USCA11 Case: 19-10015 Date Filed: 06/02/2021 Page: 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-10015 Non-Argument Calendar ________________________ D.C. Docket No. 5:18-cr-00002-RBD-PRL-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN PABLO MALAGON-ALVAREZ, Defendant, AURELIO GOMEZ-ANDRADE, JOSE LUCIO MENDOZA SERVIN, Defendants-Appellants. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (June 2, 2021) Before MARTIN, BRANCH, and ANDERSON, Circuit Judges. PER CURIAM: USCA11 Case: 19-10015 Date Filed: 06/02/2021 Page: 2 of 13 Aurelio Gomez-Andrade and Jose Lucio Mendoza Servin appeal their convictions for conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846. Gomez-Andrade argues that he is entitled to a new trial because the district court abused its discretion in allowing the government to ask two leading questions during the direct-examination of a cooperating witness. Mendoza argues that the district court abused its discretion in refusing to declare a mistrial after the government referred to the drugs as having come “across the border” during its closing argument. Mendoza also argues that his ten-year mandatory-minimum sentence is a cruel and unusual punishment that is prohibited by the Eighth Amendment. After careful consideration, we affirm. I. Gomez-Andrade argues that he is entitled to a new trial because the district court abused its discretion in overruling his objections to two leading questions posed by the government during trial. He contends that the questions were leading and had a material effect on the outcome of the trial because the questions helped establish the temporal scope of the conspiracy. He also maintains that if his objections had not been overruled, the temporal scope of the conspiracy would have been more limited, and the government might not have been able to prove that the conspiracy possessed with the intent to distribute more than one kilogram of heroin. 2 USCA11 Case: 19-10015 Date Filed: 06/02/2021 Page: 3 of 13 We review a district court’s evidentiary rulings for abuse of discretion. United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015). “A leading question is one that suggests to the witness the answer desired by the examiner.” 1 McCormick on Evidence § 6 (8th ed. Jan. 2020 update); see Azcona v. United States, 257 F.2d 462, 466 (5th Cir. 1958). Although a district court “has reasonable discretion to permit leading questions,” it abuses that discretion when it allows a question that “has the effect of supplying a witness with a false memory.” United States v. Johnson, 495 F.2d 1097, 1101 (5th Cir. 1974). However, we will not reverse a non-constitutional evidentiary error unless there is “a reasonable likelihood that the defendant’s substantial rights were affected.” United States v. Reeves, 742 F.3d 487, 501 (11th Cir. 2014) (quotation marks omitted). To show that a defendant was part of a drug conspiracy, the government must prove that: “(1) there was an agreement between two or more people to unlawfully distribute . . . controlled substances in violation …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals