                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10993         ELEVENTH CIRCUIT
                                   Non-Argument Calendar        JUNE 22, 2011
                                 ________________________        JOHN LEY
                                                                  CLERK
                            D.C. Docket No. 0:09-cr-60249-WJZ-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll

                                                                    Plaintiff-Appellee,



                                            versus

JASON CYRIL CUMMINGS,

llllllllllllllllll             lll                               Defendant-Appellant.

                                ________________________

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

                                        (June 22, 2011)

Before TJOJFLAT, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
      Jason Cyril Cummings appeals his convictions, following a jury trial, for

possession of cocaine with intent to distribute and possession of a firearm during a

drug trafficking offense, in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 924(c)(1)(A). On appeal, Cummings argues that the government

presented insufficient evidence at trial to overcome his defense of entrapment and

that multiple instances of error occurred at his trial, which, taken cumulatively,

deprived him of his right to a fair proceeding.

                                          I.

      Cummings first argues that the evidence at trial was insufficient to establish

his predisposition to committing both charged offenses beyond a reasonable doubt,

as necessary to overcome his entrapment defense. Specifically, he asserts that the

government’s sole evidence of predisposition came from a confidential informant

(“CI”) whose testimony was vague, unworthy of belief, and conflicted with the

case agent’s expression of shock at his arrest.

      We review de novo a defendant’s conviction notwithstanding an entrapment

defense, viewing all facts and drawing all inferences in the government’s favor.

United States v. King, 73 F.3d 1564, 1568 (11th Cir. 1996).




                                          2
      An entrapment defense requires proof that: (1) the government induced the

defendant to commit the crime and (2) the defendant was not predisposed to

commit the crime before the government’s involvement. United States v.

Demarest, 570 F.3d 1232, 1240 (11th Cir.), cert. denied, 130 S.Ct. 1421 (2009).

If the defendant can prove inducement, the burden shifts to the government to

prove beyond a reasonable doubt that the defendant was predisposed to commit

the crime. Id.

      Where, as here, the jury rejected an entrapment defense and government

inducement is not at issue, we limit our review to “whether the evidence was

sufficient for a reasonable jury to conclude that the defendant was predisposed to

take part in the illicit transaction.” United States v. Brown, 43 F.3d 618, 622 (11th

Cir. 1995). Regarding predisposition, the Supreme Court has observed that law

enforcement may not “implant in the mind of an innocent person the disposition to

commit the alleged offense and induce its commission in order that they may

prosecute.” Jacobson v. United States, 503 U.S. 540, 553, 112 S.Ct. 1535, 1543

(1992) (quotation and emphasis omitted). The Jacobson Court held, however, that

an entrapment defense will not succeed where the evidence shows that the

government merely provided the defendant with an opportunity to commit a crime.

Id. at 550, 112 S.Ct. at 1541. In such cases, “the entrapment defense is of little use

                                          3
because the ready commission of the crime amply demonstrates the defendant’s

predisposition.” Id.

      Predisposition is a fact-intensive inquiry, to which several “guiding

principles” apply. Those principles to be considered are: (1) a predisposition

finding is supported by the defendant’s post-arrest statements and evidence that

the defendant failed to take advantage of opportunities to back out of a

transaction; (2) evidence of prior related offenses is relevant, but not dispositive;

and (3) evidence of pertinent legal activity and non-criminal tendencies will not,

standing alone, support a conviction. Brown, 43 F.3d at 624. Additionally, the

jury’s credibility determination is a “pivotal factor.” Id. As such, a reasonable jury

could believe that a defendant’s statements suggesting prior involvement in drug

dealing actually referred to real events, as opposed to “puffery.” Id. at 626.

