                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            OCTOBER 27, 2009
                               No. 08-14361                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 07-20913-CR-DMM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MICHAEL MAYS,

                                                           Defendant-Appellant.


                         ________________________

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

                              (October 27, 2009)

Before BARKETT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Michael Mays appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). Mays contends that the

district court abused its discretion in denying his motion for mistrial. Specifically,

he alleges that: (1) a government witness’s reference to an anonymous tip violated

the pre-trial stipulation between Mays and the government, as well as Mays’s

rights under the Confrontation Clause; (2) the district court improperly refused to

give the jury instruction he requested; and (3) several of the statements and

questions from the prosecutor constituted prosecutorial misconduct.

I.    Witness Testimony Regarding the Anonymous Tip

      On appeal, Mays argues that the government improperly presented

testimony from Detective Hugh Oliphant about receiving an anonymous tip that

Mays was carrying a firearm. Mays argues that such testimony violated a pre-trial

stipulation between himself and the government and violates his Confrontation

Clause rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158

L.Ed.2d 177 (2004).

      We review de novo the scope of constitutional rights. United States v.

Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005). However, we review the denial

of a motion for a mistrial for abuse of discretion. United States v. Ramirez, 426

F.3d 1344, 1353 (11th Cir. 2005). That standard recognizes that there is a range of

choice for the district court and, so long as its decision does not amount to “a clear



                                           2
error of judgment,” we will not disturb the decision, even if we would have chosen

differently. McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001). Errors will

not affect the substantial rights of a defendant so long as “properly admitted

evidence sufficiently established” his guilt. Ramirez, 426 F.3d at 1353 (citation

omitted). The harmless error doctrine applies to violations of the Confrontation

Clause. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89

L.Ed.2d 674 (1986).

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

motion for a mistrial because, even if an error occurred, “properly admitted

evidence sufficiently established” his guilt. See Ramirez, 426 F.3d at 1353.

Furthermore, Mays’s rights, pursuant to the Confrontation Clause, were not

violated when Oliphant mentioned in his testimony that he had heard that Mays

was carrying a firearm. Oliphant’s statement does not constitute hearsay because it

was not offered for the truth of the matter asserted. See Fed. R. Evid. 801(c).

Moreover, the government did not need to use this statement for the truth of the

matter asserted because Mays readily admitted that he possessed a firearm. Thus,

the Confrontation Clause did not bar the admission of this statement. See

Crawford, 541 U.S. at 59 n.9, 124 S.Ct. at 1369 n.9 (holding that the Confrontation

Clause “does not bar the use of testimonial statements for purposes other than



                                          3
establishing the truth of the matter asserted”). The district court did not abuse its

discretion in denying Mays’s motion for a mistrial.

II.   Jury Instruction

      We review the legal correctness of a jury instruction de novo, but defer to

the district court on questions of phrasing absent an abuse of discretion. United

States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). Although we have

promulgated pattern jury instructions, the district court is not required to give

them. See United States v. Fallen, 256 F.3d 1082, 1090 (11th Cir. 2001) (holding

that the district court did not abuse its discretion when it refused to give a pattern

jury instruction, and the given instruction correctly stated the law). To prevail on a

challenge of the district court’s jury instructions, a defendant must show that the

court “failed to give an instruction that was (1) correct; (2) not substantially

covered by other instructions that were given; and (3) so vital that failure to give

the requested instruction seriously impaired the defendant’s ability to defend

himself.” Id. (internal quotations and citation omitted). In deciding whether the

defendant’s requested instruction was substantially covered by the actual charge

delivered to the jury, we “need only ascertain whether the charge, when viewed as

a whole, fairly and correctly states the issues and the law.” United States v.

Gonzalez, 975 F.2d 1514, 1517 (11th Cir. 1992).



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      A defendant must show four elements to establish the justification defense in

the § 922(g)(1) context, which Mays sought to interpose: “(1) that the defendant

was under unlawful and present, imminent, and impending threat of death or

serious bodily injury; (2) that the defendant did not negligently or recklessly place

himself in a situation where he would be forced to engage in criminal conduct; (3)

that the defendant had no reasonable legal alternative to violating the law; and (4)

that there was a direct causal relationship between the criminal action and the

avoidance of the threatened harm.” United States v. Deleveaux, 205 F.3d 1292,

1297 (11th Cir. 2000).

      The district court did not abuse its discretion by refusing to give Mays’s

requested instruction. First, Mays’s theory of an affirmative defense was

substantially covered by the court’s charge to the jury. The court’s instruction

regarding justification was legally correct, as the court followed the standard set

forth in Deleveaux. The substance of the pattern instruction and the given

instruction, moreover, was nearly identical. The court’s charge to the jury

explained the four elements that Mays needed to prove, pursuant to Deleveaux, to

establish his justification defense. Accordingly, the court did not abuse its

discretion in refusing to give Mays the instruction as requested.




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III.   Prosecutorial Misconduct

       Mays argues that the government committed a series of

improper acts that require that his conviction be vacated and that he be granted a

new trial. We address each alleged instance of misconduct in turn.

       We evaluate claims of prosecutorial misconduct de novo and examine the

context of the entire trial, including any curative instructions that were given, to

determine whether the prosecutor’s statements (1) were improper, and (2)

prejudicially affected the substantial rights of the defendant. United States v.

Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (internal quotations and citation

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

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

would be different.” Id. (internal parenthesis omitted). “A jury is presumed to

follow the instructions given to it by the district judge.” Ramirez, 426 F.3d at

1352. Reversal is only warranted where the government’s misconduct is “so

pronounced and persistent that it permeates the entire atmosphere of trial.” United

States v. Thomas, 8 F.3d 1552, 1561 (11th Cir. 1993).

