USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 1 of 18
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14963
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LONNIE FAVORS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cr-60136-WPD-1
____________________
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2 Opinion of the Court 19-14963
Before NEWSOM, MARCUS, Circuit Judges, and LAWSON,* District
Judge.
PER CURIAM:
Lonnie Favors appeals his conviction and sentence for
knowingly possessing a firearm and ammunition as a convicted
felon, in violation of
18 U.S.C. § 922(g)(1). Favors argues that he is
entitled to a new trial because the prosecutor engaged in miscon-
duct during closing arguments. After review, and with the benefit
of oral argument, we conclude that while some of the prosecutor’s
commentary was improper, none of the remarks affected Favors’
substantial rights. Moreover, there was sufficient evidence of Fa-
vors’ guilt to support the verdict; therefore, any error was harm-
less. We accordingly affirm Favors’ conviction. However, we va-
cate Favors’ 240-month sentence and remand for resentencing un-
der United States v. Carter,
7 F.4th 1039 (11th Cir. 2021) and United
States v. Moss,
920 F.3d 752 (11th Cir. 2019), opinion reinstated in
light of Borden v. United States,
141 S. Ct. 1817 (2021),
4 F.4th 1292
(11th Cir. 2021) (en banc).
I.
On April 11, 2019, the Fort Lauderdale Police Department
(“FLPD”) received a 911 call reporting an armed subject asleep in-
side a white Jeep Wrangler parked at Broward Garden Apartments,
* Honorable Hugh Lawson, Senior United States District Judge for the Middle
District of Georgia, sitting by designation.
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19-14963 Opinion of the Court 3
located at 2910 Northwest 19th Street in Fort Lauderdale, Florida.
Major Dana Swisher, a 22-year veteran of the FLPD and the super-
visor of the department’s road patrol unit, and Officer Robert Nor-
vis responded to the call. Typically, Major Swisher does not re-
spond to 911 calls. Occasionally, though, he accompanies his sub-
ordinates to observe the impact of departmental policies. On the
morning of April 11, Major Swisher was a passenger in Officer Nor-
vis’ patrol car.
Swisher, Norvis, and three other FLPD officers were dis-
patched to Broward Garden Apartments around 8:18 a.m. The of-
ficers arrived in marked patrol vehicles. For safety purposes, and to
maintain the element of surprise, the officers did not activate their
flashing lights or sirens. Each officer was wearing a patrol uniform.
Major Swisher and Officer Norvis additionally wore bullet-proof
vests.
All of the officers, with the exception of Major Swisher, were
equipped with body-worn cameras in accordance with a recently
enacted FLPD policy. Major Swisher testified that the department
did not issue him a body-worn camera as the policy exempted any
officer ranked above captain. Officer Norvis testified that FLPD is-
sued him a body-worn camera on March 23, 2019. While he was
wearing the camera on April 11, Norvis stated that the events lead-
ing to Favors’ arrest happened so fast that he forgot to activate the
camera. Only about three minutes passed between the time Major
Swisher and Officer Norvis entered the apartment complex parking
lot and the time they arrested Favors. FLPD policy required Officer
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4 Opinion of the Court 19-14963
Norvis to e-mail his supervisor regarding any failure to turn on his
camera. There is no evidence that Norvis sent an e-mail. Shortly
after Favors’ arrest, Norvis did, however, inform Major Swisher,
who was in his chain of command, that he did not record the
events.
As Major Swisher and Officer Norvis pulled into the south
side of the apartment complex, they observed a white Jeep Wran-
gler backed into a parking space. There was a wrought-iron fence
behind the Jeep and a U-Haul truck adjacent to the vehicle. The
officers parked some distance from the Jeep and approached along
the fence line with their service weapons drawn. The officers used
the U-Haul truck as a shield as they neared the Jeep and looked for
an occupant.
