                                                                               [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT           FILED
                            ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                      JUNE 20, 2012
                                   No. 10-15912
                                                                       JOHN LEY
                             ________________________                   CLERK

                    D. C. Docket No. 4:10-cr-00001-RLV-WEJ-1


UNITED STATES OF AMERICA,

                                                                       Plaintiff-Appellee,

                                          versus

STEPHEN G. HOUSE,

                                                                   Defendant-Appellant.


                             ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                          _________________________

                                     (June 20, 2012)

Before BARKETT and PRYOR, Circuit Judges, and BUCKLEW,* District Judge.


       *
          Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
PRYOR, Circuit Judge:

      When the driver of a motor vehicle notices blue lights flashing in the rear

view mirror, the driver cannot help but feel a sense of dread. The public reposes a

special trust in the peace officers we empower to patrol our highways. That power

includes the authority to disrupt the flow of motor vehicle traffic, often traveling at

high speeds, and the power to detain a driver and vehicle on the side of a road,

which can be a dangerous place. This appeal involves a federal officer with

limited authority who repeatedly usurped the power to patrol traffic, violated the

civil rights of motorists, abused the public trust, and lied about it in official

reports.

      Stephen G. House, a former officer of the Federal Protective Service,

appeals his convictions and sentences for eight counts of willfully depriving a

person of the constitutional right to be free from unreasonable seizure by a law

enforcement officer, 18 U.S.C. § 242, and four counts of making false statements

in a matter within the jurisdiction of a federal agency, 18 U.S.C. § 1001. House

raises seven issues on appeal: (1) whether the record contains sufficient evidence

to support his convictions, (2) whether the district court erred in instructing the

jury, (3) whether the district court improperly interjected itself into the trial, (4)

                                            2
whether the district court improperly excluded evidence, (5) whether the

prosecutor improperly commented on House’s decision not to testify, (6) whether

his trial counsel provided ineffective assistance, and (7) whether the cumulative

effect of any errors deprived him of a fair trial. The first two issues are

interrelated because the district court erred in instructing the jury that a traffic stop

is unreasonable under the Fourth Amendment whenever conducted by a law

enforcement officer acting without jurisdiction or authority. The Supreme Court

has ruled that a traffic stop is reasonable under the Fourth Amendment when

supported by probable cause or reasonable suspicion even if it is inconsistent with

agency policy, Whren v. United States, 517 U.S. 806, 813–16, 116 S. Ct. 1769,

1774–76 (1996), or state law, Virginia v. Moore, 553 U.S. 164, 173–76, 128 S. Ct.

1598, 1605–07 (2008). The record nevertheless establishes that this error is

harmless as to four of House’s convictions for unreasonable seizures because the

jury discredited House’s accounts of probable cause or reasonable suspicion when

it convicted him of making false statements in four incident reports. We affirm

four of House’s eight convictions for willful unreasonable seizures and affirm his

four convictions for making false statements, but we vacate the remaining

convictions for willful unreasonable seizures. All of House’s other arguments fail.




                                            3
We remand this matter to the district court for further proceedings consistent with

this opinion.

                               I. BACKGROUND

      Beginning in 1999, Stephen G. House worked for the Federal Protective

Service as a law enforcement officer and inspector. The Federal Protective

Service is a law enforcement agency with jurisdiction over properties owned and

operated by the General Services Administration. As a Federal Protective Service

officer, House wore a uniform with a badge, patches on the uniform identifying

him as a federal law enforcement officer, a name tag, and a utility belt in which he

carried a handgun, a radio, and handcuffs. He also operated a motor vehicle with

Federal Protective Service markings, sirens, emergency lights on the roof and in

the grille, and a phone number listed on the rear.

      In 2010, a federal grand jury returned a superseding indictment that charged

House with eight counts of depriving a motorist of the constitutional right to be

free from unreasonable seizure by a law enforcement officer, 18 U.S.C. § 242, and

four counts of making false statements in a matter within the jurisdiction of the

Federal Protective Service, 18 U.S.C. § 1001. Count one charged an unlawful

traffic stop of Truman Padgett on July 28, 2006. Count two charged an unlawful

traffic stop of Truman Padgett on November 28, 2006. Count three charged an

                                          4
unlawful traffic stop of Sonya Caravalho on February 26, 2007. Count four

charged an unlawful traffic stop of Anthony Rivas on July 25, 2007. Count five

charged submission of an incident report containing materially false statements

regarding the stop of Rivas. Count six charged an unlawful traffic stop Joseph

Kinnamont on April 30, 2008. Count seven charged an unlawful traffic stop of

Davis Wibel on December 3, 2008. Count eight charged submission of an

incident report containing materially false statements regarding the stop of Wibel.

Count nine charged an unlawful attempted traffic stop of Daniel McFarland on

January 9, 2009. Count ten charged submission of an incident report containing

materially false statements regarding the stop of McFarland. Count eleven

charged an unlawful traffic stop of Reginald Thompson on April 15, 2009. Count

twelve charged submission of an incident report containing materially false

statements regarding the stop of Thompson.

      Immediately after the jury was administered its oath at House’s trial, the

district court explained to them that it would charge them about the law after the

presentation of the evidence. The court also instructed the jury, “Don’t start

making up your mind about the guilt or innocence of the defendant until you have

heard the whole case. We have a bad habit as human beings of letting first

impressions control what we think about something. Wait until you hear it all.”

                                         5
      At trial, the government presented testimony from several current and

former officers of the Federal Protective Service about the limitations imposed

upon their authority by agency policy and about House’s history of violating that

policy. The officers testified that agency policy prohibited officers from

conducting traffic stops for minor traffic violations outside of federal property in

the State of Georgia. Agency policy likewise prohibited officers from activating

the emergency lights on their vehicles outside of federal property, except in

response to a life-threatening emergency, while in hot pursuit of a felon, or with

prior approval from a Federal Protective Service Mega Center Operator or a

supervisor.

      Agency policy required officers who conducted a traffic stop or activated

the emergency lights on their vehicles to submit an incident report on a numbered

agency form, General Services Administration Form 3155. Dewayne Andrews, a

Regional Director, testified that it was important for officers to be truthful in the

reports, both because the Federal Protective Service used the reports in

determining whether an officer’s use of his emergency lights was permissible and

because other law enforcement agencies used the reports in criminal prosecutions.

Russell Dingman, a Senior Instructor and Program Manager at the Federal Law

Enforcement Training Center, also testified that it was important that a report

                                           6
include truthful information regarding “all of the facts of the case, the who, what,

when, where, and how of the case.” Dingman explained that other agencies used

the reports in deciding whether to initiate criminal prosecutions, and he testified

that false statements in a report could ruin any case an agency attempted to pursue

based upon events described in that report.

      Three officers also testified that House had been reprimanded about

violating agency policy regarding traffic stops on several occassions during his

career with the Federal Protective Service. Andrews; John Curtis Glynn, Jr., a

former District Director; and Shirley Reed, a Risk Management Branch Chief,

each testified about personally explaining to House that his authority did not

encompass stopping motorists for minor traffic violations outside federal property.

Glynn testified that he had prepared a written reprimand of House for conducting a

traffic stop without authority, but that he had not delivered the reprimand after

meeting with House and warning him about agency policy regarding traffic stops.

Glynn explained that his main concern had been that House understood the policy

and recognized that violating that policy “could lead to a more severe action by

[the Federal Protective Service].” Reed testified that, after she had received a

report that House had conducted a traffic stop without authority, she spoke with

House to ensure that he understood agency policy regarding traffic stops.

                                          7
Andrews testified that he received notice of an internal agency investigation of

House premised upon allegations that House had conducted traffic stops without

authority, and that House’s right to drive his law enforcement vehicle home from

work was temporarily suspended because of that investigation. Andrews stated

that he had personally told House that “he had to stop” conducting traffic stops for

minor traffic violations outside federal property and that he had specifically

instructed House that, even in situations where House believed he was the target

of road rage by other drivers, agency policy required him to allow local authorities

to resolve the matter.

      During the examination of Reed, the prosecutor asked her, “If [Federal

Protective Service officers] have probable cause to make a traffic stop, they are

violating the civil rights of the motorists?” Reed answered in the affirmative, and

House objected and asserted, “That’s not true.” The district court replied, “It is

too. It’s got some if’s and and’s to it. We are getting to the if part. I think you are

farafield [sic].” The district court then sustained House’s objection. House did

not object to the district judge’s comment, and he did not request a

contemporaneous limiting instruction as to either the prosecutor’s question,

Reed’s response, or the judge’s comment. Not long after the district court

sustained House’s objection, the prosecutor asked Reed, “If [Federal Protective

                                           8
Service officers] have probable cause and they do detain the individual, they have

done something unlawful?” Reed answered, “Correct.” House did not object to

the prosecutor’s question or Reed’s response, nor did he request a limiting

instruction as to either.

      The government also presented testimony from the seven motorists whose

civil rights House was charged with violating. These motorists testified about

their encounters with House. In addition, the motorists whose encounters with

House were recorded in the incident reports described in the indictment testified

about the assertions in House’s reports.

      Padgett testified that, on July 28, 2006, he was sitting in his vehicle at a red

light waiting to turn left when he observed House approach quickly from the rear

in a black, unmarked vehicle and pull into the lane behind Padgett. When the light

turned green, Padgett turned left and then proceeded forward in the right lane of a

four-lane road, with House following closely behind him. House eventually

passed Padgett and then moved back into the right lane in front of Padgett. When

a vehicle in front of House slowed to make a turn, House, followed by Padgett,

moved into the left lane. House then applied his brakes and abruptly brought his

vehicle to a stop for no apparent reason, forcing Padgett to slam his brakes to

avoid hitting the rear of House’s vehicle. House then allowed Padgett to pass him,

                                           9
pulled behind Padgett, and activated his emergency lights. Padgett testified that

he had not exceeded the speed limit, had properly signaled before making each

lane change, had not followed another vehicle too closely, and had not cut off

another vehicle while changing lanes, but he believed he was legally obligated to

stop because a law enforcement officer had ordered him to do so.

      After Padgett pulled his vehicle over, House approached Padgett’s vehicle

in uniform with his hand on his pistol. House yelled at Padgett, saying that

Padgett was “about to get what [he] deserved” and that House had called 911.

