                                                                                 [PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT  OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                         JUNE 1, 2012
                                            No. 11-12620
                                      ________________________            JOHN LEY
                                                                           CLERK

                              D.C. Docket No. 0:10-cr-60320-MGC-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                              versus

WILLIS KENDRICK, III,

llllllllllllllllllllllllllllllllllllllll                              Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________
                                         (June 1, 2012)

Before MARCUS and BLACK, Circuit Judges, and HODGES,* District Judge.

MARCUS, Circuit Judge:

         *
         Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
      Willis Kendrick III appeals following his conviction for alien smuggling for

commercial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Kendrick argues

that the district court erred by: (1) denying his motion to dismiss the indictment

based on vindictive prosecution; (2) failing to grant a judgment of acquittal based

on insufficiency of the evidence; (3) granting the government’s motion in limine

precluding Kendrick from discussing the events of his prior trial beyond an

excerpt of his sworn testimony; and (4) denying Kendrick’s motion in limine

seeking to introduce portions of the prosecutor’s closing argument from

Kendrick’s prior trial as an admission of a party opponent under Fed. R. Evid.

801(d)(2). After thorough review we affirm.

                                          I.

      The relevant facts and procedural history are these. In December 2010, a

federal grand jury sitting in the Southern District of Florida indicted Kendrick on

one count of knowingly bringing or attempting to bring an alien into the United

States for the purpose of commercial advantage and private financial gain, in

violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Prior to this indictment, a federal grand

jury had charged Kendrick in June 2010 with marijuana trafficking and firearm

offenses, in violation of 46 U.S.C. § 70503(a)(2) and 18 U.S.C. § 924(c); he was

acquitted by a jury on all counts. Both sets of charges arose in connection with an

                                          2
incident from May 28-29, 2010, when U.S. Coast Guard personnel boarded a

vessel that Kendrick was piloting late at night off the coast of Florida, and

discovered a firearm, 900 pounds of marijuana, and a previously deported illegal

alien named Robert Harding.

      During the first trial on the drug and firearm charges, Kendrick denied

knowing about the marijuana, which was found in several hidden compartments,

but admitted that he had gone to the Bahamas to bring illegal aliens back into the

United States for money. He first testified that he had called off the alien

smuggling deal when he found out that the three people he was supposed to bring

back on the boat did not have passports. On cross-examination, however, he

conceded that he had agreed to commit the federal offense of alien smuggling in

exchange for $25,000, and that he knew the people he planned to transport from

the Bahamas to the United States were illegal aliens. He later retreated from his

earlier admission, and implied that he thought he was being compensated for

bringing back legal aliens.1

      1
          The relevant portions of Kendrick’s testimony during his first trial went this way:

      Q:        What happened when you arrived [in the Bahamas]?
                ....

      A:        . . . I [told my contact there], “Well, if they don’t have any kind of passport
                I’m not taking those guys back.”


                                                  3
Q:   Why is that? Why did you say that?

A:   Because I know that that’s wrong to do. If they didn’t have any passport
     that they was -- that was illegal.
     ....

Q:   You are telling this jury under oath that you committed a federal crime of
     alien smuggling.

A:   Yes, sir.

Q:   That you knowingly in exchange for $25,000 agreed to smuggle illegal
     aliens into the United States.

A:   Yes, sir.

Q:   You understand that could get you in a lot of trouble, right?

A:   Yes, sir.

Q:   So if agents came and arrested you, you would be okay with that?

A:   I done wrong.
     ....

Q:   It is your testimony that you had no idea you were going to be bringing
     back an illegal alien?

A:   No. I knew.
     ....

Q:   . . . So you told the jury a second ago you were very concerned about
     abiding by the law.

A:   Yes, sir.

Q:   And yet you did it anyway?

A:   Yes, sir.

Q:   And you knew you were going to be smuggling an alien back from the
     Bahamas prior to your departure, didn’t you.

                                       4
A:   Yes, sir.

Q:   Because they were paying you, what, between 25 and 30,000?

A:   Twenty-five, yes, sir.

Q:   And you knew these people were not going to be legal.

