                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                           JANUARY 18, 2006
                              No. 05-12424                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

               D. C. Docket No. 04-00126-CR-ORL-19-DAB

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

THOMAS EDWARD SPRINGER,

                                                      Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (January 18, 2006)


Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:
      Thomas Edward Springer appeals his conviction for being a convicted felon

in possession of a firearm in violation of 18 U.S.C. § 922(g). On appeal, he argues

that (1) the district court violated his Sixth Amendment Confrontation Clause

rights in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158

L.Ed.2d 177 (2004), by allowing an expert opinion based, in part, on hearsay, or, in

the alternative, violated the pre-Crawford Federal Rule of Evidence 703; and (2)

abused its discretion by denying his motion for a mistrial. For the reasons set forth

more fully below, we affirm.

      Springer was charged in a superseding indictment with one count of being a

convicted felon in possession of a firearm, and one count of possessing an

unregistered shotgun with a barrel shorter than 18 inches, violations of 18 U.S.C.

§§ 922(g), 924(a)(2) and 26 U.S.C. §§ 5861(d) and 5871, respectively.1 The

indictment charged Springer with possession of seven firearms affecting interstate

commerce, three of which, in relevant part, were (1) a Harrington & Richardson

Shotgun; (2) a Remington Arms rifle; and (3) a Marlin Glenfield rifle. A jury

returned a verdict of not guilty as to the unregistered firearm count , but was unable

to render a verdict as to the felon-in-possession count.

      The government retried Springer on the felon-in-possession count, and a



      1
          The parties stipulated to the jury that Springer was a convicted felon.

                                                  2
jury returned a verdict of guilty, specifically finding that the government had

proven beyond a reasonable doubt that Springer, as a convicted felon, had illegally

possessed the firearms at issue. He was later sentenced to 51 months’

imprisonment.

      Prior to the first trial, and renewed before the second trial, Springer was

granted a motion in limine prohibiting any witness from referencing the suspected

battery of Diane Springer on March 16, 2004, which led to Springer’s arrest and

the discovery of the firearms forming the basis for the present charge. Before the

second trial, the court was made aware that the parties had agreed that the

government’s witnesses would not raise the domestic violence incident, or any of

the photographs from that incident that prompted the police to respond.

      Later, during the cross-examination of Deputy Michael Nelson, who arrived

on the scene at Springer’s home in response to a 911 call on March 16, counsel for

Springer asked Nelson several questions regarding the discovery of weapons in

Springer’s home and, specifically, regarding what Mrs. Springer might have said to

Nelson regarding loaded weapons in the house before Nelson performed a

protective sweep. The following exchange ensued:

               Q.     Is it correct that you didn’t vocalize anything to
                      Mr. Wasser 2 regarding doing a protective sweep

      2
          Wasser was another deputy who responded to the 911 call with Nelson.

                                               3
                   ...?

            A.     Basically, we knew that Mrs. Springer was in the
                   back of house, she wasn’t coming out of the back
                   of the house, at which point I then went towards
                   that section of the house to make contact with her.
                   And, like I said, working with [Wasser], we know
                   what, basically, each others’ job is to do.

            Q.     And when you were back there, Ms. Springer
                   never told you that there were other guns in the
                   house which were loaded, did she?

            A.     No, she just stated that she was in fear of weapons
                   in the house, which at that time I assumed those
                   weapons that were in the room.

No objection was raised at this point, and then Nelson was questioned about safety

procedures when there are loaded weapons in a home, and, at one point, responded

to Springer’s counsel by saying that Mrs. Springer was very upset and that he was

“just trying to explain why” his conversation with Mrs. Springer did not go any

further.

      A few questions followed, and then Springer’s counsel asked the following,

to which the government objected on a hearsay ground that was overruled:

            Q.     Answer this only if you’re aware or not. Are you
                   aware of the fact that Mrs. Springer has testified
                   under oath that she told you that there were loaded
                   weapons in the house?
                   ....

            A.     Under oath? I did not hear her say that. No, I don’t

                                         4
                   know.

