                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                         FILED
                     FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                       ________________________   ELEVENTH CIRCUIT
                                                     MARCH 21, 2008
                                                   THOMAS K. KAHN
                             No. 07-12445
                                                        CLERK
                         Non-Argument Calendar
                       ________________________

                    D. C. Docket No. 06-20675-CR-PAS

UNITED STATES OF AMERICA,


                                                Plaintiff-Appellee,

                                   versus

GERALD BUTLER,
CORNELIOUS GORDON,

                                                Defendants-Appellants.

                       ________________________

                Appeals from the United States District Court
                    for the Southern District of Florida
                      _________________________

                             (March 21, 2008)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:
      A Southern District of Florida grand jury returned a multiple-count

indictment against appellants Gerald Butler and Cornelious Gordon, together with

Mario Davis and Edrick Thomas, charging them as follows: Count I, a conspiracy,

under 21 U.S.C. § 846, to possess with intent to distribute five kilograms or more

of cocaine in violation of 21 U.S.C. § 841(a)(1); Count 2, an attempt to possess

with intent to distribute said amount of cocaine, in violation of 21 U.S.C. §

841(a)(1); Counts 3 and 4, respectively, a conspiracy and an attempt to commit a

Hobbs Act robbery, each in violation of 18 U.S.C. § 1951(a); Count 5, a

conspiracy to possess a firearm in furtherance of a crime of violence and drug

trafficking, in violation of 18 U.S.C. § 924(o); Count 6, carrying a firearm in

relation to a crime of violence and drug trafficking, in violation of 18 U.S.C. §

924(c)(1)(A). Count 7 charged Butler alone with being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1).

      Davis pled guilty prior to trial and testified for the Government. At trial,

Butler and Gordon were convicted on Counts 1, 5 and 6, and Butler was convicted

on Count 7. Thomas was acquitted on all counts; Butler and Gordon were

acquitted on Counts 2, 3 and 4. Following the imposition of sentence, Butler and

Gordon filed notices of appeal, challenging their convictions.

                                          I.



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      Butler seeks the vacation of his convictions, and the entry of a judgment of

acquittal on all counts, on two grounds. We consider them in order.

                                          A.

      Butler moved the district court for judgment of acquittal at the close of the

Government’s case in chief and at the close of all evidence based on “entrapment

as a matter of law,” contending that the Government failed to make a prima facie

showing that he was predisposed to commit the crimes charged before he was

approached by a government informant.

      We review de novo a claim that the government failed to show

predisposition and thus rebut the defendant’s entrapment defense. United States v.

Orisnord, 483 F.3d 1169, 1178 (11th Cir.), cert. denied, 128 S.Ct. 673 (2007). In

examining the sufficiency of the evidence, we “view[] the evidence in the light

most favorable to the government and draw[] all reasonable inferences and

credibility choices in favor of the jury’s verdict.” United States v. Fulford, 267

F.3d 1241, 1244 (11th Cir. 2001). “To uphold the lower court’s denial of . . .

judgment of acquittal and the jury’s guilty verdict, this court need only find that a

reasonable factfinder could conclude that the evidence establishes the defendant’s

guilt beyond a reasonable doubt.” United States v. Keller, 916 F.2d 628, 632 (11th

Cir. 1990).



                                           3
      “Entrapment is an affirmative defense. There are two elements to an

entrapment claim: (1) government inducement of the crime and (2) the defendant’s

lack of predisposition to commit the crime before the inducement. The defendant

bears the initial burden of production as to government inducement. . . .Once the

defendant produces sufficient evidence of inducement, the government must prove

beyond a reasonable doubt that the defendant was predisposed to commit the

offense.” Orisnord, 483 F.3d at 1178 (quotations, citations, and editing marks

omitted). Here, the district court found that Butler had met his burden of

production and accordingly submitted the question of predisposition to the jury.