House then returned to his vehicle, and House and Padgett waited 45 minutes for

local law enforcement officers to arrive. Padgett did not feel that he was free to

leave because House still had his lights on and had told Padgett that local law

enforcement officers were on their way. When the local law enforcement officers

arrived, they listened to both House’s and Padgett’s accounts of the incident and

then issued Padgett a citation for aggressive driving. Padgett hired a lawyer to

contest the aggressive driving charge. Padgett and his lawyer attended six to eight

court hearings in relation to the charge over a two-year period, but House never

appeared to testify. The charge was eventually dismissed.

      Padgett testified that, on November 28, 2006, he was driving 68 miles per

hour in the left lane of a four-lane road where the speed limit was 65 miles per

                                         10
hour when he observed House’s black vehicle approaching him from behind at a

high rate of speed. House sped around Padgett in the right lane and then moved

back into the left lane in front of Padgett, narrowly missing his front bumper and

forcing him off the roadway. House caused Padgett to drive off the road; if

Padgett had not stopped his vehicle, he would have hit House’s vehicle. House

stopped his vehicle 25 to 30 feet in front of Padgett’s vehicle, and both Padgett

and House left their vehicles.

      House was wearing a uniform and carrying a pistol, and Padgett recognized

House as the officer who had pulled him over the previous July. House yelled at

Padgett, saying that when a vehicle approaches from behind, Padgett should move

out of the way. The encounter lasted ten minutes, after which House drove away.

Padgett believed he was detained during those ten minutes because “when

somebody runs you off the road at a high rate of speed, and they are dressed in a

police uniform, they are detaining you.” After House left, Padgett called 911

because he feared that House had no regard for anyone’s safety.

      Sonya Caravalho testified that, on February 26, 2007, she was driving in the

left lane on Interstate 75 when she observed House approach her from behind in a

black, unmarked vehicle at a very high rate of speed. Caravalho moved into the

center lane to allow House to pass her, then returned to the left lane. As House

                                         11
drove past her, Caravalho observed that he was wearing a uniform. She then

observed House driving erratically, flashing his lights at vehicles in front of him

and slamming his brakes, and she moved back into the center lane because she was

afraid House was going to run into another vehicle. After Caravalho returned to

the center lane, House slammed his brakes and allowed Caravalho to pass him.

House then moved behind her, activated his emergency lights, and directed her to

pull over. Caravalho did not believe she had any choice but to stop because a law

enforcement officer had directed her to pull over. Caravalho initially testified that,

to her knowledge, she had done nothing to merit being pulled over; she had

remained at least a car’s length or more behind House’s vehicle and had not

followed House’s vehicle too closely. On cross-examination she conceded that

she may have been driving slightly over the speed limit, though there were

vehicles in front of her going faster than she was.

      After Caravalho pulled over her vehicle, House approached her window,

yelled at her, saying she should not follow a federal agent, told her that he was

going to call the Georgia State Patrol, took her driver’s license, and returned to his

vehicle. Caravalho did not believe she was free to leave. After 10 to 15 minutes,

House returned to Caravalho’s vehicle, told her there were no state officers

available, and returned her driver’s license to her. House did not issue Caravalho

                                          12
a citation or arrest her. House filed a written report about his traffic stop of

Caravalho, in which he stated that Caravalho had been driving recklessly before he

stopped her. Caravalho testified that the report contained numerous false

statements.

      Lee Anthony Rivas testified that, on July 27, 2007, he was driving no more

than 15 to 20 miles per hour in the lane immediately adjacent to the far left lane on

Interstate 75 during heavy rush hour traffic. In anticipation of merging into the

left lane, Rivas activated his turn signal and checked for traffic in his rearview and

side mirrors; he noticed House in the left lane driving a black, unmarked vehicle,

positioned far enough behind Rivas’s vehicle that Rivas believed he could safely

merge in front of House. Rivas merged into the left lane in front of House, at

which point House accelerated toward Rivas’s vehicle and then abruptly applied

his brakes, flashed his headlights, and honked his horn. House then merged onto

the left shoulder of the road, pulled up beside Rivas, rolled down his window, and

accused Rivas of cutting him off. After Rivas denied House’s accusation, House

told Rivas to pull over, and House activated his emergency lights. Rivas pulled

into the left lane behind House. Rivas was certain that he had not violated any

traffic laws, but the fact that House had emergency lights on his vehicle led Rivas

to believe he was legally obligated to stop.

                                          13
      After Rivas pulled over, House approached Rivas’s car in uniform, his

demeanor suggesting that he “wanted to punch [Rivas] in the face,” and told Rivas

in a “very scary voice” that he was a federal agent and that he “was going to get

[Rivas] for destruction of government property.” Rivas testified that he never

came close to striking House’s vehicle with his own. Rivas called 911, and the

operator told him that House had called local law enforcement officers. Rivas did

not believe that he was free to leave. When the local law enforcement officers

arrived, they told Rivas he was free to go; they neither arrested Rivas nor issued

him a citation. Rivas had waited on the side of the road for 45 minutes.

      During his direct examination of Rivas, the prosecutor submitted into

evidence the incident report House had filed regarding House’s encounter with

Rivas. House stated in the report that Rivas had merged into the far left lane of

Interstate 75 in front of House’s vehicle and had “jammed on his brakes”; that

Rivas had spun sideways in front of House and forced House to “brake[] hard” and

to veer into the emergency lane to avoid striking Rivas’s vehicle; that House had

activated his blue lights to prevent other traffic from striking him, at which point

Rivas had pulled into the emergency lane; that House had remained on the

highway, rolled down his window, and advised Rivas to drive more carefully; that

Rivas had “continued driving in the emergency lane” and had swerved toward

                                          14
House’s government vehicle twice, nearly striking the government vehicle; and

that House had then activated his blue lights, pulled over, approached Rivas’s

vehicle and told Rivas that he had called local law enforcement. The prosecutor

gave Rivas a copy of the report to reference while the prosecutor questioned him.

      Rivas testified that House’s report was false. Rivas testified that he had not

“jam[med] on his brakes” immediately after moving into the left lane in front of

House; that he had not lost control of his car or spun sideways in front of House;

that his vehicle was never sideways in the lane; that he had pulled into the

emergency lane only after House activated his blue lights to “pull [him] over”; that

House had not remained on the highway after he activated his blue lights; and that

he had not driven in the emergency lane, swerved toward House’s vehicle, or

nearly struck House’s vehicle.

      Joseph Kinnamont testified that, on April 30, 2008, he was driving in the

left lane on Interstate 75, passing tractor trailer trucks that were traveling in the

middle and right lanes, when House approached him from behind at a very high

rate of speed in a marked law enforcement vehicle. House maneuvered his vehicle

within four to five feet of Kinnamont’s vehicle and flashed his headlights.

Kinnamont understood that House wanted to pass him, but with a tractor trailer on

one side of him and a guard rail on the other, Kinnamont could not move out of

                                           15
the lane. Kinnamont believed that he “had to be going over the speed limit to be

passing the tractor trailers,” but he was not driving aggressively. House was

driving quickly enough to “catch[] [Kinnamont] like [Kinnamont] was standing

still.”

          After Kinnamont passed the tractor trailers, House activated his emergency

lights, slowed his vehicle, and began “escorting” Kinnamont to the side of the

road. As Kinnamont was slowing his vehicle to a stop on the shoulder of the road,

House turned off his emergency lights and sped away. Kinnamont decided to

report House, so he merged back onto the road and accelerated, in an attempt to

catch House’s vehicle and record the phone number listed on the rear. As

Kinnamont approached House’s vehicle, Kinnamont flashed his headlights in an

attempt to cause House to slow down, but Kinnamont remained somewhere

between 100 and 200 yards behind House, and Kinnamont did not drive faster than

the posted speed limit. House then drove onto the shoulder of the road and

stopped his vehicle, and once Kinnamont caught up to House, Kinnamont stopped

his own vehicle behind House’s.

          House stepped out of his vehicle with his hand on his revolver, appearing

“extremely angry,” and asked Kinnamont what his problem was. When

Kinnamont told House that he intended to file a complaint against House, House

                                           16
became “mad as a hornet,” told Kinnamont that he was going to restrict

Kinnamont’s movement, backed his vehicle onto Interstate 75 in oncoming traffic,

and then pulled his vehicle over behind Kinnamont’s vehicle. Kinnamont then

called 911. After parking behind Kinnamont, House informed Kinnamont that his

movement was restricted, and that House had summoned local law enforcement.

Kinnamont did not believe he was free to go because House had told him his

movement was restricted and because House had a badge and a gun.

      When the local law enforcement officers arrived, they questioned House and

Kinnamont, and Kinnamont testified that House provided a false account of the

encounter. The local law enforcement officers arrested Kinnamont, charged him

with aggressive driving, impeding the flow of traffic, and following too closely,

impounded his car, and took his driver’s license. Kinnamont was released from

jail five hours later, and the charges against him were eventually dropped. House

filed a written report of his encounter with Kinnamont, in which he alleged that

Kinnamont had been driving recklessly at the time of the encounter. Kinnamont

testified that the report contained numerous false statements.

      During the prosecutor’s direct examination of Kinnamont regarding the

charges filed against him, Kinnamont testified that the charges had been

dismissed, and House objected on the basis that Kinnamont was “going to explain

                                         17
why the charges were dropped.” In response to House’s objection, the district

court said to the prosecutor, “We will get the court records and see why they were

dropped, if you don’t have them.” The prosecutor replied, “I don’t have those

records.” The district court then stated, “We will have them before the trial is

over. I think the jury needs to know.” House did not object. The government

later introduced the records into evidence, and House explicitly stated that he had

“[n]o objection” to their introduction.

      Davis Wibel testified that he turned left into the left lane of a four lane road

around 5:30 a.m. on December 3, 2008. There was no traffic on the road when

Wibel made the turn. As Wibel was accelerating up to the speed limit, House

appeared behind him in a government vehicle and began “tailgating” his vehicle,

although there was no traffic in the right lane. Wibel moved into the right lane to

allow House to pass him, but House did not pass him. As the two vehicles

traveled down the road, House retreated two to three car lengths behind Wibel, at

which point Wibel merged into the left lane to pass a vehicle traveling in the right

lane. House then sped up and “got in behind” Wibel, “right on [Wibel’s] bumper.”

