United States v. Reginald Anderson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 6, 2025
• Docket: 22-10619
• Status: Unpublished

Opinion

USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 1 of 15

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-10619 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus REGINALD ANDERSON, a.k.a. Red,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:19-cr-00183-RSB-CLR-1 USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 2 of 15

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Before LAGOA, BRASHER, and WILSON, Circuit Judges. PER CURIAM: Reginald Anderson was convicted of three counts of distri- bution of methamphetamine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(C), after selling it three times to confidential informants working for the Drug Enforcement Administration. The conduct and evidence underlying Anderson’s convic- tions are straightforward, so we do not recite in detail the factual or procedural background of this case. Instead, relevant here, a grand jury indicted Anderson on three counts of drug distribution based on three drug transactions—one per count—that he made with the confidential informants. The first two transactions took place the morning and afternoon of June 5, 2018. The third oc- curred on June 12, 2018. A jury convicted Anderson of all three counts after seeing exhibits collected from each transaction, that DEA chemists confirmed were methamphetamine; after hearing the confidential informants testify about each transaction; and after seeing audio-video recordings and transcripts of the last two trans- actions. On appeal, Anderson does not challenge any of the evidence above. Instead, he first challenges the district court’s decision to permit a DEA agent to testify as an expert and offer testimony that he argues was improper on several grounds. Second, he challenges the district court’s denial of his motion for mistrial after USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 3 of 15

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government witnesses implied that he was involved in prior drug transactions outside this case. Third, he argues that his convictions should be reversed because the government committed prosecuto- rial misconduct during its closing argument and the district court failed to take curative action after that misconduct. Fourth, he ar- gues that these errors cumulatively warrant a reversal of his con- victions. For the reasons below, each challenge fails, and we affirm. I.

We begin with Anderson’s challenges to a DEA agent’s tes- timony. At trial, the government called Robert Livingston, a DEA agent who worked with the confidential informants to set up the transactions underlying Anderson’s drug distribution convictions. On appeal, Anderson contends that the district court should not have permitted Livingston to (1) testify as an expert and (2) provide testimony that Anderson alleges is hearsay, improper identification testimony, and testimony violating the Confrontation Clause. Three standards of review apply. First, we review a district court’s “evidentiary rulings on the admission of expert witness tes- timony for abuse of discretion.” United States v. Jayyousi, 657 F.3d 1085, 1106 (11th Cir. 2011) (cleaned up). Similarly, we review “a district court’s decisions regarding the admissibility of evidence and testimony for abuse of discretion.” United States v. Hawkins, 934 F.3d 1251, 1264 (11th Cir. 2019). A district court has considerable leeway in its evidentiary rulings, see United States v. Barton, 909 F.3d 1323, 1330 (11th Cir. 2018), and abuses its discretion when it “ap- plies an incorrect legal standard or makes findings of fact that are USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 4 of 15

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clearly erroneous.” United States v. Azmat, 805 F.3d 1018, 1041 (11th Cir. 2015) (cleaned up). Importantly, an abuse of discretion will not warrant reversal “unless the objecting party has shown a substan- tial prejudicial effect from the ruling.” Barton, 909 F.3d at 1330–31 (cleaned up). “Substantial prejudice goes to the outcome of the trial,” and “where an error had no substantial influence on the out- come, and sufficient evidence uninfected by error supports the ver- dict, reversal is not warranted.” Id. at 1331 (cleaned up). Second, if a defendant fails to preserve an issue below, we review the issue for plain error. See Hawkins, 934 F.3d at 1264. “To establish plain error, a defendant must show (1) error; (2) that is plain; (3) that affects his substantial rights; and (4) that seriously af- fects the fairness, integrity, or public reputation of judicial proceed- ings.” United States v. Lewis, 40 F.4th 1229, 1246 (11th Cir. 2022). To establish that an error affected his substantial rights—the third prong of the plain error test—a defendant must establish “a reason- able probability that, but for the error, a different outcome would have occurred.” United States v. Margarita Garcia, 906 F.3d 1255, 1267 (11th Cir. 2018). Third, we review de novo whether testimony violates the Confrontation Clause. United States v. Kent, 93 F.4th 1213, 1217 (11th Cir. 2024). With these three standards in mind, we address— and reject—Anderson’s arguments on Livingston’s testimony. A.