      “Predisposition may be demonstrated simply by a defendant’s ready

commission of the charged crime.” United States v. Brown, 43 F.3d 618, 625

(11th Cir. 1995). “A defendant whose motion for acquittal at the close of the

Government’s case is denied must decide whether to stand on his motion or put on

a defense, with the risk that in so doing he will bolster the Government case

enough for it to support a verdict of guilty.” United States v. Brown, 53 F.3d 312,

314 (11th Cir. 1995).

      Butler testified that he had never before been involved, or even considered

involvement, in a robbery scheme such as the one planned in this case, and that he

participated in the scheme only because of the government’s inducement. The jury



                                          4
was entitled to assess Butler’s testimony and demeanor, conclude that he was not

credible, and reject his statements “as a complete fabrication.” See United States

v. Vazquez, 53 F.3d 1216, 1225 (11th Cir. 1995). Indeed, a jury may not only

discount a non-credible witness’s testimony, but may “conclude the opposite of his

testimony is true.” Id. at 1225-26 (quotation omitted). This rule applies with

particular force where the fact in question is “highly subjective,” such as “intent or

knowledge.” Id. at 1225 (quotation omitted). Here, the jury had sufficient

evidence before it to conclude beyond a reasonable doubt that Butler was

predisposed to commit the crimes at issue.

                                          B.

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

judgment of acquittal because the prosecution denied him due process of law.

Butler says this is so because the government agents created the entire criminal

plan, provided crucial instrumentalities necessary to execute it, and knew that he

was not predisposed to commit the criminal acts.

      The proper vehicle for raising outrageous governmental conduct is in a

motion to dismiss the indictment. United States v. Sanchez, 138 F.3d 1410, 1413

(11th Cir. 1998). Because Butler did not file a motion to dismiss the indictment in

the district court, he cannot raise this argument on appeal. See id. We therefore do



                                           5
not entertain it.

                                          II.

       Butler and Gordon argue that their convictions should be set aside and a new

trial granted on several grounds. They are:

                                          A.

       During the presentation of their respective cases on defense, the district

court abused its discretion by questioning them in the presence of the jury. They

contend that the court’s questions interrupted the flow of direct examination and

cast a critical light on their testimony. Gordon notes that the court’s questioning of

his explanation, without allowing direct examination to continue first, emphasized

the court’s difficulty with his testimony and the lack of coherency and rationality

in what he had to say. Appellants contend that the prejudice worked by the court’s

questioning was heightened when the Government emphasized during its closing

arguments to the jury the very issues the court’s questioning raised.

       Ordinarily, we would examine the court’s questioning for abuse of

discretion. See United States v. Day, 405 F.3d 1293, 1297 (11th Cir. 2005).

Where, as in this case, no objection was made to the questioning, we examine the

court’s conduct for plain error. See United States v. Rodriguez, 398 F.3d 1291,

1297 (11th Cir. 2005). Where (1) there is error; (2) that error is plain; and (3) the



                                           6
error affects substantial rights, then we may notice that error if it (4) seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id.

      “A district court judge has wide discretion in managing the proceedings, he

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.” Day, 405 F.3d at 1297 (quotation

omitted). “The trial court may interrogate a witness to clarify his testimony or to

insure that a case is fairly tried. On the other hand, a trial judge improperly

interjects himself into the trial by questioning witnesses when the attorneys are

competently conducting their cases.” United States v. Block, 755 F.2d 770, 775

(11th Cir. 1985).

      We find no abuse of discretion, much less plain error, here. The court

asked questions of appellants, other defense witnesses, and witnesses for the

prosecution to elicit further facts and to clarify evidence already presented. It did

not do so in a hostile manner; moreover, it instructed the jurors to disregard any

statements it might have made and to find the facts on their own.

                                           B.

      Appellants contend that the court erred in instructing the jury regarding

their entrapment defenses. They say that these instructions improperly altered the



                                            7
shifting burdens of production and proof, and narrowed the sort of governmental

inducement the jury could consider.

      Generally, we review de novo whether a district court’s jury instructions

misstated the law. United States v. Grigsby, 111 F.3d 806, 814 (11th Cir. 1997).

