Cir. 2016) (quoting United States

v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998)).

       The record is clear that the court did not let any mischaracterization go

unremedied. Although the court did not allow defense counsel to enter a formal

stipulation, the court did allow her to read other parts of the hearing transcript into

the record so that Defendant’s statements could be put into context on redirect

5
  A stipulation requires the agreement of both parties. It appears that the Government did not
agree.
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examination. In addition, Defendant was ultimately convicted for her actions with

the Bill-Me-Later account and the company credit cards. Thus, the absence of a

stipulation concerning a check did not directly relate to the offenses for which she

was ultimately convicted. Given this, along with other evidence of her guilt, the

outcome of Defendant’s trial would not have been different but for the court’s

decision here. Defendant therefore has not shown plain error regarding the court’s

actions pertaining to its handling of this issue.

      G.     Court’s Posing of Questions to Defendant

      Defendant argues that she was deprived of a fair trial because the court

asked multiple questions during Defendant’s three-and-a-half hours of testimony,

mostly on direct examination, which telegraphed to the jury the court’s own

disbelief as to the Defendant’s credibility and led the jury to question the veracity

of Defendant’s testimony.

      Because Defendant did not raise this objection before the district court, we

review for plain error. Chafin, 808 F.3d at 1268. As this Court has noted, a

district court has “wide discretion in managing the proceedings,” and “may

comment on the evidence, question witnesses, elicit facts not yet adduced or clarify

those previously presented, and maintain the pace of a trial by interrupting or

cutting off counsel as a matter of discretion.” United States v. Day, 405 F.3d 1293,

1297 (11th Cir. 2005) (internal quotation marks omitted). Indeed, the judge is


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“more than a mere moderator and is under a duty to question witnesses and

comment on evidence when it appears necessary,” including questioning a witness

“to clarify his testimony or to insure that a case is fairly tried.” United States v.

Block, 755 F.2d 770, 775 (11th Cir. 1985). In doing so, however, if the court

“strays from neutrality, . . . the defendant has been denied a constitutionally fair

trial.” United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004) (internal

quotation marks omitted). In determining whether the court’s questioning of a

defendant is inappropriate, “the tenor of the court’s questions rather than their bare

number is the more important factor.” Moore v. United States, 598 F.2d 439, 442

(5th Cir. 1979) (internal quotation marks omitted).6

       Here, the court’s questions were limited to factual inquires, and Defendant

does not argue that the tone of the questions was inappropriate. Rather, she simply

argues that the fact of the questioning itself biased the jury against Defendant.

Because the court is allowed to question a witness, however, such an argument

cannot succeed by itself. As the Court noted in Moore:

       [The defendant] claims only that the mere fact of judicial questioning
       to this extent tends to focus the jury’s attention on the defendant’s
       testimony and indicates some question of credibility in the judge’s
       mind. To embrace such a suggestion would in effect amount to
       adoption of a per se rule limiting judicial questioning to a specific
       number of questions, or to a certain proportion of the sum of inquiries

6
 This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).


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         made by defense counsel and prosecution; such a rule is inconsistent
         with the common law prerogatives of the trial judge secured by the
         Constitution to federal courts.

Id. at 443. The district court also asked questions of other witnesses. Further, the

district court instructed the jury that it should not consider anything said by the

court in making its determination,7 which minimized the potential for the jury to

give undue emphasis to the court’s questions. See Block, 755 F.2d at 777; United

States v. Harris, 720 F.2d 1259, 1262 (11th Cir. 1983); United States v. Hawkins,

661 F.2d 436, 450–51 (5th Cir. Unit B Nov. 1981); Moore, 598 F.2d at 443.

Accordingly, Defendant has not demonstrated any plain error concerning the

district court’s questions directed to her.

II.      Prosecutorial Misconduct

         Defendant argues that, through the prosecutor’s remarks, the Government

improperly bolstered witness testimony, misstated key evidence, and shifted the

burden of proof. This is a claim of prosecutorial misconduct that we examine by

determining whether a prosecutor’s remarks were improper and “prejudicially

affected the defendant’s substantial rights.” Azmat, 805 F.3d at 1044. If a

defendant has made a timely objection, we review alleged prosecutorial

7
    The court instructed the jury:

         You should not assume from anything I have said that I have any opinion about
         any factual issue in this case. Except for my instructions to you on the law, you
         should disregard anything I may have said during the trial in arriving at your own
         decision about the facts. Your own recollection and interpretation of the evidence
         is what matters.
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misconduct de novo. Id. Defendant objected at trial only to the burden-shifting

statements, so the bolstering and misstating key evidence claims are reviewed only

for plain error. United States v. Rivera, 780 F.3d 1084, 1090 (11th Cir. 2015).

