           Case: 11-11227   Date Filed: 02/25/2014   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 11-11227
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:10-cr-00031-TCB-CCH-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ZHONG LIANG LI,
a.k.a. Ken Li,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (February 25, 2014)

Before WILSON, FAY and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Zhong Liang Li appeals his conviction for a single count of conspiring to

produce false identification documents, transfer false identification documents, and

encourage and induce aliens to illegally reside in the United States, all in violation

of 18 U.S.C. §§ 371, 1028 and 8 U.S.C. § 1324. 1 Following his conviction, the

court sentenced Li to 50 months’ imprisonment.

                                                I.

       In January 2010, a grand jury indicted Li for his role in a conspiracy to

provide fraudulent driver’s licenses to people who did not qualify for them. The

indictment alleged that Li and others, including Guo Xing Song and Cleveland

Spencer, arranged for illegal aliens to obtain licenses that were fraudulently issued

by Spencer, a Georgia Department of Driver Services employee. The indictment

identified fraudulent licenses that were issued from 2001 to 2006. Li was arrested

in 2010 by FBI Special Agent Darin Werking. At trial, both Spencer and Song

testified that they continued to work with Li until 2006. Li, testifying in his own

defense, stated that he stopped participating in the license arrangement in 2004 and

that he told Spencer and Song that he was stopping at that time. Werking testified

that, in a post-arrest interview, Li did not tell Werking that he had informed any of


       1
          We note a clerical error in the judgment form. The judgment in this case reflects that Li
was convicted of conspiring to encourage or induce illegal aliens to reside in the United States.
However, Li was convicted, all under one count, of conspiring to encourage or induce illegal
aliens to reside in the United States, producing false identification documents, and transferring
false identification documents (as objects of the conspiracy). While nothing in the judgment is
incorrect, the judgment form is incomplete.
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his co-conspirators that he wanted to stop participating in the license arrangement.

In closing argument, Li’s counsel argued that the jury should acquit Li based on a

withdrawal defense, contending that Li withdrew from the conspiracy more than

five years before the indictment, which would place his participation in the

conspiracy outside of the relevant statute of limitations. 2 In its rebuttal closing

argument, the government suggested that Li fabricated that testimony, stating as

follows:

       Now, [defense counsel] points out that when [Li] talked to—to Agent
       Werking in January 2010, he didn’t know the law, didn’t know the
       law, statute of limitations, the law of withdrawal. That’s right. And
       as you heard from Agent Werking, he never asserted in that interview
       that he’d withdrawn from the conspiracy. He didn’t know then that
       that would be an important fact at his trial today. He didn’t come up
       with that until today when he testified on the stand for the first time
       that he’d withdrawn or made any statements in any way to these other
       co-conspirators to withdraw from the conspiracy. And that was the
       first time he said it, and you shouldn’t believe it because today it’s too
       convenient. He has too much of a motive for coming up with that
       now when he didn’t tell Agent Werking back in 2010.

       After deliberation, the jury found Li guilty of the single count of conspiracy

and all three objects of the conspiracy in the indictment with which he was


       2
         Generally, an accused conspirator’s participation is presumed to continue until all
conspiratorial objects have been achieved or the last overt act has been committed; however, if
the defendant establishes the affirmative defense of withdrawal, “the statute of limitations will
begin to run at the time of withdrawal.” United States v. Arias, 431 F.3d 1327, 1340 (11th Cir.
2005). Proof of withdrawal requires a showing that the defendant took affirmative steps to
defeat the objectives of the conspiracy and that he either made a reasonable effort to
communicate these acts to his co-conspirators or disclose the scheme to law enforcement
authorities. Id. at 1340–41.


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charged. At sentencing, the court considered whether Li should receive an

obstruction-of-justice enhancement for lying during the trial about how long he

was involved in the conspiracy. The court noted that Li claimed he did not discuss

the timing of his withdrawal in the post-arrest interview in part because he was

unaware that the timing was a significant fact. In response, the government stated,

“I think that [Li] is correct insofar as he asserts that at the time he made his

statement, Mr. Li was not aware of the significance of that. That’s probably

correct.” On appeal, Li argues that the government committed reversible

prosecutorial misconduct in closing argument and that the government’s statement

at sentencing was a concession that the remarks in closing were misleading to the

jury.

                                               II.

        We generally review allegations that a prosecutor’s statements led to a due

process violation de novo. United States v. Baker, 432 F.3d 1189, 1252 (11th Cir.

