                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              NOV 30, 2006
                               No. 04-15890                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 03-00432-CR-T-17-EAJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JOSE RODRIGUEZ SOSA,

                                                          Defendant-Appellant.


                         ________________________

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

                            (November 30, 2006)

Before ANDERSON, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

     Jose Rodriguez-Sosa (“Rodriguez”) appeals his convictions for various
Hobbs Act and firearms offenses. For the reasons that follow, we Affirm.

                               I. BACKGROUND

      In early August 2003, Carlos Martin-Gonzalez (“Martin”), a resident of

Tampa, Florida, left his job with Nestor Pagan’s Puerto Rican medical clinic after

the men had a disagreement. Soon thereafter, Pagan learned that seven checks had

been stolen from his business, and he suspected Martin was the culprit. Rodriguez,

a Puerto Rican police officer, was in Pagan’s office when Pagan reported the theft

to police. After bank surveillance videos showed that Martin had negotiated one of

the checks, the bank agreed to reimburse Pagan. Rodriguez offered to go to Tampa

and recover the other checks from Martin so that Pagan could drop his criminal

complaint. On August 9, Rodriguez arrived in Tampa. At Pagan’s behest, brothers

Pedro and Hector Rivera, who knew Martin from their youth in Puerto Rico,

picked Rodriguez up from the airport and drove him to Martin’s residence.

      While Pedro Rivera waited in the car, Hector Rivera and Rodriguez

approached Martin’s apartment door. Upon recognizing Hector Rivera, Martin and

his wife, Glenda Badias, answered the door. Rodriguez entered the apartment,

struck Martin in the head, and demanded that he hand over Pagan’s money. When

Martin said he did not have any money, Rodriguez shot him twice, killing him.

Rodriguez then fired two shots at Badias while she was holding her daughter. One



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bullet hit Badias near her clavicle, and the other bullet grazed her neck. One of the

bullets passed through Badias and entered her daughter’s thigh. Rodriguez,

Hector, and Pedro Rivera fled in Pedro Rivera’s car. On October 30, 2003, federal

agents arrested Pagan and Rodriguez.

      Rodriguez and Pagan were indicted on six counts under various federal

statutes. On the first day of trial, Pagan entered into a plea bargain and agreed to

testify against Rodriguez. During the trial, federal agents Sergio Siberio and Luis

Gonzalez testified that while Rodriguez was being processed after his arrest,

Rodriguez stated that he had committed the crime on his own and that Pagan was

not involved. Pagan testified that Rodriguez said that Badias could not identify

him because he had shot her in the head. Pedro Rivera, who had also entered into a

plea agreement, testified against Rodriguez. Badias testified that Rodriguez shot

Martin, herself, and her daughter, and she showed her wounds to the jury. The

Government also offered as exhibits photographs depicting the wound sustained by

Badias and her daughter. Rodriguez objected that the prejudicial effect outweighed

the pictures’ relevance. The district court overruled the objection.

      The jury convicted Rodriguez of all six counts, and he was sentenced to life

plus a consecutive term of 120 months in prison. He now appeals his conviction.




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                                 II. DISCUSSION

      On appeal, Rodriguez argues that his convictions should be reversed and his

case remanded for a new trial because: (A) the prosecutor committed prosecutorial

misconduct by improperly bolstering the testimony of Government witnesses and

shifting the burden of proof to Rodriguez, and (B) the district court abused its

discretion by admitting into evidence photographs depicting the gunshot wounds

sustained by Badias and her daughter.

                           A. Prosecutorial Misconduct

      Prosecutorial misconduct requires a new trial only if the challenged remarks

(1) were improper and (2) prejudiced the defendant’s substantial rights. United

States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998). Because Rodriguez

failed to make a contemporaneous objection to the alleged prosecutorial

misconduct, we review this claim for plain error. United States v. Abraham, 386

F.3d 1033, 1036 (11th Cir. 2004).

                              1. Improper Bolstering

      “Attempts to bolster a witness by vouching for his credibility are normally

improper and error.” United States v. Sims, 719 F.2d 375, 377 (11th Cir. 1983)

(citations omitted). “When faced with a question of whether improper vouching

occurred we ask: ‘whether the jury could reasonably believe that the prosecutor



                                          4
was indicating a personal belief in the witness’s credibility.’” United States v.