       First, Mays contends that the government violated its pretrial agreement not

to raise the anonymous tip that Mays was in possession of a gun. The district court

did not err in finding that the government had not violated the pretrial stipulation.



                                           6
The government did not inquire or mention the tip; rather, it was Detective

Oliphant who brought up the tip of his own accord in his answer to the

government’s question of what happened “after [he] advised [Mays] why [he] was

there.” In any event, any error was harmless because Mays did not dispute that he

possessed the gun, and there was ample evidence that Mays possessed the gun.

      Second, Mays contends that the government’s comments (1) during opening

statements, that it was the job of defense counsel to “distract” the jury; and (2)

during closing argument, after pointing out inconsistencies in Mays’s testimony,

stating “you know how far we believe his testimony” were erroneous. The district

court sustained defense counsel’s objections to both statements and instructed the

jury prior to opening statements and again before closing arguments that the

arguments of counsel were not evidence. These jury instructions cured any

prejudice from these two isolated and brief statements.

      Third, Mays contends that the government acted improperly by attempting to

impeach him by using his testimony to establish that the police officers arrived at

11:00 a.m., even though the police report indicated that they were dispatched at

11:45 a.m. and therefore could not have arrived until after that time. Even if this

were error, it was an isolated and harmless one because, on cross-examination,

Detective Oliphant conceded that he and Special Agent Murr arrived at



                                           7
approximately 11:45 a.m., not “about 11:30” as he had earlier testified and, on

redirect examination, Mays testified that it could have been 11:45 a.m. or later

when the police arrived.

      Fourth, Mays argues that Special Agent Murr’s statement that his job with

the ATF involved working with the Miami-Dade Police Department “to help

reduce the gun crime that’s in the North Side District” raised an “improper

inference.” Mays, however, does not explain why that description was improper.

Special Agent Murr’s statement is nothing more than a mere explanation of the

scope of his job responsibilities. Moreover, given that Mays questioned both

Special Agent Murr and Detective Oliphant about the high level of crime and

violence in Liberty City, to bolster his claim that he carried the gun under duress

due to the threat against his life, it is unclear how Mays’s substantially rights were

prejudicially affected by Special Agent Murr’s neutral statement regarding his

professional duties.

      For the first time on appeal, Mays raises three other alleged instances of

prosecutorial misconduct. We review these allegations under the plain error

standard because Mays failed to object to these statements during trial. Wilson,

149 F.3d at 1302 n.5. Plain error occurs if (1) there was error, (2) that was plain,

(3) that affected the defendant’s substantial rights, and (4) that seriously affected



                                           8
the “fairness, integrity, or public reputation of the judicial proceedings.” United

States v. Cano, 289 F.3d 1354, 1363-64 (11th Cir. 2002) (internal brackets

omitted).

      Mays raises for the first time on appeal that the government acted

improperly by cross-examining him as to why he did not tell Detective Oliphant

and Special Agent Murr that he was carrying the gun because of the threat against

his life. While Mays contends that this question shifted its burden of persuasion to

him, he does not explain how the burden was shifted or how he was prejudiced. In

fact, on redirect examination, Mays testified that he had explained to Special Agent

Murr that he had a firearm because “a lot of people be acting crazy out there . . .

[t]hey be shooting, robbing people out in the parking lot.” In any event, the

question was not error because it probed Mays’s “previous failure to state a fact in

circumstances in which that fact naturally would have been asserted,” Jenkins v.

Anderson, 447 U.S. 231, 238-39 (1980), and probed Mays’s credibility. United

States v. Magdaniel-Mora, 746 F.2d 715, 723 (11th Cir. 1984).

      Mays next argues that the government violated the stipulation that Mays

would not call his employer because the government, during its rebuttal argument,

pointed out that Mays did not call his employer as a witness to confirm that Mays

had told him about the threat on his life. The government did not err because Mays



                                           9
and the government stipulated only that Mays was an employee of the flea market

so that Mays would not need to call his employer to verify his employment. The

stipulation was not addressed to whether Mays would need to call his employer to

verify the threat allegedly made against Mays. Therefore, the government did not

violate its agreement with Mays when it mentioned that he had not called his

employer as a witness to verify the threat.

      Mays finally contends that the government improperly commented during

closing arguments that he had told the jury “bald face lie.” Undoubtedly, this was

error however, it does not rise to the level of plain error because the government

had a strong case against Mays, and the government presented its interpretation of

the evidence that Mays had lied about the threat he allegedly received in order to

present a defense to his charge. In so doing, the government noted Mays’s

contradictory explanations for his behavior and, before closing arguments, the

district court had instructed the jury that “closing arguments [are] not evidence but

it is [the lawyers’] opportunity to argue what they believe the evidence and the

reasonable inferences that can be drawn from the evidence, what that has shown.”

See United States v. Rodriguez, 765 F.2d 1546, 1559-60 (11th Cir. 1985) (holding

that prosecutor’s statements that defendant was a “liar” who “spit on the country

that’s accepted him” did not warrant reversal in light of strong government case



                                          10
and the district court’s repeated instruction that counsel’s arguments were not

evidence).    Mays has not satisfied his burden of showing that the prosecution’s

actions prejudiced his substantial rights, when considering his allegations in the

context of the trial as a whole and assessing their probable impact on the jury.

Thus, the district court did not abuse its discretion in denying his motion for a

mistrial on this basis.

       Upon review of the record and consideration of the parties’ briefs, we

affirm.

       AFFIRMED.




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