2005). Where a defendant did not object the prosecutor’s statement at trial,

however, we review a challenge to the propriety of any statement for plain error

only. United States v. Rodgers, 981 F.2d 497, 499 (11th Cir. 1993) (per curiam).

Under plain error review, we will only reverse if (1) there was an error, (2) that

was plain or obvious, (3) that affected the defendant’s substantial rights in that it

was prejudicial and not harmless, and (4) that seriously affected the fairness,


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integrity, or public reputation of the judicial proceedings. United States v.

Johnson, 694 F.3d 1192, 1195 (11th Cir. 2012) (internal quotation marks omitted).

        To find prosecutorial misconduct, we must conclude that (1) the prosecutor’s

remarks were improper, and (2) the remarks prejudicially affected the defendant’s

substantial rights. United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991).

The second prong of this test is met where there is a reasonable probability that,

but for the improper statements, the outcome of the case would have been

different. Id. at 1206–07.

                                                       III.

        We review the question of prosecutorial misconduct for plain error only, as

Li never objected to the government’s statement. 3 See Rodgers, 981 F.2d at 499.

        Li argues that it was improper for the prosecutor to suggest in closing that Li

fabricated his testimony as to when he withdrew from the conspiracy. As support,

Li points to Davis v. Zant, where we held that the state prosecutor’s comments that

the defendant had fabricated his defense at trial were improper, warranting a new

trial. 36 F.3d 1538, 1546–51 (11th Cir. 1994) (appealing the denial of a § 2254

petition). However, in Davis, it was not the allegation of fabrication in and of

itself that made the argument improper. Id. at 1548. Rather, the impropriety arose

        3
         Li states that counsel’s failure to object to the prosecutor’s argument at trial “is by no
means fatal to this claim being asserted on appeal as it did not ripen until . . . sentencing.”
Although his failure to object at trial is not fatal to his appeal, Li also failed to raise any objection
during the sentencing hearing, and thus there is no question that plain error review applies.
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from the fact that the prosecutor relied on false statements to make his allegation.

See id. (“In this case, however, the impropriety lies in the prosecutor’s use of

misstatements and falsehoods. Little time and no discussion is necessary to

conclude that it is improper for a prosecutor to use misstatements and

falsehoods.”).4 There is no legal support for the proposition that the government’s

mere suggestion that Li fabricated his testimony, without more, constitutes

misconduct. Unlike in Davis, the government was not aware of extrinsic evidence

that strongly contradicted its assertion. See id. at 1548–49. Rather, the

government here based its suggestion that Li fabricated his testimony regarding

when he withdrew from the conspiracy on evidence that (1) both of his

co-conspirators testified that Li never sought to withdraw, and (2) Li did not tell

the FBI in a post-arrest interview that he attempted to withdraw.

       Although Li points to the government’s statement at sentencing that Li was

probably unaware of the legal effect of the statute of limitations when he spoke

with the FBI as a concession that the government knew that its statement during

closing was false, this is an illogical interpretation of the government’s position.

Instead, Li’s lack of knowledge regarding the statute of limitations could

reasonably support the government’s assertion that Li did not have a reason to lie


       4
         In Davis, the defendant argued that another person had committed the murder, and the
prosecutor alleged that defense to be a recent fabrication, even though the prosecutor knew that
the other person had confessed to the crime months before. 36 F.3d at 1548–49.
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when he initially spoke with the FBI, but then he did have a reason to lie once he

learned of the legal significance of withdrawal. In fact, the government made this

exact argument in its closing.

      The government’s argument that the jury should not believe Li’s testimony

regarding his withdrawal from the conspiracy was reasonably based on evidence

admitted at trial and was not improper. See Eyster, 948 F.2d at 1206. Further, the

statements made at closing were certainly not improper such that the district court

plainly erred in allowing the government to make them, nor do the challenged

remarks risk seriously affecting the fairness and integrity of the trial. See Rodgers,

981 F.2d at 499.

      While our finding that there was no plain error in the prosecutor’s statements

renders a prejudice inquiry unnecessary, we also note that the district court gave

instructions to the jury regarding how statements made by the lawyers should be

used and considered (noting that anything the lawyers said was not evidence in the

case). See United States v. Bailey, 123 F.3d 1381, 1402 (11th Cir.1997) (finding

that any possible prejudice to a defendant “resulting from the prosecutor’s closing

argument was cured by [similar] instructions” from the trial judge). The jury is

presumed to have followed these instructions. See United States v. Calderon, 127

F.3d 1314, 1334 (11th Cir.1997). We affirm Li’s conviction.

      AFFIRMED.


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