                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-11475                 ELEVENTH CIRCUIT
                                                                MARCH 3, 2010
                           Non-Argument Calendar
                                                                 JOHN LEY
                         ________________________
                                                                  CLERK

                 D. C. Docket No. 08-00088-CR-2-SLB-HGD

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

KENNETH GRAY,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                                (March 3, 2010)

Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

     Kenneth Gray appeals his convictions for distributing crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He challenges both the district

court’s denial of his motion for a mistrial and the denial of his motion for judgment

of acquittal.

       During trial, the government asked defense witness Antonio Rutledge: “Are

you aware that the defendant was convicted of possession of marijuana?” The

court interjected and determined that the question was inadmissible. Defense

counsel then objected and moved for a mistrial. The court denied the motion for a

mistrial and gave the following curative instruction: “I am instructing you to

disregard the last question of the government and not to draw an inference from it.”

At the close of all the evidence, the jury found Gray guilty on both counts.

I. Denial of Motion for Mistrial

       Gray argues that the district court erred in denying his motion for a mistrial

because the government asked an impermissible question during its

cross-examination of Rutledge. Gray maintains that the court’s curative instruction

did not alleviate the prejudice caused by the improper question.

       We review a district court’s refusal to grant a mistrial for an abuse of

discretion. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998). “The

decision of whether 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



                                            2
improper testimony.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994).

“When 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. (quoting United States v.

Funt, 896 F.2d 1288, 1295 (11th Cir. 1990)).

      In this case, the district court did not abuse its discretion by denying Gray’s

motion for a mistrial because the government’s question was not incurably

prejudicial. The district court prevented the witness from answering the question,

handled the matter outside the presence of the jury, and then properly instructed the

jury to disregard the question. Accordingly, the district court’s immediate curative

instruction was sufficient to mitigate any prejudice that may have resulted, and the

court did not abuse its discretion by denying Gray’s motion for a mistrial.

II. Sufficiency of the Evidence

      Gray next argues that the district court committed reversible error by

denying his motion for judgment of acquittal because the government failed to

present sufficient evidence that he was the person who sold the cocaine to a

confidential informant, Stephen Bell. Gray asserts that Bell was the only witness

to the actual transaction, and Bell’s testimony was not credible because he was

granted probation based on his assistance to the government. Moreover, Gray



                                           3
submits, Bell’s testimony was incredible because he “asserted the Fifth

Amendment when asked if he was still selling drugs at the time of the trial.”

      “Sufficiency of the evidence is a question of law reviewed de novo. We,

however, view the evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor.”

United States v. Martinez, 83 F.3d 371, 373-74 (11th Cir. 1996) (internal citations

omitted). “In order to find the evidence sufficient, we need not exclude every

reasonable hypothesis of innocence or find the evidence wholly inconsistent with

every conclusion except that of guilt, provided that a reasonable factfinder could

find that the evidence establishes guilt beyond a reasonable doubt.” United States

v. Kelly, 888 F.2d 732, 740 (11th Cir. 1989). Credibility determinations are for

the jury to make, and we typically will not review such determinations. United

States. v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994). “The test for sufficiency of

evidence is identical regardless of whether the evidence is direct or circumstantial,

and no distinction is to be made between the weight given to either direct or

circumstantial evidence.” United States v. Mieres-Borges, 919 F.2d 652, 656-57

(11th Cir. 1990) (internal quotations omitted). In order to convict a defendant of

distribution of cocaine, the government must prove that the defendant “knowingly

or intentionally . . . distribute[d] . . . a controlled substance.” 21 U.S.C.



                                            4
§ 841(a)(1).

         Here, the evidence was sufficient to convict Gray of two counts of

distributing cocaine. First, Bell testified that Gray sold him the drugs, and “all

reasonable inferences and credibility choices are viewed in the light most favorable

to the government.” Despite Gray’s contention to the contrary, Bell’s testimony –

corroborated by multiple exhibits and the testimony of multiple law enforcement

officers – was not incredible as a matter of law. Several detectives described in

great detail the surveillance measures that were used to record what happened at

the controlled drug purchases. Thus, there was a sufficient basis for a reasonable

trier of fact to determine that Gray knowingly and intentionally distributed cocaine

on June 30 and August 2, 2006. Accordingly, Gray’s challenge to his convictions

fails.

         AFFIRMED.




                                            5
