FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JULY 9, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-13456

Non-Argument Calendar

________________________

D. C. Docket No. 06-10023-CR-KMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

NELSON REYES, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

 (July 9, 2008)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

Nelson Reyes appeals his conviction for obstruction of a boarding, in
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violation of 18 U.S.C. § 2237(a)(2)(A), and unauthorized entry into Cuban

territorial waters, in violation of 50 U.S.C. § 192 and 33 C.F.R. §§ 107.215,

107.230. Reyes has not shown that the district judge abused his discretion in

denying Reyes’s motion for mistrial or, alternatively, a new trial because he did not

carry his burden of showing that remarks by the prosecutor referencing the lack of

evidence from the witnesses were manifestly intended to comment on Reyes’s

failure to testify, or that they necessarily would have been construed as such by the

jury. We affirm.

I. BACKGROUND

A federal grand jury returned a three-count indictment against Reyes and

Modelin Machado and charged them with forcibly resisting a boarding authorized

by federal law, in violation of 18 U.S.C. § 2237(a)(2)(A) (“Count 2"), and entering

Cuban territorial waters without written permission, in violation of 50 U.S.C. § 192

and 33 C.F.R. §§ 107.215, 107.230 (“Count 3"). R1-1. Reyes pled not guilty. 

During opening statements at trial, Reyes’s counsel represented that the

evidence would show that Reyes did not resist the boarding but that he was beaten

by the Coast Guard officers. R2 at 44-46. He also suggested that the Coast Guard

charged Reyes with obstructing the boarding in order to “justify” its “over zealous

treatment of him.” Id. at 46. 
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Brooke Allison Millard, a Coast Guard Lieutenant stationed in Florida on a

patrol boat, the Matagorda, testified that, on July 19, 2006, officers on her boat

spotted a southbound go-fast boat. Id. at 47-53. The Matagorda tried to apprehend

the go-fast boat, but it fled. Id. at 54-55. They pursued the boat for approximately

five and a half hours until it stopped because of mechanical problems. Id. While

the go-fast boat was fleeing, it entered Cuban waters at least twice. Id. at 55. 

On cross-examination, Lieutenant Millard said that, while watching the

officers boarding the go-fast boat from the Matagorda, she saw Reyes resist being

handcuffed. Id. at 65-67. Machado, the operator of the boat, complied with the

officers’ order to put his hands up, but Reyes moved to the front of the boat and

got down on the deck. Id. at 67. Manuel Hernandez, the Matagorda’s assistant

administrator, was the operator of the infrared camera on the ship. Id. at 79-81. 

He recorded the chase and the boarding and testified that the recording accurately

depicted the events of the evening. Id. at 92-93. 

On cross-examination, Reyes’s counsel introduced two still pictures taken

from the infrared recording. Id. at 94-96, 98-99; Exhs. NR1, NR2. In the first

picture, the civilians on the boat were not visible, although the first boarding party

member was getting on the boat. R2 at 97-98; Exh. NR1. Hernandez said that he

saw one of the civilians remaining standing with his hands raised while the other
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moved forward and got down below the side of the boat and was not visible. Id. at

97-103. On redirect, Hernandez testified that the camera cannot record heat

images through the side of the boat, so anything that happened on the deck below

the sides of the boat was not visible. Id. at 104. 

The four members of the boarding party each testified. Id. at 106-07, 148-

49; R3 at 189-90, 240-41. All members of the boarding team testified that the men

on the boat were ordered to put their hands up, and, while Machado complied,

Reyes moved to the front of the boat, where there was a cabin. R2 at 119-20, 150-

52; R3 at 194-95, 243. It is unclear whether Reyes was standing, kneeling, or lying

on the deck when the officers boarded. R2 at 136-37, 153; R3 at 172-75, 214. 

Additionally, the boarding party’s translator may have ordered the men to get

down as he was boarding. R3 at 243, 249-50, 260. The officers testified that

Reyes resisted being handcuffed. R2 at 122-24, 138, 147, 154; R3 at 196-97, 246. 

The two officers who subdued Reyes both said that he was punching, kicking, and

biting them while on the deck. R2 at 154; R3 at 165, 197, 201. They used strength

techniques and struck Reyes with their elbows and knees in order to subdue and

handcuff him. R2 at 152; R3 at 164-65, 198-200. Once Reyes was handcuffed, he

was compliant and was not struck again. R2 at 148; R3 at 166, 202-03. At the

conclusion of the government’s case-in-chief, the defense rested without
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introducing additional evidence or calling any witnesses. R3 at 262-63. 