“We review jury instructions by determining whether the charge, viewed as a

whole, sufficiently instructed the jurors so that they understood the issues

involved and were not misled about the law. The trial court, therefore, has broad

discretion in formulating its entrapment charge, so long as it accurately reflects

the law, and the precise extent and character of an entrapment instruction will only

be reviewed for an abuse of discretion.” Brown, 43 F.3d at 623.

      Appellants argue that the court improperly limited the types of

governmental inducement the jury could consider. The argument overlooks the

fact that the issue of inducement was not before the jury. Before it could send the

issue of entrapment to the jury, the court had to that the appellants had already

shown governmental inducement; consequently, the question for the jury was

simply whether the prosecution has met its burden of proof with respect to their

predisposition to commit the crime. See Orisnord, 483 F.3d at 1178 (“Once the

defendant produces sufficient evidence of inducement, the government must prove

beyond a reasonable doubt that the defendant was predisposed to commit the



                                          8
offense.). Appellants claim that the court’s jury charge improperly shifted the

burden of proof was not presented to the district court; hence, we review the

challenged instruction for plain error. We find none here. The language the court

used was largely language we have previously approved, see United States v.

Davis, 799 F.2d 1490 (11th Cir. 1986), and its charge appropriately dealt with the

shifting burdens of production and proof.

                                          C.

      Appellants contend that the district court abused its discretion in failing to

grant them a mistrial or other relief when it was discovered, during jury

deliberations, that the Government had withheld information that could have been

used to impeach testimony given by Mario Davis. They note that, in refusing to

abort the jury’s deliberations, the court used the standard that guides a trial judge

in disposing of a motion for new trial.

      We review for an abuse of discretion a district court’s denial of a motion for

a mistrial. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998). Under

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its

progeny, the government is required to turn over to a criminal defendant any

impeachment evidence that is likely to cast doubt on the reliability of a witness

whose testimony may be determinative of guilt or innocence, including evidence



                                           9
of the witness’s cooperation with the government. United States v. Jordan, 316

F.3d 1215, 1226 n.16, 1253 (11th Cir. 2003).

      A successful Brady “claim requires three elements: (1) the prosecution

suppressed evidence, (2) the evidence suppressed was favorable to the defense or

exculpatory, and (3) the evidence suppressed was material. Favorable evidence is

material, and constitutional error results from its suppression by the government,

if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” United States v.

Starrett, 55 F.3d 1525, 1555 (11th Cir. 1995) (citations and quotations omitted).

We will set aside a conviction for Brady error where the defendant shows: “(1)

that the Government possessed evidence favorable to the defendant (including

impeachment evidence); (2) that the defendant did not possess the evidence nor

could he have obtained it himself with any reasonable diligence; (3) that the

prosecution suppressed the favorable evidence; and (4) that had the evidence been

revealed to the defense, there is a reasonable probability that the outcome of the

proceedings would have been different.” United States v. Newton, 44 F.3d 913,

918 (11th Cir. 1995). The materiality of the withheld information is the only

element disputed here.

      Although the district court applied an improper standard in denying



                                          10
appellants’ motion for a mistrial, we find no Brady violation; thus, the court

reached the correct result. A violation did not occur because there was no

reasonable probability that, had defense counsel had possession of the

impeachment evidence, the outcome of the trial would have been different. See

Starrett, 55 F.3d at 1555; Newton, 44 F.3d at 918.

                                            D.

       Gordon argues that the cumulative effect of the trial errors warrants a new

trial. “[T]he ‘cumulative effect’ of multiple errors may so prejudice a defendant’s

right to a fair trial that a new trial is required, even if the errors considered

individually are non-reversible.” United States v. Thomas, 62 F.3d 1332, 1343

(11th Cir. 1995). We address a claim of cumulative error by first considering the

validity of each claim individually, and then examining any errors in the aggregate

and the trial as a whole to determine whether the defendant was afforded a

fundamentally fair trial. United States v. Calderon, 127 F.3d 1314, 1333 (11th

Cir. 1997). Obviously, where no error occurred, cumulative error cannot be

found. United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004). That is

the situation here; no error of consequence occurred.

       For the foregoing reasons, appellants’ convictions are

       AFFIRMED.



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