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                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-14992
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:14-cr-20145-CMA-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

GERALD HUMBERT,
                                                             Defendant-Appellant.

                          ________________________

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

                              (November 23, 2015)

Before ED CARNES, Chief Judge, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      A jury convicted Gerald Humbert for his role in a drug-trafficking operation.

Humbert argues that his conviction is impermissibly tainted by improper remarks
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by the government and extraneous influences on the jury. Neither of his arguments

warrants vacating his conviction.

      At Humbert’s jury trial, the government called his co-defendant, Antonio

Norris, as a witness. Norris testified that he pleaded guilty before Humbert’s trial,

but had no plea agreement with the government and received no benefit for his

plea. He further testified that he was not immune from prosecution for violent

crimes and that his testimony could be used against him if he testified falsely.

      On cross-examination, the defense questioned Norris about a recorded phone

conversation in which a woman said Norris had killed someone. Norris explained

that two men with guns had tried to rob him and he had killed one of them in the

ensuing struggle. Norris testified that, although people had tried to rob him on

numerous occasions, he didn’t carry a gun. Norris later said that he had committed

“no violent crimes, [and had] never committed any violent things in [his] life.”

      During closing arguments, the defense characterized Norris as an inveterate

liar who would “say anything that he needed to say here in court so he can get a

break in his sentence.” In particular, the defense argued that Norris lied to the jury

when he testified that he did not carry a gun and was not a violent person. The

defense asserted that Norris lied about the violent crimes because he was subject to

prosecution for any violent crimes he had committed.




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      In rebuttal, the government argued that Norris had no immunity for any

violent crimes he may have committed, saying, “if he killed somebody, I hope he

gets prosecuted for it.” The government went on to note that all participants in a

conspiracy are liable for the foreseeable actions of their co-conspirators, so that, if

“Norris killed someone, in furtherance of [the conspiracy in which Humbert was

involved], there will not only be one defendant sitting at the table, there could very

well be two.” The prosecutor explained that the government had “no interest” in

failing to prosecute someone for an offense as serious as murder, and further

remarked that he believed law enforcement took their responsibilities seriously and

would not “hold back” if they had evidence that someone had committed murder.

Finally, the government stated that any unconfirmed murders “from [Humbert’s]

business” would “be answered [for].” The defense immediately objected to the

suggestion that “the murders that Antonio Norris committed have anything to do

with [Humbert].” In response to the objection, the district court promptly

instructed the jurors to “rely on [their] recollection of the testimony in evidence.”

      While the jury was deliberating, it sent the district court a note explaining

that a juror lived and worked in the area where the offenses occurred and was

afraid “that a verdict endanger[ed] their life.” The court called the parties in and

asked how they wanted the court to handle the note. Humbert argued that the note

“implie[d] somebody might have information about that area that they have


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brought into the jury room,” but also stated that he did not “know what that person

who lives and works in the area may have said to the other jurors with regard to the

area.” He said that he wanted “to know whether or not this juror . . . discussed

with the other members of the jury anything that was not introduced at the trial.”

Humbert therefore requested that the court individually question the juror to

determine “what, if anything, he or she [] disclosed to the panel regarding the fear

expressed.” The court elected not to interview the juror, but agreed to instruct the

jury “to consider only the evidence introduced at trial” and to advise the court if

“anyone [had] introduced other matters into the deliberations.”

      Humbert moved for a mistrial, contending that the note showed that

“extrinsic matters [had] been entered into the jury deliberations and that,” contrary

to the court’s instructions, “the foreperson and all of the other jurors [had] decided

not to disclose that to the court.” Alternatively, Humbert asked that the district

court interview the foreperson to ascertain which jurors might have been tainted by

outside information. After a hearing, the court denied Humbert’s requests,

concluding that mere statements that jurors were concerned for their safety did not

present the sort of danger that warranted a mistrial or juror interviews.

      The jury eventually returned a verdict finding Humbert guilty on all counts.

