                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________
                                                                          FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-10404                ELEVENTH CIRCUIT
                                   Non-Argument Calendar               JULY 27, 2010
                                 ________________________               JOHN LEY
                                                                         CLERK
                             D.C. Docket No. 1:09-cr-20657-UU-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff - Appellee,

                                            versus

BOBBY JO HARDY,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

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

                                        (July 27, 2010)

Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

         A jury found Bobby Jo Hardy guilty of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1), and the district court sentenced him
to prison for 188 months. He appeals his conviction, arguing (1) that the district

court abused its discretion in excluding hearsay evidence, (2) the prosecutor’s

statements during closing argument constituted prosecutorial misconduct, and

(3) cumulative error deprived him of a fair trial. We affirm.

                                                 I.

       At trial, the prosecution established that during a traffic stop, Miami

Gardens police officers found a firearm under the driver’s seat of a car that Hardy,

a felon (the police later determined), was driving.1 After he was placed under

arrest for diving with a suspended license, Hardy waived his Miranda rights and

told one of the officers that the firearm probably belonged to his brother. Later, he

said that the knew the firearm had been under the driver’s seat but that he did not

know whom it belonged to.

       Jeansilu Estime was riding in the car with Hardy when it was stopped, and

took the stand in Hardy’s defense. Hardy’s counsel attempted to elicit from

Estime that while in Hardy’s car and shortly before officers pulled Hardy over, a

man identified only as “Black” had told Hardy that he had a gun for sale. Hardy

argued that this statement was a statement against interest and should be admitted


1
 At trial, Detective Onassis Perdomo testified that the gun was found under the driver’s seat, while
Hardy’s witness, Jeansilu Samuel Estime, testified that it was found under the passenger’s seat.


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under Federal Rule of Evidence 804(b)(3). The district court excluded it as

inadmissible hearsay. We review the court’s ruling for abuse of discretion.

United States v. Walker, 59 F.3d 1196, 1198 (11th Cir. 1995).

      Rule 804(b)(3) “permits admission of a hearsay statement ‘which [] at the

time of its making . . . so far tended to subject the declarant to civil or criminal

liability . . . that a reasonable person in the declarant’s position would not have

made the statement unless believing it to be true.” United States v. Westry, 524

F.3d 1198, 1214 (11th Cir. 2008) (quoting Fed. R. Evid. 804(b)(3)). “To be

admissible under Rule 804(b)(3), a statement must satisfy three elements: (1) the

declarant [must be] unavailable; (2) the statement so far tends to subject the

declarant to criminal liability that a reasonable person in his position would not

have made the statement unless he believed it to be true; and (3) the statement is

corroborated by circumstances clearly indicating its trustworthiness.” Id.

(quotations omitted). “While a determination of whether a statement is against the

declarant’s penal interest is purely a question of law subject to de novo review, . . .

consideration of a statement’s trustworthiness requires a review of findings of fact

and a review of the trial court’s application of a legal standard to the facts.” Id. at

1215 (citation omitted).




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      In United States v. Walker, 59 F.3d 1196 (11th Cir. 1995), Walker, the

defendant, argued that the district court improperly prevented him from

introducing, through his own testimony, an alleged statement made by a man

identified only as “Jeffrey.” Id. at 1198. Walker failed to make a proffer, but

argued on appeal that Jeffrey’s statements would have placed Jeffrey at the scene,

would have shown that Jeffrey avoided being captured by the police, and would

have supported Walker’s own testimony that Walker was purchasing drugs from

Jeffrey, rather than selling drugs, on the night of his arrest. Id. We affirmed the

district court’s rejection of that evidence, observing that (1) Walker made no effort

to show that Jeffrey was unavailable, (2) Walker failed to proffer any evidence to

corroborate Jeffrey’s statements, and (3) Walker had every motive to fabricate the

story to corroborate his own defense. Id. at 1198-99.

      Here, the district court did not abuse its discretion in finding Black’s

statement to be inadmissible hearsay. Even though the court excluded the

statement, Hardy made no effort at that time, or outside the jury’s presence, to

show that Black was unavailable. See Walker, 59 F.3d at 1199. Also, the

statement was at best ambiguous and thus not clearly against Black’s penal

interest. See United States v. Pena, 527 F.2d 1356, 1361 (5th Cir. 1976) (holding




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that a defendant’s construction was not justified from the “scanty tender shown by

the record.”). Even assuming that Black was unavailable and that the statement

was against his interest, Hardy failed to proffer any evidence to corroborate

Black’s statement and no reasonable view of the evidence supports the

trustworthiness of Black’s statement.

                                          II.

      Hardy contends that during closing argument, the government improperly

instructed the jury that it need only consider the internal consistency of the

government’s evidence and therefore did not need to consider Hardy’s evidence.

      We review de novo a claim of prosecutorial misconduct during closing

arguments. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). “To

establish prosecutorial misconduct, (1) the remarks must be improper, and (2) the

remarks must prejudicially affect the substantial rights of the defendant.” Id.

(quotation 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 have been different.” Id. In order to assess the prejudicial impact of

the comments, we evaluate them in the context of the trial as a whole and assesses




                                          5
their probable impact on the jury. United States v. Hernandez, 145 F.3d 1433,

1439 (11th Cir. 1998).

      Taken in context, the government’s argument was not improper. Prior to

Hardy’s objection, the prosecutor stated: “And members of the jury, those factors

to determine a witness’ credibility apply to everybody who testified in this case.”

The government then asked the jury to consider whether Perdomo’s testimony was

credible and consistent with the other evidence that the government had presented.

The government never suggested that the jury should not consider Hardy’s

evidence, only that it find Perdomo credible and believe his testimony over

Estime’s testimony, as it stated more fully in its rebuttal argument. Further, during

Hardy’s closing argument, Hardy told the jury that they could not ignore Hardy’s

witness as they were “supposed to look at all the testimony.” Moreover, in its jury

instruction, the court instructed the jury that they must give careful and impartial

consideration of all of the evidence in the case, and the jury is presumed to have

followed these instructions. See United States v. Stone, 9 F.3d 934, 938 (11th Cir.

1993).

                                         III.




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      Finally, Hardy argues that the district court’s interruptions of and tone

toward defense counsel, when coupled with the alleged errors above, constitute

cumulative error that deprived Hardy of a fair trial.

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

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).

      AFFIRMED.




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