             Q.    Okay. So then, it’s your testimony you never
                   heard her make that comment before?

             A.    Basically, just the information she provided me on
                   that date, which was limited information, that she
                   was afraid that she was going to be killed by the
                   weapons that were in the house, which I assumed -

Springer’s counsel then objected to Nelson’s answer as non-responsive and orally

moved for a mistrial, which the court overruled and denied, respectively.

      Nelson was then asked when Ms. Springer had told him that Mr. Springer

(the defendant) was a convicted felon, leading to the following:

             A.    I believe, it was while I was in the room with her
                   while waiting for other county personnel.

             Q.    And she just said, “He’s a convicted felon.”

             A.    She was stating that she was in fear that he was
                   going to use the weapons on her. She had made
                   mention that - -

             Mr. Horween: Judge, I’m going to object to nonresponsive - -

             Court: Counsel, the witness has to answer your question
             with what he knows, and he is answering your question.
             I’ll overrule your objection.

             Mr. Horween: And I’ll, again, request a mistrial for the record.

             Court: A mistrial is denied. Please proceed.

      Later, Springer renewed his motion for a mistrial. Referencing the question

                                          5
to Nelson of whether he knew that Mrs. Springer had testified that she told Nelson

about loaded guns in the house, Springer argued that Nelson’s response was non-

responsive and suggested to the jury that Springer had been arrested on unrelated

charges. He further argued that Nelson’s statement contained a reference to Mrs.

Springer believing that she would be killed, suggested a threat to Mrs. Springer,

suggested that Mr. Springer (the defendant) had knowledge of the weapons, and,

furthermore, violated the motion in limine. The district court denied the motion,

stating that:

       [Nelson] did not answer whether that was under oath, but the man was
       struggling to answer your questions, and I am sure struggling to stay
       within what is, I assume, the direction to him . . . about not to get into
       what had occurred in that house and why Mr. Springer was arrested on
       that date. It does not warrant a mistrial.

       Springer continued to argue for a mistrial, next pointing to Nelson’s

testimony regarding when Mrs. Springer had told him that Mr. Springer was a

convicted felon. Specifically, Springer argued that Nelson’s statement, that Mrs.

Springer was afraid that the weapons would be used on her, was unresponsive to

the question asked, especially in light of the fact that Nelson had testified in court

before and was aware of the parameters of the motion in limine. Springer further

argued that, because of Nelson’s statement, the jury twice heard that Mrs. Springer

was in fear of Mr. Springer using the weapons on her, suggesting that “perhaps he



                                           6
was arrested regarding the use of weapons on her,” which was prejudicial and a

violation of the motion in limine. The motion was denied.

      In the alternative, Springer requested that the jury be given a curative to

disregard any testimony regarding any alleged criminal act or accusation regarding

Mr. Springer toward Mrs. Springer on March 16, 2004. The government objected

to the instruction as unnecessary, given that Springer’s counsel’s question elicited

Nelson’s response. Springer responded that his question called for a yes or no

answer, not the response Nelson actually gave. The court then stated, “this witness

. . . was struggling. I could see him struggling because he . . . had been told not to

talk about these things. And it sounded . . . that you were asking him these

questions about [whether the] guns were loaded.” Ultimately, the following jury

instruction was added at Springer’s request, despite admonishment from the

government and the court that it might draw unnecessary attention to Nelson’s

testimony:

      The defendant is on trial only for the specific offense that is alleged in
      the first superseding indictment, and that will be attached to the
      verdict form. He is not on trial for any other offense.

      Also at issue in this case is the expert testimony used to prove that the

firearms forming the basis for Springer’s conviction moved in interstate commerce




                                           7
and were not antiques.3 That testimony was delivered by Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF), agent Alina Sacerio-Polak, a 20-year

veteran. After testifying to her training and experience with firearms, Polak was

accepted over objection as an expert witness in the area of “firearms and interstate

nexus.” Springer does not challenge her qualifications as an expert on appeal.

       During her direct examination, Polak testified, in relevant part, that the H&R

shotgun was found to have been made in Massachusetts. The Remington rifle was

found to have been manufactured in 1902 in New York. Polak also identified the

Marlin Glenfield rifle as having been manufactured in Connecticut. All three of

these firearms were determined to be qualifying firearms, as opposed to antiques,

under the Gun Control Act because they were manufactured after 1899.