Humbert appeals that verdict, arguing: (1) that the government’s closing statement




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was riddled with improprieties, and (2) that the district court abused its discretion

in denying his motion for a mistrial or an interview with the foreperson.

      The government didn’t engage in misconduct when it pointed out to the jury

that Norris was still potentially criminally liable for any violent crimes he

committed. That argument was permissible because it directly responded to the

part of the defense’s closing argument characterizing Norris as someone who

would “say anything that he needed to say here in court so he can get a break in his

sentence.” One way to rebut that characterization was to remind the jury, as the

government did, that Norris’s testimony didn’t entitle him to “a break in his

sentence” or any other type of leniency. “The prosecutor, as an advocate, is

entitled to make a fair response to the arguments of defense counsel.” United

States v. Hiett, 581 F.2d 1199, 1204 (5th Cir. 1978). The government’s argument

that Norris was still criminally liable for violent crimes he committed — indeed,

was likely to be prosecuted in the event there was evidence of those crimes — was

permissible under the “fair response” doctrine.

      The government’s remark at trial, ostensibly linking Humbert to an

uncharged killing, also does not warrant reversal. Remarks by the government are

reversible error only if: (1) they are improper, and (2) they prejudicially affect the

defendant’s substantial rights. United States v. Reeves, 742 F.3d 487, 505 (11th

Cir. 2014). “A defendant’s substantial rights are prejudicially affected when a


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reasonable probability arises that, but for the remarks, the outcome of the trial

would have been different.” United States v. Eckhardt, 466 F.3d 938, 947 (11th

Cir. 2006). Assuming the government’s remark about the killing was improper,

Humbert hasn’t shown substantial prejudice from the remark. It is unlikely the

remark prejudiced Humbert’s substantial rights because, immediately after the

remark was made, the district court instructed the jurors to rely only on their

recollection of the evidence presented at trial, instead of on the lawyers’

arguments. When a district court takes a curative measure in response to possible

prosecutorial misconduct, we will reverse only if the evidence is so prejudicial that

it is incurable by that measure. United States v. Lopez, 590 F.3d 1238, 1256 (11th

Cir. 2009). The government’s remark speculating about the killing doesn’t rise to

that level. It is also significant that, throughout the trial, the district court

repeatedly instructed the jurors to consider only the evidence in the record, not the

lawyers’ arguments. We presume jurors follow instructions, United States v.

Mock, 523 F.3d 1299, 1303 (11th Cir. 2008), which further diminishes the

potential prejudice from the remark.

       And the evidence of Humbert’s guilt is overwhelming. The jury heard

eyewitness testimony about Humbert discarding crack cocaine and a firearm, a

recording of Humbert talking about drug trafficking, and extensive testimony from

one of his co-conspirators about Humbert’s role in the drug-trafficking operation.


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Thus, even if the government’s remark about the killing was improper, it did not

affect Humbert’s substantial rights.

      That leaves Humbert’s argument that the district court abused its discretion

by denying his motion for either a mistrial or an interview with members of the

jury. To prevail on such an argument, a defendant must make a colorable showing

of improper extraneous influence on the jury. United States v. Alexander, 782

F.3d 1251, 1260 (11th Cir. 2015). Humbert has failed to make that showing here.

The juror in question had simply stated that he or she lived and worked in the area

where the offenses occurred and was afraid a verdict would endanger his or her

safety. That information, without more, does not constitute concrete evidence that

the juror introduced extraneous information into the deliberations. At most, it

gives rise only to speculation about what else the juror might have said. “Where

allegations are speculative or unsubstantiated,” we have said, “the [district court’s]

burden to investigate does not arise.” Id. at 1258. It’s also significant that, in an

abundance of caution, the district court did issue a curative instruction to the jury

and directed the jurors to tell the court if anyone had introduced extraneous

evidence into the deliberations. That instruction reduced the likelihood of

prejudice from extraneous information. Humbert’s contention that the jury may

have ignored that instruction is just more speculation. See id.

      AFFIRMED.


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