Wibel merged back into the right lane, but again House did not pass him. To

avoid trouble, Wibel reduced his speed, and House then passed him. When House

was two to three car lengths in front of Wibel, Wibel merged back into the left

                                          18
lane. House then slammed his brakes, forcing Wibel to merge back into the right

lane to avoid hitting House’s vehicle. Wibel had not followed House too closely

or driven aggressively, and there was no other traffic on the road and no apparent

reason for House to have applied his brakes. Wibel took House’s conduct as “an

act toward [him]”; he was scared and sped up in an attempt to “put distance

between” himself and House, but he never got so far ahead of House that he lost

sight of House behind him.

      A short time later, a local law enforcement officer activated his emergency

lights to stop Wibel, at which point House activated his emergency lights, and

Wibel, the local officer, and House all stopped their vehicles on the side of the

road. Wibel had not violated any traffic laws and was not driving aggressively.

On direct examination, Wibel testified that he believed he was obligated to stop

his vehicle because two law enforcement officers were pulling him over, but on

cross examination, he testified that it was the local officer, not House, who caused

him to stop. The local officer questioned House and Wibel, and Wibel testified

that House gave the local officer a false account of the events that had transpired

between them. The local officer arrested Wibel and charged him with aggressive

driving. Wibel was released from jail several hours later. He pleaded nolo

contendere to the aggressive driving charge because he was told it would cost

                                         19
more money to dispute it. John Beal, the local law enforcement officer who

arrested Wibel, testified that House had been “insistent upon having [Wibel]

arrested” and that House had led Beal to believe that House was a certified peace

officer in the State of Georgia. In fact, although House had been certified as a

peace officer in 1984, his certification was revoked in 1992 and was never

renewed.

      During his direct examination of Wibel, the prosecutor submitted into

evidence the incident report House had filed regarding House’s encounter with

Wibel. House stated in the report that Wibel had accelerated to prevent House

from passing him; that Wibel had driven so fast that House had lost sight of

Wibel’s vehicle; that, after his vehicle had retreated behind House’s vehicle,

Wibel had approached House’s vehicle from the rear so quickly that House had

“expected impact”; and that Wibel had passed House in the right lane and then cut

back in front of House in the left lane, narrowly missing the bumper of House’s

vehicle. The prosecutor gave Wibel a copy of the report to reference while the

prosecutor questioned him.

      Wibel testified that House’s report was false. Wibel testified that he had not

accelerated to prevent House from passing him; that he had not driven out of sight

of House’s vehicle, that the only reason he had “c[o]me up on the rear of

                                         20
[House’s] vehicle” was because House had hit the brakes, and that he had not cut

in front of House’s vehicle so that he narrowly missed the bumper of the vehicle.

Wibel also testified that House had not disclosed in his report that Wibel had

changed lanes to allow House to pass him, that House had tailgated Wibel, or that

House had slammed his brakes after Wibel had merged into the left lane behind

House.

      Daniel McFarland, a police officer with the City of Atlanta Police

Department, testified that he was driving faster than the speed limit on Interstate

75 around 6:15 a.m. on January 9, 2009, when he noticed House driving a law

enforcement vehicle in the adjacent lane. McFarland was in his personal vehicle

and was not in uniform. McFarland decreased his speed when he saw House’s

vehicle so that the two vehicles were traveling the same speed, with McFarland’s

vehicle roughly a car length behind House’s vehicle. House then slowed until his

vehicle was parallel with McFarland’s vehicle, then slowed again and merged

behind McFarland, then merged into the lane to the right of McFarland and

accelerated until his vehicle was parallel with McFarland’s vehicle, then

accelerated again and merged in front of McFarland. House then decreased his

speed to 35 or 40 miles an hour, even though the speed limit was 50 miles per hour

and there was no traffic on the Interstate at the time. McFarland drove behind

                                         21
House for roughly a mile and then changed lanes, accelerated up to the speed

limit, and passed House.

      House then activated his emergency lights, and McFarland believed he was

legally obligated to pull over. McFarland began to pull over to the right, and

House followed him. As McFarland was slowing his vehicle to a stop on the right

shoulder of the road, House turned off his emergency lights and continued driving.

McFarland pulled back onto the interstate behind House. When McFarland caught

up to House, House slammed his brakes for no apparent reason, forcing

McFarland to slam his own brakes to avoid running into House’s vehicle.

McFarland then accelerated until he was parallel with House and motioned for

House to pull over; McFarland wanted to ask House about the reasons for House’s

actions. Both drivers pulled off of the interstate, and McFarland got out of his

vehicle to speak with House. House yelled at McFarland, telling him to return to

his vehicle, and McFarland returned to his vehicle and drove away.

      During the prosecutor’s direct examination of McFarland, he submitted into

evidence the incident report House had filed regarding House’s encounter with

McFarland. House stated in the report that McFarland had initially approached

House in House’s lane and had come very close to the rear of House’s vehicle; that

House had changed lanes to avoid McFarland; that McFarland had woven in and

                                         22
out of traffic; that McFarland had nearly sideswiped House’s vehicle; and that

McFarland had approached House’s vehicle with his hands in his pockets shouting

“I am a police officer” when the two drivers had pulled off of the interstate.

House did not allege that McFarland had been speeding. The prosecutor gave

McFarland a copy of the report to reference while the prosecutor questioned him.

      McFarland testified that House’s report was false. McFarland testified that

he and House were driving in different lanes when he had initially approached

House’s vehicle, that he had not come close to striking House’s vehicle from the

other lane as he approached the vehicle, that House had not had to change lanes to

avoid him, that he had not woven in and out of traffic, that he had not nearly

sideswiped House’s vehicle, and that he had not approached House’s vehicle with

his hands in his pockets shouting “I am a police officer” after they had pulled off

of the interstate. McFarland also testified that House had not disclosed in his

report that House had activated his emergency lights, that House had attempted to

conduct a traffic stop of McFarland, or that House slammed his brakes in front of

McFarland.

      Reginald Thompson testified that, on April 15, 2009, he turned right from a

business parking lot onto a four lane road after checking to make sure that there

was no oncoming traffic and that he could pull out safely. He initially turned into

                                         23
an acceleration lane, where he “got up to speed,” and then merged into the right

lane, traveling at a speed of 41 or 42 miles per hour in a 45 mile per hour zone.

After checking his mirrors and noting that the traffic in the left lane was “a good

distance back,” he merged into the left lane, at which point House began

approaching quickly from Thompson’s rear in a law enforcement vehicle. House

honked his horn at Thompson and passed Thompson on the right, traveling faster

than the speed limit. A short while later, Thompson stopped behind House at a red

light. When the light turned green, House continued driving with Thompson

behind him through several intersections until they reached an area where the

traffic thinned, and then House abruptly reduced his speed, forcing Thompson to

pull over on the side of the road. House then parked his vehicle in front of

Thompson’s vehicle at an angle, blocking him in. Thompson did not believe he

was free to leave because he could see from House’s uniform that House was a

police officer, House’s vehicle was parked so as to prevent Thompson from

driving his vehicle back onto the road, and House had a gun.

      House approached Thompson’s vehicle, appeared “very angry,” and told

Thompson that he had summoned local law enforcement. Despite Thompson’s

repeated inquiries, House refused to tell Thompson his name, the name of the

agency that employed him, or why he had stopped Thompson. House directed

                                         24
Thompson to follow him to a nearby cemetery driveway where there was less

traffic, and both men moved their vehicles. Thompson believed he had no choice

but to follow House because House was a police officer in a police vehicle. After

they had been waiting in the cemetery driveway for seven or eight minutes, House

directed Thompson to follow House to a restaurant parking lot to make way for a

funeral procession, and Thompson complied. Local law enforcement officers

arrived at the parking lot at the same time as House and Thompson, and they

questioned House and Thompson. During the questioning, House accused

Thompson of failing to yield the right of way, and Thompson replied, “you’re

right.” Thompson “had not done anything wrong” and only told House that he

was right because Thompson felt that he “couldn’t win” with House, and he

wanted to “pacify the situation” and “appease” House.

      During the prosecutor’s direct examination of Thompson, the prosecutor

showed Thompson a copy of the incident report House had filed regarding

House’s encounter with Thompson, which the prosecutor had already submitted

into evidence. House stated in the report that Thompson had cut across three lanes

of traffic as he pulled out of a business parking lot onto the roadway and had

entered House’s lane, nearly striking House’s vehicle; that he had passed

Thompson’s vehicle on the right and continued driving; that he had later pulled

                                         25
into a “business driveway” to call 911; and that Thompson had stopped of his own

volition while House was on the phone with the 911 operator.

      Thompson testified that this report was false. Thompson also testified that

House failed to disclose in his report that House had forced Thompson to pull

over, that House had directed Thompson to follow him into the cemetery

driveway, or that House had directed Thompson to follow him from the cemetery

driveway to the restaurant parking lot.

      When the government rested its case, House moved for a judgment of

acquittal on all counts. The district court denied the motion. House then called

three witnesses.

      John Beal, the Georgia law enforcement officer who had arrested Wibel on

December 3, 2008, testified that he had not personally witnessed Wibel driving

aggressively and that his only authority to stop Wibel had been based on a radio

dispatch report initiated by House, advising all officers to be on the lookout for a

possible aggressive driver in a vehicle matching the description of Wibel’s

vehicle. Beal explained that he had treated House’s report as probable cause to

stop Wibel because House was a law enforcement officer, and reports by law

enforcement officers are treated differently than reports by private citizens. Beal

also testified that he believed House’s account of the encounter between House

                                          26
and Wibel because House was a law enforcement officer, and “generally a police

officer is supposed to be held to a higher standard and give you the truth.” Beal

stated that he had arrested Wibel based on House’s account of events, House’s

suggestion that he was certified as a peace officer in Georgia, and House’s

insistence that Beal arrest Wibel.

      House attempted to introduce testimony from two other witnesses. The first

was a Georgia law enforcement officer who was prepared to testify regarding a

traffic stop House had conducted but for which House was not indicted. The

second was a lawyer licensed to practice in Georgia who was prepared to testify as

to Georgia law regarding traffic stops and arrests. But the district court did not

permit either witness to testify.

      When House rested his case, the district court stated that all the evidence

was closed. House did not renew his motion for a judgment of acquittal. Both the

prosecutor and House then delivered their closing arguments to the jury.