A:   Yes, sir.

Q:   So the testimony about the whole, “I wanted to make sure everybody is
     legal. I never would have brought back somebody without papers,” that
     you testified to a moment ago that wasn’t true.

A:   That’s not true.

Q:   So when you were testifying under oath a second ago you were lying to
     this jury?

A:   When I got to Bimini if Mr. Harding had not had a passport I would not
     have brought him back.
     ....

Q:   Wait a second. So you want this jury to believe you were being paid
     $25,000 to bring back legal people?
     ....

Q:   . . . These people were willing to pay you $25,000 for a trip that costs a
     hundred bucks.

A:   Yes, sir.

Q:   And you’re telling this jury you had no idea that you were going to be
     committing a crime.

A:   I kind of -- I felt as though as something was wrong about it.

Q:   But because you were getting paid $25,000 you figure, “Well, I’ll take him
     back anyway.”

A:   Yes, sir.


                                       5
       In closing argument, the government said that Kendrick’s claim that he

thought he was getting $25,000 to transport legal aliens was not credible, and that

drug trafficking must have also been involved. Following an acquittal, the

government brought the present alien smuggling charge based, in part, on

Kendrick’s own testimony in the first trial.

       After pleading not guilty, Kendrick moved to dismiss, arguing that the

prosecutor had vindictively brought new charges against him in order to retaliate

for Kendrick’s acquittal in the earlier trial on drug and firearm charges arising out

of the same conduct. The government responded that, at the time of the original

indictment, there was insufficient evidence to indict Kendrick for the alien

smuggling charge, and, indeed, it was not until his admissions during the first case

that it had a sufficient evidentiary foundation to bring the new charge. The district

court rejected the defendant’s motion.

       The government also moved in limine to bar the defense from mentioning

the previous acquittal or trial, or making any argument regarding vindictive

prosecution. Kendrick objected, claiming that the jury needed to have a full

understanding of the circumstances surrounding his testimony in the earlier case.


(Transcript of Kendrick’s testimony at 18-19, 41-42, 44-46).

                                               6
The court agreed with the government and granted the motion. Kendrick in turn

filed a motion in limine seeking to introduce excerpts of the prosecutor’s closing

argument from the first trial; the district court disagreed and denied the motion.

      At the alien smuggling trial, Immigration and Customs Enforcement

(“ICE”) Agent Rafael Albuernes read into evidence Kendrick’s portions of sworn

testimony from the first trial. In that testimony, among others, Kendrick admitted

to agreeing to smuggle three illegal aliens from Bimini, Bahamas into the United

States for $25,000. Several Coast Guard officials also testified about their

interception of Kendrick’s boat. At the conclusion of the government’s case,

Kendrick moved for a judgment of acquittal, claiming that the government had not

proven that Kendrick knew Harding was an illegal alien. The court rejected the

motion.

      In his defense, Kendrick testified that in April 2010, he met two individuals

who asked him to go to Bimini and pick up three people for $25,000. Kendrick

said that, when he arrived in Bimini, he did not take the three individuals onto the

boat with him because they did not possess passports. The defendant added that

he was then told that Harding (who was not part of the original plan) had a

passport and just needed to get back to his family in the United States. Kendrick

claimed that he did not expect to be paid for the last minute arrangement

                                          7
concerning Harding. On cross-examination, Kendrick admitted that he had driven

the boat to the Bahamas under the cover of darkness, and had checked Harding’s

passport so that, if caught, Kendrick could claim he thought that Harding was

legal. Harding testified, for his part, that he had never met Kendrick before the

smuggling incident, that Kendrick never asked to see Harding’s passport or travel

documents, and that Harding paid another man, not Kendrick, to be smuggled back

into the United States.

      Thereafter, the jury found Kendrick guilty of the alien smuggling charge.

This timely appeal followed.

                                         II.