      A.     Bolstering the Witness’s Credibility

      A prosecutor may not bolster a witness’s testimony by vouching for that

person’s credibility. United States v. Sosa, 777 F.3d 1279, 1295 (11th Cir. 2015).

Improper vouching has occurred “if the jury could reasonably believe that the

prosecutor was expressing a personal belief in the witness’s credibility,” either

through “placing the prestige of the government behind the witness,” or by

“indicating that information not before the jury supports the witness’s credibility.”

Id. (quoting United States v. Bernal–Benitez, 594 F.3d 1303, 1313 (11th Cir.

2010)). A prosecutor may “comment[] on a witness’s credibility, which can be

central to the government’s case,” and may “suggest what the jury should find

from the evidence . . . if the attorney makes it clear that the conclusions he is

urging are conclusions to be drawn from the evidence.” Id. at 1295–97 (internal

quotation marks omitted).

      In its closing argument, the Government reminded the jury of the testimony

of the investigating Secret Service agent that Defendant had been interviewed by

the agent during the investigation and had made a statement that was inconsistent

with a statement made by Defendant during her trial testimony: specifically,


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during the interview Defendant stated that she had never made personal purchases

with the credit card, but on the witness stand she explained that she had done so.

In discussing Defendant’s prior interview during closing argument, the prosecutor

referenced the interview as being made in the presence of both the agent and the

prosecutor.

      It would have been more prudent—and would have avoided any allegation

of bolstering—had the prosecutor, in urging the jury to believe the agent, not

continued to reference her own presence at the interview in question.

Nevertheless, we cannot say that the district court plainly erred in failing to sua

sponte interrupt the prosecutor’s closing argument at the time the remarks were

made, particularly when defense counsel did not perceive the remarks as

problematic enough to warrant even an objection. Nor did the prosecutor’s

remarks affect the substantial rights of Defendant, as is required to show plain

error, because we conclude that the result of the proceedings would have been no

different had the remarks not been made.

      B.      Arguing Evidence Not in the Record

      It is improper to make a closing argument based on facts not in evidence.

United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997) (“[A] prosecutor

may not exceed the evidence in closing argument . . . .”). An attorney’s purpose

during closing arguments is “to assist the jury in analyzing, evaluating and


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applying the evidence”—including through stating conclusions the jury should

draw from that evidence—though it is improper when an argument “ranges beyond

these boundaries.” United States v. Garza, 608 F.2d 659, 662–63 (5th Cir. 1979)

(quoting United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978)).

         During closing arguments, the Government noted Dr. Nordt’s testimony that

giving gifts to referral sources was illegal, and said, “[Dr. Nordt] certainly

wouldn’t have authorized the defendant to conduct an illegal act and send a gift for

a referral.” Defendant argues that the Government improperly argued facts not in

evidence by stating that it was illegal to send a gift for a referral, as opposed to

arguing merely that Dr. Nordt’s testimony indicated that he believed it was illegal

to send a gift for a referral. Defendant claims this inappropriately gave more

credibility to Dr. Nordt’s testimony vis-à-vis Defendant’s. Defendant’s argument

that this statement by the prosecutor is based on facts not in evidence is without

merit, as Dr. Nordt did testify that giving gifts for referrals was “against the law

and against all ethical laws.” Furthermore, taken in its context, the remark by the

prosecutor shows a fair recounting of Dr. Nordt’s testimony during closing

arguments, and the remark was not based on information outside the record.8 The



8
    The prosecutor argued:

         Now the doctor says, “I don’t know anything about Pavilion Women’s Center. I
         don’t have any dealings with them. I’m a spine surgeon.”


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prosecutor’s comment here, even if imprecise, did not prejudice Defendant’s

substantive rights, and so it was not plain error for this statement to go uncorrected.

      C.     Making Burden-Shifting Arguments

      It is also improper for a prosecutor to make comments that would shift the

burden of proof to the defendant or otherwise suggest that the defendant has an

obligation to produce evidence or prove innocence. Bernal–Benitez, 594 F.3d at

1315 (citing United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992)). This

does not preclude the prosecutor from commenting on the failure of defense

counsel to counter or explain evidence, however. Id.

      Defendant argues that during cross-examination and during its closing

argument, the Government tried to shift the burden of proof to Defendant.

Defendant specifically points to the Government’s cross-examination of her as to

why she did not offer a complete explanation at her unemployment hearing about



      Who has contacts with that place? The defendant. The doctor said, “I am not
      legally allowed to give gifts to somebody for a referral. That is illegal. That is
      not something I would do.”

      The doctor testified that he gets his business usually through word of mouth, not
      from referrals from other doctors or other practices. There is no quid pro quo.
      There is no giving and getting. He does not have any connection with that center.
      And he certainly wouldn’t have authorized the defendant to conduct an illegal act
      and send a gift for a referral.