The officers observed a male subject reclined in the driver’s
seat. He appeared to be asleep. Major Swisher instructed Officer
Norvis to move toward the driver’s side door. Officer Norvis tried
the door handle, but it was locked. Major Swisher then rounded
the vehicle toward the front right quarter panel so that he could
view the driver through the front windshield. From his position,
Officer Norvis observed the butt of a firearm protruding from un-
derneath the driver’s side seat. When the suspect, whom the offic-
ers later identified as Favors, stretched his arms and sat up, the of-
ficers gave verbal commands for him to put his hands up and to
unlock the driver’s side door. Favors complied. The officers re-
moved Favors from the vehicle and placed him in handcuffs. Major
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Swisher testified that after Favors’ arrest he saw the butt of the fire-
arm beneath the driver’s side seat.
Officer Norvis conducted a pat-down search of Favors. The
search revealed two magazines fully loaded with nine-millimeter
bullets in the front pocket of Favors’ hooded sweatshirt. Officer
Norvis photographed the gun located on the floorboard under the
driver’s seat with his tablet camera. He then removed the firearm
from the vehicle. Norvis identified the gun as a Tauris nine-milli-
meter pistol. The gun was fully loaded with a round in the cham-
ber.
Senior Special Agent Joshua Murr with the federal Bureau of
Alcohol, Tobacco, and Firearms (“ATF”) examined the firearm and
ammunition seized during Favors’ arrest. Agent Murr testified that
the Taurus nine-millimeter pistol was manufactured in Brazil and
imported to Miami, Florida by Taurus International, who then dis-
tributed the firearm to Georgia. The agent thus concluded that the
firearm had traveled in interstate and foreign commerce. The agent
further determined that the ammunition had been manufactured
in Minnesota and traveled in interstate commerce. Finally, Agent
Murr testified that the firearm was operational. The agent was not
aware whether DNA or fingerprints were taken from the firearm.
But, according to Agent Murr, it is rare to extract fingerprints from
firearms because the solvents commonly used to clean firearms re-
move fingerprints.
Favors stipulated at trial that he was previously convicted of
a felony offense. He also stipulated that at the time he possessed
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6 Opinion of the Court 19-14963
the firearm and ammunition in this case, he knew that he had pre-
viously been convicted of a felony offense.
A.
Favors argues that the government committed prosecuto-
rial misconduct by making eight improper statements during clos-
ing arguments. Favors asserts those statements inflamed the jury’s
passions, interjected the prosecutor’s personal experience to vouch
for the credibility of the government’s witnesses, and shifted the
burden of proof from the government to the defense.
We review de novo claims of prosecutorial misconduct dur-
ing closing arguments. United Stated v. Sosa,
777 F.3d 1279, 1294
(11th Cir. 2015). To establish prosecutorial misconduct, “(1) the re-
marks must be improper, and (2) the remarks must prejudicially
affect the substantial rights of the defendant.” United States v. Eck-
hardt,
466 F.3d 938, 947 (11th Cir. 2006) (quotation marks omitted).
“A defendant’s substantial rights are prejudicially affected when a
reasonable probability arises that, but for the remarks, the outcome
of the trial would have been different.”
Id. “When the record con-
tains sufficient independent evidence of guilt, any error is harm-
less.”
Id.
“Prosecutorial misconduct must be considered in the con-
text of the entire trial, along with any curative instruction.” United
States v. Lopez,
590 F.3d 1238, 1256 (11th Cir. 2009) (citing United
States v. Bailey,
123 F.3d 1381, 1400 (11th Cir. 1997)). “Because
statements and arguments of counsel are not evidence, improper
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19-14963 Opinion of the Court 7
statements can be rectified by the district court’s instruction to the
jury that only the evidence in the case be considered.” United States
v. Smith,
918 F.2d 1551, 1562 (11th Cir. 1990). When the district
court provides a curative instruction, “we will reverse only if the
evidence is so prejudicial as to be incurable by that measure.”
Lopez,
590 F.3d at 1256.
1.
Favors argues that he is entitled to a new trial based on the
prosecutor’s repeated attempts to gain the jury’s sympathy and to
inflame the passions of the jury. Favors contends that the prosecu-
tor’s tactics were misleading and confusing. Prosecutors must re-
frain from improper tactics designed to produce a wrongful convic-
tion. Berger v. United States,
295 U.S. 78, 88 (1935). The only pur-
pose of closing arguments is for the prosecutor to help the jury
evaluate the evidence. United States v. Rodriguez,
765 F.2d 1546,
1559 (11th Cir. 1985). “A prosecutor is . . . forbidden to make im-
proper suggestions, insinuations and assertions calculated to mis-
lead the jury and may not appeal to the jury’s passion or prejudice.”
