United States v. Ronald Larose , 399 F. App'x 575 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17052 ELEVENTH CIRCUIT
OCTOBER 13, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-60134-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD LAROSE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 13, 2010)
Before DUBINA, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Ronald Larose appeals his convictions, following a jury trial, for
(i) conspiracy to import at least 500 grams of cocaine, in violation of 21 U.S.C.
§§ 952(a), 960(b)(1)(B), and 963; (ii) conspiracy to possess with intent to
distribute at least 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846; and (iii) attempted importation of cocaine, in violation of
§§ 952(a), 960(b)(2)(B), and 963. His convictions resulted from an investigation
of the activities of a criminal enterprise that smuggled cocaine into the United
States through female couriers who transported the drugs from the Bahamas aboard
day cruises originating in Port Everglades, Florida. On appeal, Larose argues that
the district court erred by denying his motion for a mistrial because its curative
instruction was insufficient to remedy the unfair prejudice that resulted from a
co-conspirator’s comment at Larose’s trial that another district was handling her
case because of safety concerns.
When properly preserved, we review a district court’s decision not to grant
a mistrial for an abuse of discretion. United States v. Emmanuel, 565 F.3d 1324,
1334 (11th Cir.), cert. denied, 130 S. Ct. 1032 (2009). “The decision to grant a
mistrial is within the discretion of the trial judge since he is in the best position to
evaluate the prejudicial effect of a statement or evidence on the jury.” United
States v. Saget, 991 F.2d 702, 707-08 (11th Cir. 1993) (quoting United States v.
Blakely, 960 F.2d 996, 1000 (11th Cir. 1992)). To establish entitlement to a
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mistrial, a defendant “must show that his substantial rights are prejudicially
affected;” that is, there is a reasonable probability that, but for the statement, the
outcome of the trial would have been different. Emmanuel, 565 F.3d at 1334(internal quotation marks omitted). “We make th[at] determination in the context
of the entire trial and in light of any curative instruction.” United States v.
Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007).
“When a court gives a direct and explicit curative instruction regarding
improper testimony, it supports the court’s decision not to grant a mistrial by
decreasing the possibility of undue prejudice.” United States v. Perez, 30 F.3d
1407, 1411 (11th Cir. 1994). Moreover, when a curative instruction has been
given, “we will reverse only if the evidence is so highly prejudicial as to be
incurable by the trial court’s admonition.” Id. at 1410 (internal quotation marks
omitted). “The voicing of potentially prejudicial remarks by a witness is common,
and any prejudice is generally cured efficiently by cautionary instructions from the
bench.” United States v. Evers, 569 F.2d 876, 879 (5th Cir. 1978). This is so
because “[a] jury is presumed to follow the instructions given to it by the district
judge.” United States v. Mock, 523 F.3d 1299, 1303 (11th Cir. 2008) (quoting
United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005)).
In light of the overwhelming evidence of Larose’s guilt and the district
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court’s curative instruction, we conclude from the record that the district court did
not abuse its discretion in denying Larose’s motion for a mistrial. Accordingly, we
affirm his convictions.1
AFFIRMED.
1
We also DENY Larose’s motion to relieve counsel and to request appointment of new
counsel.
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