During his closing argument, the prosecutor stated that “[i]n his opening

statement defense counsel told you that the defendant Reyes did exactly what he

was told to do. Is that true? Has that been verified by the evidence, the evidence,

that you heard come from that witness stand?” Id. at 270. Later in his closing

argument, the prosecutor stated:

Now the defendant, he has no burden here. The burden

starts with the government and stays with the government. We

embrace that. It is our burden. But if you remove the only

explanation, the only justification, the only set of facts that

ha[s] been proffered to you through the witness stand, and that

is Reyes refused to comply so we had to use force to gain his

compliance, you can forget about that.

Id. at 272-73. Defense counsel objected after both of these statements. Id. at 270,

273. After closing arguments, Reyes’s counsel moved for a mistrial and contended

that the government shifted the burden of proof and that its comments were

probably interpreted as comments on Reyes’s remaining silent. Id. at 290. The

district judge noted that he did not hear anything sufficient to merit a mistrial but

stated that Reyes could make a post-trial motion citing the transcript if necessary. 

Id. at 291. The judge then instructed the jurors that they could not consider the fact

that Reyes did not testify, because he was under no obligation to do so and 

statements made by the lawyers were not evidence. Id. at 293-94. The jury found
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Reyes guilty on both counts. Id. at 304; R1-55.

Following the verdict, Reyes’s counsel filed a motion for a mistrial or,

alternatively, for a new trial. R1-63. Defense counsel argued that a reference to

Reyes’s silence could not have been invited since it occurred during the

government’s initial closing argument. Id. at 5-6. The prosecutor had referred to a

lack of testimonial evidence twice, apparently showing manifest intent to comment

on Reyes’s not testifying. Id. at 6-7. Even if a plausible explanation had been

given for the remark, counsel contended that the jury necessarily would have

construed the remark to refer to Reyes’s decision not to testify. Id. at 7. Finally,

defense counsel argued that any error could not be considered harmless because the

evidence was not overwhelming and no curative instruction was given. Id. at 7-9.

The district judge denied the motion. First, the judge concluded that the

comment was not manifestly intended to refer to Reyes’s decision to not testify but

rather it referred to a failure by the defense generally to offer testimonial evidence

to rebut the government’s case. R1-68 at 1-2. The judge then determined that the

jury would not necessarily consider the remark to refer to Reyes’s not testifying

but rather as a comment about the logical inferences from the evidence presented. 

Id. at 2. Finally, the judge concluded that the prosecutor did not shift the burden of

proof because the instruction on the burden of proof eliminated any prejudice
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caused by the prosecutor’s remarks. Id. at 3. The judge sentenced Reyes to

eighteen months of imprisonment. 

II. DISCUSSION

Reyes argues on appeal that the prosecutor’s comments were improper and

cites United States v. LeQuire, 943 F.2d 1554 (11th Cir. 1991). He contends that

the prosecutor manifestly intended to comment on his silence, especially since he

did so during his initial closing argument and not in response to an argument by the

defense, and he mentioned the lack of testimonial evidence twice. Reyes submits

that the remark had to refer to his failure to testify because the prosecutor referred

to evidence from witnesses, while the defense had submitted only two pictures into

evidence. Reyes argues that the jury could not have construed the remark in any

way other than referencing the fact that Reyes did not testify because the

prosecutor mentioned only evidence from witnesses. Finally, he contends that the

error cannot be considered harmless because the evidence was not overwhelming,

and there was no curative instruction.

Because the district judge has the opportunity to observe the prosecutor’s

demeanor firsthand, the decision to deny a motion for a mistrial based on improper

remarks during closing argument is reviewed for abuse of discretion. United States

v. Watson, 866 F.2d 381, 386 (11th Cir. 1989). To determine whether a prosecutor
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has impermissibly commented on a defendant's decision not to testify, “courts must

inquire whether the statement ‘was manifestly intended or was of such character’

that the jury would necessarily construe it as a comment on the failure of the

accused to testify.” United States v. Chirinos, 112 F.3d 1089, 1099 (11th Cir.

1997) (citation omitted). The defendant has the burden of establishing that one of

the two criteria exists. United States v. Knowles, 66 F.3d 1146, 1163 (11th Cir.

