                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 10-10752         ELEVENTH CIRCUIT
                           Non-Argument Calendar    SEPTEMBER 21, 2010
                         ________________________        JOHN LEY
                                                          CLERK
                    D.C. Docket No. 2:08-cr-14060-JEM-6

UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                    versus

NOEL ALBANES-GOMEZ,

                                                           Defendant-Appellant.

                        ________________________

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

                             (September 21, 2010)

Before TJOFLAT, BLACK and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Noel Albanes-Gomez was convicted at the hands of a jury on

both counts of a superceding indictment—Count 1, which charged him with
conspiring in violation of 18 U.S.C. § 1349 to commit mail fraud in violation of 18

U.S.C. § 1341, and Count 2, which charged him with the substantive § 1341

offense—and the district court sentenced him to concurrent prison terms of thirty-

six months. He now appeals his convictions. The charges against appellant were

based on fraudulent applications he and his coconspirators submitted to a

mortgage company to obtain funds to purchase residential properties—at least ten

of which were used as marijuana grow houses. Appellant asks that we vacate his

convictions and grant him a new trial on several grounds. None have merit.

                                          I.

      Appellant contends that the district court abused its discretion by admitting

Federal Rule of Evidence 404(b) evidence of his marijuana arrest on November

10, 2005. The arrest occurred after a Miami police officer approached the front

door of a Miami residence, smelled marijuana emanating from the house, and

knocked. Appellant answered the knock and permitted the officer to enter. Once

inside, the officer discovered five rooms that were constructed to grow marijuana

and contained evidence of such purpose. He placed appellant under arrest and

read him his Miranda rights. Appellant then admitted to the officer that he had

been using the house to grow marijuana.

      We review the district court’s decision to admit or exclude the evidence of

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the arrest for an abuse of discretion. United States v. Matthews, 431 F.3d 1296,

1311 (11th Cir. 2005). Rule 404(b) prohibits evidence of other crimes, wrongs, or

acts to prove a person’s character in order to show action in conformity therewith.

This type of evidence is admissible, however, for other purposes, such as proof of

motive, intent, or absence of mistake or accident provided that the government

provides reasonable notice of the general nature of any such evidence it intends to

introduce at trial. “Evidence, not part of the crime charged but pertaining to the

chain of events explaining the context, motive and set-up of the crime, is properly

admitted if . . . it forms an integral and natural part of an account of the crime, or is

necessary to complete the story of the crime for the jury.” United States v.

Church, 955 F.2d 688, 700 (11th Cir. 1992) (internal quotation omitted). “In such

a situation, because the evidence is intrinsic, not extrinsic, we do not engage in a

Rule 404(b) analysis.” Id.

      We apply a three-part test to determine whether extrinsic evidence of prior

bad acts is admissible under Rule 404(b):

             First, the evidence must be relevant to an issue other than
             the defendant’s character; Second, the act must be
             established by sufficient proof to permit a jury finding that
             the defendant committed the extrinsic act; [and] Third, the
             probative value of the evidence must not be substantially
             outweighed by its undue prejudice, and the evidence must
             meet the other requirements of Rule 403.

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Matthews, 431 F.3d at 1310-11. Under the first prong, “in every conspiracy case,

a not guilty plea renders the defendant’s intent a material issue,” and extrinsic

evidence which may be probative of a defendant’s state of mind is admissible

“unless the defendant affirmatively takes the issue of intent out of the case.” Id. at

1311 (alterations and internal quotation marks omitted). A jury is entitled to

believe as much or as little of the witnesses’ testimony as it finds credible, and the

“difficulty of proving intent in conspiracies is what creates the presumption that

intent is always at issue.” Id. at 1312.

      A district court may exclude relevant evidence “if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury . . .” Fed. R. Evid. 403. This determination “calls

for a common sense assessment of all the circumstances surrounding the extrinsic

offense, including prosecutorial need, overall similarity between the extrinsic act

and the charged offense, as well as temporal remoteness.” United States v.

Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003) (quotation omitted). Although the

district court has a great degree of discretion in weighing probative value and

prejudice under Rule 403, we have “also recognized that Rule 403 is an

extraordinary remedy which the district court should invoke sparingly, and the

balance . . . should be struck in favor of admissibility.” United States v. Dodds,

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347 F.3d 893, 897 (11th Cir. 2003) (quotations omitted).

