                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-14530         ELEVENTH CIRCUIT
                         Non-Argument Calendar      AUGUST 10, 2011
                       ________________________        JOHN LEY
                                                        CLERK
               D.C. Docket No. 3:09-cr-00261-MMH-MCR-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ANTHONY WILLIAM DENHAM,
a.k.a. Tony,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 10, 2011)

Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      After a jury trial, Anthony William Denham appeals his convictions for

inducing a minor to engage in sexually explicit conduct for the purpose of

producing child pornography and knowingly receiving child pornography by

cellular telephone. On appeal, Denham argues that the district court committed

reversible error when it: (1) denied his motion for a mistrial after the government’s

cooperating witness told the jury Denham was in jail, and (2) limited Denham’s

cross-examination of that witness as to her bias and motive for testifying. After

review, we affirm.

                           I. BACKGROUND FACTS

A.    Offense Conduct

      Federal Bureau of Investigation (“FBI”) agents received a complaint from

Elizabeth Heffner that her boyfriend used social networking web sites to meet a

fifteen-year-old female, S.A., and then traded S.A. prepaid cell phone minutes for

nude pictures of S.A. During an investigation, FBI agents found five pictures of

S.A. either nude or partially nude and displaying her genitals on Denham’s cell

phone.

      In an interview with FBI agents, S.A. explained that Denham befriended her

on the Internet. Denham eventually asked S.A. to take the pictures of herself

using her cell phone camera and then send them to his cell phone. S.A. said she

                                          2
sent Denham about thirty pictures of herself. In exchange, Denham sent her a cell

phone card.

      Unbeknownst to S.A., Denham used S.A.’s pictures to create a profile on a

social networking site. The web page invited men to send either prepaid phone

minutes or checks or money orders in exchange for sexually explicit pictures of

S.A. Denham also entered chat rooms pretending to be S.A. and offered to send

sexually explicit photographs in exchange for cell phone minutes or money orders.

      A federal grand jury returned a superseding indictment charging Denham

with inducing a minor to engage in sexually explicit conduct for the purpose of

producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e) (“Count

One”); knowingly receiving child pornography by cellular telephone, in violation

of 18 U.S.C. § 2252(a)(2) and (b)(1) (“Count Two”); and knowingly possessing

child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (“Count

Three”).

B.    Pre-trial Motion in Limine

      Prior to trial, Denham made an oral motion in limine to prohibit any

reference to his being detained or jailed during the investigation or criminal

proceedings. The government did not oppose Denham’s motion and suggested

redacting any mention of Denham’s incarceration in the trial exhibits. The

                                          3
government also noted that it had instructed its cooperating witness, Elizabeth

Heffner, not to refer to the fact that Denham was in jail. The district court granted

Denham’s motion in limine.

C.       Motion for a Mistrial

         During trial, at the prosecution’s request, the district court instructed

witness Heffner that she could not tell the jury that Denham was in jail. Heffner

responded that she understood. On direct examination, Heffner explained that (1)

Denham was her boyfriend and the father of her child; (2) Denham obtained

pornographic photographs from underage girls whom he met online; and (3)

Denham, by pretending to be an underage girl, induced men to send him money

orders and cellular telephone cards in exchange for those pornographic

photographs. Heffner admitted participating in Denham’s “scam” by helping him

obtain money orders and knowing that the scam was illegal and involved underage

girls.

         When the prosecutor asked Heffner why she had reported Denham to the

FBI, Heffner’s response mentioned that Denham had been in jail, as follows:

              Q:    Okay. And why did you - - why’d you call the FBI?
              A:    I was mad at Anthony.
              Q:    When you say you were mad at him, can you tell us why
         you were mad at him?
              A:    Because we broke up and he went to jail and - -

                                             4
Denham objected and moved for a mistrial. Following a recess, the district court

denied Denham’s mistrial motion, explaining that the “fleeting reference” to jail

had no detail or further discussion, was not intentionally elicited and was not

“likely to influence the outcome of the trial.” The district court gave a curative

instruction directing the jury to disregard Heffner’s answer to the prosecutor’s last

question. The prosecutor then asked Heffner why she was mad at Denham, and

Heffner explained that it was because they broke up.

      Heffner also admitted that she did not want to testify against Denham and

that she was doing so only because she was subpoenaed. Although Heffner denied

being made any promises in exchange for her testimony, she hoped that she would

not be prosecuted.