      We review a district court’s decision whether to dismiss an indictment due

to prosecutorial misconduct for abuse of discretion, United States v. Jordan, 316

F.3d 1215, 1248-49 (11th Cir. 2003), and we have applied that standard in a

prosecutorial vindictiveness case, United States v. Barner, 441 F.3d 1310, 1315

(11th Cir. 2006). Abuse-of-discretion review “recognizes the range of possible

conclusions the trial judge may reach,” United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (en banc), and we must affirm unless we determine that the

district court made a clear error of judgment or applied an incorrect legal standard,

United States v. Abreu, 406 F.3d 1304, 1306 (11th Cir. 2005) (per curiam). We

                                          8
review “de novo the legal question of whether a presumption of vindictiveness

arises from the facts of the case.” United States v. Jones, 601 F.3d 1247, 1260

(11th Cir. 2010).

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

on the insufficiency of the evidence. United States v. Gari, 572 F.3d 1352, 1359

(11th Cir. 2009). In doing so, we view the evidence in the light most favorable to

the government and draw all reasonable inferences and credibility determinations

in favor of the jury’s verdict. United States v. Taylor, 480 F.3d 1025, 1026 (11th

Cir. 2007). Finally, we review a district court’s ruling on a motion in limine for

abuse of discretion. See United States v. Thompson, 25 F.3d 1558, 1563 (11th

Cir. 1994). Even if the evidence was admitted or excluded improperly, we will not

vacate unless the defendant’s substantial rights were affected. See United States

v. Quinn, 123 F.3d 1415, 1420-21 (11th Cir. 1997).

                                         III.

      First, we are unpersuaded by Kendrick’s claim that the district court abused

its discretion by denying his motion to dismiss the indictment based on vindictive

prosecution. Generally, if a prosecutor has probable cause to believe that the

defendant committed a crime, “the courts have no authority to interfere with a

prosecutor’s decision to prosecute.” Barner, 441 F.3d at 1315. However,

                                          9
“[r]eindictment violates due process whenever a prosecutor adds new charges

merely to retaliate against the defendant for exercising statutory or constitutional

rights.” United States v. Spence, 719 F.2d 358, 361 (11th Cir. 1983) (per curiam).

“A prosecutor’s charging decision does not impose an improper ‘penalty’ on a

defendant unless it results from the defendant’s exercise of a protected legal right,

as opposed to the prosecutor’s normal assessment of the social interests to be

vindicated by the prosecution.” United States v. Taylor, 749 F.2d 1511, 1514

(11th Cir. 1985) (per curiam) (citing Spence, 719 F.2d at 364).

      “A prosecutor’s decision to seek heightened charges after a defendant

successfully appeals his conviction for the same conduct is presumed to be

vindictive.” Barner, 441 F.3d at 1315-16. However, the prosecution may rebut

the presumption by establishing reasons for adding the new charges other than to

punish the defendant for exercising his legal rights. Jones, 601 F.3d at 1260. This

may include showing that it could not have proceeded previously on the

additional charge. Id.; see also Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir.

1977) (noting that vindictiveness may be negated where “evidence of the

additional crimes may not have been obtained until after the first indictment or




                                          10
information [was] filed”).2 Once the prosecution has rebutted the presumption, the

burden rests on the defendant to demonstrate actual prosecutorial vindictiveness,

which essentially requires a showing that the prosecution’s justification is

pretextual. Jones, 601 F.3d at 1261.

       We have also said that adding new charges based on independent acts,

“even where the separate acts that prompted the new charges occurred in the same

‘spree of activity,’” does not create a presumption of prosecutorial vindictiveness.

Id. at 1261 n.5 (quotation omitted). Under these circumstances, the defendant

must prove actual vindictiveness. Id.; see also Taylor, 749 F.2d at 1513.

       While our case law has focused on second indictments brought after a

defendant has successfully appealed his conviction, several of our sister circuits

have addressed the precise issue before us: second indictments brought after

acquittals. They have uniformly concluded that when the government brings a

second federal indictment against a defendant after he was acquitted of different

offenses arising out of the same incident, the acquittal alone is insufficient to give

rise to a presumption of prosecutorial vindictiveness. In the first of these cases,

United States v. Esposito, 968 F.2d 300 (3d Cir. 1992), the defendant was


       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit issued before October 1,
1981.