      During the prosecutor’s closing argument, he remarked in reference to

House’s encounters with Padgett, “We don’t have the defendant’s version of that

stop because there is no report about that one. The only evidence you have

therefore is that I wasn’t doing anything wrong but driving down the road in the




                                         27
left-hand lane and I got stopped for aggressive driving both times.” House raised

no objection to these statements.

      House proposed several jury instructions. Among these were an instruction

that an officer’s subjective motivation for conducting a traffic stop is irrelevant in

determining the reasonableness of the stop under the Fourth Amendment, an

instruction that a traffic stop is reasonable if based on probable cause, an

instruction that federal law permits a law enforcement officer to make warrantless

arrests for minor criminal offenses committed in the officer’s presence, an

instruction that the reasonableness of a law enforcement officer’s actions under the

Fourth Amendment does not depend on the officer’s compliance with local law or

policy, an instruction that Georgia law permits a private citizen to arrest a motorist

for a minor traffic violation, an instruction that Georgia law permits a law

enforcement officer to arrest a motorist for a traffic offense made in the officer’s

presence, an instruction that Georgia law defines peace officer as “any person who

by virtue of his office or public employment is vested by law with a duty to

maintain public order or to make arrests for offenses, whether that duty extends to

all crimes or is limited to specific offenses,” and an instruction that no one may be

held criminally responsible for an act unless the law gives fair warning that the act

is proscribed. The district court rejected these proposed instructions.

                                          28
      In its charge to the jury, the district court explained that the jury must base

its verdict on admissible evidence and that statements by the lawyers and the court

during the trial were not admissible evidence:

            You make your decision in this case based upon the testimony
      and other evidence presented here during trial. You recall I told you
      when this case started that whatever decision you made had to be
      based upon the evidence presented in this courtroom and nothing
      else.

             ....

             As I stated to you earlier[,] you are to consider the evidence
      that has been admitted in this case. The term “evidence” includes the
      testimony of the witnesses, the exhibits admitted into the record, and
      any stipulation of fact made by counsel. Whatever the lawyers say is
      not evidence in the case. And it is your own recollection and
      interpretation of the evidence that controls. What the lawyers say is
      not binding on you. Also, you should not assume from anything I
      may have said during this trial [that] I have any opinion concerning
      any of the issues in this case. Except for my instructions to you on
      the law, you disregard anything I might have said during the trial in
      arriving at your decision concerning the facts of this case.

      With regard to the requirements of the Fourth Amendment as to traffic

stops, the district court instructed the jury that a traffic stop conducted by a law

enforcement officer is constitutional only if the officer has both authority or

jurisdiction and a sufficient legal basis for the stop. That is, the district court

instructed the jury that a traffic stop conducted by a law enforcement officer is




                                           29
unreasonable under the Fourth Amendment whenever the officer lacks authority or

jurisdiction to conduct the stop:

             As to [sic] traffic stop itself, under the Fourth Amendment a
      law enforcement officer must have authority or jurisdiction and
      sufficient legal basis to make a traffic stop. Both facts must be present
      in order for the traffic stop to be lawful, and therefore, not a violation
      of the defendant’s constitutional rights.

             If you find from the evidence in this case that the defendant did
      not have authority or jurisdiction as a federal police officer to make a
      traffic stop in Georgia, then you may find and you would be
      authorized to find the actions in doing so were unreasonable.

House objected to this instruction.

      The district court instructed the jury that the legal basis required for a traffic

stop under the Fourth Amendment was “a reasonable and articulable suspicion”

that the motorist had committed a traffic violation. The district court described “a

reasonable and articulable suspicion” as “less than probable cause,” but “more

than just a hunch because the Fourth Amendment requires at a minimum some

objective justification for the traffic stop.” The district court also instructed the

jury, “In determining whether there was probable cause or reasonable suspicion,

you must rely only on the facts known to the defendant before the stop was made.”

      Then the district court explained that, if they found a traffic stop was

“lawful” initially, the jury must also determine whether the detention following the

stop was “reasonable and therefore lawful”:
                                           30
      . . . [A] valid traffic stop can in some circumstances turn into an
      unreasonable and therefore unlawful detention of the motorists. There
      is no bright line test to determine whether a lawful traffic stop has
      become unlawful detention. A police officer may detain a motorist for
      a reasonable period for the police officer to conduct the necessary
      investigation to determine what action he will take. In general, a
      police officer may detain a motorist long enough to allow the officer
      to write a traffic ticket and check into the motorist’s background to
      see if there are any warrants and so forth outstanding. In determining
      whether a traffic stop has become so intrusive that the detention is no
      longer reasonable, you may consider factors such as the public
      interest served by the seizure, the nature and scope of the intrusion,
      [and] the objective facts relied upon by the officer in making the stop
      and detaining the motorist.

House objected to this instruction on the ground that the “balancing test” the

district court described is no longer good law as applied to traffic stops initially

supported by probable cause.

      The district court instructed the jury that a defendant must act “willfully” in

effecting a deprivation of civil rights for that deprivation to constitute a violation

of section 242, but that a deprivation may be “willful” even if the defendant was

not thinking in legal or constitutional terms:

      . . . [A]n act is done willfully if it is done voluntarily and deliberately
      and with the specific intent to do something the law forbids. That is
      with bad purpose to disobey or disregard the law. Although the
      government must prove beyond a reasonable doubt that the defendant
      voluntarily and deliberately did an act that deprived a motorist of a
      protected right, it is not necessary for the government to prove the
      defendant was thinking in legal or constitutional terms. You [m]ay
      find the defendant acted with the required intent, even if you find he
      had no real familiarity with the constitution or with the particular
                                          31
      constitutional rights involved. You must, however, find the defendant
      intended to do something that the constitution forbids.

             ....

            If you find the defendant knew what he was doing and that he
      intended to do such an act, and if you find what he did constituted a
      deprivation of a constitutional right and you so find beyond a
      reasonable doubt, then you may conclude that he acted willfully.

House did not object to this instruction.

      With regard to the violations of section 1001 for making false statements

with which House was charged, the district court instructed the jury that “the

Federal Protective Service is a department or agency of the United States, and the

filing of reports or documents with the agency is a matter within the jurisdiction of

the agency.” House did not object to this instruction.

      When the jury left the courtroom following the jury charge, the prosecutor

informed the district court that it had failed to instruct the jury that they were not

permitted to draw an adverse inference from House’s failure to testify in his own

defense. The district court offered to call the jury back into the courtroom and

provide this instruction to them, but House declined the offer and stated, “We are

fine as it is. We don’t ask that you bring them back.”

      The jury found House guilty of all twelve counts. The district court

sentenced House to eighteen months of imprisonment for each count, to be served

                                            32
concurrently, followed by three years of supervised release for each count, to be

served concurrently. The district court also ordered House to pay a fine of

$10,000. House was released on bond pending appeal.

                         II. STANDARDS OF REVIEW

      Several standards govern our review of this appeal. “We review challenges

to the sufficiency of the evidence de novo,” and ask “whether a reasonable jury

could have found the defendant guilty beyond a reasonable doubt.” United States

v. Mercer, 541 F.3d 1070, 1074 (11th Cir. 2008). But where a defendant

“present[s] his case after denial of a motion for judgment of acquittal” and then

“fails to renew his motion for judgment of acquittal at the end of all of the

evidence,” we review the defendant’s challenge to the sufficiency of the evidence

for a manifest miscarriage of justice. United States v. Jones, 32 F.3d 1512, 1516

(11th Cir. 1994). This standard requires us to affirm the defendant’s conviction

unless “the evidence on a key element of the offense is so tenuous that [the]

conviction [is] shocking.” United States v. Milkintas, 470 F.3d 1339, 1343 (11th

Cir. 2006). “In making this determination, we must view the evidence in the light

most favorable to the government and accept all reasonable inferences and

credibility determinations that support the jury’s verdict.” Id.




                                          33
      We review jury instructions challenged in the district court “de novo to

determine whether the instructions misstated the law or misled the jury to the

prejudice of the objecting party.” United States v. Felts, 579 F.3d 1341, 1342

(11th Cir. 2009). “In contrast, jury instructions that are challenged for the first

time on appeal are reviewed for plain error.” Id. at 1343. We review the failure to

give a requested jury instruction for abuse of discretion, which occurs only where

the requested instruction “(1) was correct, (2) was not substantially covered by a

charge actually given, and (3) dealt with some point in the trial so important that

failure to give the requested instruction seriously impaired the defendant’s ability

to conduct his defense.” United States v. Dohan, 508 F.3d 989, 993 (11th Cir.

2007). Where a party expressly accepts a jury instruction, “such action constitutes

invited error” and “serve[s] to waive [his] right to challenge the accepted

instruction on appeal.” United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir.

2005). We will not reverse a defendant’s conviction based on a challenge to the

jury charge unless we are “left with a substantial and ineradicable doubt as to

whether the jury was properly guided in its deliberations.” Felts, 579 F.3d at

1343; Dohan, 508 F.3d at 993. “Jury instructions are subject to harmless error

review.” United States v. Webb, 655 F.3d 1238, 1249 n.8 (11th Cir. 2011). An

error is harmless if the reviewing court is satisfied “beyond a reasonable doubt that

                                          34
the error complained of did not contribute to the verdict obtained.” Chapman v.

California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967).

       “We review a district judge’s conduct during trial for abuse of discretion.”

United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). But where a

defendant “raises [an] issue for the first time on appeal, we review it only for plain

error.” United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010). “We may

not correct an error the appellant failed to raise in the district court unless there is:

(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. (internal

quotation marks omitted). “If the preceding three conditions are met, we may

exercise discretion to correct a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(internal quotation marks omitted). We also apply the plain error standard when

we review the failure to give a curative instruction sua sponte. United States v.

Thigpen, 4 F.3d 1573, 1579 (11th Cir. 1993).

       “We review a district court’s evidentiary rulings for clear abuse of

discretion.” United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007).

“An abuse of discretion occurs if the district court applies an incorrect legal

standard or makes findings of fact that are clearly erroneous.” United States v.

Wilk, 572 F.3d 1229, 1234 (11th Cir. 2009). “Even where an abuse of discretion

                                            35
is shown, nonconstitutional evidentiary errors are not grounds for reversal absent a

reasonable likelihood that the defendant’s substantial rights were affected.”

United States v. Sellers, 906 F.2d 597, 601 (11th Cir. 1990). That is, we will not

reverse a defendant’s conviction on the basis of an evidentiary error that does not

implicate his constitutional rights “if the error had no substantial influence, and

enough evidence supports the result apart from the phase affected by error.”

