              Case: 16-10969    Date Filed: 03/30/2017   Page: 1 of 8


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                  No. 16-10969
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 1:15-cr-20591-KMW-2

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,


                                      versus


MARISOL GARCIA,
a.k.a. Marisol Verguizas,

                                                             Defendant-Appellant.

                            ________________________

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

                                (March 30, 2017)

Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      Marisol Garcia appeals her conviction for possession of a firearm and

ammunition by a convicted felon, pursuant to 18 U.S.C. § 922(g)(1). On appeal,
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Garcia argues that the district court erred by (1) limiting the scope of the cross-

examination of a key government witness, (2) denying her motion for judgment of

acquittal or in the alternative for a new trial and, (3) denying her motions for

mistrial based on improper comments in closing arguments and false testimony.

After a careful review of the record and the parties’ briefs, we affirm.

                                           I.

      First, Garcia challenges the district court’s limit of the cross-examination of

the key government witness, Cesar Quirgo. At trial, Quirgo testified that he was

shot in the leg by Garcia’s boyfriend with a gun obtained from Garcia’s purse after

Garcia yelled “shoot him”. Quirgo testified that the purse from which the gun was

obtained was on Garcia’s right shoulder, that Garcia lifted up her purse and her

boyfriend reached in and grabbed the gun. Although Quirgo testified that he had

been convicted of a felony four times and was currently on probation, the district

court limited the scope of Quirgo’s cross-examination to preclude inquiry into the

hypothetical and speculative sentences Quirgo might face for violating his

probation. The district court also prevented inquiries into the nature of his four

underlying convictions and any likelihood that he would in fact receive a life

sentence.

      We review whether a district court “improperly limited the scope of




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[a] cross-examination for a clear abuse of discretion.” United States v. Maxwell,

579 F.3d 1282, 1295 (11th Cir. 2009). While the district court has the discretion to

constrain cross-examination “th[at] discretion is limited by the guarantee of the

Sixth Amendment’s Confrontation Clause [which gives] a criminal defendant . . .

the right to cross-examine prosecutorial witnesses.” Id. And, because the cross-

examination of important government witnesses is critical, there is “a presumption

favor[ing] free cross-examination [to elicit] possible bias, motive, ability to

perceive and remember, and general character for truthfulness.” Id. at 1295–96

(internal quotation mark omitted).

       “The test for the Confrontation Clause is whether a reasonable jury would

have received a significantly different impression of the witness’ credibility had

counsel pursued the proposed line of cross-examination.” United States v. Garcia,

13 F.3d 1464, 1469 (11th Cir. 1994). But as long as the cross-examination permits

defendant’s counsel to expose “the jury to facts sufficient to evaluate the

credibility of the witness and . . . establish a record [in order to] properly . . . argue

why the witness is less than reliable,” the test is satisfied. United States v.

Baptista-Rodriguez, 17 F.3d 1354, 1371 (11th Cir. 1994).

       Even so, trial judges still retain wide latitude “to impose reasonable limits on

. . . cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that is


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repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673,

679, 106 S. Ct. 1431, 1435 (1986).

      The district court did not abuse its discretion by limiting the scope of cross-

examination, thereby preventing Garcia’s counsel from asking whether Quirgo

could face a possible a life sentence if a probation violation were established.

Garcia’s counsel was still able to expose Quirgo’s possible bias—without relying

on speculation—when it was permitted to ask whether there was any danger of a

probation violation for which jail time was a possibility. See Maxwell, 579 F.3d at

1295–96. Garcia’s counsel was also permitted to question Quirgo about his four

prior felony convictions and drug use the night of the incident. As such, the jury

was exposed to facts to aid in its evaluation of Quirgo’s credibility and Garcia’s

counsel was also able to establish a record from which Quirgo’s reliability could be

questioned. See Baptista-Rodriguez, 17 F.3d at 1371. Furthermore, the prohibited

line of questioning did not prevent the jury from receiving a “significantly different

impression” of Quirgo’s credibility than it would have if Garcia’s counsel had been

able to pursue the proposed line of questioning. See Garcia, 13 F.3d at 1469.

                                          II.

      Second, Garcia challenges the sufficiency of the evidence in attacking the

district court’s denial of her motion for judgment of acquittal or in the alternative, a

motion for new trial based on the weight of the evidence. In essence, Garcia


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contends that she had no motive to ask her boyfriend to shoot Quirgo. Garcia

argues that Quirgo’s statement at trial contradicted his statement to police on the

night of the incident, and that there was conflicting testimony from other witnesses

who said that she had no purse or gun when Quirgo was shot.