                                               11
acquitted of Racketeer Influenced and Corrupt Organizations Act (“RICO”)

charges, and later indicted for offenses based on the same drug transactions that

formed a basis for the RICO charges. The Third Circuit held that it would “not

apply a presumption of vindictiveness to a subsequent criminal case where the

basis for that case [was] justified by the evidence and [did] not put the defendant

twice in jeopardy.” Id. at 306. The court noted that creating a presumption in

these circumstances would be “tantamount to making an acquittal a waiver of

criminal liability for conduct that arose from the operative facts of the first

prosecution.” Id. It distinguished the commencement of new charges after a

successful appeal from bringing them after an acquittal because “[n]o defendant

will be deterred from exercising his right to go to trial because of fear that

following an acquittal the prosecution may bring additional outstanding charges.

Those charges exist and can be brought even if the defendant is convicted.” Id. at

305.

       Relying on the Third Circuit’s holding in Esposito, the Eighth Circuit -- in a

case where the defendants had previously been acquitted of possession with intent

to distribute controlled substances charges, and were later indicted for firearm and

other new charges -- likewise concluded that “the defendants’ acquittals on the . . .

charges in the first trial did not involve the exercise of a right by the defendants

                                          12
which would raise a presumption of vindictiveness.” United States v. Rodgers, 18

F.3d 1425, 1430 (8th Cir. 1994). Similarly, the Tenth Circuit, also relying on

Esposito, held in a case involving bank fraud that an “acquittal itself cannot form

the basis for a charge of prosecutorial vindictiveness.” United States v. Wall, 37

F.3d 1443, 1449 (10th Cir. 1994). And, finally, in United States v. Johnson, 171

F.3d 139, 140-41 (2d Cir. 1999) (per curiam), which involved a second indictment

for firearm charges after the defendant was acquitted on RICO charges, the Second

Circuit joined the Third, Eighth, and Tenth Circuits in holding that “a new federal

prosecution following an acquittal on separate federal charges does not, without

more, give rise to a presumption of vindictiveness.”

      Kendrick’s violation of 8 U.S.C. § 1324(a)(2)(B)(ii), relating to alien

smuggling, carried a penalty of three to ten years’ imprisonment. 8 U.S.C. §

1324(a)(2)(B). His earlier charge, knowingly and intentionally possessing

marijuana with intent to distribute while aboard a vessel, in violation of 46 U.S.C.

§ 70503(a)(2), subjected him to a greater penalty of five to forty years’

imprisonment. See 46 U.S.C. § 70506(a); 21 U.S.C. § 960(b)(2)(G). Similarly,

when the government previously charged him with possession of a firearm during

a drug trafficking offense, in violation of 18 U.S.C. § 924(c), he faced a minimum

penalty of five years’ imprisonment. 18 U.S.C. § 924(c)(1)(A)(i).

                                         13
       In this case, there is no presumption of vindictiveness. For starters, the

second indictment did not follow a successful appeal by Kendrick nor did it seek

heightened charges. See Barner, 441 F.3d at 1315-16; compare 8 U.S.C. §

1324(a)(2)(B), with 18 U.S.C. § 924(c)(1)(A)(i), 21 U.S.C. § 960(b)(2)(G), and 46

U.S.C. § 70506(a). Moreover, the alien smuggling charge was based on acts

independent of the drug and weapons offenses adjudicated in the first trial, so even

though the alien smuggling arose out of the same “spree of activity,” we do not

presume vindictiveness. See Jones, 601 F.3d at 1261 n.5; Taylor, 749 F.2d at

1513. There is no presumption of vindictiveness for still another reason: we agree

with our sister circuits that bringing a second indictment, supported by evidence,

against a defendant after an acquittal does not result in a presumption of

vindictiveness. See Johnson, 171 F.3d at 141; Wall, 37 F.3d at 1449; Rodgers, 18

F.3d at 1430; Esposito, 968 F.2d at 304, 306.3

       But even if a presumption of vindictiveness somehow arose as a matter of

law, the government rebutted the presumption by explaining that it did not bring

the alien smuggling charge to punish Kendrick because it did not have sufficient


       3
         Although Kendrick argues that reliance on Esposito and Johnson is misplaced, because
they involved RICO offenses that are very different from the case at hand, the holdings in those
cases were not dependent on the type of offenses involved, see Johnson, 171 F.3d at 141;
Esposito, 968 F.2d at 304, 306. Nor has Kendrick challenged the holdings of the Eighth and
Tenth Circuits, which did not involve RICO charges.