Castro, 89 F.3d 1443, 1456-57 (11th Cir. 1996) (quoting Sims, 719 F.2d at 377).

“In applying this test, we look for whether (1) the prosecutor placed the prestige of

the government behind the witness by making explicit assurances of the witness’s

credibility, or (2) the prosecutor implicitly vouched for the witness’s credibility by

implying that evidence not formally presented to the jury supports the witness’s

testimony.” Id. at 1457.

      As for the second prong of the test for prosecutorial misconduct, improper

vouching prejudicially impacts a defendant’s substantial rights when, viewed in the

context of the trial as a whole, it has “so infected the trial with unfairness as to

make the resulting conviction or sentence a denial of due process.” Parker v.

Head, 244 F.3d 831, 838 (11th Cir. 2001) (citation omitted). A denial of due

process occurs “when there is a reasonable probability that, but for the prosecutor’s

offending remarks, the outcome of the proceeding would have been different.”

United States v. Eyster, 948 F.2d 1196, 1207 (11th Cir. 1991). (citation omitted).

But where the court has given a curative instruction to address a prosecutor’s

improper and prejudicial remarks, “we will reverse only if the evidence is so highly

prejudicial as to be incurable by the trial court’s admonition.” United States v.

Harriston, 329 F.3d 779, 787 n.4 (11th Cir. 2003) (citations omitted). Moreover,



                                            5
where the remarks represent only an insignificant portion of the trial, and properly

admitted evidence sufficiently establishes a defendant’s guilt, the defendant’s

substantial rights are not affected. United States v. Adams, 74 F.3d 1093, 1100

(11th Cir. 1996).

            a. Vouching for the Credibility of Siberio and Gonzalez

      Here, Rodriguez argues that, during closing arguments, the prosecutor

improperly vouched for the credibility of agents Siberio and Gonzalez by

rhetorically asking the jury why the agents would lie and asserting that an agent

would not “throw away” nearly 30 years of experience by committing perjury in a

case in which he had a tangential role. The Government counters that the

challenged remarks do not constitute improper vouching and that any prejudice

was cured by the district court’s instructions to the jury regarding statements of

counsel and the jury’s role in interpreting the evidence. The Government further

argues that there was overwhelming evidence of Rodriguez’s guilt, including, the

testimony of Pagan, Pedro Rivera, and Badias regarding Rodriguez’s role in the

shootings, telephone records confirming Rodriguez’s communication with Pagan

and Pedro Rivera during the relevant time periods and in the relevant geographic

areas, and Badias’s identification of Rodriguez as the shooter.

      In our view, the challenged remarks neither placed the prestige of the



                                           6
government behind the agents, nor implied that evidence not before the jury

supported the agents’ testimony. The remarks merely highlighted facts that would

help the jury assess the agents’ credibility after defense counsel had attacked the

veracity of the agents’ testimony. Moreover, the remarks were based on record

evidence concerning the extensive law enforcement experience of one of the agents

and the limited role both agents played in the case. Furthermore, in light of the

other evidence of Rodriguez’s guilt, there was no reasonable probability that the

challenged remarks impacted the trial’s outcome. Finally, any prejudice was cured

when the district court instructed the jury that the statements of counsel were not

evidence and that the jury’s interpretation of the evidence controls. Accordingly,

we conclude that the prosecutor’s comments regarding Siberio and Gonzalez do

not constitute prosecutorial misconduct.

       b. Comments on the Truth-telling Requirements of Plea Bargains

      Rodriguez contends that the prosecutor improperly vouched for the

credibility of Pedro Rivera and Pagan by asking them whether their respective plea

agreements required them to tell the truth and would be voided if they perjured

themselves. Rodriguez also contends that the prosecutor vouched for these

witnesses during closing argument by asserting that if these witnesses testified

falsely, their plea agreements would be voided and they would face additional



                                           7
prosecution. The Government, however, notes that the challenged arguments were

made after defense counsel had attacked the credibility of these witnesses on cross-

examination and after defense counsel had argued that they had a motive to lie.