United States v. Stout, 667 F.2d 1347, 1352 (11th Cir. 1982).

      We review claims of prosecutorial misconduct de novo. United States v.

Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). But where a defendant fails to

make a contemporaneous objection to the alleged misconduct in the district court,

we review such claims for plain error. United States v. Newton, 44 F.3d 913, 920

(11th Cir. 1995).

      When we address a claim of cumulative error, we consider “all errors

preserved for appeal and all plain errors” in the context of “the trial as a whole to

determine whether the appellant was afforded a fundamentally fair trial.” United

States v. Ladson, 643 F.3d 1335, 1342 (11th Cir. 2011). “The total effect of the

errors on the trial will depend, among other things, on the nature and number of

the errors committed; their interrelationship, if any, and combined effect; . . . the




                                          36
strength of the government’s case, and the length of trial.” United States v. Baker,

432 F.3d 1189, 1223 (11th Cir. 2005) (internal quotation marks omitted).

                                   III. DISCUSSION

      House raises seven arguments on appeal. First, he argues that the record

does not contain sufficient evidence to support his convictions. Second, he argues

that the district court erred in instructing the jury. Third, he argues that the district

court improperly interjected itself into the trial. Fourth, he argues that the district

court improperly excluded evidence. Fifth, he argues that the prosecutor

improperly commented on House’s decision not to testify. Sixth, he argues in his

reply brief that his counsel was ineffective. Seventh, he argues that the cumulative

effect of the errors deprived him of a fair trial. We address each argument in turn.

               A. Sufficient Evidence Supports House’s Convictions.

      House argues that the government presented insufficient evidence to

support his eight convictions for willful unreasonable seizures and his four

convictions for making false statements. We conclude that the evidence, viewed

in the light most favorable to the government, establishes that no manifest

miscarriage of justice occurred.

      We discuss this evidence in two parts. First, we address the evidence that

supports House’s convictions for willful unreasonable seizures. Second, we

                                           37
address the evidence that supports House’s convictions for making false

statements.

                 1. Convictions for Willful Unreasonable Seizures

      House argues that there was insufficient evidence to support his convictions

for the willful violations of the Fourth Amendment charged in counts one, two,

three, four, six, seven, nine, or eleven. He contends that he had authority to effect

the seizures as an agent of the government and that the seizures were reasonable

under the Fourth Amendment. House argues that he had probable cause for the

seizures charged in counts two, three, and nine because the motorists identified in

those counts admitted that they were speeding and that he had probable cause for

the seizures charged in counts one, six, seven, and eleven because the motorists

identified in those counts admitted to driving in a manner that could be considered

unsafe. House also maintains that we must reverse his convictions on counts six,

seven, nine, and eleven because he was not responsible for the seizures identified

in those counts. House contends alternatively that, if he was not permitted to

effect the charged seizures as an agent of the government, then his actions could

not have implicated the Fourth Amendment.

      Although we conclude that sufficient evidence supports all eight of House’s

convictions under section 242, we need not discuss House’s convictions on counts

                                         38
one, two, three, or six. We must vacate those four convictions on another ground,

which we address in Section B. House’s convictions do not represent a manifest

injustice.

       To prove a violation of section 242, the government had to present evidence

that House acted “(1) willfully and (2) under color of law (3) to deprive a person

of rights protected by the Constitution or laws of the United States.” United States

v. Lanier, 520 U.S. 259, 264, 117 S. Ct. 1219, 1224 (1997) (internal quotation

marks omitted). The federal right that House allegedly violated is the right under

the Fourth Amendment to be free from unreasonable seizures. See U.S. CONST.,

amend. IV. To establish a deprivation of that right, the government must prove

that a seizure occurred, that the seizure was unreasonable, and that the seizure

constituted “governmental action”—that is, that the individual who effected the

seizure was “acting as an agent of the Government or with the participation or

knowledge of any governmental official,” see United States v. Jacobsen, 466 U.S.

109, 113, 104 S. Ct. 1652, 1656 (1984) (internal quotation marks omitted).

Conduct “under color of law” satisfies the requirement of governmental action.

Cf. Lugar v. Edmondson Oil Co., 457 U.S. 922, 928–29 & n.9, 102 S. Ct. 2744,

2749 & n.9 (1982).




                                         39
      “[A] person is ‘seized’ . . . when, by means of physical force or a show of

authority, his freedom of movement is restrained” such that, “in view of all of the

circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544,

553–54, 100 S. Ct. 1870, 1877 (1980). A seizure is effected by force “when there

is a governmental termination of freedom of movement through means

intentionally applied[,]” such as where a law enforcement officer pulls his vehicle

“alongside [a] fleeing car and sideswipe[s] it, producing [a] crash” regardless of

whether the officer intends “to give the oncoming driver the option of a voluntary

stop” or “to produce a collision.” Brower v. County of Inyo, 489 U.S. 593,

597–99, 109 S. Ct. 1378, 1381–82 (1989). A seizure by means of show of

authority requires both a show of authority and submission to that authority.

California v. Hodari D., 499 U.S. 621, 628–29, 111 S. Ct. 1547, 1551–52 (1991).

That is, a government officer effects a seizure by means of a show of authority

where “the officer’s words and actions would have conveyed . . . to a reasonable

person” that “he was being ordered to restrict his movement,” and those words and

actions actually “produce his stop.” Id. Certain “circumstances . . . might indicate

a seizure, even where the person did not attempt to leave,” including “the display

of a weapon by an officer . . . or the use of language or tone of voice indicating

                                         40
that compliance with the officer’s request might be compelled.” Mendenhall, 446

U.S. at 554, 100 S. Ct. at 1877. An arrest is the “quintessential” example of a

seizure of the person. Hodari D., 499 U.S. at 624, 111 S. Ct. at 1550. In addition,

“[t]emporary detention of individuals during the stop of an automobile by the

police, even if only for a brief period and for a limited purpose, constitutes a

‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” Whren,

517 U.S. at 809–10, 116 S. Ct. at 1772.

      A traffic stop constitutes an unreasonable seizure if it is not supported by

reasonable suspicion or probable cause. Id. at 810, 116 S. Ct. at 1772; United

States v. Chanthasouxat, 342 F.3d 1271, 1275 (11th Cir. 2003). But a traffic stop

is reasonable under the Fourth Amendment when supported by probable cause or

reasonable suspicion even if it is inconsistent with agency policy, see Whren, 517

U.S. at 813–16, 116 S. Ct. at 1774–76, or state law, see Moore, 553 U.S. at

173–76, 128 S. Ct. at 1605–07. Probable cause requires that “the facts and

circumstances within [an officer’s] knowledge and of which [the officer] ha[s]

reasonably trustworthy information [be] sufficient to warrant a prudent man in

believing” that the person seized is guilty of a crime. Beck v. Ohio, 379 U.S. 89,

91, 85 S. Ct. 223, 225 (1964). Reasonable suspicion requires “some minimal level

of objective justification,” meaning “something more than an inchoate and

                                          41
unparticularized suspicion or hunch,” that the person seized is guilty of a crime.

United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (internal

quotation marks omitted). If the scope of the traffic stop exceeds that of “an

investigative stop of limited duration,” it constitutes an unreasonable seizure

unless it is supported by probable cause. United States v. Acosta, 363 F.3d 1141,

1145–46 (11th Cir. 2004).

      A person acts “willfully” for purposes of section 242 when he acts with “a

specific intent to deprive a person of a federal right made definite by decision or

other rule of law,” or “in open defiance or in reckless disregard of a constitutional

requirement which has been made specific and definite.” Screws v. United States,

325 U.S. 91, 103, 105, 65 S. Ct. 1031, 1036–37 (1945). This Court has

recognized that a series of individual actions that “support an innocent

explanation,” when “viewed in a vacuum,” may in combination provide sufficient

evidence for a reasonable juror to infer a defendant’s intent. United States v.

Harris, 20 F.3d 445, 453 (11th Cir. 1994). We have also explained that, in making

findings of a defendant’s intent, the defendant’s “subsequent conduct may be

considered if it supports a reasonable inference as to [his] prior intent.” United

States v. McCarrick, 294 F.3d 1286, 1291 (11th Cir. 2002).




                                          42
      An act is effected “under color of law” for purposes of section 242 if it is

effected by a law enforcement officer acting “under pretense of law.” Screws, 325

U.S. at 111, 65 S. Ct. at 1040 (internal quotation marks omitted). “Acts of officers

who undertake to perform their official duties are included whether they hew to

the line of their authority or overstep it.” Id.; see also United States v. Classic,

313 U.S. 299, 326, 61 S. Ct. 1031, 1043 (1941) (“Misuse of power, possessed by

virtue of state law and made possible only because the wrongdoer is clothed with

the authority of state law, is action taken ‘under color of’ state law.”). Thus, a law

enforcement officer acts under color of law “when he acts with authority

possessed by virtue of his employment” with the government, Almand v. DeKalb

County, 103 F.3d 1510, 1513 (11th Cir. 1997), or “the manner of his conduct . . .

makes clear that he was asserting the authority granted him and not acting in the

role of a private person.” Williams v. United States, 341 U.S. 97, 100, 71 S. Ct.

576, 578 (1951) (holding that a jury could find that a private detective who was

qualified as a special police officer had acted under color of law when he flashed

his badge while committing a series of assaults).

                             a. Evidence of the Seizures

      The government offered sufficient evidence to establish that House seized

the motorists during the encounters identified in counts four, seven, nine, and

                                           43
eleven. Every encounter involved a show of authority by House, and every

encounter involved submission to that show of authority.

      Regarding the encounter identified in count four, Rivas testified that House

appeared to be wearing “some kind of uniform” when he pulled beside Rivas; that

House told Rivas to “pull over”; that House activated his emergency lights; that

Rivas pulled over because that was “what any law-abiding citizen would do when

they see blue lights”; and that after Rivas pulled over, House spoke to Rivas using

a “very scary” tone of voice and told Rivas that House was a federal officer and

“was going to get [Rivas] for destruction of government property.” This testimony

entitled the jury to find that House seized Rivas, either by conducting a traffic stop

of Rivas, see Whren, 517 U.S. at 809–10, 116 S. Ct. at 1772, or by detaining Rivas

on the side of the road through the use of words and actions that would indicate to

a reasonable person that he was not free to leave, see Mendenhall, 446 U.S. at

553–54, 100 S. Ct. at 1877.