Id. at 1559-60 (quotation marks and citation omitted).
According to Favors, the prosecutor endeavored to garner
the jury’s sympathy by drawing a comparison between the officers
responding to the 911 call and members of the armed forces:
Think about this, ladies and gentlemen. There’s been
criticism of the police and how they did their job, but
other than the military, can you think of any other
profession where you leave your house—if you’re
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8 Opinion of the Court 19-14963
married, you leave your wife. If you’re a father, you
leave your children. If you’re a mother . . .
Defense counsel objected to the prosecutor’s remark before
he finished his sentence, arguing that the prosecutor was asserting
an improper argument and inflaming the passions of the jury. The
district court sustained the objection. The prosecutor moved on
with his argument. He went on to say that the officers wore bullet-
proof vests for a reason. Defense counsel twice objected to this re-
mark. The district court overruled the objection.
Favors argues that the prosecutor’s comments were strate-
gically designed to draw on the jury’s sympathies for members of
the military, who risk their lives in defense of others. But defense
counsel’s well-timed objection makes it uncertain what conclusion
the prosecutor intended to draw. Even if the prosecutor had com-
pleted his statement in the way presupposed by Favors, we do not
find the remark inflammatory. It is commonly understood that law
enforcement officers face certain dangers in the line of duty. More-
over, it is evident from the context of the evidence presented dur-
ing the trial of this case that the officers faced dangerous circum-
stances. The officers testified that the 911 dispatcher alerted them
to a potentially armed suspect. Thus, while the prosecutor’s com-
ments did not necessarily assist the jury in evaluating the evidence,
it was not misleading for the prosecutor to comment that the offic-
ers’ job was inherently dangerous or that donning bulletproof vests
was a legitimate use of the officers’ available resources.
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19-14963 Opinion of the Court 9
The most questionable conduct highlighted by Favors came
during the prosecutor’s rebuttal argument. The prosecutor com-
pared the evidence to a jigsaw puzzle, remarking,
Ladies and gentlemen, when you take the 37 pieces of
evidence that [Favors’] charged with, the gun, the 36
bullets, and you put all the pieces together, this is how
the puzzle looks . . . and this is why he’s guilty.
The prosecutor then published a photograph displaying the fire-
arm, magazines, and ammunition seized from Favors arranged to
spell out “GUILTY!” Defense counsel promptly objected to the
photograph as improper, unethical, and inflaming the passions of
the jury. The district court sustained the objection. The prosecutor
concluded his argument by stating, “[w]hen you put all the evi-
dence together”—the firearm, magazines, and ammunition—“the
picture is clear. The defendant’s guilty, and that’s the verdict we
ask you to return.”
Defense counsel moved for a mistrial based on the photo-
graph published to the jury during the government’s closing re-
marks. The district court questioned defense counsel, “Why
couldn’t [the prosecutor] have taken a piece of paper and write
guilty on it and say, that’s what I think your verdict should be?”
The district court agreed that the photograph was improper but
determined that a mistrial was not warranted. The court opined
that “it’s demeaning to this jury’s intelligence to think that artfully
setting out the word ‘guilty,’ using bullets and a gun, is going to
somehow cause them to come back with a guilty verdict when it
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10 Opinion of the Court 19-14963
wasn’t otherwise justified.” The district court ultimately denied the
motion for mistrial.
The government conceded during oral argument that the
photograph was inappropriate. We agree. There was no conceiva-
ble purpose for fashioning the evidence into the word “GUILTY!”
other than for potential shock value. Nevertheless, we conclude
that the prosecutor’s conduct did not prejudicially affect Favors’
substantial rights when viewed in the context of the entire trial.
The government introduced the firearm, magazines, and ammuni-
tion during trial, evidence which the government’s witnesses de-
scribed and discussed in detail. Simply arranging the evidence to
spell out the verdict the government hoped the jury would return
therefore was unlikely to mislead or improperly influence the
jury’s deliberations.