The Government also asserts that any prejudice was cured by the district court’s

instructions to the jury regarding the “caution” it must exercise in considering the

testimony of witnesses who may have a motive to testify falsely.

      As we articulated in United States v. Diaz, “[w]e have held that it is

perfectly proper for a prosecutor to elicit testimony regarding the truth telling

portion of a plea agreement on redirect once the credibility of the witness is

attacked on cross-examination.” 190 F.3d 1247, 1254 (1999). We have further

held that it is proper for a prosecutor to point out that if a witness testifying

pursuant to a plea bargain perjures himself, he violates the plea agreement and

risks prosecution. See United States v. Cano, 289 F.3d 1354, 1365 (11th Cir.

2002); Castro, 89 F.3d at1457; United States v. Dennis, 786 F.2d 1029, 1046 (11th

Cir. 1986); Sims, 719 F.2d at 377.

      Here, the thrust of defense counsel’s cross-examinations of Pagan and Pedro

Rivera was that they had a motive to lie because of the reduced sentences they

received in exchange for their cooperation with the Government. Defense counsel

made similar assertions during closing argument. In our view, the challenged



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remarks were part of the Government’s efforts to rehabilitate its witnesses and do

not constitute improper vouching. Moreover, any suggestion of vouching was

mitigated by the court’s instruction to the jury that the testimony of witnesses

testifying pursuant to a plea agreement should be considered with more caution

than the testimony of other witnesses.

      Although Rodriguez acknowledges our precedent, he argues that we should

overrule it. But the “law of this circuit is ‘emphatic’ that only the Supreme Court

or this court sitting en banc can judicially overrule a prior panel decision.” Walker

v. S. Co. Servs., Inc., 279 F.3d 1289, 1293 (11th Cir. 2002) (quoting Cargill v.

Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997). Accordingly, we conclude that the

references to Pagan and Pedro Rivera’s plea agreements do not warrant reversal.

                                 2. Burden-shifting

      Rodriguez next contends that prosecutor impermissibly shifted the burden of

proof to Rodriguez. In a criminal proceeding, the government has the burden of

proving every element of the charged offense beyond a reasonable doubt. United

States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992) (citation omitted). A

defendant “does not have to disprove anything nor prove innocence, and

state-created presumptions to the contrary are violative of due process.” Id.

(citations omitted). Thus, “prosecutors must refrain from making burden-shifting



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arguments which suggest that the defendant has an obligation to produce any

evidence or to prove innocence.” Id. (citation omitted). Nevertheless, “the

prejudice from the comments of a prosecutor which may result in a shifting of the

burden of proof can be cured by a court’s instruction regarding the burden of

proof.” Id. at 1087 (citing several cases to this effect).

      Here, Rodriguez argues that the prosecutor impermissibly shifted the burden

of proof by repeatedly asserting that Rodriguez’s story was a fabrication because

he failed to produce evidence to corroborate various portions of his story. The

Government responds that the prosecutor’s remarks were merely comments on the

evidence and that any prejudice was cured by the court’s jury instructions and

statement’s by counsel regarding the burden of proof.

      We conclude that Rodriguez’s burden-shifting argument lacks merit. First,

the prosecutor never argued that Rodriguez should have produced or needed to

produce evidence corroborating his story in order to establish his innocence.

Instead, the prosecutor merely commented on the evidence presented at trial and

the arguments presented by Rodriguez’s counsel, and emphasized the lack of

evidence corroborating Rodriguez’s story. Second, even if the challenged remarks

could be viewed as an attempt to shift the burden of proof, the district court’s

instructions to the jury sufficiently clarified that the government had the burden of



                                           10
proof. Indeed, the district court emphatically instructed the jury that Rodriguez

had the right to remain silent, that he was not obligated to present any evidence,

that he was presumed innocent, and that the Government had the burden of proving

guilt beyond a reasonable doubt. Consequently, we conclude that the Government

did not improperly shift the burden of proof.