                                               14
evidence at the time of the original indictment to charge Kendrick with knowingly

smuggling an alien for profit. See Jones, 601 F.3d at 1260; Hardwick, 558 F.2d at

301. At the time of the original indictment, Harding had not implicated Kendrick,

and during his arrest, Kendrick had admitted that he was smuggling drugs, not

aliens; thus, prior to Kendrick’s admissions about alien smuggling during the first

trial, there was precious little evidence of Kendrick’s knowledge of Harding’s

immigration status, or, for that matter, of Kendrick’s prior financial arrangement to

smuggle illegal aliens.

      Furthermore, Kendrick has not offered the slightest shred of evidence

supporting a claim of actual prosecutorial vindictiveness. Rather, he asserts only

at the highest order of abstraction that the government prosecuted him in the

second trial with evidence that it had previously argued was false. The

government had argued at the first trial that it did not make sense that Kendrick

would be paid $25,000 to transport legal aliens. The prosecutor also claimed in

closing argument that the $25,000 that Kendrick was to receive was for smuggling

drugs into the country, not aliens. However, at no time did the prosecutor argue

that Kendrick had not agreed to smuggle an illegal alien into the country, or that

the defendant did not have some sort of financial motive for doing so.




                                         15
      Moreover, the prosecutor never claimed that Kendrick’s entire testimony

was false, but rather, only that the defendant’s version of the events relating to the

transportation of legal aliens for a large amount of cash strained credulity. We add

that in the indictment for alien smuggling following Kendrick’s acquittal for the

drug and firearm offenses, the government did not charge that Kendrick was paid

$25,000 in order to bring an illegal alien into the United States. The indictment

only alleged that Kendrick knowingly brought or attempted to bring an illegal

alien into the United States for profit. In short, the record is barren of support for

the claim that the government attempted to prosecute Kendrick with evidence that

it knew to be false, or that it had otherwise evinced actual vindictiveness. The

district court did not abuse its discretion in rejecting the prosecutorial

vindictiveness claim.

                                          IV.

      We also can discern no merit in Kendrick’s argument that the district court

erred in failing to grant a judgment of acquittal based on insufficiency of the

evidence. In reviewing a sufficiency claim, the ultimate question is whether a

reasonable trier of fact could have found guilt beyond a reasonable doubt. Gari,

572 F.3d at 1359. “The test for sufficiency of evidence is identical regardless of

whether the evidence is direct or circumstantial, and no distinction is to be made

                                           16
between the weight given to either direct or circumstantial evidence.” United

States v. Doe, 661 F.3d 550, 560 (11th Cir. 2011) (quotation omitted). After

hearing the defendant testify, the jury is free to believe the exact opposite of that

testimony. See United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995).

       In order to sustain a charge that a defendant is guilty of smuggling an alien

for commercial gain, the government must prove beyond a reasonable doubt that

the defendant: (1) knowingly brought an alien into the United States; (2) knew or

recklessly disregarded the fact that the alien had not received prior official

authorization to come to or enter the United States; and (3) participated in the

smuggling for the purpose of commercial advantage or private financial gain.

United States v. Dominguez, 661 F.3d 1051, 1063-64, 1066 (11th Cir. 2011); see

also 8 U.S.C. § 1324(a)(2)(B)(ii).4 As for the first two elements, “a specific intent

to violate the law is not required,” and the defendant need not know that the act is

illegal or wrong. Dominguez, 661 F.3d at 1068-69. Rather, “‘knowingly’ merely

requires proof of knowledge of the facts that constitute the offense.” Id. at 1068

(quotation omitted). “To act with ‘reckless disregard’ means to be aware of, but


       4
          In relevant part, the statute provides for criminal penalties against an individual who,
“for the purpose of commercial advantage or private financial gain,” “knowing or in reckless
disregard of the fact that an alien has not received prior official authorization to come to, enter, or
reside in the United States, brings to or attempts to bring to the United States in any manner
whatsoever, such alien.” 8 U.S.C. § 1324(a)(2)(B)(ii).