2.
Favors next contends that the prosecutor impermissibly in-
terjected his personal experience as a prosecutor to reinforce the
credibility of the government’s witnesses and to undermine Fa-
vors’ defense. “Ordinarily, it is improper for a prosecutor to bolster
a witness’s testimony by vouching for that witness’s credibility.”
United States v. Bernal-Benitez,
594 F.3d 1303, 1313 (11th Cir.
2010). Bolstering occurs when a jury “could reasonably believe that
the prosecutor was indicating a personal belief in the witness’s
credibility.” United States v. Knowles,
66 F.3d 1146, 1161 (11th Cir.
1995) (quotation marks and citation omitted).
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During the trial, defense counsel thoroughly cross-examined
Major Swisher and Officer Norvis about the absence of body-worn
camera footage depicting their initial approach, observation of the
firearm under the driver’s side seat, and arrest of Favors. Swisher
testified that since he had a rank above captain, the FLPD policy
did not require him to wear a body-worn camera. Norvis testified
that the department issued him a body-worn camera a few weeks
before Favors’ arrest. Unfortunately, he failed to activate his cam-
era. The evidence demonstrated that only about three minutes
passed between the time the two officers entered the apartment
complex and when they arrested Favors, lending credibility to Nor-
vis’ testimony that events unfolded so quickly he forgot to turn on
his camera.
In his closing remarks, the prosecutor made the point that
the absence of body-worn camera footage did not diminish the
strength of the other evidence presented of Favors’ guilt. The pros-
ecutor showed the jury his tie, where he affixed a body-worn cam-
era loaned to him by the FLPD, stating, “But guess what, ladies and
gentlemen, I forgot to turn it on. So . . . does that mean that every-
thing I just told you wasn’t said?” He continued,
Ladies and gentlemen, I’ve been a prosecutor for
many, many, many, many years, 32 in federal court.
These things are relatively new. Ladies and gentle-
men, there have been people convicted for years be-
fore these body cameras were invented, without
body-camera video.
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12 Opinion of the Court 19-14963
The district court overruled defense counsel’s objection that this
comment was improper argument. The prosecutor went on to de-
scribe historical events, such as the assignation of Abraham Lincoln
by John Wilkes Booth, which we know to be factual but which was
not captured by a video recording, to support his conclusion that
video footage was not necessary to prove guilt.
Favors argues that the prosecutor improperly portrayed
himself as an expert and called on his experience as a federal pros-
ecutor to undermine Favors’ defense. To the contrary. The prose-
cutor’s objective was to inform the jury that the absence of body-
camera footage alone did not mandate an acquittal. Rather, as the
prosecutor explained, and the district court later re-stated in the
jury charges, the jury’s job is to evaluate the strengths and weak-
nesses of the evidence, to determine the credibility of the wit-
nesses, and to review all the evidence. In context, the prosecutor’s
statements were not improper.
Favors claims that the prosecutor improperly drew on his
experience again during his rebuttal argument. Defense counsel ar-
gued in closing that law enforcement officers staged the position of
the firearm in the automobile prior to photographing the weapon.
The prosecutor countered in his rebuttal that the gun was not
staged; rather Officer Norvis photographed the gun from two dif-
ferent angles. He directed the jury to examine the knobs and divots
of the firearm along with the position of the seat. He then stated:
And that is his entire defense, ladies and gentlemen.
Because I’ve done prosecution for 35 years, three in
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19-14963 Opinion of the Court 13
state, 32 in federal, and there’s something I’ve learned
listening to all these closing arguments. What is not
said by the defense attorney is as important as what is
said.
Defense counsel objected to the statement as improper burden
shifting. The district court instructed the jury that the burden of
proof lay with the government and invited the prosecutor to con-
tinue with his argument.
On appeal, Favors argues not that the prosecutor was engag-
ing in burden shifting but that he again was invoking his personal
expertise to explain the evidence. To the extent that the prosecutor
in any way expressed a personal view about how the jury should
view the evidence, the prosecutor’s statement was improper. But
Favors has not shown how this particular reference to the prosecu-
tor’s years of experience prejudicially impacted his substantial
rights.