       On cross-examination, Polak explained that her findings were based on

several sources of reference, including her training, books, and contacts with the

gun manufacturers, who are required, under industry regulations, to provide the

ATF information. As to the specific guns attributed to Springer by the jury, Polak

testified that, with regard to the H&R shotgun, she collected information about the



       3
          The record reflects that a total of ten weapons were seized from Springer’s residence,
but of those ten, three weapons were considered “antiques” under the Gun Control Act of 1968,
18 U.S.C. § 921(a)(16), because they were manufactured in or before 1898, and thus, these
weapons were not charged in the indictment. Upon review of his brief, Springer contests only
the interstate nexus, and not whether the weapons were antiques.

                                                8
gun and sent that information to the National Tracing Center in West Virginia,

which then traced the gun to the licensed distributor. She further testified that the

gun was manufactured in 1982. However, when asked how she knew, she first

stated that it was contained in ATF records, and later admitted that the tracing

center called the manufacturer to obtain the information. Polak could not

remember with whom she had spoken, could not produce a document at that time

to back her finding, and did not have the records with her in court. Finally, Polak

indicated that the serial number on the weapon told her that the gun was

manufactured in 1982.

      Turning to the second gun, the Remington rifle, Polak testified that the

model of the gun, not the identification or serial number, told her when the gun

was manufactured. Polak identified the gun as a model number 4 rifle based on a

document that was faxed to her by Remington. She could not remember whether

that document had been provided to the defense, but the document led her to

conclude that the firearm had been manufactured in 1902. She later clarified that

the gun was made sometime between 1902 and 1933, but she could not be exactly

certain of the year. Counsel for Springer then obtained the document in question

from Polak, which was identified as a Remington record. Polak testified that the

record in question formed the basis of her expert opinion, and that the document



                                           9
had been received from Tom Holden, Remington’s historian, with whom she had

spoken.

      At that point, counsel for Springer objected, stating that Polak’s “expert

opinion,” could not be based solely on hearsay, and he asked that the court strike

her expert opinion. The district court overruled the objection, finding that

counsel’s statement of the law was incorrect. As for the third firearm, the Marlin

Glenfield rifle, Polak was not able to trace the gun, but testified that it was

manufactured in Connecticut at the Marlin factory between 1960 and 1965. Polak

based her opinion on her own research and spoke to no one regarding the

manufacture date. Among her reference materials, which she kept in her office,

were books, ATF records and materials, and a compact disc with manufacturers’

information maintained by the ATF, distributed during interstate nexus training

classes. Furthermore, she testified that she previously had visited the Marlin

factory and observed how guns were manufactured and marked while there.

      On redirect, Polak explained that she uses over a dozen books, publications,

3 CDs, and internally-relayed industry-related information during her research

process. She also testified that she had visited the manufacturers of each of the

guns at issue in this case, and that each gun had been stamped with the city, state,

and manufacturer name. Furthermore, upon examining the stamps, she determined



                                           10
that none of the firearms had been re-stamped at any time. The jury returned a

verdict of guilty, and the district court ultimately sentenced Springer to 51 months’

imprisonment.

                     I. Confrontation Clause and Crawford

      On appeal, Springer first argues that the district court erred by allowing

Agent Polak to establish an interstate nexus for the firearms forming the basis for

Springer’s conviction because her opinion relied upon testimonial hearsay in

violation of the Confrontation Clause in light of Crawford v. Washington, 541 U.S.

36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He argues that prior to Crawford, an

expert could rely, in part, on hearsay when forming an opinion, but post-Crawford,

and in particular in light of this Court’s unpublished opinion in United States v.

Buonsignore, 131 Fed. Appx. 252 (11th Cir. 2005), an expert may not rely on

testimonial hearsay unless the defendant had a prior opportunity for cross-

examination of the declarant. Springer further argues that, while Crawford appears

to permit the use of “business records,” the government in this case did not lay the

foundation to prove that the records relied upon in this case were business records

rather than records compiled for litigation purposes. Springer argues that Polak’s

expert opinion relied exclusively on testimonial evidence that was not

“unavailable” for trial or cross-examined by him, and, therefore, the expert’s



                                          11
opinion was inadmissible and his conviction should be reversed.