D.    Cross-Examination of Heffner

      On cross-examination, Heffner denied that she was trying to help the

government in order to avoid prosecution. This exchange occurred:

             Q:    Okay. You don’t want them to prosecute you on this, right?
             A:    I would - - no, because of my daughter.
             Q:    Okay. Because if they prosecuted you on this, you know
      that you’re facing a lengthy prison sentence, right?
             A:    Yes.
             Q:    If they prosecuted you with the charges that they’re
      prosecuting Mr. Denham with and you got convicted of enticing or
      coercing a minor in engaging in sexually explicit conduct - -



                                          5
The government objected. At a side bar conference, defense counsel admitted that

she planned to elicit from Heffner the specific penalties Heffner faced if she was

prosecuted on the counts charged against Denham and argued that this information

was relevant to Heffner’s motive for testifying.

      The district court sustained the government’s objection. The district court

ruled that defense counsel could question Heffner about whether she could face “a

substantial prison term” or even “many years of imprisonment,” but that it was not

appropriate to advise the jury of the specific penalties. The district court explained

that the jury was not “equipped to understand, for example, that those type sentences

ordinarily don’t run consecutively” and the information would confuse the jury. The

district court concluded that “any probative value of advising them of the specific

terms of imprisonment is outweighed by the confusion and prejudice.”

      Defense counsel continued cross-examining Heffner, as follows:

      Q:    Ms. Heffner, you understand that you can be prosecuted in this
            case, correct?
      A:    Yes.
      Q:    Okay. And so knowing that, you are trying to do your best not to
      get prosecuted, correct?
      A:    Yes.
      Q:    And you have been trying to cooperate with [the prosecutor] and
      [FBI] Agent Pruitt.
      A:    Yes.
      Q:    And you’ve had lots of conversations with Agent Pruitt.
      A:    Yes.

                                          6
              ....

       Q:     Okay. And there have been times that you did not want to
       cooperate with them, right?
       A:     Yes.
       Q:     And when you didn’t want to cooperate with them, they reminded
       you that you could be prosecuted for this, right?
       A:     Yes.
       Q:     And that made you start cooperating again, correct?
       A:     Yes.
       Q:     And if you do get prosecuted for this, you’re facing many years
       in prison, correct?
       A:     Yes.

Following the trial, the jury returned a guilty verdict against Denham on all three

counts. Count Three subsequently was dismissed based on the government’s

motion. The district court sentenced Denham to 240 months’ imprisonment on

Count One, and 120 months’ imprisonment on Count 2, to run concurrently.

Denham filed this appeal challenging his convictions, but not his sentences.1

                                    II. DISCUSSION

A. Motion for a Mistrial

       On appeal, Denham argues that the district court abused its discretion by

denying his motion for a mistrial. Denham argues that Heffner’s jail comment

denied him a fair trial and a presumption of innocence.


       1
       In part because Denham had a criminal history of Category IV, his advisory guidelines
range was 324 to 405 months’ imprisonment. The district court imposed a sentence below that
range.

                                              7
      “A mistrial should be granted if the defendant’s substantial rights are

prejudicially affected,” which occurs “when there is a reasonable probability that,

but for the remarks, the outcome of the trial would have been different.” United

States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007). This determination is

made “in the context of the entire trial and in light of any curative instruction.” Id.

Because the district court “is in the best position to evaluate the prejudicial effect

of a statement or evidence on the jury,” we review the denial of a mistrial motion

for an abuse of discretion. United States v. Emmanuel, 565 F.3d 1324, 1334 (11th

Cir. ), cert denied, 130 S. Ct. 1032 (2009) (quotation marks omitted). “When a

district court gives a curative instruction, the reviewing court will reverse only if

the evidence is so highly prejudicial as to be incurable by the trial court’s

admonition.” Newsome, 475 F.3d at 1227 (brackets and quotation marks omitted).

      “The mere utterance of the word jail, prison or arrest does not, without

regard to context or circumstances, constitute reversible error per se.” Emmanuel,

565 F.3d at 1334 (affirming denial of mistrial motion where police officer witness

mentioned he would see defendant when the defendant would sign in “as a

condition of bail”); see also United States v. Veteto, 701 F.2d 136, 139-40 (11th

Cir. 1983) (affirming denial of mistrial motion where witness stated that defendant

had been in prison before). The denial of a mistrial is proper “where the comment

                                           8
is brief, unelicited, and unresponsive, adding nothing to the government’s case.”

Emmanuel, 565 F.3d at 1334.

      Here, we cannot say the district court abused its discretion in denying

Denham’s motion for a mistrial. As the district court noted, witness Heffner

uttered a single, brief comment about Denham’s being in jail without any further

elaboration. Heffner’s comment was not responsive to the prosecutor’s question

and did not add to the government’s case. The government took steps prior to

Heffner’s testimony to avoid any mention of Denham’s being in jail and did not

elicit the comment intentionally. Nor should the prosecutor have anticipated the

comment given that Heffner did not mention Denham’s incarceration when

previously answering a similar question before the grand jury. Finally, the district

court gave the jury a curative instruction, and Denham has not shown that the

brief, unelicited reference to jail was so highly prejudicial that the jury could not

follow that curative instruction.