                                                  17
consciously and carelessly ignore, facts and circumstances clearly indicating that

the person transported was an alien who had entered or remained in the United

States in violation of law.” United States v. Perez, 443 F.3d 772, 781 (11th Cir.

2006) (emphasis omitted). As for the third element, there need not be evidence of

actual payment or even an agreement to pay; rather, it is sufficient if the defendant

acted for the purpose of financial gain. Dominguez, 661 F.3d at 1066.

      Viewed in the light most favorable to the government, the evidence was

sufficient to allow the jury to reasonably find beyond a reasonable doubt that

Kendrick knowingly smuggled an alien into the United States for profit. As the

record shows, there was sufficient evidence for the jury to conclude that Kendrick

knew or was in reckless disregard of the fact that Harding did not have

authorization to enter the United States. See id. at 1063-64. First, the jury was

entitled to rely on Kendrick’s admission from his prior sworn testimony that he

knew that he was “going to be bringing back an illegal alien.” Although Kendrick

testified that he did not know that Harding was an illegal alien and that Kendrick’s

prior testimony referred to three other individuals whom he decided not to

smuggle into the United States, the jury could have found that Kendrick’s prior

sworn testimony was credible, and that his testimony during the second trial was

not; we are obliged to view credibility choices in favor of the jury’s verdict. See

                                         18
Taylor, 480 F.3d at 1026. Moreover, when a criminal defendant chooses to testify

on his own behalf, his statements, if disbelieved by the jury, may be considered as

substantive evidence of his guilt. Brown, 53 F.3d at 314.

        In the second place, a Coast Guard officer testified at the second trial that at

night Kendrick fled from her vessel and ignored her repeated hails. Indeed, it was

not until another Coast Guard crew aboard a faster vessel approached with their

weapons drawn that Kendrick brought his vessel to a stop. The jury could have

drawn the reasonable inference that Kendrick would not have fled from the Coast

Guard if he did not believe that he was doing something illegal. Although

Kendrick denied that he fled from the Coast Guard vessel, the officer testified that

her vessel’s navigator lights could be seen from six miles away, the flashing blue

light could be seen from at least one mile away, the vessel’s siren was very loud,

and her vessel was, at times, alongside Kendrick’s vessel only about 800 yards

away.

        Third, since Harding was not a United States citizen and was being

transported from a foreign country to the United States on a boat in the middle of

the night, the jury could well have concluded that, even if Kendrick did not know

for sure that Harding was an illegal alien, he consciously ignored facts that clearly

indicated that Harding was not legal. See Perez, 443 F.3d at 781. Furthermore,

                                           19
Kendrick claimed that he checked Harding’s passport before commencing the

voyage and that he believed Harding’s possession of a passport made Harding

legal, but Harding testified that Kendrick never asked to see his passport or any

travel documents, and the jury plainly was entitled to credit Harding’s testimony

over Kendrick’s.

      There was also sufficient evidence for the jury to conclude that Kendrick

smuggled Harding into the United States for profit. In Kendrick’s prior testimony,

he admitted that he had agreed to be paid to smuggle an alien into the United

States. Harding also testified that he agreed to pay smugglers $5,000 to be

transported to the United States, even though he did not pay Kendrick directly.

While Kendrick claimed that he had a change of heart about the first three aliens,

and agreed to take Harding to the United States without any expectation of

payment, the jury was free not to believe that Kendrick intended to bring Harding

into the United States in the dead of night out of the simple goodness of his heart,

especially considering the obvious risks associated with the venture. And, even if

the jury believed that Harding was not part of the original deal, as Kendrick

contends, evidence of an actual agreement to be paid was not necessary.

