                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1



            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                                Argued August 7, 2007
                               Decided August 31, 2007

                                        Before

                   Hon. WILLIAM J. BAUER, Circuit Judge

                   Hon. MICHAEL S. KANNE, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 06-3652

UNITED STATES OF AMERICA,                      Appeal from the United States District
         Plaintiff-Appellee,                   Court for the Southern District of
                                               Indiana, Indianapolis Division.
              v.
                                               No. 1:04CR00155-003
ANTONIO RODRIGUEZ,
         Defendant-Appellant.                  David F. Hamilton,
                                               Judge.

                                       ORDER

        After a jury trial Antonio Rodriguez was found guilty on two counts of
possessing methamphetamine with intent to distribute. See 21 U.S.C. § 841(a)(1).
Because of the drug quantity and Rodriguez’s prior conviction for a felony drug
offense, he received the statutory mandatory minimum sentence of 240 months’
imprisonment. See id. § 841(b)(1)(A)(viii). Rodriguez argues on appeal that the
district court should have declared a mistrial after a police officer described an out-
of-court identification of Rodriguez by an informant and volunteered that prior to
trial the officer had assumed that Rodriguez would plead guilty. In light of the
extensive evidence of Rodriguez’s guilt, these two statements—which were stricken
and which the jury was instructed to ignore—did not deprive him of a fair trial.
Therefore, we affirm his convictions.
No. 06-3652                                                                      Page 2

        At Rodriguez’s two-day trial in July 2006, three police officers described how
undercover officer Matt Hall, assisted by an informant, conducted two controlled
buys of methamphetamine from Rodriguez in July 2003. The informant did not
testify at trial, having apparently fled to Mexico.
        The two statements that Rodriguez complains about were elicited during the
testimony of Sergeant Steven Swarm, the government’s first witness. Swarm
testified on direct that in July 2003 the informant gave him the names of several
drug dealers in Indianapolis. When the prosecutor asked Swarm if he tried to
verify the informant’s information, Swarm replied, “I recognized some of the
individuals he was discussing and then, subsequently, I had photographs, and in
fact showed the photographs, one being Mr. Antonio Rodriguez, and the informant
identified him.” Defense counsel interposed an objection, which the district court
sustained. The challenged testimony was stricken, and the jury was ordered to
disregard it.

       The second statement occurred during redirect. On cross-examination,
defense counsel had elicited that the government waited until the eve of trial to
prepare transcripts in English of the audio recordings made during the two
undercover buys, both of which were conducted in Spanish. The prosecutor,
following up on that questioning during redirect, asked Swarm why he did not have
the transcripts made sooner. The prosecutor said later that she had expected
Swarm to answer that transcripts are generally not prepared until the eve of trial
as a matter of course. But Swarm answered: “There were several reasons. One, to
be honest, I thought the defendant would plead guilty to the charge.” Defense
counsel objected, and the district court responded: “Sustained. Ladies and
gentlemen, that is highly improper. . . . [Y]ou’ll disregard it. Police are not entitled
to draw those kinds of conclusions.”

        The district judge then declared a recess, and defense counsel moved for a
mistrial while the jury was out. The judge denied the motion and stated: “In my
view, it will not be a surprise to the jurors that police think that Mr. Rodriguez is
guilty. And I think the cautionary instruction, the fervor of which may not be
reflected in the transcript, ought to be sufficient in this case.”

       The trial continued. Officer Hall testified that at around 5:00 p.m. on July 9,
2003, he and the informant drove to a residence at 414 South Gray Street in
Indianapolis. Although it is not clear from the record whether Rodriguez lived
there, Sergeant Swarm testified that a van was registered to Rodriguez at that
address, and he had seen Rodriguez leave the house on at least one occasion. When
Hall arrived at the house on South Gray, the informant introduced him to a man
whom Hall recognized as Rodriguez, having earlier seen his driver’s license
photograph. Hall, who speaks Spanish, testified that Rodriguez agreed to sell him
No. 06-3652                                                                  Page 3

two ounces of methamphetamine and said that it would take him two hours to
procure the drugs.