      At the outset, the parties disagree as to the proper standard of review. The

government’s position is that Springer objected at trial solely on grounds that an

expert’s opinion could not be based solely on hearsay, and, therefore, the

Confrontation Clause challenge being raised on appeal was not preserved and

should be reviewed for plain error. In reply, Springer argues that raising a hearsay

objection, if sufficient in a habeas petition to place a state court on notice of a

subsequently raised Confrontation Clause claim, should be sufficient to have raised

the claim in the instant case, citing Hutchins v. Wainwright, 715 F.2d 512, 518-19

(11th Cir. 1983) (holding, in a state habeas context, that a petitioner’s repeated

objections to the use of out-of-court statements of an unidentified informant, while

obliquely stated, was sufficient to alert a state court of a Confrontation Clause

claim).

      Recently, we held that, where the defendant at sentencing objected on

hearsay grounds, but did not mention the Confrontation Clause or Crawford, it was

insufficient to preserve the objection, and review would be for plain error only.

United States v. Chau, 426 F.3d 1318, 1321-22 (11th Cir. 2005). Accordingly, we

conclude that Springer’s single hearsay objection at trial was insufficient to

preserve the constitutional challenge under the Confrontation Clause, and we will



                                           12
review for plain error only.

       “An appellate court may not correct an error the defendant failed to raise in

the district court unless there is: (1) error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.),

cert. denied 125 S.Ct. 2935 (2005) (quotation and citation omitted). “If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. Furthermore, in order for an error

to be plain, it must be clear under current law. See United States v. Aguillard, 217

F.3d 1319, 1321 (11th Cir. 2000). “[W]here neither the Supreme Court nor this

Court has ever resolved an issue, and other circuits are split on it, there can be no

plain error in regard to that issue.” Id.

       The Sixth Amendment provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI. As we recently discussed, the Supreme Court, in

Crawford, “explained that the founding generation understood the right to

confrontation in the light of the common-law tradition of ‘live testimony in court

subject to adversarial testing.’” United States v. Cantellano, No. 05-11143, slip op.

at 464 (11th Cir. Nov. 15, 2005). “The common-law tradition of confronting one’s



                                             13
accusers in court recognized that ex parte testimony raised issues of justice and

fairness. Because testimony is accusatory and delivered in contemplation of

criminal proceedings, it is adversarial. An accused, therefore, should have the

opportunity to confront adverse witnesses face-to-face.” Id. at 464-65, citing

Crawford, 541 U.S. at 43-45, 124 S.Ct. at 1359-60.

      In Cantellano, the issue was whether, under Crawford, the defendant had the

right to cross-examine the government agent who witnessed the defendant leave

the country and recorded the warrant of deportation that was admitted at trial over

his objection. Id. at 465. After noting that the issue boiled down to whether the

warrant of deportation was “testimonial” or “non-testimonial” evidence, we held

that the defendant had no right to confront and cross-examine the agent because the

routinely recorded warrant of deportation was “non-testimonial,” and, therefore,

not subject to the confrontation clause. Id.

      As we have noted, the Supreme Court in Crawford left “for another day any

effort to spell out a comprehensive definition of ‘testimonial.’ [footnote omitted].

Whatever else the term covers, it applies at a minimum to prior testimony at a

preliminary hearing, before a grand jury, or at a former trial; and to police

interrogations.” Crawford, 541 U.S. at 68, 124 S.Ct. at 1374; Cantellano, slip op.

at 465. However, “[b]ecause non-testimonial evidence is not prepared in the



                                          14
shadow of criminal proceedings, it lacks the accusatory character of testimony.”

Cantellano, slip op. at 465. Therefore, we concluded in Cantellano that “[b]ecause

a warrant of deportation does not raise the concerns regarding testimonial evidence

stated in Crawford, we conclude that a warrant of deportation is non-testimonial

and therefore is not subject to confrontation.” Id.

