                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                JULY 19, 2007
                               No. 06-14797                   THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                      D. C. Docket No. 05-20776-CR-JEM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

ARKEEM WILTSHIRE,
a.k.a. Arkeem Daniel,

                                                             Defendant-Appellant.


                         ________________________

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

                                 (July 19, 2007)

Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.

PER CURIAM:

     A Southern District of Florida jury found appellant guilty of four offenses
committed between September 1 and 15, 2002: Count 1, conspiracy to import

cocaine, in violation of 21 U.S.C. § 963; Count 2, conspiracy to possess with the

intent to distribute cocaine, in violation of 21 U.S.C. § 846; Count 3, importation

of cocaine, in violation of 21 U.S.C. § 952(a); and Count 4, possession with intent

to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).   The district court

determined that the Guidelines called for prison terms in the 168-210 months’

range and sentenced appellant to concurrent prison terms of 180 months. He now

appeals his convictions and sentences.

      The evidence adduced at appellant’s trial revealed the following smuggling

scheme and appellant’s participation in it. For some time prior to the September 1-

15, 2002 period indicated in the indictment, Edwin Murphy recruited “passengers”

to go aboard cruise ships headed for the Carribean Islands. The passengers were to

pick up cocaine after disembarking at a designated island and bring it back to the

ship. There, a member of the crew would take custody of the cocaine and stow it

until the ship stopped at Key West, Florida, where other “passengers,” whom

Murphy had recruited, would bring the cocaine to shore. In the case at hand,

Murphy recruited appellant and Ashley Thornton as passengers for one of these

cruises. They boarded a cruise ship at Port Canaveral, Florida, and when the ship

arrived at Saint Maarten, they disembarked and rendezvoused with the cocaine



                                           2
source. The source gave them 13.63 kilograms of cocaine, which they brought

back to the ship – thereby completing their assignment. When the ship

subsequently docked at Key West, Richard Fontenot, a Murphy recruit, who had

boarded the ship at Port Canaveral, Florida, thus replacing appellant and Thornton

in the smuggling venture, brought the cocaine ashore and was arrested.

      Appellant seeks the reversal of his convictions and a new trial on the

following grounds: (1) the district court erred in denying his motion to suppress

statements he gave Immigration and Customs Enforcement agents following his

arrest on November 28, 2005; (2) the prosecutor’s examination of witnesses

(participants in Murphy’s smuggling scheme) about their plea agreements with the

Government essentially vouched for the witnesses and denied appellant a fair trial;

and (3) the court’s comments during the trial denied appellant a fair trial. We

consider these grounds in order, find no merit in any of them, and accordingly

affirm appellant’s convictions.

                                          I.

      The court properly denied appellant’s motion to suppress on the basis of the

magistrate judge’s thoroughgoing recommendation contained in his Report and

Recommendation of May 10, 2006.

                                         II.



                                          3
      Appellant contends that he was denied a fair trial because the prosecutor

engaged in misconduct by: (1) effectively vouching for witness Ashley Thornton

by generating sympathy for her; (2) vouching for other witnesses; (3) inferentially

criticizing him for exercising his right to trial through questioning other co-

conspirators; (4) inviting one witness to testify about his involvement in other

crimes which had nothing to do with him; and (5) causing one witness to infer that

he was dangerous. According to appellant, the cumulative effect of the above

conduct was to prejudice him before the jury.

      Regarding Thornton, he says the prosecutor, in questioning her, should not

have brought out that she had a daughter, pled guilty knowing there was a ten-year

minimum mandatory sentence, and cooperated with the Government. In addition

to this, he points out that the prosecutor’s questions prompted a second witness to

testify that he pled guilty because he was guilty, was held accountable for all of the

drugs alleged in his indictment, and that he qualified for safety valve relief. The

prosecutor also prompted a third witness to testify that he was held accountable for

all of the drugs he smuggled into Key West, and then got Edwin Murphy to testify

that he pled guilty – because he was guilty and he hoped to receive a sentence

reduction for testifying – and had engaged in other criminal activity for which he

was not prosecuted. In appellant’s view, these comments cumulatively had the



                                           4
effect of criticizing appellant for exercising his right to trial.