We first address Anderson’s argument that the court should not have permitted Livingston to testify as an expert. At trial, the USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 5 of 15

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government sought to qualify Livingston as an expert in “drug traf- ficking and distribution.” Anderson objected that Livingston would be unable to provide information not already “within the ken of the jury.” The district court overruled the objection and permitted Livingston to testify as an expert. In so doing, the court did not abuse its discretion. “Federal Rule of Evidence 702 permits expert testimony if specialized knowledge will help the jury to understand the evi- dence or to determine a fact in issue.” United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006) (cleaned up). And a witness can be qualified as an expert, based on his knowledge, skill, experience, training, or education. See id. at 1335. Here, Livingston was qualified to testify as an expert in drug trafficking and distribution, and his testimony was helpful to the jury. Livingston had extensive experience, training, and knowledge in drug operations: he was a DEA agent for over 20 years, received training in drug code and surveillance methods, and conducted dozens if not hundreds of narcotics investigations. See id. at 1332, 1335 (district court did not abuse its discretion in permitting a wit- ness to testify as an expert in drug distribution when the witness was a DEA agent for several years, received training on the opera- tion of drug organizations, and was involved in at least 50 drug in- vestigations). And Livingston’s testimony—which covered con- trolled purchases and the meanings of code terms used in drug trades—helped the jury understand the drug distribution evidence underlying Anderson’s convictions. See Hawkins, 934 F.3d at 1261 USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 6 of 15

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(we have “repeatedly” held that “narcotics agents may testify as ex- perts to help juries understand the drug business, codes, and jar- gon”); Garcia, 447 F.3d at 1334 (the “operations of narcotics dealers are a proper subject for expert testimony under Rule 702” (cleaned up)). Anderson argues that Livingston’s testimony was unhelpful to the jury because “any reasonable juror would have understood” the terms that Livingston interpreted—terms Anderson suggests are “ordinary English.” See Hawkins, 934 F.3d at 1256, 1264–65 (it was improper for a DEA agent “to ‘interpret’ uncoded, ordinary language”). But Livingston interpreted drug code—e.g., he testified that “sevens” meant seven grams of a drug, “whole” meant a whole ounce of a drug, and “fronted” meant dealing a quantity of drugs to a customer who would pay later. And we have “affirmed the admission of expert testimony by law enforcement officers inter- preting drug codes and jargon,” United States v. Holt, 777 F.3d 1234, 1265 (11th Cir. 2015), including words similar to the ones here, see, e.g., id. at 1252, 1265 (district court did not err in allowing agent to provide expert testimony on drug code, including that “‘228’ re- ferred to 228 grams”). Citing our decision in Hawkins, Anderson also argues that the district court abused its discretion by permitting Livingston’s “indiscriminate merging of fact testimony with expert testimony.” 934 F.3d at 1266. Anderson contends that Livingston testified as an expert even on factual matters on which he lacked special expertise, thus conferring an unwarranted “aura of special reliability” around USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 7 of 15

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Livingston’s factual testimony. This fact-expert merging substan- tially prejudiced him, he argues, because his defense “relied exclu- sively” on challenging the credibility of prosecution witnesses, and Livingston bolstered their credibility by testifying as an expert on “every critical fact.” But even assuming without deciding that Anderson pre- served this challenge and that the district court erred, Anderson has failed to demonstrate that any error caused him substantial preju- dice. See Barton, 909 F.3d at 1330–31. The evidence of Anderson’s guilt—even if not bolstered by Livingston’s status as an expert— was overwhelming. First, substances collected from all three of An- derson’s transactions were published to the jury as Exhibits 1, 5, and 12, and DEA chemists testified that these substances were methamphetamine. Second, the two confidential informants— D.W. and E.M.—both testified on how all three transactions took place. Third, the jury heard audio-video recordings and read tran- script excerpts of the last two transactions, all of which were pub- lished to the jury during E.M.’s testimony. So, even if the district court erred by permitting Anderson to mix fact and expert testi- mony without enough demarcation, that error lacks the prejudice to warrant reversal. See Barton, 909 F.3d at 1331 (“where an error had no substantial influence on the outcome, and sufficient evi- dence uninfected by error supports the verdict, reversal is not war- ranted” (cleaned up)). USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 8 of 15

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B.

Next, Anderson argues that Livingston’s testimony violated rules against hearsay and improper identification and violated the Confrontation Clause. Specifically, Anderson challenges Living- ston’s testimony: (1) on D.W.’s history with drugs; (2) on D.W.’s relationship with E.M.; (3) on information that E.M. shared with Livingston about Anderson; (4) on Anderson’s three transactions underlying his charges; (5) on conversations that E.M. had with An- derson when a particular photograph of them was taken; (6) iden- tifying Anderson as the man in photographs shown to the jury at trial; (7) on Anderson’s giving of his phone number to E.M. during the first transaction; and (8) that two exhibits published to the jury—Exhibits 1 and 5—were methamphetamine. Anderson con- tends that this testimony was hearsay, improper identification tes- timony, testimony violating the Confrontation Clause, or some combination of these categories. But again, Anderson’s contentions fail because no error caused him substantial prejudice. See Barton, 909 F.3d at 1330–31. First, Anderson has failed to explain how D.W.’s history with drugs or his relationship with E.M. even contributed to the jury’s verdict on Anderson’s conduct. Second, even had the jury not heard Living- ston’s testimony on the eight matters above, it would have learned about most of them through D.W.’s or E.M.’s testimony. They tes- tified about D.W.’s drug history, his relationship with E.M., infor- mation or material related to Anderson that E.M. shared with Liv- ingston, and that Anderson had given E.M. his number and she USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 9 of 15

