                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-10504                ELEVENTH CIRCUIT
                                   Non-Argument Calendar            FEBRUARY 23, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                            D.C. Docket No. 1:09-cr-20392-PAS-3

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                            versus

ROBINTO PAULEUS,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

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

                                     (February 23, 2011)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

         Robinto Pauleus appeals his convictions for conspiracy to distribute 500

grams or more of cocaine, 21 U.S.C. §§ 841(a)(1), 846, and possession with intent
to distribute 500 grams or more of cocaine, id. § 841(a)(1); 18 U.S.C. § 2. Pauleus

challenges the denial of his objection under Batson v. Kentucky, 476 U.S. 79, 106

S. Ct. 1712 (1986), and the denial of his motion to dismiss his indictment. We

affirm.

      Pauleus argues that he established a prima facie case of racial discrimination

in the exercise of peremptory challenges in the selection of the jury, but we

disagree. “In making out a prima facie case, ‘the defendant must point to more

than the bare fact of the removal of certain venirepersons and the absence of an

obvious valid reason for the removal.’” United States v. Allison, 908 F.2d 1531,

1538 (11th Cir. 1990) (quoting United States v. Young-Bey, 893 F.2d 178, 179

(8th Cir. 1990)). Pauleus argues that two prospective jurors were black and

challenged by the government, but those facts alone do not establish an inference

that the challenges were exercised with discriminatory animus. The district court

did not err by denying Pauleus’s Batson objection.

      Pauleus also argues that the district court should have dismissed his

indictment because Sergeant Darren Handley testified falsely and violated Brady

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), but this argument fails. The

government violates due process only if it “allows [false testimony] to go

uncorrected,” Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177 (1959),

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and the government notified Pauleus and the district court after Handley reported

that he had testified incorrectly about the location of one piece of evidence.

Moreover, Pauleus cannot establish he was prejudiced by the error. The district

court reopened the case, Handley corrected his testimony and underwent cross-

examination by Pauleus, Pauleus was permitted to make a new closing argument

in which he challenged Handley’s credibility, and the district court instructed the

jury about resolving issues of credibility and misstatements of a witness. See

United States v. Bueno-Sierra, 99 F.3d 375, 379–80 (11th Cir. 1996). Pauleus also

cannot establish that the outcome of his case would have differed but for

Handley’s testimony. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,

3383 (1985). A surveillance video, telephone records, and the testimonies of

police officers established that a middleman, who in the two days preceding had

exchanged with Pauleus several text messages and telephone calls, retrieved from

Pauleus’s vehicle a box containing 750 grams of cocaine hydrochloride and

delivered that cocaine to a confidential informant. The district court did not abuse

its discretion by denying Pauleus’s motion to dismiss his indictment.

      We AFFIRM Pauleus’s convictions.




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