      In a ruling on a motion for judgment of acquittal, we must determine

“whether there is substantial evidence from which a jury could reasonably find the

defendant[] guilty beyond a reasonable doubt.” United States v. Gregory, 730 F.2d

692, 706 (11th Cir. 1984). We review the sufficiency of the evidence de novo,

viewing the evidence in the light most favorable to the government and making all

reasonable inferences and credibility choices in the jury verdict’s favor. United

States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007).

      And in reviewing the decision to grant or deny a motion for new trial based

on the weight of the evidence, we defer to the discretion of the trial court. United

States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). “[A] court need not

view the evidence in the light most favorable to the verdict,” but the evidence must

not “preponderate” so heavily against the verdict, such that it would be a

miscarriage of justice to let the verdict stand. Id.

      The district court did not err when it denied Garcia’s motion for judgment of

acquittal, and her motion for a new trial. To sustain a conviction for possession of

a firearm and ammunition by a convicted felon, the government had to prove that


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(1) Garcia knowingly possessed the firearm, (2) the firearm traveled in interstate

commerce, and (3) that Garcia was a convicted felon. See 18 U.S.C. § 922(g)(1);

see also United States v. Deleveaux, 205 F.3d 1292, 1296–97 (11th Cir. 2000).

Both the sufficiency and the weight of the evidence was enough to sustain Garcia’s

conviction. It was within the jury’s discretion to credit the testimony at trial that

Garcia told her boyfriend to shoot Quirgo and that Quirgo was then shot by her

boyfriend, after she opened her purse so that the boyfriend could retrieve the

firearm stored inside of it.

                                          III.

      Finally, Garcia argues that the district court erred in denying her request for

mistrial based on prosecutorial misconduct given inappropriate comments during

closing arguments and false testimony. Specifically, Garcia contends that the

government argued false testimony in closing argument, appealed to the

conscience of the community, and improperly asked the jury to convict her on

behalf of the people of the United States.

      “We will not reverse a district court’s refusal to grant a mistrial unless an

abuse of discretion has occurred.” United States v. Perez, 30 F.3d 1407, 1410

(11th Cir. 1994) (per curiam). However, we review “prosecutorial misconduct

claim[s] de novo because it is a mixed question of law and fact.” United States v.

Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). “We give considerable weight to


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the district court’s assessment of the prejudicial effect of the prosecutor’s remarks

and conduct.” United States v. Herring, 955 F.2d 703, 710 (11th Cir. 1992).

      Prosecutorial misconduct is established when the remarks are improper, and

have a prejudicial effect on the substantial rights of the defendant. Eckhardt, 466

F.3d at 947. “A defendant’s substantial rights are prejudicially affected when a

reasonable probability arises that, but for the remarks, the outcome of the trial

would have been different.” Id. Furthermore, a curative instruction may render

prosecutorial misconduct harmless. See Herring, 955 F.2d at 710. And “[w]hen

the record contains sufficient independent evidence of guilt, any error is harmless.”

Eckhardt, 466 F.3d at 947.

      Garcia argues that the prosecutor made appeals to the conscience of the

community during closing and used, or failed to correct, false testimony. “Appeals

to the jury to act as the conscience of the community, unless designed to inflame

the jury, are not per se impermissible.” United States v. Kopituk, 690 F.2d 1289,

1342–43 (11th Cir. 1982). Moreover, while the knowing use of false or perjured

testimony is a violation of due process, a prior statement that is merely inconsistent

with a government witness’s testimony is insufficient to establish prosecutorial

misconduct. See United States v. Michael, 17 F.3d 1383, 1385 (11th Cir. 1994).

Finally, a curative instruction that counsel’s statements are not evidence, can

uphold a denial of a motion for a mistrial. See United States v. Gainey, 111 F.3d


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834, 836–37 (11th Cir. 1997); United States v, Rodriguez, 765 F.2d 1546, 1560

(11th Cir. 1985).

      The district court did not abuse its discretion by denying the motion for a

mistrial based on improper closing arguments or purported false testimony. The

district court provided curative instructions throughout the trial when it

admonished the jury that counsels’ statements are not evidence and that only the

jury can recall what the testimony was. Furthermore, any inconsistent testimony

was not prejudicial to Garcia, nor did it not amount to perjury, because Garcia had

the opportunity to show the inconsistency and the jury had the information

necessary to make decisions. See United States v. McNair, 605 F.3d 1152, 1211

(11th Cir. 2010). Accordingly, we affirm.

      AFFIRMED.




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