       When it comes to expert testimony, we held, prior to Crawford, that

“hearsay testimony by experts is permitted if it is based upon the type of evidence

reasonably relied upon by experts in the particular field.” United States v. Floyd,

281 F.3d 1346, 1349 (11th Cir. 2002), citing Fed.R.Evid. 703.4 In Floyd, a

government expert in establishing the interstate nexus requirement for convictions

under 18 U.S.C. § 922(g) testified that, after examining ammunition seized from

the defendant and consulting a Winchester catalog, he determined that the

ammunition had traveled in interstate commerce. Floyd, 281 F.3d at 1347. The

expert also testified that, to verify the information he obtained, he contacted a

technical advisor at the Association of Firearms and Tool Mark Examiners, and

stated that his determination that the ammunition moved in interstate commerce

       4
         Providing, in relevant part: “If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or inference to be admitted.” Fed.R.Evid. 703.
As the Committee notes make clear, Rule 703 “governs only the disclosure to the jury of
information that is reasonably relied on by an expert, when that information is not admissible for
substantive purposes. It is not intended to affect the admissibility of an expert’s testimony.”
Fed.R.Evid. 703, Adv. Comm. Notes, 2000 Amendments.

                                                15
was based, in part, on what he was told by the technical advisor. Id. The expert

told the court that it was his opinion that the ammunition moved in interstate

commerce, and the information gleaned from the technical advisor was the kind

reasonably relied upon by experts in the field. Id.

       We affirmed, and held that, because the information was reasonably relied

upon by experts in the field and the expert had testified that his opinion was not

based exclusively on his conversation with the technical advisor, the testimony was

properly admitted. Id. at 1349. While Floyd did not explicitly address the

Confrontation Clause issue, Springer nonetheless argues that Floyd’s holding

regarding the use of hearsay testimony by an expert is no longer precedent.

       Springer cites to an unpublished opinion in support of his argument, United

States v. Buonsignore, 131 Fed.Appx. 252 (11th Cir. 2005) petition for cert. filed

(U.S. July 29, 2005) (No. 05-5603).5 Notwithstanding that Buonsignore is non-

binding and, therefore, cannot be used to prove that any error was plain, the instant

case is unlike Buonsignore. The expert in Buonsignore was not offering his own

expert opinion– he was offering the expert opinion of an unidentified individual in

Washington D.C., which means that the wrong expert was on the stand. Id. at 257.

Here, as to at least two of the firearms, the H&R shotgun and the Marlin Glenfield


       5
         Pursuant to Eleventh Circuit Rule 36-2, unpublished opinions are not considered
binding precedent, but may be cited as persuasive authority.

                                              16
rifle, Agent Polak formed her own opinion based on her education, training,

knowledge, and personal experience in consultation with books and records, as

well as a consultation with an individual in the National Tracing Center. Even if

Polak’s opinion as to the Remington rifle were based solely on the testimonial

evidence of a Remington historian and that evidence were excluded, the books,

CDs and personal knowledge of Polak do not appear to be testimonial evidence

subject to the Crawford rule.

      In addition, Springer appears to challenge the “interstate commerce nexus,”

however, he neglects to mention that each of the firearms forming the basis for his

conviction were stamped with the city and state in which they were manufactured.

Since each of the firearms was stamped with a state other than Florida, and Polak’s

expert opinion was that the guns were not restamped, when the guns were

discovered and found by a jury to be in Springer’s possession in Florida, sufficient

admissible evidence supported his conviction.

      Again, to the extent that the evidence relied upon by Polak was testimonial

in nature, Springer’s argument may find some support in Crawford, and even in

Cantellano. Neither case, however, involved expert testimony, and, more

importantly, neither case addressed Crawford’s holding in the context of expert

testimony and an expert’s ability to rely on otherwise inadmissible evidence when



                                         17
forming an opinion under Rule 703. As best as can be discerned, neither this

Court, the Supreme Court, nor any other circuit court has issued a published

opinion regarding what otherwise inadmissible sources, testimonial or non-

testimonial, an expert may rely upon when forming an opinion in light of

Crawford. Thus, we conclude that any error the district court may have committed

by permitting Polak’s testimony was not plain.