       Because the matter of prosecutorial misconduct involves mixed questions of

law and fact, we normally review these claims de novo. United States v. Noriega,

117 F.3d 1206, 1218 (11th Cir. 1997). However, the failure to object to statements

during trial “typically will cause this court to review the misconduct only for plain

error.” United States v. Wilson, 149 F.3d 1298, 1302 n.5 (11th Cir. 1998). Since

appellant did not object to any prosecutorial conduct that he now considers

vouching, we review the conduct for plain error. See United States v. Cano, 289

F.3d 1354, 1363-64 (holding that where an appellant failed to object based on the

ground which was raised on appeal, the appeal is reviewed for plain error).

       When evaluating claims of prosecutorial misconduct, we examine the

context of the entire trial, including any curative instructions that were given, to

determine whether the prosecutor’s statements (1) were improper, and

(2) prejudicially affected the substantial rights of the defendant. Wilson, 149 F.3d

at 1301. It normally is considered improper to bolster a witness by vouching for

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

Vouching for a witness becomes improper if (1) the “jury could reasonably believe

that the prosecutor indicated a personal belief in the witness’ credibility,” placing

the government’s prestige behind the witness, or (2) the government alludes to



                                             5
evidence not in the record to support the witness’s testimony. Id. Improper

vouching will result in prosecutorial misconduct if it affects the defendant’s

substantial rights. Id. at 1206-07. “A defendant’s substantial rights are

prejudicially affected when a reasonable probability arises that, but for the

remarks, the outcome of the trial would be different.” Wilson, 149 F.3d at 1301

(internal quotations and citation omitted). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Eyster, 948 F.2d

at 1207. Even if a prosecutor’s remark is prejudicial, a curative instruction may

render the remark harmless. United States v. Bailey, 123 F.3d 1381, 1400 (11th

Cir. 1997). Prosecutorial misconduct, therefore, will be the basis for reversal only

if, in light of the entire trial and any curative instructions, the misconduct

prejudicially affected the defendant’s substantial rights. United States v. Hasner,

340 F.3d 1261, 1275 (11th Cir. 2003).

      A prosecutor is permitted to bring up questions relating to a guilty plea

where a co-defendant takes the witness stand. United States v. Griffin, 778 F.2d

707, 710 n.5 (11th Cir. 1985). Where a prosecutor questions witnesses regarding

the truth-telling portions of their plea agreement or brings out the fact that the

agreements stated they were subject to perjury, the prosecutor is not vouching.

Cano 289 F.3d at 1365-66. It is also “proper for the prosecution to rehabilitate the



                                            6
witness on direct examination if defense counsel attacks the witness’ credibility

during opening statement.” Id. at 1366.

      In this case, we are satisfied that no vouching occurred. First, the prosecutor

was permitted to ask all codefendants about their guilty pleas because they took the

witness stand. Griffin, 778 F.2d at 710 n.5. Moreover, the prosecutor was

permitted to ask questions about perjury because we have explicitly stated that is

not vouching. Cano, 289 F.3d at 1365-66.

      Appellant attacked Murphy and Thornton’s credibility, bringing in evidence

of Murphy’s other criminal activity in doing so, during his opening statement to

the jury. The prosecutor was permitted to rehabilitate those witnesses. Cano, 289

F.3d at 1366. Accordingly, all the questions appellant complains of were

permitted. At no time did the prosecutor indicate a personal belief in the

witnesses’ credibility, place the Government’s prestige behind a witness, or allude

to evidence not in the record.

      The only remaining claims of prosecutorial misconduct are that the

codefendants’ statements about their guilty pleas implicitly criticized appellant for

going to trial, and that Thornton’s testimony made him look dangerous. The

record contradicts the latter contention because Thornton stated that she felt

comfortable with appellant, and her fear was the result of a third party’s comment.