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then shared it with Livingston. Likewise, DEA chemists testified that the exhibits were methamphetamine, and there were audio- video recordings of two of the drug transactions. Third, as ex- plained above, the unchallenged testimony from the DEA chem- ists, D.W., and E.M., as well as the audio-video recordings and tran- scripts published to the jury, overwhelmingly supported Ander- son’s convictions. See Barton, 909 F.3d at 1331. Finally, we reject Anderson’s contention that the court vio- lated his rights under the Confrontation Clause by permitting Liv- ingston to testify on the matters above. “[T]he Sixth Amendment does not prohibit the admission of an out-of-court statement when the declarant testifies at trial to the same statement.” Garcia, 447 F.3d at 1329. Here, even assuming that Livingston was recounting information he learned from others—specifically, as Anderson’s ap- pellate brief mentions, “[D.W., E.M.], and the [DEA] chemists”— those “declarants” testified at trial on most of the above matters and were all subject to cross-examination. And, partly because of their testimony, the evidence against Anderson was overwhelming even apart from Livingston’s challenged testimony. II.

We next address the district court’s denial of Anderson’s mo- tion for mistrial after three government witnesses indicated that he had been involved in other transactions. At trial, Livingston, D.W., and E.M. all indicated that Ander- son had engaged in prior drug transactions not at issue in this case. After Livingston mentioned that D.W. had engaged in a USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 10 of 15

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transaction with “another informant,” Anderson objected; the court then struck Livingston’s testimony and instructed the jury to not consider testimony “regarding any other transactions other than the three that are at issue in this case.” Later, D.W. testified that he “had another transaction” with Anderson “in another case”; Anderson then moved for a mistrial. The court denied that motion, but struck that piece of D.W.’s testimony and gave a curative in- struction directing the jury to not consider it but instead to consider only the “testimony about the transactions that are alleged in this case.” At the end of D.W.’s testimony, the court instructed the jury again to “[d]isregard any testimony about any other alleged inter- actions” “outside of the three alleged interactions charged in this case.” Next, E.M. mentioned that Anderson had “given [metham- phetamine] to [her] before.” And the government, when question- ing her, suggested that she would be familiar with drug slang “based on [her] former dealings with [Anderson].” Anderson did not object below to these parts of E.M.’s testimony. On appeal, Anderson argues that the district court should have granted his motion for mistrial because the government failed to give notice before Livingston, D.W., and E.M. testified on the prior transactions. See Fed. R. Evid. 404(b). We ordinarily review a district court’s decision not to grant a mistrial for abuse of discretion, see United States v. Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009), but review only for plain error is- sues not preserved below, see Hawkins, 934 F.3d at 1264. USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 11 of 15

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“A defendant is entitled to a mistrial only if he shows sub- stantial prejudice, meaning that it is reasonably probable that, but for the alleged error, the outcome of the trial would have been dif- ferent.” United States v. Gallardo, 977 F.3d 1126, 1138 (11th Cir. 2020). “We make this determination in the context of the entire trial and in light of any curative instruction.” United States v. New- some, 475 F.3d 1221, 1227 (11th Cir. 2007). “When the district court gives a curative instruction, we presume that the jury followed it.” Gallardo, 977 F.3d at 1138. If the district court issued a curative in- struction, we reverse only “if the evidence is so highly prejudicial as to be incurable.” United States v. Melgen, 967 F.3d 1250, 1262 (11th Cir. 2020) (cleaned up). And, “when the record contains sufficient independent evidence of guilt, any error was harmless.” Newsome, 475 F.3d at 1227. Here, Anderson has failed to establish the substantial preju- dice needed for a mistrial. See Gallardo, 977 F.3d at 1138. Livingston and D.W. did not discuss in detail the other transactions, and im- mediately after they referenced those transactions, the district court struck their comments and instructed the jury to consider only the drug transactions at issue in this case. After D.W. left the stand, the court gave another curative instruction to the same ef- fect. We presume the jury followed the court’s curative instruc- tions and disregarded the stricken testimony. See id.; United States v. Oscar, 877 F.3d 1270, 1283–84 (11th Cir. 2017) (district court’s strong curative instructions cured any alleged prejudice after the prosecution implied that a defendant had been involved in a death separate from his charged offenses). And, other unchallenged USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 12 of 15