      Regarding the encounter identified in count seven, Wibel testified on direct

examination that he pulled over his vehicle “based on getting stopped by . . . two

vehicles” after House and Beal had activated the emergency lights on their

respective vehicles. This testimony entitled the jury to find that House seized

Wibel by participating in a traffic stop of Wibel. See Whren, 517 U.S. at 809–10,

                                          44
116 S. Ct. at 1772. The jury was entitled to credit this testimony and not the

testimony of Wibel on cross-examination that suggested Beal’s actions alone

caused Wibel to stop. See Rixey v. W. Paces Ferry Hosp., Inc., 916 F.2d 608, 616

(11th Cir. 1990) (“A jury is not required to accept ‘all or none’ of a witness’s

testimony . . . .”).

       In addition, Beal, the local law enforcement officer who participated in the

seizure of Wibel, testified that he did not personally witness Wibel driving

aggressively, that his only basis for stopping Wibel was House’s radio dispatch

report, that he had treated House’s report as probable cause to stop Wibel because

House was a law enforcement officer, and reports by law enforcement officers are

treated differently than reports by private citizens. Beal also testified that he had

arrested Wibel based on House’s account of events and House’s insistence that

Wibel be arrested. Beal believed House’s account of events because House was a

law enforcement officer, and “generally a police officer is supposed to be held to a

higher standard and give you the truth.” Beal’s testimony provided sufficient

evidence for the jury to find that House effected the seizure of Wibel through a

show of his authority as a law enforcement officer, at the time of Wibel’s stop or

his arrest. Cf. Franks v. Delaware, 438 U.S. 154, 156, 98 S. Ct. 2674, 276 (1978)

(holding that a false or misleading statement in a warrant affidavit may constitute a

                                          45
violation of the Fourth Amendment if the statement is “necessary to the finding of

probable cause” required for the issuance of a warrant).

      Regarding the encounter identified in count nine, McFarland testified that

House was driving a marked law enforcement vehicle, that House activated his

emergency lights, and that House escorted McFarland to the side of the road in a

manner suggesting that House intended to conduct a traffic stop of McFarland.

This testimony entitled the jury to find that House seized McFarland. That House

abandoned his course of action before McFarland brought his vehicle to a

complete stop is irrelevant because any “meaningful interference, however brief,

with an individual’s freedom of movement” constitutes a seizure. Jacobsen, 466

U.S. at 113 n.5, 104 S. Ct. at 1656 n.5.

      Regarding the encounter identified in count eleven, Thompson testified that

House maneuvered his government vehicle so as to force Thompson off the road

and then blocked Thompson’s route back onto the road; that once Thompson had

stopped his vehicle on the side of the road, House approached Thompson’s vehicle

with a “very angry” demeanor, wearing a police uniform and a gun, and walked

around to the rear of Thompson’s vehicle and recorded Thompson’s license plate

number; that House later instructed Thompson to move his vehicle from the

location where he had initially stopped it to a cemetery driveway and later to a

                                           46
restaurant parking lot; and that Thompson moved his vehicle “because [House]

told [him] to.” This testimony entitled the jury to find that House seized

Thompson, either by forcing Thompson off the road, cf. Brower, 489 U.S. at

597–99, 109 S. Ct. at 1381–82, or by detaining Thompson after Thompson

stopped his vehicle, see Mendenhall, 446 U.S. at 553–54, 100 S. Ct. at 1877.

                b. Evidence that the Seizures Were Unreasonable

      The government also offered sufficient evidence to establish that the

seizures charged in counts four, seven, nine, and eleven were unreasonable.

Rivas, Wibel, and Thompson each testified that they had not violated any traffic

laws. This testimony entitled the jury to find that House had neither probable

cause nor reasonable suspicion to support his seizures of those three motorists,

which would mean that those seizures were unreasonable, Chanthasouxat, 342

F.3d at 1275.

      Although McFarland testified that he was driving above the speed limit

when he first saw House’s vehicle ahead of him, McFarland’s testimony is far

from conclusive evidence of the facts known to House when he seized McFarland,

see Beck, 379 U.S. at 91, 85 S. Ct. at 225. Because McFarland testified that he

slowed before he caught up to House, the jury could reasonably have found that

House would have been unable to tell McFarland was speeding before the seizure

                                         47
and that House had neither probable cause nor reasonable suspicion to support his

seizure of McFarland. If the jury so found, it would mean that the seizure was

unreasonable, Chanthasouxat, 342 F.3d at 1275.

                      c. Evidence that House Acted Willfully

      The government also offered sufficient evidence to establish that House

acted “willfully” when he effected the seizures charged in counts four, seven, nine,

and eleven. The right of motorists to be free from unreasonable seizures is

“specific and definite”: it is defined “by the express terms of the Constitution” and

has been “made specific” by Supreme Court “decision[s] interpreting the

Constitution,” so that those who violate that right “are in no position to say that

they had no adequate advance notice that they would be visited with punishment.”

Screws, 325 U.S. at 105, 65 S. Ct. at 1037; see Whren, 517 U.S. at 809–10, 116 S.

Ct. at 1772 (explaining that a traffic stop is a seizure); Sokolow, 490 U.S. at 7, 109

S. Ct. at 1585 (discussing requirement of reasonable suspicion); Beck, 379 U.S. at

91, 85 S. Ct. at 225 (discussing requirement of probable cause). The testimony of

Rivas, Wibel, McFarland, and Thompson established a pattern of conduct by

House in which he repeatedly seized motorists without regard for the requirements

of the Fourth Amendment and then attempted to conceal his actions by making

false statements in his incident reports. Padgett’s, Caravalho’s, and Kinnamont’s

                                          48
testimony suggests that House’s behavior during their encounters with him fit into

this same pattern. The sheer number of unreasonable seizures that House effected,

as well as his efforts to prevent his superiors’ detection of his actions, entitled the

jury to infer that House acted willfully when he effected the seizures charged in

counts four, seven, nine, and eleven. McCarrick, 294 F.3d at 1291; Harris, 20

F.3d at 453.

                d. Evidence that House Acted Under Color of Law

      Finally, the government offered sufficient evidence to establish that House

acted “under color of law” when he effected the seizures charged in counts four,

seven, nine, and eleven. Rivas testified that House activated his emergency lights

as he told Rivas to pull over, that House was wearing his uniform when he stopped

Rivas, and that House identified himself to Rivas as a federal officer during the

stop. Wibel testified that House activated his emergency lights as he and Beal

pulled Wibel over to the side of the road. McFarland testified that House was

driving a law enforcement vehicle and that House activated his emergency lights

as he seized McFarland. Thompson testified that House was driving a law

enforcement vehicle, and that House was wearing his uniform as he seized

Thompson. Rivas’s, Wibel’s, McFarland’s and Thompson’s testimony entitled the

jury to find that House was acting under color of law when he seized each of those

                                           49
four motorists. See Classic, 313 U.S. at 326, 61 S. Ct. at 1043. To the extent that

House effected the seizure of Wibel through Beal, Beal’s testimony entitled the

jury to find that House effected this seizure under color of law. Cf. Almand, 103

F.3d at 1514–15 (explaining that a law enforcement officer is probably acting

under color of law when he uses “his status as a police officer” to induce another

to act). That House may have overstepped his authority in effecting the seizures is

no defense for his conduct. Cf. Screws, 325 U.S. at 111, 65 S. Ct. at 1040;

Almand, 103 F.3d at 1513.

                   2. Convictions for Making False Statements

      House argues that no reasonable jury would have convicted him on counts

five, eight, or twelve because the reports charged in those counts were consistent

with his contemporaneous, oral accounts of the relevant seizures, and “no

reasonable jury would have believed [he] [made] up facts as they were happening

and then remembered his fictitious story and made up the same facts as he later

prepared a report.” House also argues that there was insufficient evidence to

support his convictions for the violations of section 1001 charged in counts five,

eight, ten, and twelve because any false statements in the incident reports he

submitted were not material. House maintains that the statements in the reports

were material only to establish that he had “proper cause” for the seizures

                                         50
described in the reports, and because each of those seizures were based on

probable cause, “any purported misstatement as to the other facts in the reports

was not material.” We disagree.

      To convict House under section 1001, the government had to prove “(1) that

a statement was made; (2) that it was false; (3) that it was material; (4) that it was

made with specific intent; and (5) that it was within the jurisdiction of an agency

of the United States.” United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir.

2010) (internal quotation marks omitted). The false statement may take the form

of an affirmative misrepresentation or the concealment of a material fact. Id.

“Falsity through concealment exists where disclosure of the concealed information

is required by a statute, government regulation, or form.” United States v.

Calhoon, 97 F.3d 518, 526 (11th Cir. 1996). A false statement is material if it

“ha[s] a natural tendency to influence, or be capable of influencing, the decision of

the decisionmaking body to which it was addressed”; proof of actual influence is

not required. Boffil-Rivera, 607 F.3d at 741 (internal quotation marks and

alteration omitted). The specific intent required is the “intent to deceive by

making a false or fraudulent statement.” United States v. Dothard, 666 F.2d 498,

503 (11th Cir. 1982). An agency’s jurisdiction encompasses “all matters confided

to the authority of an agency or department,” and jurisdiction requires only that the

                                          51
agency possess “power to exercise authority in a particular situation.” United

States v. Rodgers, 466 U.S. 475, 479, 104 S. Ct. 1942, 1946 (1984).

                  a. Evidence that House Made False Statements

      The government produced sufficient evidence that House made the

statements charged in counts five, eight, ten and twelve and that the statements

were false. The government established that House made the statements in the

incident reports describing House’s encounters with Rivas, Wibel, McFarland, and

Thompson. House’s name appears on each of the reports as the filing officer, and

House disputes neither his submission of the reports nor his responsibility for the

statements in the reports. The government established the existence of affirmative

misrepresentations and omissions in each of the reports through the testimony of

Rivas, Wibel, McFarland, and Thompson, each of whom testified that the reports

provided false accounts of their encounters with House. House offers no support

for the proposition that no jury could reasonably believe a defendant can lie

consistently. In any event, there is nothing to suggest that the testimony of Rivas,

Wibel, McFarland, and Thompson is “incredible as a matter of law.” See United

States v. Hewitt, 663 F.2d 1381, 1386 (11th Cir. 1981).