                         II. Federal Rule of Evidence 703

      Alternatively, Springer argues that Polak’s testimony was inadmissible even

under the pre-Crawford evidentiary rules and Rule 703. He argues that the

government failed to show that firearms experts customarily rely on the sources

Polak relied upon, or that her sources had any particularized guarantee of

trustworthiness.

      Because Springer failed to object on the basis of Rule 703 at trial, we will

review for plain error only. Chau, 426 F.3d at 1321-22. Federal Rule of Evidence

703 provides, in relevant part, that when an expert relies on otherwise inadmissible

evidence, his opinion is still admissible so long as the inadmissible facts or data is

“of a type reasonably relied upon by experts in the particular field in forming

opinions or inferences upon the subject.” Fed.R.Evid. 703. As discussed above,

we held in Floyd that “hearsay testimony by experts is permitted if it is based upon



                                           18
the type of evidence reasonably relied upon by experts in the particular field.”

Floyd, 281 F.3d at 1349.

      Thus it appears that no error that is plain was committed. Even assuming

that there was error and it was plain, we conclude that Springer’s substantial rights

were not violated. Polak personally examined the markings on the firearms, which

indicated the state of manufacturing, and Polak knew, from her training and

experience and personal visitation, where the manufacturers were located. She

further testified that guns had not been restamped. Based on the markings and her

knowledge and training, she was able to give her opinion that the firearms moved

in interstate commerce. Notwithstanding any potential hearsay problem, she had

visited at least two of the manufacturers of the firearms supporting Springer’s

conviction. Her testimony in that regard was based on her own training, education,

and personal experience, and, therefore, not hearsay. Accordingly, because

Polak’s testimony established the interstate nexus required for the jury to convict

Springer, his substantial rights were not violated by any possible error.

                              III. Motion for Mistrial

      Lastly, Springer argues that the district court abused its discretion by not

granting a mistrial after Deputy Nelson gave testimony that he argues violated the

parties’ agreement not to make references to domestic violence. Specifically, he



                                          19
argues that Nelson’s testimony was hearsay and more prejudicial than probative.

Furthermore, he argues that the government had agreed not to introduce the

evidence/testimony at issue, and that the violation of that agreement prejudiced

him to the point that a mistrial should have been declared. Finally, Springer argues

that the curative instruction did not cure the harm.

       We review the denial of a motion for a mistrial for abuse of discretion.

United States v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005). We have stated

that “[t]he abuse of discretion standard has been described as allowing a range of

choice for the district court, so long as that choice does not constitute a clear error

of judgment.” United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989).

       We have held that the decision whether or not to grant a mistrial “lies within

the sound discretion of a trial judge as he or she is in the best position to evaluate

the prejudicial effect of improper testimony.” United States v. Perez, 30 F.3d

1407, 1410 (11th Cir. 1994); accord United States v. Saget, 991 F.2d 702, 707-08

(11th Cir. 1993) (“the trial judge . . . is in the best position to evaluate the

prejudicial effect of a statement or evidence on the jury.”). Furthermore, “[w]hen a

curative instruction has been given to address some improper and prejudicial

evidence, we will reverse only if the evidence is so highly prejudicial as to be

incurable by the trial court’s admonition.” Id.



                                            20
      Having reviewed the record, we conclude that it cannot be said that the

district court made a clear error in judgment by denying Springer’s motions for a

mistrial. It was in the best position to decide the prejudicial effect of any improper

testimony, and given the context of the cross-examination, the nature of the

questions asked, the district court’s findings regarding the testimony in question,

and the curative instruction given, we conclude that it did not abuse its discretion

by denying Springer’s motions.

      Furthermore, to the extent Springer argues that the government breached its

agreement under the motion in limine to exclude references to the domestic

violence incident that caused police to respond on March 16, this contention is

without merit. First, Springer has neither alleged nor proven that the government

told Nelson to interject the testimony at issue in this case. More importantly, it

was Springer’s counsel, not the government, who elicited the testimony in question

by asking one question too many. Finally, Nelson’s testimony did not reference

domestic violence and, therefore, did not violate the parameters of the motion in

limine.

      Based on the foregoing, we conclude that the district court committed no

reversible error. We, therefore, affirm Springer’s conviction.

      AFFIRMED.



                                          21
