USA v. Kenneth Gray

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 3, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-11475
Non-Argument Calendar
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D. C. Docket No. 08-00088-CR-2-SLB-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH GRAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(March 3, 2010)
Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Kenneth Gray appeals his convictions for distributing crack cocaine, in

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violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He challenges both the district
court’s denial of his motion for a mistrial and the denial of his motion for judgment
of acquittal.
During trial, the government asked defense witness Antonio Rutledge: “Are
you aware that the defendant was convicted of possession of marijuana?” The
court interjected and determined that the question was inadmissible. Defense
counsel then objected and moved for a mistrial. The court denied the motion for a
mistrial and gave the following curative instruction: “I am instructing you to
disregard the last question of the government and not to draw an inference from it.”
At the close of all the evidence, the jury found Gray guilty on both counts.
I. Denial of Motion for Mistrial
Gray argues that the district court erred in denying his motion for a mistrial
because the government asked an impermissible question during its
cross-examination of Rutledge. Gray maintains that the court’s curative instruction
did not alleviate the prejudice caused by the improper question.
We review a district court’s refusal to grant a mistrial for an abuse of
discretion. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998). “The
decision of whether to grant a mistrial lies within the sound discretion of a trial
judge as he or she is in the best position to evaluate the prejudicial effect of
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improper testimony.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994).
“When a curative instruction has been given to address some improper and
prejudicial evidence, we will reverse only if the evidence ‘is so highly prejudicial
as to be incurable by the trial court’s admonition.’” Id. (quoting United States v.
Funt, 896 F.2d 1288, 1295 (11th Cir. 1990)).
In this case, the district court did not abuse its discretion by denying Gray’s
motion for a mistrial because the government’s question was not incurably
prejudicial. The district court prevented the witness from answering the question,
handled the matter outside the presence of the jury, and then properly instructed the
jury to disregard the question. Accordingly, the district court’s immediate curative
instruction was sufficient to mitigate any prejudice that may have resulted, and the
court did not abuse its discretion by denying Gray’s motion for a mistrial.
II. Sufficiency of the Evidence
Gray next argues that the district court committed reversible error by
denying his motion for judgment of acquittal because the government failed to
present sufficient evidence that he was the person who sold the cocaine to a
confidential informant, Stephen Bell. Gray asserts that Bell was the only witness
to the actual transaction, and Bell’s testimony was not credible because he was
granted probation based on his assistance to the government. Moreover, Gray
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submits, Bell’s testimony was incredible because he “asserted the Fifth
Amendment when asked if he was still selling drugs at the time of the trial.”
“Sufficiency of the evidence is a question of law reviewed de novo. We,
however, view the evidence in the light most favorable to the government, with all
reasonable inferences and credibility choices made in the government’s favor.”
United States v. Martinez, 83 F.3d 371, 373-74 (11th Cir. 1996) (internal citations
omitted). “In order to find the evidence sufficient, we need not exclude every
reasonable hypothesis of innocence or find the evidence wholly inconsistent with
every conclusion except that of guilt, provided that a reasonable factfinder could
find that the evidence establishes guilt beyond a reasonable doubt.” United States
v. Kelly, 888 F.2d 732, 740 (11th Cir. 1989). Credibility determinations are for
the jury to make, and we typically will not review such determinations. United
States. v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994). “The test for sufficiency of
evidence is identical regardless of whether the evidence is direct or circumstantial,
and no distinction is to be made between the weight given to either direct or
circumstantial evidence.” United States v. Mieres-Borges, 919 F.2d 652, 656-57
(11th Cir. 1990) (internal quotations omitted). In order to convict a defendant of
distribution of cocaine, the government must prove that the defendant “knowingly
or intentionally . . . distribute[d] . . . a controlled substance.” 21 U.S.C.
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§ 841(a)(1).
Here, the evidence was sufficient to convict Gray of two counts of
distributing cocaine. First, Bell testified that Gray sold him the drugs, and “all
reasonable inferences and credibility choices are viewed in the light most favorable
to the government.” Despite Gray’s contention to the contrary, Bell’s testimony –
corroborated by multiple exhibits and the testimony of multiple law enforcement
officers – was not incredible as a matter of law. Several detectives described in
great detail the surveillance measures that were used to record what happened at
the controlled drug purchases. Thus, there was a sufficient basis for a reasonable
trier of fact to determine that Gray knowingly and intentionally distributed cocaine
on June 30 and August 2, 2006. Accordingly, Gray’s challenge to his convictions
fails.
AFFIRMED.
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