                                         52
                b. Evidence that the False Statements Were Material

      The government established the materiality of the false statements charged

in counts five, eight, ten, and twelve through the testimony of Andrews and

Dingman. Andrews testified that Federal Protective Service supervisors use these

reports to determine whether the officers’ conduct was authorized and because

other law enforcement agents sometimes use the reports in connection with

criminal prosecutions. Andrews explained that, for a report to be useful for either

of these purposes, an officer must provide truthful information as to all of the facts

and circumstances surrounding the events documented in the report. Dingman

offered similar testimony that an officer’s provision of “a true and accurate factual

account” of events in each police report he files is “material to his duties as a

federal police officer.” He testified that the government uses the reports in

deciding whether to initiate criminal prosecutions, that it was “very important”

that a report include truthful information in relation to “all of the facts of the case,

the who, what, when, where, and how of the case,” and that false statements in a

report could ruin any case the government attempts to pursue based upon events

described in that report. Andrews’s and Dingman’s testimony refutes House’s

argument that not all of the statements in the reports were material.




                                           53
          c. Evidence that House Acted with Specific Intent to Deceive

      The government also presented sufficient evidence that House had the intent

to deceive when he made the false statements charged in counts five, eight, ten,

and twelve. Because “[s]pecific intent to defraud can be difficult to prove,”

United States. v. Ethridge, 948 F.2d 1215, 1217 (11th Cir. 1991) , “[w]e have held

that § 1001 convictions challenged on sufficiency of the evidence grounds can be

affirmed based on a finding that a jury reasonably could infer from circumstantial

evidence that the defendants acted knowingly and willfully,” United States v.

Gafyczk, 847 F.2d 685, 692 (11th Cir. 1988); see also McCarrick, 294 F.3d at

1291; United States v. Hernando Ospina, 798 F.2d 1570, 1581 (11th Cir. 1986).

Circumstantial evidence supports that inference here. Andrews, Glynn, Reed, and

Dingman testified that the policy of the Federal Protective Service prohibited

traffic stops for minor traffic violations outside of federal property, House was

familiar with that policy, House had been reprimanded repeatedly and subjected to

an internal agency investigation for violations of the policy, and House’s vehicular

privileges had been temporarily suspended as a result of the internal investigation.

Andrews and Dingman testified that House was required to file an incident report

each time he activated his emergency lights or conducted a traffic stop and that

House’s supervisors used those reports to determine whether his actions were

                                         54
permitted. Based on the testimony of Rivas, Wibel, McFarland, and Thompson,

the encounters House reported violated agency policy. The jury could reasonably

have inferred that House made false statements in the incident reports with the

specific intent to deceive his supervisors to avoid further discipline for violations

of agency policy.

d. Evidence that the Statements Were Within the Jurisdiction of a Federal Agency

      Finally, the false statements charged in counts five, eight, ten, and twelve

were within the jurisdiction of a federal agency. House’s reports of his encounters

with Rivas, Wibel, McFarland, and Thompson were “matters confided to the

authority of” the Federal Protective Service, over which the agency possessed

“power to exercise authority.” Rodgers, 466 U.S. at 479, 104 S. Ct. at 1946. We

have explained that “[s]ection 1001 is necessarily couched in very broad terms to

encompass the variety of deceptive practices which ingenious individuals might

perpetrate upon an increasingly complex government” and held that, where a

federal agency commonly uses an official form “in the performance of its regularly

conducted activities,” the submission of a completed form to that agency satisfies

the jurisdictional requirement of section 1001. Gafyczk, 847 F.2d at 690–91

(internal quotation marks and alteration omitted). Testimony by Andrews and

Dingman established that the Federal Protective Service and other federal law

                                          55
enforcement agencies used the incident reports in the performance of their regular

activities. Cf. id. at 691.

  B. The District Court Erred when It Instructed that a Seizure Effected Without
 Jurisdiction or Authority Violates the Fourth Amendment, but the District Court
                    Did Not Otherwise Err in its Jury Charge.

       We divide our discussion of House’s arguments about the jury instructions

into two parts. First, we address House’s challenges to four instructions included

in the jury charge. Second, we address House’s challenges to the omission of five

instructions from the jury charge.

                     1. Instructions Included in the Jury Charge

       On appeal, House challenges four instructions included in the jury charge.

First, House argues that the district court erred when it instructed the jury that a

traffic stop is unreasonable under the Fourth Amendment whenever effected by a

law enforcement officer without jurisdiction or authority. Second, House

maintains that the district court erred when it instructed the jury that an initially

valid traffic stop could develop into an unreasonable detention without

distinguishing between stops based on reasonable suspicion and stops based on

probable cause. Third, House argues that the district court plainly erred when it

instructed the jury on the definition of “willfully” under section 242 because its

instructions failed to explain that House must have acted without probable cause

                                           56
and not merely contrary to agency policy to have violated section 242. Fourth,

House argues that the district court plainly erred when it instructed the jury that

the statements in the incident reports he submitted to the Federal Protective

Service concerned a “matter within the jurisdiction of” a federal agency under

section 1001. We agree that the district court erred when it instructed the jury that

a traffic stop effected without jurisdiction or authority is unreasonable under the

Fourth Amendment, but conclude that House’s other arguments fail.

      The district court misstated the law when it instructed the jury that a traffic

stop is unreasonable under the Fourth Amendment if it is effected without

jurisdiction or authority. The Supreme Court has held that a traffic stop is

reasonable under the Fourth Amendment when supported by probable cause or

reasonable suspicion even if it is inconsistent with agency policy, see Whren, 517

U.S. at 813–16, 116 S. Ct. at 1774–76, or state law, see Moore, 553 U.S. at

173–76, 128 S. Ct. at 1605–07. See also Chanthasouxat, 342 F.3d at 1275. The

instruction by the district court allowed the jury to convict House for the

unreasonable seizures charged in counts one, two, three, four, six, seven, nine, and

eleven if they found that House lacked either (1) probable cause or reasonable

suspicion, or (2) jurisdiction or authority to effect the seizures charged in those




                                          57
counts. That is, the district court instructed the jury that House could be convicted

even if they found that he had probable cause or reasonable suspicion.

      This error in the jury charge requires reversal of House’s convictions on

counts one, two, three, and six, but it was harmless with respect to his remaining

convictions for willful unreasonable seizures. The government presented evidence

that House lacked authority or jurisdiction to effect the seizures with which he had

been charged, and House’s convictions for willful unreasonable seizures, standing

alone, do not tell us whether the jury found that House lacked probable cause or

reasonable suspicion for the seizures underlying those convictions. But his

convictions on counts four, seven, nine, and eleven do not stand alone; they stand

together with his convictions for making false statements. The jury found House

guilty of making false statements in the incident reports where he described the

seizures charged in counts four, seven, nine, and eleven, which means that the jury

credited the motorists’ accounts of those seizures and discredited House’s

accounts of those seizures. The finding that House’s reports were false necessarily

means that House lacked probable cause or reasonable suspicion for those

seizures. Because of this finding, the erroneous jury instruction could not have

contributed to the jury’s verdict with respect to counts four, seven, nine, and




                                         58
eleven, and we conclude that the error was harmless as to those four counts. See

Chapman, 386 U.S. at 24, 87 S. Ct. at 828.

      We need not decide whether the district court erred when it instructed the

jury that an initially valid traffic stop could develop into an unreasonable

detention, because that error is harmless as to House’s remaining convictions for

willful unreasonable seizures. The jury found that the seizures charged in counts

four, seven, nine, and eleven were not supported by probable cause or reasonable

suspicion so the jury would have had no occasion to apply the instruction in its

consideration of those seizures. The instruction could not have contributed to the

jury’s verdict with respect to any of those four counts. See Chapman, 386 U.S. at

24, 87 S. Ct. at 828.

      The district court did not err, plainly or otherwise, when it instructed the

jury about the definition of “willfully” under section 242 or when it instructed the

jury that the statements in the incident reports House submitted to the Federal

Protective Service were matters within the jurisdiction of a federal agency. The

definition of “willfully” in the jury charge was consistent with the definition of

that term provided by the Supreme Court in Screws, 325 U.S. at 101–07, 65 S. Ct.

at 1035–38. If the instructions did not make clear that House must have acted

without probable cause and not merely contrary to agency policy to have violated

                                          59
section 242, that lack of clarity was due to the erroneous definition of

unreasonableness under the Fourth Amendment. The district court correctly

instructed the jury that the statements in the incident reports House submitted to

the Federal Protective Service concerned a “matter within the jurisdiction of” a

federal agency under section 1001 because the Federal Protective Service is a

federal agency that uses incident reports filed by its officers in its regular course of

business. Where a federal agency uses a form in its regular course of business, the

information provided on that form is a matter within the jurisdiction of the federal

agency. See Gafyczk, 847 F.2d at 690–91.

                   2. Instructions Omitted from the Jury Charge

      House also challenges the omission of four instructions from the jury

charge. First, House argues that the district court abused its discretion when it

failed to instruct the jury that the Fourth Amendment permits arrests for minor

traffic violations committed in a law enforcement officer’s presence. Second,

House argues that the district court abused its discretion when it failed to instruct

the jury that House could not be convicted of violating section 242 unless he had

fair warning that his conduct was unlawful. Third, House argues that the district

court abused its discretion when it failed to instruct the jury that a law enforcement

officer’s subjective intent is irrelevant to the reasonableness of a traffic stop under

                                          60
the Fourth Amendment. Fourth, House argues that the district court abused its

discretion when it failed to instruct the jury that the reasonableness of a traffic stop

under the Fourth Amendment is not dependent upon state law or local agency

policy. Fifth, House argues that the district court abused its discretion when it

failed to instruct the jury that Georgia law permits citizens’ arrests for minor

traffic violations. None of these omissions warrants reversal of House’s

convictions for counts four, five, seven, eight, nine, ten, eleven, or twelve.

      The district court did not abuse its discretion when it refused to instruct the

jury on the issue of fair warning. “[T]he issue of whether a [law] is void for

vagueness is a question of law for the court to determine,” which means that

“defendants [are] not entitled to a ‘fair warning’ instruction to the jury.” United

States v. Paradies, 98 F.3d 1266, 1284 (11th Cir. 1996).