                     B. Photographs of the Gunshot Wounds

      Rodriguez argues that the district court violated Federal Rule of Evidence

403 by admitting “gruesome” photographs into evidence because any probative

value was outweighed by the prejudice and was cumulative. “We review the

district court’s evidentiary rulings for abuse of discretion, and will only reverse if

an erroneous ruling resulted in substantial prejudice.” Conroy v. Abraham

Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004) (citation omitted).

      The district court has broad discretion to admit relevant evidence. United

States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). Evidence is relevant if it

has “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Fed. R. Evid. 401. But Rule 403 provides that otherwise

relevant evidence may be excluded if “its probative value is substantially

outweighed by the danger of unfair prejudice, . . . or needless presentation of



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cumulative evidence.” Fed. R. Evid. 403 (emphasis added). Nevertheless, we

have recognized that “Rule 403 is an extraordinary remedy[,] which should be used

only sparingly” and that the balance “should be struck in favor of admissibility.”

Smith, 459 F.3d at 1295 (internal quotation marks omitted). Hence, in “reviewing

issues under Rule 403, we look at the evidence in a light most favorable to its

admission, maximizing its probative value and minimizing its undue prejudicial

impact.” United States v. Brown, 441 F.3d 1330, 1362 (11th Cir. 2006).

      Rodriguez contends that the injuries depicted in these photographs was

irrelevant and had no probative value because Martin’s wife and daughter were not

mentioned as victims in the indictment or the prosecutor’s arguments. Rodriguez

also argues that even if the injuries were relevant, the photographs were

unnecessary and cumulative because Badias’s testimony provided a full description

of the injuries and the manner of injury was not in dispute. The Government

responds that the photographs were relevant because they allowed the inference

that Rodriguez attempted to shoot Badias in the head, thereby corroborating

Pagan’s testimony that Rodriguez had stated that Badias could not identify him

because he had shot her in the head. The Government also contends that the

photographs allowed the jury to draw reasonable inferences about Rodriguez’s

intent to eliminate the only adult witness to Martin’s murder. The Government



                                         12
further asserts that the photographs were not gruesome and were less disturbing

than the images conjured by the facts of the crime. Finally, the Government argues

that any prejudice was cured by the district court’s instruction to the jury that it

must not be influenced by sympathy or prejudice.

      In our view, the photographs depicting the location of Badias and her

daughter’s wounds had minimal probative value. The chain of inferences linking

the location of the wounds to any fact of consequence in this case is weak and

attenuated. And the photographs depicting the wounds had even less probative

value given that Badias testified as to the location of her wounds and pulled her

shirt down to allow the jury to see the wounds. Probative value is, in part, a

function of the prosecution’s need for the evidence in making its case. United

States v. King, 713 F.2d 627, 631 (11th Cir. 1983).

      On the other side of the Rule 403 inquiry, the photographs were arguably

cumulative because the Government introduced independent evidence that

established the location of Badias and her daughter’s wounds. Nevertheless, “Rule

403 does not mandate exclusion merely because some overlap exists between the

photographs and other evidence.” United States v. De Parias, 805 F.2d 1447, 1454

(11th Cir. 1999), overruled on other grounds by United States v. Kaplan, 171 F.3d

1351 (11th Cir. 1999). Thus, admitting the photographs “hardly constitute[d] such



                                           13
a needless accumulation of evidence as to amount to an abuse of discretion.” Id.

      Moreover, it is doubtful that the photographs caused unfair prejudice

considering the overwhelming evidence of Rodriguez’s guilt. Indeed, “in a

criminal trial[,] relevant evidence is inherently prejudicial; it is only when unfair

prejudice substantially outweighs probative value that the rule permits exclusion.”

King, 713 F.2d at 631 (emphasis added). And any unfair prejudice was likely

mitigated by the district court’s instruction to the jury that it must not be swayed by

sympathy or prejudice.

      Even had the district court abused its discretion in admitting the

photographs, we conclude that the error was harmless — there was other,

overwhelming evidence of Rodriguez’s guilt, and any error had no substantial

impact on the jury’s verdict. See Harriston, 329 F.3d at 789 (stating that error is

harmless “where there is overwhelming evidence of guilt” or “the error had no

substantial influence on the outcome” and other sufficient evidence supports the

verdict).

                                 III. CONCLUSION

      For the reasons above, we AFFIRM the district court.




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