The same is true of the prosecutor’s comment, “I’m here to
tell you, [the gun] was here, in arm’s reach of the defendant, Lonnie
Favors.” Defense counsel objected to this statement as a “misstate-
ment of the argument” and a “denigration of the defense.” The dis-
trict court gave this curative instruction: “The jury will rely on
their own recollection of what the testimony was. What the law-
yers say isn’t evidence.” The court’s instruction cured any potential
prejudice to Favors. See Lopez,
590 F.3d at 1256.
3.
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14 Opinion of the Court 19-14963
Favors’ final argument in support of his quest for a new trial
is that the prosecutor improperly attempted to shift the burden of
proof onto the defense. “[P]rosecutors must refrain from making
burden-shifting arguments which suggest that the defendant has an
obligation to produce any evidence or to prove innocence.” United
States v. Simon,
964 F.2d 1082, 1086 (11th Cir. 1992). A prosecutor
may, however, comment “on the failure by defense counsel, as op-
posed to the defendant, to counter or explain evidence.” United
States v. Hernandez,
145 F.3d 1433, 1439 (11th Cir. 1998).
The prosecutor posed several rhetorical questions to the
jury concerning the gun found in Favors’ locked vehicle during his
closing and rebuttal arguments. Favors characterizes these ques-
tions as impermissible burden shifting. The prosecutor asked,
Who else could have put it there? Who else have you
heard could have put it there? And why do we know
that he put it there?
Defense counsel objected to these questions as improper burden
shifting. The district court overruled the objection.
The prosecutor later asked,
Now, ladies and gentlemen, maybe the evil tooth
fairy possibly fluttered into the passenger compart-
ment and put the gun there? We don’t have any proof
of that.
Defense counsel again objected to improper burden shifting. The
district court responded by reminding the jury that the burden of
proving Favors’ guilt was on the government, not the defense.
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19-14963 Opinion of the Court 15
It is evident that the purpose of the prosecutor’s remarks
was not to suggest that Favors had an obligation to prove that
someone else placed the gun in the vehicle. Rather, the prosecutor
was commenting on the defense’s failure to counter or explain the
government’s evidence that a gun was found in a locked car where
Favors was sleeping. See Knowles,
66 F.3d at 1163 (“It is not error
to comment on the failure of the defense as opposed to the defend-
ant, to counter or explain the evidence.”) (quotation marks omit-
ted). And, even if the prosecutor’s argument could be viewed as
burden shifting, the district court provided a sufficient curative in-
struction such that Favors’ substantial rights were not prejudiced.
***
The prosecutor in this case pushed the boundaries of propri-
ety during his closing arguments. But when viewed in the context
of the trial as a whole, even the most problematic of the prosecu-
tor’s conduct did not prejudicially affect Favor’s substantial rights.
The district court adequately addressed any improper conduct
through its curative instructions and the general charges to the
jury, reminding the jury that the burden of proving Favors’ guilt
lay with the government, that the comments of the attorneys were
not evidence, and that it was the duty of the jury to weigh the evi-
dence and to evaluate the credibility of the witnesses prior to reach-
ing a verdict. Moreover, the record contains sufficient evidence in-
dependent of the prosecutor’s concluding arguments to support a
finding of Favors’ guilt. Accordingly, any error was harmless. See
Eckhardt, 466 F.3d at 947.
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16 Opinion of the Court 19-14963
B.