Dominguez, 661 F.3d at 1066. It is enough if Kendrick acted “for the purpose of

financial gain.” See id. In short, on this record, a reasonable trier of fact could

                                          20
have determined that Kendrick knowingly smuggled an illegal alien into the

United States for profit. See Gari, 572 F.3d at 1359.

                                         V.

      We are, likewise, unpersuaded by Kendrick’s claim that the district court

abused its discretion in granting the government’s motion in limine precluding the

defendant from discussing the events of his prior trial, even though a few excerpts

of Kendrick’s testimony from the prior trial (the substance of which we’ve set out

in footnote one) were presented to the jury. Under Fed. R. Evid. 403, relevant

evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence. “It is the province of

the trial judge to weigh any materiality against any prejudice and, unless the

judge’s reading is ‘off the scale,’ his discretion is not abused.” United States v.

Shelley, 405 F.3d 1195, 1201 (11th Cir. 2005).

      Moreover, judgments of acquittal are hearsay, and do not fall within any

exception to the rule against the admission of hearsay evidence. United States v.

Irvin, 787 F.2d 1506, 1516-17 (11th Cir. 1986). In Irvin, we concluded that a

district court did not abuse its discretion in granting the government’s motion in

limine, which prevented the defendant from mentioning, referring to, or soliciting

                                          21
information about the acquittals of his co-defendants in a previous trial. Id. at

1516. After noting that a judgment of acquittal is inadmissible hearsay, id., we

said that, “[e]ven if the evidence of prior acquittal was otherwise admissible, it

would be properly excludable under [Fed. R. Evid. 403], because its probative

value is outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.” Id. at 1517.

      Here, the district court did not abuse its discretion. To begin, the evidence

of Kendrick’s prior acquittal was inadmissible hearsay. See id. at 1516.

Additionally, any discussion of the marijuana and firearm offenses on which

Kendrick was acquitted may well have only confused the jury, and this risk

arguably outweighed any probative value that the information may have had. See

id. at 1517; see also United States v. Lyons, 403 F.3d 1248, 1256 (11th Cir. 2005)

(concluding that the relevance of the defendant’s prior acquittal was “exceedingly

marginal and, given that it may have confused the jury, we can find no abuse of

discretion in the district court’s decision to exclude this evidence”). In this

connection, Kendrick only claims that, had he been allowed to discuss the

marijuana crime during the alien smuggling case, he could have argued that

Harding was not part of the original deal and was only an afterthought, which

would have supported his claim that he did not smuggle Harding for profit. The

                                          22
problem with the argument is that Kendrick did actually testify at trial that

Harding was only an afterthought and was not part of the original smuggling deal.

Moreover, an Immigration and Customs Enforcement agent testified that Kendrick

said Harding was just an afterthought and not part of the original deal, and

Kendrick admits in his brief on appeal that he and the agent gave testimony to that

effect at trial. Whether the original deal involved marijuana or the smuggling of

three individuals other than Harding, Kendrick was still able to assert (and did)

through the testimony of two witnesses that Harding was not part of the original

deal. Thus, even if the district court had improperly excluded the evidence

relating to the marijuana offense -- and it did not -- we do not see how Kendrick’s

substantial rights were affected. See Quinn, 123 F.3d at 1420-21.

      Finally, we are unpersuaded by Kendrick’s claim that the district court

abused its discretion in denying his motion in limine because the prosecutor’s

closing argument in the first trial was an admission of a party opponent under Fed.

R. Evid. 801(d)(2). At the outset, we observe that “statements and arguments of

counsel are not evidence.” United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir.

2009) (quoting United States v. Smith, 918 F.2d 1551, 1562 (11th Cir. 1990)). In

fact, the district court so instructed the jury in this case, observing that “what the

lawyers say to you is not evidence, but merely their opportunity to explain what

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they think has been proven in this case.” See also 11th Cir. Pattern Jury

Instruction 4 (“[A]nything the lawyers say is not evidence and isn’t binding on

you.”).

      Pursuant to Fed. R. Evid. 801(d)(2)(A)-(B), a statement by a party opponent

is not considered hearsay if it “was made by the party in an individual or

representative capacity,” or is a statement that “the party manifested that it adopted

or believed to be true.” In United States v. DeLoach, 34 F.3d 1001 (11th Cir.

