                                                                      [DO NOT PUBLISH]

                     IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT           FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                     No. 10-10240                      SEPTEMBER 30, 2010
                                 Non-Argument Calendar                     JOHN LEY
                               ________________________                     CLERK


                          D.C. Docket No. 0:09-cr-60204-DMM-1

UNITED STATES OF AMERICA,

                                                   lllllllllllllllllllllPlaintiff - Appellee,

                                          versus


JUAN ANTONIO MOYA-RODRIGUEZ,


lllllllll                                                 llllllllllllDefendant - Appellant.

                               ________________________

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

                                   (September 30, 2010)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

            Juan Antonio Moya-Rodriguez, through counsel, appeals his jury
convictions for bulk-cash smuggling, failure to file a currency report, and making

materially false statements to a federal agency. He claims that the district court

erred in failing to grant a motion for judgment of acquittal, admitting evidence

linking him to drug smuggling, and allowing the prosecutor to comment on his

silence during customs screening. We review these claims in turn and conclude

each fails. Accordingly, we affirm.

                                             I.

        A brief recitation of the facts is sufficient for the resolution of this appeal.

In 2009, Moya-Rodriguez boarded a flight from Ft. Lauderdale, Florida to Panama

City, Panama. At customs, he was denied entry into Panama due to an expired

visa. He boarded a return flight to Ft. Lauderdale and, upon arrival, retrieved his

luggage and proceeded to customs. Moya-Rodriguez declared on the U.S.

Customs form, and verbally to customs officials, that he was not transporting more

than the equivalent of $10,000 in currency. Due to anxious behavior during his

initial screening, Moya-Rodriguez was directed toward a secondary screening

area.

        Another agent questioned Moya-Rodriguez and searched his luggage,

discovering large quantities of U.S. currency concealed within several pairs of

pants. At that time, Moya-Rodriguez muttered “my kids, I did it for my kids.” He

                                             2
was then transferred to a search room, given a thorough inspection by customs

employees, and handcuffed in a seat. An officer from the sheriff’s department

arrived with a K-9 unit, which alerted to the presence of illegal narcotics on the

currency found in Moya-Rodriguez’s baggage. After counting the money located

in the luggage and on his person, officials concluded that Moya-Rodriguez

possessed more than $120,000. The case proceeded to trial and a jury convicted

Moya-Rodriguez of bulk-cash smuggling, failure to file a currency report, and

making false statements to the federal government.

                                         II.

      Moya-Rodriguez first argues that the district court erred in not granting his

motion for judgment of acquittal on sufficiency grounds. His sole contention is

that the government failed to prove that he transported currency from a place

outside the United States to a place within the United States, which is a necessary

component of each of his convictions. This never occurred, he argues, as his

person and luggage were never granted entry into Panama. Alternatively, he

claims the government never introduced evidence proving that his luggage left the

United States.

      We review de novo the denial of a motion for judgment of acquittal on

sufficiency grounds. United States v. Browne, 505 F.3d 1229, 1253 (11th Cir.

                                          3
2007). When adjudicating a challenge to the denial a Rule 29 motion, we “must

view the evidence in the light most favorable to the government and decide

whether a reasonable fact finder could have reached a conclusion of guilt beyond a

reasonable doubt.” United States v. Herrera, 931 F.2d 761, 762 (11th Cir. 1991).

When interpreting statutory language, we attribute the plain and ordinary meaning

to the language used. United States v. Frank, 599 F.3d 1221, 1234 (11th Cir.

2010) (citations omitted).

      The bulk-cash smuggling statute criminalizes attempted and completed

transports and transfers of more than $10,000 from “a place outside the United

States to a place within the United States . . . .” 31 U.S.C. § 5332(a)(1). Likewise,

the currency reporting statute uses the phrase “to a place in the United States from

or through a place outside the United States . . . .” 31 U.S.C. § 5316(a)(1)(B).

Finally, Moya-Rodriguez’s conviction for making a false statement is based on his

representation, through the customs form and orally, that he was not bringing more

than $10,000 into the United States.

      The Panama City airport, undoubtedly, is a place outside of the United

States while the Ft. Lauderdale airport is within the United States. Moya-

Rodriguez’s claim that he intended to leave the money in Panama is not relevant to

his convictions on these charges. His failure to proceed past the customs

                                          4
checkpoint in Panama also provides him no relief. The statutes simply require that

the currency depart from outside of the United States and end up within its

borders. That fundamental point can inferred be from the evidence presented, and

no theory of statutory interpretation would lead to the conclusion that Panama

City’s airport falls within the United States.

       Therefore, viewing the evidence in the light most favorable to the

government, we conclude that the jury had a sufficient basis for convicting Moya-

Rodriguez on each of the three counts.

                                              III.

       Moya-Rodriguez next contends that the district court erred in admitting the

testimony of a K-9's handler because it lacked relevance and probative value.1 He

further objects to the testimony of a customs official as unfairly prejudicial.

       We review district court evidentiary rulings for abuse of discretion. United

States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006) (citation omitted). “The

trial court is vested with broad discretion in ruling upon the relevancy and

admissibility of evidence.” United States v. Anderson, 872 F.2d 1508, 1515 (11th

       1
        Moya-Rodriguezalso implies that the K-9 handler’s testimony was improper expert
witness testimony and that the prosecution introduced evidence of prior bad acts without the
required notice. A review of the record reveals that Moya-Rodriguez failed to raise these issues
before the trial court. Moya-Rodriguez’s claim that proper Rule 404(b) notice was never given is
also misguided as none of the complained of evidence relates to a prior act committed and thus is
not covered by the rule.