The district court sentenced Favors to 240-months impris-
onment. The sentence was based, in part, on a finding that two
prior convictions for making terroristic threats under Georgia law
and three convictions for aggravated assault under Georgia law
qualified Favors as an armed career criminal under the Armed Ca-
reer Criminal Act (“ACCA”),
18 U.S.C. § 924(e)(1). 1 The parties
agree under United States v. Carter,
7 F.4th 1039 (11th Cir. 2021)
and United States v. Moss,
920 F.3d 752 (11th Cir. 2019), opinion
reinstated in light of Borden v. United States,
141 S. Ct. 1817 (2021),
4 F.4th 1292 (11th Cir. 2021) (en banc), that Favors’ three
1 Favors argues on appeal that under United States v. Oliver (Oliver I), his two
Georgia convictions for making terroristic threats do not qualify as violent fel-
onies under the ACCA. In their response brief, the government conceded this
position based on our decision in United States v. Oliver, (Oliver II),
955 F.3d
887 (11th Cir. 2020). Since briefing in this case ended, however, we vacated
and superseded our decision in Oliver II in United States v. Oliver (Oliver III),
962 F.3d 1311, 1314 (11th Cir. 2020).
The Georgia terroristic threats statute under which Favors was con-
victed makes it unlawful to “threaten[ ] to commit any crime of violence, to
release any hazardous substance, . . . or to burn or damage property with the
purpose of terrorizing another.” O.C.G.A. § 16-11-37(a). In Oliver III, we held
this statute divisible under Mathis v. United States,
136 S.Ct. 2243, 2249 (2016)
and concluded that “to threaten to commit any crime of violence” necessarily
“requires the threatened use of violent force against another” and, therefore,
qualifies as a predicate offense under the ACCA. 962 F.3d at 1320-21. The rec-
ord here indicates that Favors was convicted of making terroristic threats to
commit murder. His convictions under O.C.G.A. § 16-11-37(a) consequently
qualify as violent felonies under the ACCA.
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19-14963 Opinion of the Court 17
convictions under O.C.G.A. § 16-5-21 do not qualify as violent fel-
onies under the ACCA.
Favors pleaded guilty to and was convicted of aggravated as-
sault under O.C.G.A. § 16-5-21 in 2009, 2016, and 2018. However,
the record does not indicate whether Favors’ aggravated assault
convictions were premised on O.C.G.A. § 16-5-20(a)(1), attempting
to commit a violent injury, or O.C.G.A. § 16-5-20(a)(2), placing an-
other in reasonable apprehension of immediately receiving a vio-
lent injury. We therefore must assume that the conviction was
based on the least of the acts criminalized by the simple assault stat-
ute, placing another in reasonable apprehension of receiving a vio-
lent injury. See Moss, 920 F.3d at 758.
The ACCA mandates a minimum sentence of 15 years’ im-
prisonment for any defendant convicted of being a felon in posses-
sion of a firearm who has three or more previous convictions “for
a violent felony or a serious drug offense . . . committed on occa-
sions different from one another.”
18 U.S.C. § 924(e)(1). The ACCA
defines “violent felony” as any crime punishable by a term of im-
prisonment exceeding one year that “has as an element the use,
attempted use, or threatened use of physical force against the per-
son of another.”
18 U.S.C. § 924(e)(2)(B)(i). The Supreme Court
held in Borden that the phrase “use . . . against the person of an-
other” in the ACCA’s elements clause “sets out a mens rea require-
ment—of purposeful or knowing conduct.” Borden, 141 S. Ct. at
1828, 1829 n.6 (plurality opinion). A crime that can be committed
with a mens rea of mere recklessness cannot qualify as a crime of
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18 Opinion of the Court 19-14963
violence under the elements clause. Id. at 1834. In Moss, we there-
fore held, “[b]ecause Georgia’s aggravated assault statute,
O.C.G.A. § 16-5-21(a)(2) . . . can be satisfied by a [mens rea] of reck-
lessness when based on simple assault under § 16-5-20(a)(2), it can-
not qualify as a crime of violence under the elements clause of the
ACCA.” Moss, 920 F.3d at 759.
Having concluded that Favors’ three prior convictions for
aggravated assault with a deadly weapon were based on simple as-
sault under O.C.G.A. § 16-5-20(a)(2), a crime that can be accom-
plished with a mens rea of recklessness, we find that the convic-
tions do not qualify as violent felonies under the ACCA’s elements
clause. We accordingly vacate Favors’ sentence and remand for re-
sentencing.
II.
For the reasons stated above, we affirm Favor’s conviction,
but we vacate his sentence and remand for resentencing.
AFFIRMED IN PART, VACATED AND REMANDED IN
PART.
