FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 23, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16103

Non-Argument Calendar

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D. C. Docket No. 09-80056-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REYNALDO CASTILLO,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(November 23, 2010)

Before EDMONDSON, BLACK, and ANDERSON, Circuit Judges.
PER CURIAM:

Reynaldo Castillo appeals his convictions for firearms offenses, 26 U.S.C. §

5861(d), (f), and (i). No reversible error has been shown; we affirm.

Castillo was charged, in pertinent part, with possessing illegally (1) an

unregistered short-barreled rifle not identified by a serial number and (2) a machine

gun receiver. Castillo’s parole officer discovered these items and other firearms in

the downstairs bedroom of Castillo’s residence, where Castillo lived with his

mother. Castillo maintained that the items were not his and that they belonged to

his friend who had been staying in the downstairs bedroom. Castillo claimed that

he had moved from the downstairs bedroom to an upstairs bedroom so that the

friend could use the downstairs bedroom. But Castillo’s friend had left a few days

before the police search, and Castillo had later been unable to reach him.

The investigation into Castillo’s unlawful gun possession stemmed from an

alert law enforcement officers received about Castillo’s MySpace web page. The

officers were alerted by the mother of Castillo’s ex-wife. The web page showed a

photograph of Castillo wearing a ski mask, holding an assault rifle, and displaying

his middle finger. The web page also contained statements, containing expletives

and threats, directed at Castillo’s ex-wife and her family. The district court

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admitted the web page evidence at trial, concluding that the web page was

probative of Castillo’s possession of the guns in the indictment.

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On appeal, Castillo argues that the district court abused its discretion by

admitting the web page into evidence because, under Fed.R.Evid. 403, the

evidence was unduly prejudicial and tended to inflame the jury. We review a

district court’s decision of whether to exclude evidence under Rule 403 for an

abuse of discretion. United States v. Jernigan, 341 F.3d 1273, 1284 (11th Cir.

2003).

Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice.” In

interpreting Rule 403, we “look at the evidence in a light most favorable to its

admission, maximizing its probative value and minimizing its undue prejudicial

impact.” Jernigan, 341 F.3d at 1284; see also United States v. Church, 955 F.2d

688, 703 (11th Cir. 1992) (describing Rule 403 as having a “strong presumption in

favor of admissibility”).

We agree with the district court that the web page was probative of

Castillo’s possession of the illegal firearms. One of Castillo’s defenses was that

The gun in the Myspace web page photograph appeared to be an AR-15 assault rifle. An 1

AR-15-style rifle matching the rifle pictured in the photograph was discovered among the illegal

firearms in Castillo’s residence. Possession of the AR-15 rifle was not charged in the

indictment.

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the firearms found at his residence had belonged to someone else and that Castillo

had not possessed them. The web page picture indicated that Castillo knowingly

possessed the assault rifle in the photograph. Castillo’s knowing possession of the

AR-15 rifle stored (along with the charged illegal firearm) at his residence tended

to make his possession of the illegal firearms -- a fact of consequence -- more

probable than it would be without the evidence. See Fed.R.Evid. 401. So, the web

page was probative of the issue at trial: whether Castillo knowingly possessed the

illegal firearms.

The web page contained prejudicial contents, including Castillo making an

obscene gesture, profanity, insults, and possible threats directed toward Castillo’s

ex-wife and her family. While Castillo argues that the issue of domestic abuse

likely inflamed the jury, the court explained to the jury that it was not trying a case

that involved domestic violence and that such an issue did not bear on the issue the

jury had to decide in Castillo’s case. The district court, thus, directed the jury

towards the evidence’s probative value and away from its prejudicial aspects: and

the court was in the best position to evaluate the evidence’s value. See Jernigan,

341 F.3d at 1285 (explaining that “the district court is uniquely situated to make

nuanced judgments on questions that require the careful balancing of fact-specific

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concepts like probativeness and prejudice”).

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In maximizing the probative value of the MySpace web page and

minimizing its prejudicial impact, the danger of undue prejudice did not outweigh

substantially the web page’s probative value. We cannot say that the district court

abused its discretion in admitting the evidence.

Castillo also argues that the district court abused its discretion by allowing

the government to present rebuttal evidence on a matter that was raised by the

government on cross-examination of Castillo, but not on his direct-examination.

The rebuttal evidence was in this form: the testimony of a law enforcement officer

about a phone call made by Castillo to his mother while he was incarcerated and

the transcript of the recorded telephone conversation. In the conversation, Castillo

tells his mother (in a coded language) to erase photographs from a computer. The

photographs included a photograph of a pistol. “We review a district court’s

evidentiary rulings for clear abuse of discretion.” United States v. Perez-Oliveros,

479 F.3d 779, 783 (11th Cir. 2007); see also United States v. Gold, 743 F.2d 800,

818 (11th Cir. 1984) (“the decision to permit rebuttal testimony is one that resides

in the sound discretion of the trial judge”).

Castillo argues that the government, during its closing argument, directed the jury’s 2

attention to prejudicial aspects of the evidence. But the government’s comment during closing

argument did not bear on the district court’s pretrial Rule 403 ruling.

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The district court abused no discretion in allowing the government to present

rebuttal evidence about Castillo’s telephone conversation. Castillo admitted, on

the government’s cross-examination of him, that he spoke to his mother on the

telephone while he was incarcerated. But he denied telling her to get rid of

photographs on the family’s computer that depicted him with firearms. Thus, the

transcript of the conversation contradicted Castillo’s testimony during crossexamination. Although Castillo’s statement was made during cross-examination,

instead of during his direct testimony, the district court did not abuse its discretion

in admitting the evidence. See id. (concluding that a district court abused no

discretion in allowing rebuttal evidence that contradicted a statement that

defendant made on cross-examination, even though the evidence did not rebut

anything defendant had presented in her defense); see also United States v. Delk,

586 F.2d 513, 516 (5th Cir. 1978) (“the purpose of rebuttal testimony is to explain,

repel, counteract, or disprove the evidence of the [a]dverse party”).

AFFIRMED.

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