      The government introduced evidence, primarily through the CI, that

Cummings had a preexisting knowledge of drug trafficking, that he carried

firearms without any encouragement, and that he persisted with the cocaine deal

despite a government-presented opportunity to back away from it. Viewing the

evidence with all inferences in the government’s favor, Cummings’s own

undisputed statements signaled his involvement with drug dealing prior to the

investigation. He told the CI that he only “fuck[ed] with . . . coke” and “moved a

                                           4
couple of keys here and there.” See Brown, 43 F.3d at 626. He compared prices

between Florida and the Northeast, and inquired about the availability of local

testers. He discussed the quality of his cocaine, remarking that it could be cut

three times. Despite Cummings’s assertion to the jury that he was simply

“pretending,” and, even when corroborated with Gray’s testimony that he was a

“big talker,” the jury was entitled to construe his statements to the CI as truthful

indications that Cummings engaged in past drug trafficking and was

knowledgeable about the trade.

      Moreover, even without those statements, Cummings behaved in a way that

signaled his predisposition. Rather than report the CI to police or otherwise avoid

a drug deal, Cummings met with the CI, searched him for a wire, asked him if he

was a police officer, and showed him a gun. See King, 73 F.3d at 1568.

Convinced of the CI's trustworthiness, Cummings then provided him with a

sample of cocaine in preparation for a larger, future deal involving kilogram

quantities. He ultimately delivered nearly a kilogram of cocaine, later admitting to

investing $20,000 of his own money in the deal, setting a resale price of $38,000,

and wanting to complete the deal. Such actions supported an inference that

Cummings was willing and ready to participate in a cocaine deal—and to bring a

gun to the deal—at the first opportunity, irrespective of the government's

                                           5
participation. Cummings has failed to establish that the CI’s testimony was

incredible as a matter of law. Moreover, the jury was entitled to consider

Cummings’s testimony on his own behalf as substantive evidence of his

predisposition. Accordingly, we conclude that the evidence at trial was sufficient

to prove Cummings’s predisposition to commit both offenses beyond a reasonable

doubt, notwithstanding his defense of entrapment.

                                          II.

      Cummings next argues that a number of evidentiary and procedural defects

at trial amounted to cumulative error. Cummings identifies errors at three stages

of his trial. First, he asserts that the district court made erroneous rulings during

the presentation of evidence by: (i) permitting the government to elicit hearsay

testimony from a law enforcement agent, (ii) permitting the government to ask the

agent inflammatory questions about the CI’s conduct, (iii) permitting a prejudicial

line of cross-examination regarding Cummings’s military service, and

(iv) precluding him from cross-examining witnesses about material matters.

Second, he asserts that the government improperly vouched for witnesses during

its opening statement and closing argument. Last, Cummings asserts that the

district court inadequately answered a question posed by the jury during

deliberations.

                                           6
      We review de novo the cumulative impact of multiple, allegedly improper

trial court rulings. United States v. Hoffman-Vaile, 568 F.3d 1335, 1340 (11th Cir.

2009). Under the cumulative error doctrine, even if individual judicial errors or

prosecutorial misconduct would not suffice to warrant reversal, their effect may be

evaluated cumulatively to determine if they denied the defendant a fair trial.

United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009), cert. denied, 130

S.Ct. 413 (2010). “In addressing a claim of cumulative error, we must examine the

trial as a whole to determine whether the appellant was afforded a fundamentally

fair trial.” Id. (quotation omitted). If there is but a single error, there cannot be any

cumulative error. United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).

      With respect to Cummings’s alleged evidentiary errors, the Federal Rules of

Evidence generally prohibit admission of hearsay, but if hearsay evidence may be

potentially offered for both its truth and for other purposes, the district court may

instruct the jury that it must not consider the evidence for its truth. See Fed.R.Evid.

105, 802. A jury is presumed to follow a court’s instructions. United States v. De

La Cruz Suarez, 601 F.3d 1202, 1218 (11th Cir.), cert. denied, 130 S.Ct. 3532

(2010). Thus, “[w]hen a district court issues a curative instruction, we will reverse

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




                                           7
admonition.” United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998)

(quotation omitted).

      An exception to the general hearsay rules exists for a “statement of the

declarant’s then existing state of mind, emotion, sensation, or physical condition.”