      The remaining four omissions from the jury charge, even if erroneous, were

harmless. Because the jury found that the seizures charged in counts four, seven,

nine, and eleven were not supported by probable cause or reasonable suspicion, it

would have been irrelevant to the jury’s consideration of those seizures that the

Fourth Amendment permits arrests for minor traffic violations, that a law

enforcement officer’s subjective intent is irrelevant to the reasonableness of a

traffic stop under the Fourth Amendment, that the reasonableness of a traffic stop

                                          61
under the Fourth Amendment is not dependent upon state law or local agency

policy, and that Georgia law permits citizens’ arrests for minor traffic violations.

Nor were any of those instructions relevant to the jury’s consideration of the

violations of section 1001 charged in counts five, eight, ten, and twelve. The

omission of those instructions could not have contributed to the jury’s verdict with

respect to any of the remaining eight counts. See Chapman, 386 U.S. at 24, 87 S.

Ct. at 828.

        C. The District Court Did Not Err in Its Management of the Trial.

      House argues that the district court inappropriately interjected itself into the

trial twice. First, House maintains that the district court reinforced an incorrect

statement of law by the prosecutor. Second, House contends that the district court

directed the government as to how best to prove its case. We address each of

these arguments in turn.

         1. Comment Regarding Legality of Seizure with Probable Cause

      House maintains that the prosecutor incorrectly stated the law when he

asked Reed, “If [Federal Protective Service officers] have probable cause to make

a traffic stop, they are violating the civil rights of the motorists?” House argues

that the district court reinforced that incorrect statement of law when House

objected to the question on the basis that it was “not true,” and the district court

                                          62
responded, “It is too. It’s got some if’s and and’s to it. We are getting to the if

part. I think you are farafield [sic].” House also argues that the prosecutor

reinforced the incorrect statement of law again when, shortly after the district

judge’s statement, the prosecutor asked Reed, “If [Federal Protective Service

officers] have probable cause and they do detain the individual, they have done

something unlawful?” According to House, the reinforcement of the incorrect

statement of law was “prejudicial plain error,” and the prosecutor’s later

reinforcement of the incorrect statement of law increased the prejudice caused by

the first misstatement. In addition, House argues that no curative instruction in the

jury charge could have remedied the prejudicial impact of the misstatement of law

because the misstatement may have influenced the jury’s impression of the

evidence when it was presented at trial. We disagree.

      The district court did not plainly err when it made the comment at issue.

“We will not reverse a conviction based upon comments of the trial judge unless

the comments are so prejudicial as to amount to denial of a fair trial,” United

States v. Ramos, 933 F.2d 968, 973 (11th Cir. 1991), and we have frequently held

that a single isolated comment during a lengthy trial is insufficiently prejudicial to

require reversal of a criminal conviction, see, e.g., United States v. Brown, 441

F.3d 1330, 1358 (11th Cir. 2006); Chandler v. Moore, 240 F.3d 907, 912–13 (11th

                                          63
Cir. 2001). We are not convinced that either the district judge’s comment alone or

the combined impact of that comment and the prosecutor’s questions affected the

outcome of House’s trial. The district court instructed the jury that they could not

base their verdict on statements by the parties’ attorneys or its own comments,

except for its instructions to them regarding the applicable law, and we must

assume the jury followed these instructions. United States v. Butler, 102 F.3d

1191, 1196 (11th Cir. 1997). Nor are we convinced that the district judge’s

comment unduly influenced the jury during the presentation of the evidence. The

district court had instructed the jury before the trial began not to allow their “first

impressions” to “control” what they thought and not to “start making up [their]

mind[s]” about the verdict until they had “heard the whole case.” And because the

district court sustained House’s objection to the prosecutor’s question immediately

after making the comment at issue, it is unlikely that the jury perceived the

comment as an endorsement of the government’s position. In any event, neither

the district judge’s comment alone nor the combined impact of that comment and

the prosecutor’s questions could have prejudiced House with respect to counts

four, seven, nine, or eleven because, as we have already explained, the jury found

that the seizures charged in those counts were not supported by probable cause.




                                           64
               2. Statement Regarding Production of Court Records

      House argues that the district court erred when it stated that it would obtain

the court records that explained the dismissal of Kinnamont’s charges if the

prosecutor did not have them before the trial was over because “the jury need[ed]

to know” why the charges were dismissed. According to House, this statement

amounted to a “direct[ion] [to] the government as to the evidence it needed to

prove to the jury.” House also contends that the district judge’s insistence that the

jury see the court records may have influenced the jury’s determination of whether

House had probable cause to stop Kinnamont. We disagree.

      The district court did not plainly err. “A district court judge has wide

discretion in managing the proceedings[;] he may comment on the evidence,

question witnesses, elicit facts not yet adduced or clarify those previously

presented, and maintain the pace of a trial by interrupting or cutting off counsel as

a matter of discretion.” United States v. Day, 405 F.3d 1293, 1297 (11th Cir.

2005) (internal quotation marks omitted). And we have previously held that a

district court did not abuse his discretion in managing the trial where he “found

the testimony of a witness to be confusing and suggested to the government the

manner in which it might be clarified.” Day, 405 F.3d at 1297. We are

unpersuaded that the statement at issue here was sufficiently prejudicial to have

                                         65
denied House a fair trial. See Ramos, 933 F.2d at 973. The district court

instructed the jury to “disregard anything [the district court] might have said

during the trial” except its instructions on the law “in arriving at [their] decision

concerning the facts of this case,” and “not [to] assume from anything [it] may

have said during [the] trial” that it “ha[d] any opinion concerning any of the issues

in [the] case.” These instructions precluded the jury from considering the

statement at issue in appraising the evidentiary significance of the court records.

The district court also instructed the jury to “rely only on the facts known to

[House] before the stop was made” in determining whether House had probable

cause or reasonable suspicion for a stop. This instruction precluded the jury from

relying on the eventual dismissal of Kinnamont’s charges in determining whether

House had probable cause to stop Kinnamont. We must assume the jury followed

all instructions given to them. Butler, 102 F.3d at 1196.

          D. The District Court Did Not Err when It Excluded Evidence.

      House contends that the district court abused its discretion when it excluded

testimony concerning a traffic stop for which House had not been charged and

testimony about Georgia law regarding traffic stops and arrests, but we disagree.

Testimony concerning a traffic stop for which House had not been charged was

irrelevant to any issue of fact before the jury, and the district court correctly

                                           66
excluded it. See Fed. R. Evid. 401, 402. The district court also correctly

excluded testimony about Georgia law. “Domestic law is properly considered and

determined by the court whose function it is to instruct the jury on the law;

domestic law is not to be presented through testimony and argued to the jury as a

question of fact.” United States v. Oliveros, 275 F.3d 1299, 1306–07 (11th Cir.

2001).

           E. There Was No Commentary on House’s Failure to Testify.

      House argues that the prosecutor improperly commented on House’s

decision not to testify when the prosecutor remarked to the jury during his closing

argument in reference to House’s encounters with Padgett, “We don’t have the

defendant’s version of that stop because there is no report about that one. The

only evidence you have therefore is that I wasn’t doing anything wrong but

driving down the road in the left-hand lane and I got stopped for aggressive

driving both times.” House also contends that the district court compounded this

error when it failed to instruct the jury that they were not permitted to draw any

adverse inferences from House’s decision not to testify. These arguments fail.

      The prosecutor did not comment on House’s failure to testify. A prosecutor

comments on a defendant’s invocation of his right not to testify if the

“prosecutor’s remarks were manifestly intended to urge the jury to draw an

                                         67
inference from the defendant’s silence that he or she is guilty,” or if “a jury would

naturally and necessarily construe the prosecutor’s remarks as inviting such an

impermissible inference.” United States v. Thompson, 422 F.3d 1285, 1299 (11th

Cir. 2005). Whether these conditions are satisfied “can be determined only by

examining the context in which the statement was made.” Id. Here, the

prosecutor observed that House had not filed a report documenting his stops of

Padgett to emphasize the fact that the only evidence relating to those stops was

Padgett’s testimony, which proved that House did not have probable cause to stop

Padgett. The prosecutor’s remarks encouraged the jury to convict House based on

Padgett’s testimony, not House’s silence, and there is no basis for us to conclude

that a jury would have construed those remarks in any other manner. Cf. id.

(holding that a prosecutor’s remarks were not improper where they were intended

to discourage an improper positive inference from the fact that one codefendant

did testify rather than to encourage an improper negative inference from the fact

that the other codefendant did not testify).

      In addition, House has waived his right to challenge his conviction on the

basis of the district judge’s failure to instruct the jury that they could not draw any

adverse inferences from House’s failure to testify. When the district court offered

to call the jury back into the courtroom and provide such an instruction, House’s

                                          68
counsel responded, “We are fine as it is. We don’t ask that you bring them back.”

This response constituted an invitation of the omission that House now

characterizes as error, which means we are precluded from reviewing the alleged

error on appeal. See Silvestri, 409 F.3d at 1337.

    F. House’s Argument About Ineffective Assistance of Counsel Will Not Be
                        Reviewed on Direct Appeal.

      House argues for the first time in his reply brief that his counsel was

ineffective for his failure to renew his motion for acquittal at the close of all the

evidence, but “except in the rare instance when the record is sufficiently

developed, we will not address claims for ineffective assistance of counsel on

direct appeal,” United States v. Merrill, 513 F.3d 1293, 1308 (11th Cir. 2008)

(internal quotation marks and alteration omitted). “Instead, an ineffective

assistance of counsel claim is properly raised in a collateral attack on the

conviction under 28 U.S.C. § 2255.” Id. (internal quotation marks and alteration

omitted). Moreover, because House raised his claim of ineffective assistance for

the first time in his reply brief, we would not review it even if the record were

fully developed. See United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir.

1999).




                                           69
                        G. There Was No Cumulative Error.

      House also argues that the cumulative effect of the errors he has alleged on

appeal deprived him of a fair trial, but where there is no error or only a single

error, there can be no cumulative error, see United States v. Waldon, 363 F.3d

1103, 1110 (11th Cir. 2004). Because House has identified only a single error in

this appeal, his argument of cumulative error fails.

                                III. CONCLUSION

      We VACATE House’s convictions on counts one, two, three, and six. We

AFFIRM House’s convictions on Counts four, five, seven, eight, nine, ten,

eleven, and twelve. We REMAND for further proceedings consistent with this

opinion.




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