United States v. Herodine Martine Pluviose , 274 F. App'x 766 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 17, 2008
No. 07-12989 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20271-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERODINE MARTINE PLUVIOSE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 17, 2008)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Herodine Pluviose appeals her convictions for conspiracy to import cocaine,
importation of cocaine, conspiracy to possess with intent to distribute cocaine, and
possession with intent to distribute cocaine, in violation of, respectively, 21 U.S.C.
§§ 963, 952(a), 846, and 841(b)(1)(A). On appeal, she argues first that the district
court abused its discretion by denying her motion for a mistrial based on an
inappropriate comment by a government witness. She argues that the witness’
statement, that a defendant might cooperate with law enforcement in order to
receive a sentence reduction if she were “found guilty or pled guilty,” devastated
her presumption of innocence. She maintains that this inappropriate statement
could not be cured by any instruction to the jury. Pluviose argues second that the
district court erred when it instructed the jury on deliberate ignorance. She
contends that the instruction was improper because there was no evidence that she
consciously or deliberately avoided learning that she was carrying illegal drugs.
I.
We review the denial of a motion for a mistrial for an abuse of discretion.
United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir.), cert. denied, 128 S.Ct.
218 (2007). Because a trial judge is in the “best position to evaluate the prejudicial
effect of a statement of evidence on the jury,” it is within that judge's discretion to
grant a mistrial. United States v. Delgado, 321 F.3d 1338, 1346-47 (11th Cir.
2003)(internal quotations and citations omitted).
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“A mistrial should be granted if the defendant's substantial rights are
prejudicially affected. This occurs when there is a reasonable probability that, but
for the [incident that led to the motion], the outcome of the trial would have been
different.” Newsome, 475 F.3d at 1227. We “make[] this determination in the
context of the entire trial and in light of any curative instruction.” United States v.
Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (quotation marks omitted). If the
district court gave an instruction, we will not reverse the denial of a mistrial unless
the prejudice was “incurable.” Delgado, 321 F.3d at 1347. “Furthermore, when
the record contains sufficient independent evidence of guilt, any error [is]
harmless.” Newsome, 475 F.3d at 1227. With respect to inappropriate comments
made by testifying witnesses, we have held that “[t]he 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). We also have stated that we assume that juries
follow the instructions of the trial judge. United States v. Kennard, 472 F.3d 851,
858 (11th Cir. 2006) cert. denied,127 S.Ct. 3004 (2007).
Upon review of the record and consideration of the briefs of the parties, we
discern no reversible error. Here, Pluviose has failed to show that she suffered
substantial prejudice as a result of the district court's denial of her motion for a
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mistrial, and there was sufficient independent evidence of her guilt to render
harmless any error that may have occurred in this regard.
II.
We review a challenge to the substance of jury instructions de novo. United
States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993). A deliberate ignorance
instruction “is appropriate only when there is evidence in the record showing the
defendant purposely contrived to avoid learning the truth.” Id. (internal quotations
and citation omitted). Such an instruction is not appropriate where the evidence
only points to either actual knowledge or no knowledge on the part of the
defendant. Id. The district court's decision to give an instruction regarding
deliberate ignorance is subject to harmless-error analysis. Id. Here, because
evidence was presented that supported a deliberate ignorance charge, the district
court did not err in so instructing the jury, and, even if the charge was erroneous, it
was harmless error because the evidence presented was sufficient to support a
conviction based on actual knowledge. Accordingly, we affirm Pluviose's
convictions.
AFFIRMED.
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