      We find no abuse of discretion in the admission of appellant’s marijuana

arrest. First, the evidence was relevant to an issue other than appellant’s character,

namely his intent, which, by pleading not guilty, appellant placed at issue. See

Matthews, 431 F.3d at 1311. Second, appellant concedes that he was growing

marijuana in his home; hence, the second prong is not at issue. See Matthews, 431

F.3d at 1311 n.14 (concluding that where the defendant does not challenge the

sufficiency of the evidence supporting the extrinsic act, the second prong need not

be considered). Third, the probative value and the government’s need for this

evidence substantially outweighed any unfair prejudice.

                                         II.

      Appellant contends that the district court erred in admitting the statements

he made to the officer following his arrest infringed his Fifth Amendment right to

remain silent. Use of a defendant’s post-Miranda silence to impeach his defense

at trial violates the defendant’s due process rights. Doyle v. Ohio, 426 U.S. 610,

619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976); United States v. O’Keefe, 461

F.3d 1338, 1345-46 (11th Cir. 2006). However, not every mention of a

defendant’s post-Miranda silence is a Doyle violation. Our precedent has, for

example, distinguished the situation of a suspect who chooses to speak in part and

                                          5
assert his right to silence in part, from one who remains silent altogether. Lofton v.

Wainwright, 620 F.2d 74, 76-79 (5th Cir. 1980) (habeas context); see also United

States v. Dodd, 111 F.3d 867, 869-70 (11th Cir. 1997) (asking whether the

prosecutor addressed Dodd’s silence or rather the context of the statement that

Dodd offered). Additionally, a single comment does not constitute a Doyle

violation when that comment is not used by the government in making a specific

inquiry or argument about the defendant’s post-arrest silence. See United States v.

Stubbs, 944 F.2d 828, 834-35 (11th Cir.1991).

      In this case, as in Stubbs, the government made no specific inquiry or

argument about appellant’s post-arrest silence. Id. at 835. Moreover, the

government did not attempt to use appellant’s post-arrest silence to impeach his

testimony, for appellant testified that he was in fact growing marijuana in his

home. In short, we find no Fifth Amendment violation occurred.

                                         III.

      Appellant contends that the district court abused its discretion in (a)

admitting Rule 404(b) evidence that he failed to file a 2005 or 2006 income tax

return and evidence that he structured cash deposits into his bank account; (b)

denying his motion for a mistrial; and/or (c) refusing his request for a curative

instruction. Finally, he argues that the cumulative effect of these errors deprived

                                          6
him of a fair trial.

       We find no abuse of discretion in the court’s admission of the evidence of

appellant’s failure to file income tax returns for 2005 and 2006. The mortgage

application stated that he made over $90,000 a year, which was material to the

lender’s decision to grant the loan requests. The evidence that appellant had not

filed the returns for 2005 and 2006 demonstrated that he had lied about his income

on the mortgage application. The evidence was clearly relevant and probative of

the charged offenses.

       We review a denial of a mistrial motion for abuse of discretion. United

States v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005). Because a trial judge is

in the “best position to evaluate the prejudicial effect of a statement or evidence on

the jury,” it is within that judge’s discretion to grant or deny a mistrial. United

States v. Delgado, 321 F.3d 1338, 1346-47 (11th Cir. 2003) (quotation omitted).

“Evidentiary . . . errors do not constitute grounds for reversal unless there is a

reasonable likelihood that they affected the defendant’s substantial rights.” United

States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990). A defendant’s

substantial rights are not affected if properly admitted evidence sufficiently

establishes his guilt. Ramirez, 426 F.3d at 1353.

       “The cumulative error doctrine provides that an aggregation of non-

                                           7
reversible errors (i.e., plain errors failing to necessitate reversal and harmless

errors) can yield a denial of a constitutional right to a fair trial, which calls for

reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quotation

omitted). 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 appellant was afforded a fundamentally

fair trial. See United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997).

However, where there is no error or only a single error, there can be no cumulative

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

       Appellant moved for a mistrial after IRS agent Andrew Schmit referred

briefly to the fact that cash deposits to appellant’s bank accounts in amounts less

than $10,000 constituted “structuring.” Assuming that the court’s admission of

this brief reference was improper, we are satisfied that it did not affect appellant’s

substantial rights—especially in light of the overwhelming proof of guilt.1


       AFFIRMED.




       1
          Appellant’s argument that the court’s errors cumulatively denied him a fair trial is
frivolous.

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