      Seven former co-workers received baskets from the defendant. Do you truly
      believe that seven people provided referrals or that the defendant was being
      generous with the doctor’s money?


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the check payments she had made, as well as asking Agent Collins about details

Defendant failed to reveal during the May 20th interview. The Government

explicitly commented on the latter during closing arguments. Because Defendant

objected to these allegedly burden-shifting questions and arguments, we review

these claims de novo.9 Azmat, 805 F.3d at 1044.

       Viewed in context, what Defendant argues are burden-shifting questions and

comments by the Government were instead nothing more than the prosecutor’s

efforts to highlight Defendant’s prior inconsistent statements, an emphasis that is

entirely proper. When questioning Defendant about her statements made during

the unemployment hearing, the Government did not ask Defendant to provide

evidence or prove her innocence, but rather pointed to explanations regarding

checks that Defendant offered at trial, but did not offer at the hearing. It was

permissible for the Government to question Defendant about whether her prior

statements and trial testimony were truthful, as her credibility was central to the

government’s case, see Sosa, 777 F.3d at 1295, and questioning the truthfulness of

a witness who has given inconsistent statements does not shift the burden. See

Anderson v. Charles, 447 U.S. 404, 408–09 (1980) (holding that it was permissible

for a prosecutor to ask on cross-examination why the defendant did not offer to
9
  Defendant did not make a burden-shifting objection when the Government questioned Agent
Collins regarding the May 20th interview. Under plain-error review, we conclude that this line
of questioning was not prejudicial to Defendant’s substantive rights. The prosecutor did not
suggest that Defendant had an obligation to establish her innocence, but rather asked Agent
Collins whether Defendant was asked certain questions and how she responded to the questions.
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police at the time of his arrest the explanation given at trial regarding his

possession of a car); Anderson v. Dykes, 524 F. Supp. 101, 103 (S.D. Ga. 1981)

(“[A] defendant’s silence prior to arrest may be commented on and utilized for

impeachment.”). Similarly, the challenged closing-argument statements were not

burden shifting, but likewise highlighted inconsistent testimony. Finally, the

court’s instructions made clear that the Government bore the burden of proof.10

See e.g., United States v. Zitron, 810 F.3d 1253, 1259 (11th Cir. 2016). In sum, we

find no reversible error arising out of the prosecutor’s comments and questions.11

III.     Loss Calculation

         Among other sentencing enhancements, the presentence investigation report

added four levels under U.S.S.G. § 2B1.1(b)(1)(C) for a loss of more than $15,000

but less than $40,000. Defendant objected to this calculation, in part because it

included duplicate credit card charges of $571.02 and $308.93, which were made

after the initial purchases were denied. The district court ultimately counted the



10
     The district court instructed the jury on burden of proof as follows:

         The law presumes every defendant is innocent. The defendant does not have to
         prove her innocence or produce any evidence at all. The Government must prove
         guilt beyond a reasonable doubt. If it fails to do so, you must find the defendant
         not guilty. The Government’s burden of proof is heavy, but it does not have to
         prove a defendant’s guilt beyond all possible doubt. The Government’s proof
         only has to exclude any “reasonable doubt” concerning the defendant's guilt.
11
   Defendant also argues that her conviction should be reversed because of cumulative errors
that occurred at trial. Having found no errors, we reject this request.
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duplicate charges separately, reasoning that Defendant had made four separate

attempts to use the credit card.

       Commentary to the guidelines notes that “loss is the greater of actual loss or

intended loss,” and intended loss “means the pecuniary harm that the defendant

purposely sought to inflict[, which] includes intended pecuniary harm that would

have been impossible or unlikely to occur.” Id. § 2B1.1, comment. (n.3(A)(i)–(ii)).

The district court’s loss calculation does not need to be exact, but only a reasonable

estimate. Id. § 2B1.1, comment. (n.3(C)). We review a district court’s loss

calculation for clear error. United States v. Cobb, 842 F.3d 1213, 1218 (11th Cir.

2016). Under clear-error review, a loss calculation is overturned when “we are left

with a definite and firm conviction that a mistake has been committed.” United

States v. Campbell, 765 F.3d 1291, 1302 (11th Cir. 2014) (quoting United States v.

Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005)).

       Here, Defendant made the deliberate choice four separate times to try to

inflict pecuniary harm on her victim by four times attempting to make an improper

charge. We find no clear error, and thus affirm the sentence imposed by the

district court.

                                     CONCLUSION

       Defendant has not demonstrated any reversible errors during her trial or in

calculating her sentence. Therefore, her conviction and sentence are AFFIRMED.


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