Fed.R.Evid. 803(3). This exception, however, only pertains to the state of mind of

the declarant, not the listener. De La Cruz Suarez, 601 F.3d at 1216. It does not

apply to the declarant’s after-the-fact statements made about his past state of mind.

Id. It similarly does not apply to the “declarant’s statements as to why he held the

particular state of mind.” United States v. Duran, 596 F.3d 1283, 1297 (11th Cir.),

cert. denied, 131 S.Ct. 210 (2010).

      “A district court has wide discretion to control the cross-examination of

witnesses.” United States v. Guzman, 167 F.3d 1350, 1352 (11th Cir. 1999).

Cross-examination is limited by the relevance of the material. United States v.

Maxwell, 579 F.3d 1282, 1296 (11th Cir. 2009).

      Generally, inflammatory testimony is prohibited and may be grounds for

reversal if considered unduly prejudicial. United States v. Baker, 432 F.3d 1189,

1230-31 (11th Cir. 2005) (holding that the admission of “highly inflammatory”

evidence of the defendant’s participation in a double murder cast doubt enough to

warrant reversal on the defendant’s firearms convictions). But where a defendant

                                          8
raises an entrapment defense, he places his character at issue, and, as such, cannot

complain when the government introduces character-related rebuttal evidence.

Duran, 596 F.3d at 1298-99; Fed.R.Evid. 404(a)(1).

      Improper vouching, a form of prosecutorial misconduct, occurs when the

prosecutor, while arguing, either: (1) places the prestige of the government behind

the witness by making explicit personal assurances of the witness’s credibility; or

(2) implicitly vouches by implying that the witness’s credibility is supported by

evidence outside the record. De La Cruz Suarez, 601 F.3d at 1218. Improper

vouching does not exist where a prosecutor “simply [makes] explicit an inference

that the jury could have drawn from the evidence.” United States v. Epps, 613 F.3d

1093, 1101 (11th Cir. 2010) (quotation omitted), cert. denied 131 S. Ct. 1526

(2011). Even where vouching occurs, it only warrants reversal if it prejudicially

affects the substantial rights of the defendant. Cargill v. Turpin, 120 F.3d 1366,

1379 (11th Cir. 1997) (recognizing that the defense’s response argument at closing

can ameliorate the improper prosecutorial comments).

      Finally, with respect to Cummings’s assertion that the district court’s

answer to the jury’s question was improper, trial courts have “some obligation” to

make reasonable efforts to answer jury questions. United States v. Rodriguez, 765

F.2d 1546, 1553 (11th Cir. 1985). As such, “[w]hen a jury makes explicit its

                                          9
difficulties a trial judge should clear them away with concrete accuracy.” Id.

(quotation omitted). Nevertheless, we have held that no error occurred when the

district court, through no fault of its own, failed to answer the jury’s question prior

to the verdict. Id. at 1554.

      Cummings has failed to establish multiple errors in his trial proceedings. To

the extent the district court allowed the government to ask an agent questions

about the CI’s out-of-court statements and conduct, it gave specific limiting

instructions, admonishing the jury not to consider the declarant’s statement for the

truth of the matter. Moreover, Cummings largely fails to identify specific

instances of inadmissible hearsay, relying instead on an alleged cumulative effect.

To the extent specific instances are identified, any error is clearly harmless. And

Cummings wholly fails to demonstrate any cumulative harmful effect. Because

the government’s cross-examination regarding Cummings’s military service was

proper rebuttal to the inferences of good character he attempted to create on direct

examination, and Cummings’s own cross-examination of other witnesses

implicated irrelevant issues, the district court rulings regarding the questioning of

witnesses were within its discretion. Insofar as Cummings identified an error in

the government’s reference to law enforcement’s “experience” during its closing

argument, this error caused him no undue prejudice. Finally, Cummings fails to

                                          10
support his proposition that the district court’s response to the jury’s questions was

inadequate. Error in this case, if any, was harmless in any event. Accordingly, we

hold that he received a fair trial.

      Upon review of the record, and consideration of the parties’ briefs, we

affirm.

      AFFIRMED. 1




      1
             Cummings’s request for oral argument is denied.

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