                                                5
Cir. 1989). Furthermore, the challenging party must show the admitted evidence

had a substantial prejudicial effect. Judd v. Rodman, 105 F.3d 1339, 1341 (11th

Cir. 1997).

      Evidence is relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Fed. R. Evid. 401. Relevant

evidence, however, “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice . . . .” Fed. R. Evid. 403.

      Each of Moya-Rodriguez’s challenges to the testimony of the K-9 handler

fails. The district court could have deemed the testimony relevant for any number

of reasons. For example, it counters the notion that Moya-Rodriguez might have

been transporting the money for legal purposes and also provides motive for his

attempts to conceal it. We have previously discussed the relevancy of K-9 alert

testimony in a prosecution for concealing money transfers from the Internal

Revenue Service. United States v. Hernando Ospina, 798 F.2d 1570, 1583 (11th

Cir. 1986) (per curiam).

      Moya-Rodriguez further challenges that the testimony regarding the K-9

alert lacked probative value because a large portion of the currency currently in

circulation has been in contact with narcotics and thus the K-9 alert provided no

                                          6
meaningful evidence. That argument lacks merit because this Court has declined

to adopt the theory that K-9 alerts lack relevance and probative value based on

such a claim. United States v. $242,484, 389 F.3d 1149, 1165-66 (11th Cir. 2004)

(en banc).

      Moya-Rodriguez passively mentions that the testimony elicited from a

customs official, that she (1) initially believed the jeans hid drugs rather than

money and (2) wondered how someone working as a driver and in maintenance

could come to possess so much money, is also unfairly prejudicial. This

testimony, however, provided an explanation for the officer’s actions when

questioning and searching Moya-Rodriguez. It provided context for the search

and tended to disprove Moya-Rodriguez’s suggestion that the customs officers

acted improperly.

      Therefore, we conclude that the district court did not abuse its discretion in

admitting the evidence elicited from the dog handler and the customs officer.

                                          IV.

             Finally, Moya-Rodriguez argues that prosecutorial misconduct and

improper burden shifting occurred when the government made remarks during

closing argument about Moya-Rodriguez’s reactions during the customs

screenings. The prosecutor described the events at the second screening area by

                                           7
stating that

       “[t]he truth of the matter is, when Officer Fernandez was describing how
       he [Moya-Rodriguez] looked, he was embarrassed, he was ashamed, he
       looked embarrassed and he said, my kids, I did it for my kids. Never
       once does he say oh, my goodness, I didn’t know I had to report that. I
       misunderstood the form. Give me another form, I’m happy to fill it out
       now, I’m sorry, I had no idea, not once does he say that. Instead he says,
       my kids, I did it for my kids. Never once does he say, I didn’t mean to
       bring that money into the United States.”

Moya-Rodriguez believes these statements improperly commented on his post-

custody silence and constitute reversible error.

       We review allegations of prosecutorial misconduct de novo, as they involve

mixed questions of law and fact. United States v. Noriega, 117 F.3d 1206, 1218

(11th Cir. 1997).2 Such allegations are subjected to a two-part test requiring the

Court to (1) determine whether the challenged statements were improper; and (2)

if so, whether they prejudicially affected a substantial right of the defendant.

United States v. Obregon, 893 F.2d 1307, 1310 (11th Cir. 1990) (citations

omitted). Any such misstatements are evaluated in the context of the entire record.

Id. Reversal is appropriate when it is reasonably probable that the result of the

trial would have been different but for the remarks made by the prosecution.

       2
         We note that the government characterized Moya-Rodriguez’s challenge as an allegation
that the closing argument improperly commented on the defendant’s failure to testify at trial.
Moya-Rodriguez, however, focuses on the prosecutor’s comments regarding his silence at the
airport rather than his failure to testify at trial. Thus, we conclude the issue is best framed as a
prosecutorial misconduct claim.

                                                 8
United States v. Wilson, 149 F.3d 1298, 1302 (11th Cir. 1998).

      Remarks by a prosecutor can also constitute improper burden shifting if

they cloud which party bears the burden of proof. United States v. Simon, 964

F.2d 1082, 1086 (11th Cir. 1992). Prosecutors may not argue suggestions beyond

the evidence or imply that the defendant must produce evidence or prove his

innocence. Id. To require reversal, the misconduct must be “so pronounced and

persistent that it permeates the entire atmosphere of the trial.” Id. (quoting United

States v. Alanis, 611 F.2d 123, 126 (5th Cir. 1980) (citation omitted)).

      A lenghty discussion of whether Moya-Rodriguez was in custody and thus

entitled to Miranda rights in the secondary customs screening area is not

necessary. Even if the prosecutor’s statements were improper, Moya-Rodriguez

fails to claim that the comments resulted in a different outcome at trial. The

government offered evidence that Moya-Rodriguez transported more than

$120,000 into the United States from Panama, that the currency was concealed

inside jeans in his baggage, and that he did not accurately respond on the required

customs forms. That evidence, which is not related to the allegedly improper

statements, established a sufficient basis for a guilty verdict.

      Likewise, Moya-Rodriguez does not appreciate the burden he bears for

proving a claim of improper burden shifting. The remarks on Moya-Rodriguez’s

                                           9
conduct and demeanor did not imply that he was required to prove his innocence.

A review of the record does not reveal that such references affected the general

atmosphere of the proceedings in a manner that would warrant reversal of Moya-

Rodriguez’s convictions.

      Based on a review of the record and the parties’ briefs, we affirm Moya-

Rodriguez’s convictions.

      AFFIRMED.




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