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evidence—which, again, included testimony from D.W. and E.M. describing the transactions at issue, testimony from DEA chemists identifying methamphetamine collected from those transactions, and audio-video recordings of the last two transactions—was “suf- ficient independent evidence” of Anderson’s guilt. Newsome, 475 F.3d at 1227. Anderson compares this case to United States v. Harriston, where we vacated a defendant’s conspiracy convictions because the government introduced evidence of a prior unrelated murder conviction. See 329 F.3d 779, 786–89 (11th Cir. 2003). But Harriston is distinguishable. There, the evidence of the defendant’s guilt was not overwhelming, the government asked questions that exposed a prior guilty plea to murder, and we reversed the court’s partial denial of a mistrial in part because of the “seriousness” of the prior murder conviction. See id. Here, the evidence was overwhelming, and Livingston and D.W. referred to a prior transaction that lacks the same prejudice as does a prior murder. As to the parts of E.M.’s testimony suggesting prior drug transactions, Anderson did not preserve the issue below, so we re- view his challenge on plain error. See Hawkins, 934 F.3d at 1264. Even if we assume that the district court plainly erred in permitting E.M. (and the government, in its questions) to indicate that Ander- son had engaged in drug transactions not at issue in this case, An- derson’s challenge fails. Again, plain error requires that Anderson demonstrate a “reasonable probability that, but for the error, a dif- ferent outcome would have occurred.” See Garcia, 906 F.3d at 1267. USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 13 of 15

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Given the overwhelming evidence of Anderson’s guilt, as ex- plained above, it is not reasonably probable that the trial outcome would have differed even if the jury had not heard E.M.’s or the government’s passing references to prior transactions. III.

Next, Anderson argues that his convictions should be re- versed because the government committed prosecutorial miscon- duct when presenting its closing argument and the district court failed to “take any curative action” after that misconduct. In his view, the government committed prosecutorial misconduct when it suggested that he was to blame for damage done by drug distrib- utors to the community and that the jurors were victims of Ander- son’s conduct and responsible for the health of their community. See generally United States v. Beasley, 2 F.3d 1551, 1559–60 (prosecu- tion’s closing argument comments that referred to the “war on drugs,” that appealed to “the conscience of the community,” and that were “calculated to inflame,” were improper (cleaned up)). We generally review de novo a claim of prosecutorial mis- conduct during closing arguments. United States v. Sosa, 777 F.3d 1279, 1294 (11th Cir. 2015). “To establish prosecutorial miscon- duct, (1) the remarks must be improper, and (2) the remarks must prejudicially affect the substantial rights of the defendant.” Id. (cleaned up). A defendant’s substantial rights are prejudicially affected when it is reasonably probable that, but for the remarks, the trial outcome would have been different. Id. “When the record USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 14 of 15

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contains sufficient independent evidence of guilt, any error is harm- less.” Id. (cleaned up). Here, Anderson’s prosecutorial-misconduct challenge fails, because he has not established the prejudice necessary to demon- strate prosecutorial misconduct. Even if we assume that the prose- cutor’s comments were improper, the district court repeatedly in- structed the jury that statements and arguments made by the attor- neys were not evidence to be considered. See United States v. Al Jaberi, 97 F.4th 1310, 1328 (11th Cir. 2024) (“Because the statements of counsel are not evidence, the district court may rectify improper prosecutorial statements by instructing the jury that only the evi- dence in the case is to be considered.” (cleaned up)). And, as ex- plained above, the other evidence against Anderson—witness tes- timony, recordings of the last two transactions, and drugs collected from all three transactions—was overwhelming. See Sosa, 777 F.3d at 1294. Because Anderson has not established prosecutorial mis- conduct, we do not address his argument that the district court erred by declining to take curative action following prosecutorial misconduct. Ultimately, the government’s comments at closing ar- gument do not justify a reversal of Anderson’s convictions. IV.

Lastly, Anderson argues that his convictions should be re- versed because of the cumulative effect of his alleged errors. He contends that the trial consisted of only “one day of substantive ev- idence,” and that in a single day the government presented USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 15 of 15

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inadmissible expert testimony, prior bad act testimony, and im- proper closing arguments. We review de novo the cumulative impact of trial errors. United States v. Pendergrass, 995 F.3d 858, 881 (11th Cir. 2021). “The cumulative-error doctrine calls for reversal of a conviction if, in to- tal, the non-reversible errors result in a denial of the constitutional right to a fair trial.” Id. “No cumulative error exists where a crimi- nal defendant cannot establish that the combined errors affected his substantial rights,” and those rights are not affected if “properly admitted evidence sufficiently established” the defendant’s guilt. Id. (cleaned up). Here, the assumed errors, even when combined, did not affect Anderson’s substantial rights given that his convic- tions were supported—as explained above—by overwhelming ev- idence unchallenged on appeal. V.

The district court is AFFIRMED.