B.    Cross-Examination of Heffner




                                           9
       Denham argues that the district court violated his Sixth Amendment rights

to confrontation and to present a defense when it limited his ability to cross-

examine Heffner effectively about her bias and motive to lie.2

       “The Confrontation Clause guarantees criminal defendants an opportunity to

impeach through cross-examination the testimony of witnesses for the

prosecution.” United States v. Baptista-Rodriguez, 17 F.3d 1354, 1370 (11th Cir.

1994). “A limitation on cross-examination can violate the Sixth Amendment right

to confrontation if it prevents the defendant from showing that a witness is

biased.” De Lisi v. Crosby, 402 F.3d 1294, 1300 (11th Cir. 2005). The need for

full cross-examination is particularly important “where the witness is the star

government witness or participated in the crimes for which the defendant is being

prosecuted.” United States v. Williams, 526 F.3d 1312, 1319 (11th Cir. 2008).

Also, “where a prosecution witness has been threatened with a criminal charge or

actually charged with a criminal offense, the defendant is entitled to explore those

circumstances on cross-examination in order to bring to the jury’s attention the

witness’ possible motive or self-interest with respect to the testimony given.”

United States v. Garrett, 727 F.2d 1003, 1011 (11th Cir. 1984), superseded by



       2
         We review the district court’s decision limiting cross-examination for an abuse of
discretion. United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007).

                                                10
statute on other grounds, United States v. Elgersma, 929 F.2d 1538, 1544-45 (11th

Cir. 1991).

      However, “the Sixth Amendment does not require unlimited inquiry into the

potential bias of a witness.” United States v. Garcia, 13 F.3d 1464, 1469 (11th

Cir. 1994) (quotation marks and brackets omitted). “[T]rial judges retain wide

latitude . . . to impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is repetitive or only marginally

relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435

(1986). “The test for the Confrontation Clause is whether a reasonable jury would

have received a significantly different impression of the witness’ credibility had

counsel pursued the proposed line of cross-examination.” Garcia, 13 F.3d at 1469.

“Once there is sufficient cross-examination to satisfy the Sixth Amendment’s

Confrontation Clause, further questioning is within the district court’s discretion.”

Id. at 1468.

      The district court did not abuse its discretion in limiting Denham’s cross-

examination of Heffner or deny Denham his constitutional rights to confront her

and present a defense. Denham had a full and fair opportunity to impeach Heffner

as to her bias and motive for testifying. The district court permitted Denham to

                                          11
cross-examine Heffner about the fact that she could be prosecuted for the offenses

for which Denham was being tried. During cross-examination, Heffner admitted

that: (1) when she refused to cooperate, the government reminded her that she

could be prosecuted; (2) she was “trying to do [her] best not to get prosecuted”;

and (3) she was cooperating with the government in the hope that she would avoid

prosecution. More importantly, the district court permitted Denham to elicit from

Heffner that, if prosecuted, she faced “many years in prison.” The cross-

examination presented the jury with facts sufficient to evaluate Heffner’s possible

bias and incentive to testify untruthfully against Denham. The precise length of

the possible sentence would not have given a reasonable jury a significantly

different impression of Heffner’s credibility.

      Moreover, the district court restricted cross-examination only to the extent

Denham wanted to inquire about the precise sentences Heffner would face if she

were prosecuted for Denham’s charged offenses. Information as to the severity of

the sentence the defendant faces is “extrinsic and prejudicial,” and the trial court is

within its discretion to restrict cross-examination that would reveal such

information to the jury. See Garrett, 727 F.2d at 1011-12 (affirming district

court’s limitation on cross-examination of cooperating witness as to specific,

mandatory minimum prison term he faced if charged with the defendant’s crime).

                                          12
The district court also noted that information about the sentencing ranges for each

count could confuse the jury if it is unaware that sentences often are imposed

concurrently. We cannot say the district court abused its discretion in precluding

this specific line of questioning.3

       Finally, and contrary to Denham’s assertion on appeal, Heffner’s testimony

was not essential to establish his knowledge that the victim was underage because

(1) the victim herself testified that she told Denham she was 15 years old, and (2)

Denham’s sister testified that Denham admitted to her that the victim was

underage.

       AFFIRMED.




       3
         Because there was no error in the district court’s denial of a mistrial or limitation of
Denham’s cross-examination of Heffner, Denham cannot show cumulative error. See United
States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004) (explaining that where there is no error,
there can be no cumulative error).

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