       Later that night the informant placed two telephone calls to Rodriguez to
arrange the handoff, both of which were taped. At trial Hall identified Rodriguez’s
voice on the tapes. At around 8:00 p.m., Hall and the informant met Rodriguez in
the parking lot of a grocery store a block away from the South Gray residence.
Rodriguez showed up on foot, climbed into Hall’s truck, and handed him a package
in exchange for $800. Testing later revealed that the package contained 64 grams
of a substance containing methamphetamine. Hall asked if Rodriguez would sell
him a pound of methamphetamine and whether he could contact Rodriguez directly,
without going through the informant; Rodriguez agreed. After the exchange Hall
drove to South Gray and dropped Rodriguez a quarter of a block from the house
where they had met earlier.

       Officer Hall testified that during the July 9 buy Rodriguez was sporting a
goatee and wearing a gray baseball cap, a dark shirt, and jeans. Sergeant Swarm,
who watched the transaction from a distance, testified that he also recognized
Rodriguez from his driver’s license photograph and described him as having facial
hair and wearing a gray baseball cap and a dark shirt. At trial both officers
identified Rodriguez as the seller. Both officers remarked that at trial Rodriguez
was missing the goatee he formerly had. Hall noticed that he was wearing his hair
slightly shorter and Swarm observed that he was “a little bit grayer.”

        On July 10, 2003, Officer Hall called Rodriguez to discuss his intended
purchase of one pound of methamphetamine, but Rodriguez pretended to be
someone else and said that Rodriguez was in California. After the informant called
Rodriguez and reassured him that it was safe to deal with Hall, Hall was able to
arrange a second buy with Rodriguez over the phone. At approximately 6:00 or 6:30
p.m. on July 18, 2003, Hall drove to the parking lot of a restaurant, again within a
couple of blocks of 414 South Gray. Rodriguez again arrived on foot, climbed into
Hall’s truck, and placed a package under the passenger’s seat. Hall gave Rodriguez
$4,500. Testing later revealed that the package contained a little over a pound of a
substance containing methamphetamine, with approximately 71 grams of pure
methamphetamine. After completing the transaction—which took three to four
minutes—Hall drove Rodriguez to a location a couple of blocks away from the
restaurant. Sergeant Swarm and Sergeant James Wilkinson both participated in
surveillance during the July 18 buy, and at trial both identified Rodriguez as the
seller.

       The defense did not present any evidence at trial. The final instructions to
the jurors reminded them “not to pay attention to any testimony that was stricken,
or any statements of counsel made to the court concerning those matters.”
No. 06-3652                                                                     Page 4

       We review the district court’s denial of Rodriguez’s motion for a mistrial for
an abuse of discretion, United States v. Glover, 479 F.3d 511, 520 (7th Cir. 2007),
and will affirm absent “a strong conviction that the district court erred,” United
States v. Danford, 435 F.3d 682, 686 (7th Cir. 2006) (quotation marks and citation
omitted). Because the trial judge “is in the best position to determine the
seriousness of the incident in question, particularly as it relates to what has
transpired in the course of the trial,” our review is highly deferential. United States
v. Clarke, 227 F.3d 874, 881 (7th Cir. 2000); see also United States v. Cheska, 202
F.3d 947, 950 (7th Cir. 2000).

       The government concedes that Sergeant Swarm’s statements were improper.
The question we must answer, though, is whether the comments were so prejudicial
as to make a new trial the only permissible remedy. Here, the adequacy of the
court’s curative instructions and the weight of the evidence against Rodriguez
dispel any concern that he was deprived of a fair trial by Swarm’s comments. The
district court gave curative instructions immediately after the comments were made
and further instructed the jury at the close of evidence to disregard “any testimony
that was stricken, or any statements of counsel made to the court concerning those
matters.” We presume that jurors follow the trial judge’s instructions, see, e.g.,
United States v. Dumeisi, 424 F.3d 566, 579 (7th Cir. 2005), and there is no reason
to suppose that they failed to do so here, where overwhelming evidence supports
Rodriguez’s convictions. See Clarke, 227 F.3d at 883-84. Rodriguez’s contention
that the jury “presumably struggl[ed] with the identification issue,” and that
Swarm’s statements were therefore especially damaging, is untenable: three police
officers unequivocally identified him at trial as the person who twice sold
methamphetamine to Officer Hall. Because the curative instructions were
sufficient and overwhelming evidence supports Rodriguez’s guilt, the district court
did not abuse its discretion in denying the motion for mistrial. See id. at 883-84.

      Accordingly, we AFFIRM Rodriguez’s convictions.