1994) (per curiam), we addressed the defendant’s claim that, based on Second

Circuit case law, statements the prosecutor made in closing argument in a previous

case against a co-defendant, which were inconsistent with allegations made by the

prosecutor in a subsequent case against the defendant, should have been

admissible in the second case as admissions by a party opponent under Rule

801(d)(2). The district court in that case had denied admission of the prosecutor’s

statements, noting that an attorney’s arguments are not evidence and that

admission of the statements “would create a substantial likelihood of jury

confusion under [Fed. R. Evid. 403].” Id. at 1005 n.7. We observed that, “in the

Second Circuit an attorney’s arguments may be admissible, but admissibility is

tightly circumscribed.” Id. at 1005. Thus, the Second Circuit required that, for

statements like these to be admissible, they must be: (1) “assertions of fact that are

                                          24
the equivalent of a testimonial statement by the [client]”; and (2) “inconsistent

with similar assertions in a subsequent trial.” Id. (quotation omitted). We noted in

DeLoach, however, that the prosecutor’s statements there related to advocacy

concerning the credibility of the witnesses and invitations for the jury to draw

inferences, which would not be admissible even under the Second Circuit’s test.

Id. at 1005-06. We also determined that the prosecutor’s comments in the first

trial were not “clearly inconsistent” with the evidence presented in the second

case, and, significantly, were not statements of fact equivalent to a testimonial

statement by a client. Id. at 1006. Thus, we concluded that the district court did

not abuse its discretion by excluding the prosecutor’s comments, because the

statements “would be inadmissible as admissions of a party opponent even under

the cases relied upon by [the defendant].” Id.

      In this case, the district court correctly determined that closing argument

comments by counsel are not evidence, see Lopez, 590 F.3d at 1256, and

therefore, that the prosecutor’s statements drawn from the previous trial could not

be admitted as evidence in the second trial as Kendrick had requested. But even

if we were to consider the possibility of admitting the prosecutor’s comments as

statements of a party opponent under the Second Circuit’s standard -- which we

did not expressly adopt in DeLoach -- the district court still would not have abused

                                         25
its discretion in denying the admission of the prosecutor’s statements. In the first

place, the prosecutor’s comment in the first trial -- that Kendrick’s explanation

that he was transporting legal aliens for $25,000 did not make sense -- went to

Kendrick’s credibility and undermined the defense’s case, and would not have

been admissible even using the Second Circuit’s approach. See DeLoach, 34 F.3d

at 1005. Moreover, as we’ve already said, the prosecutor’s arguments in the

second trial were not clearly inconsistent with his statements in the first one. See

id. at 1005-06. Finally, the only statement by the prosecutor that could even

possibly be construed as a statement of fact was the prosecutor’s comment that

“[t]he 25 to $30,000 is the cut [Kendrick] gets for the risk he’s taking for

smuggling the drugs into the country, not an alien.” However, in context, it is

clear that the prosecutor was inviting the jury to draw the inference that the

$25,000 was for smuggling drugs, not for just smuggling aliens. See id. at 1005.

Moreover, if the prosecutor during the first trial actually had expressed his

“personal belief or opinion as to the truth or falsity of any testimony or evidence or

the guilt of the defendant” -- and we do not believe he did -- Kendrick should have

objected to these prosecutorial remarks (which he did not), because plainly they

would have been improper. See United States v. Lacayo, 758 F.2d 1559, 1565

(11th Cir. 1985) (quoting ABA Stds. for Crim. Justice 3-5.8(b) (2d ed. 1980)).

                                          26
      Finally, even if the statements somehow were considered to be evidence, the

court would have properly excluded them under Rule 403, because their admission

likely would have opened the door widely to an entirely new set of evidence and

hypotheses to be drawn from the marijuana and firearm charges, and likely would

have confused the jury in the process. Cf. United States v. Delgado, 903 F.2d

1495, 1499 (11th Cir. 1990).

      AFFIRMED.




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