                                           7
As for the former contention, the prosecutor was permitted to question all

codefendants about their guilty pleas. Griffin, 778 F.2d at 710 n.5. Appellant did

not object. His claim that this amounted to an implicit criticism of his choice to go

to trial, in the face of the fact that the prosecutor was permitted to ask the

questions, does not amount to error, much less plain error.

                                         III.

      Appellant contends that the judge inappropriately injected himself into trial

in such a fashion as to create the impression of dislike or disbelief in the appellant,

and partiality toward the Government. He points to the following events that took

place in the presence of the jury: (1) at one point, the court interrupted a cross-

examination to note that the question had been asked and answered and instructed

the attorney to move on to the next question; (2) a couple of minutes later, the

court told the attorney that the question was not relevant and to move on; (3) the

court remonstrated defense counsel by telling him that when the court sustains

something, “it didn’t happen,” and added a curative instruction to the jury, without

request from the prosecutor; (4) the court refused to admit a Government exhibit

tendered by defense counsel, telling him that it was not really his turn to offer

evidence; (5) the court told defense counsel about the difference between

Government and defense exhibits; (6) the court belittled defense counsel because



                                            8
of an inartful question; (7) the court told counsel to “move on” when counsel asked

if he could be heard on a Government objection; (8) the court chastised defense

counsel by stating “if I have already ruled, what in the world makes you think you

can ask it by using different words? Sustained. . . don’t ask it in a different way,

either”; (9) the court told the attorney to move on to another question, and that

details are not relevant; (10) the court called a sidebar conference when defense

counsel would not stop asking the question for which he had been remonstrated,

and told counsel that the next time he did it, he was going to be fined; and (11) the

court stated that the jurors were not suffering from Alzheimer’s. According to

appellant, the combined events were sufficient to prejudice the jury.

      We “will not reverse a conviction unless the comments of the Trial Judge are

so prejudicial as to amount to a denial of a fair trial.” United States v. Morales,

868 F.2d 1562, 1576 (11th Cir. 1989) (quoting United States v. Preston, 608 F.2d

626, 636 (5th Cir. 1979). “Furthermore, a clear effect on the jury is required to

reverse for comment by the trial judge.” Id. (citations and internal quotations

omitted). There are three factors that weigh in favor of finding that the comments

of a trial judge are not reversible error. These factors are: “(1) the comments

‘occupied but a few seconds of a lengthy trial;’ (2) the comments ‘were directed to

the defense counsel rather than to the jury;’ and (3) the Trial Judge advised the jury



                                           9
to disregard any intimation by the court relating to the facts of the case. Preston,

608 F.2d at 636 (quoting United States v. Onori, 535 F.2d 938, 944 (5th Cir. 1976).

      Here, all of the comments identified were very short. Moreover, as the

Government correctly points out, not all of them were directed at defense counsel.

Rather, the judge’s comments regarding moving on and Alzheimer’s were directed

at the prosecutor. Moreover, all of the judge’s comments were directed at the

attorneys and never at the jury. Additionally, this was a four-day trial. Over the

course of four days, the comments complained of only took up a few moments.

Finally, the judge advised the jury, both during opening statement and after closing

arguments, that the court had no opinion on the case and that the jury should

disregard everything it said except for the instructions on the law.

                                       *****

      Appellant contends that his sentences should be vacated and the case

remanded for a new sentencing hearing on the grounds that the court erred in not

properly considering the sentencing factors of 18 U.S.C. § 3553(a) and in not

articulating the reasons for appellant’s sentences. Appellant’s contention is

contradicted by the record. The court explicitly stated that it had considered all of

appellant’s stated arguments, the advisory sentence range prescribed by the

Guidelines, and the § 3553(a) sentencing factors. As for those, the court stated that



                                          10
it chose the sentences it gave for purposes of punishment and deterrence, two of

the § 3553(a) factors. We therefore find no basis for setting aside appellant’s

sentences and remanding the case for resentencing.

      AFFIRMED.




                                         11