1995). We “will not find that a prosecutor manifestly intended to comment on a

defendant's failure to testify if some other explanation for the prosecutor's remark

is equally plausible.” Chirinos, 112 F.3d at 1099. Therefore, if a neutral

explanation for the prosecutor’s remarks exists, then there was no “‘manifest

intent.’” United States v. Garcia, 13 F.3d 1464, 1474 (11th Cir. 1994) (quoting

Watson, 866 F.2d at 386). To decide whether the jury would construe a statement

as a comment on the failure of the accused to testify, “‘the question is not whether

the jury possibly or even probably would view the challenged remark in this

manner, but whether the jury necessarily would have done so.’” Chirinos, 112

F.3d at 1099 (citation omitted). 

During his closing argument, the prosecutor in LeQuire told the jury that the

defendant was disadvantaged by the fact that he did not “have the guts” to get on

the stand and tell his side of the story. 943 F.2d at 1564. We determined that this
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remark was probably not “manifestly intended” to comment on the defendant’s not

testifying, because the prosecutor presented a plausible alternative that the remark

was invited by the defense’s accusation that the government’s witnesses were liars. 

Id. at 1565. Although we recognized that the comment could not have been

interpreted by the jury as anything but a comment on the defendant’s silence, id.,

we concluded that the error was harmless because the evidence against the

defendant was overwhelming, and the district judge gave a curative instruction, id.

at 1567.

In Watson, after the defense emphasized during closing argument that the

government had failed to disprove the defense’s alternative explanations of the

charged offense, the prosecutor responded by advising the jury that Watson had no

duty to testify, but that, if there was someone who could have testified differently

than the government’s allegations as to what had occurred, the defendant would

have known which witnesses to call. 866 F.2d at 384. We determined that the

remarks were a permissible comment on the defense’s failure to counter the

evidence presented by the government and were not manifestly intended to

comment on the defendant’s right to not testify. Id. at 386. We also noted that the

district judge could have considered the prosecutor’s comment reminding the jury

that the defendant did not have to testify to have negated any possibility that the
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jury would have misinterpreted the remarks. Id. 

Similarly, in Chirinos, the prosecutor first asked the jury members whether

they had heard any witness testimony disputing that a diagram of a room was

drawn properly. 112 F.3d at 1099. Later, the prosecutor told the jury that only one

person had testified regarding photographs taken of a room, and the prosecutor

then asked the jury whether it had heard anyone say that the photograph was not

the room in question. Id. We decided that the statements were proper comments

on the defense’s failure to counter or explain the evidence. Id. at 1100. Further,

we determined that the comments would not necessarily have been construed by

the jury as a comment on the failure of the defendant to testify and noted that the

district judge had “instructed the jury that the law does not require a defendant to

testify to prove his innocence or to produce any evidence at all.” Id.

Finally, in United States v. Blankenship, 382 F.3d 1110 (11th Cir. 2004), the

prosecutor in closing argument noted that the government had the burden of proof

and informed the jury that, if the defense wanted the jury to believe a fact, it had to

prove that fact. Id. at 1127. We recognized that the statement was legally

incorrect, but held that it was not manifestly intended to comment on the

defendant’s silence because the prosecutor expressly recognized the defendant’s

right to remain silent. Id. at 1128. The jury may have interpreted the statements as
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referring to a failure of the defense generally. Id. We additionally recognized that

an isolated comment would need to be “much more prejudicial” to merit a reversal. 

Id. 

Reyes asserts that the decision of the district judge should be reversed based

on our decision in LeQuire, which is distinguishable. In this case, as in LeQuire, it

appears that the prosecutor did not manifestly intend to refer to Reyes’s decision

not to testify. Instead, it is likely that the prosecutor was referring to the failure of

the defense to rebut the government’s evidence that Reyes resisted the boarding. 

Therefore, the prosecutor’s reference to the witnesses plausibly could have been

meant to refer to the fact that every officer who witnessed the events said that

Reyes resisted the boarding, since the recording and pictures were inconclusive

regarding Reyes’s resistance. Given this plausible explanation, Reyes has not

shown that the prosecutor manifestly intended to comment on his silence. 

Chirinos, 112 F.3d at 1099-1100 (determining that there is no manifest intent to

comment on a defendant’s not testifying when a plausible, proper explanation

exists). 

Unlike LeQuire, the jury in this case would not necessarily have construed

the prosecutor’s statements as a reference to Reyes’s right not to testify. In

LeQuire, the prosecutor told the jury that the defendant did not “have the guts” to
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take the witness stand, which expressly commented on the defendant’s right to

silence. 943 F.2d at 1564. In this case, the prosecutor did not expressly refer to

Reyes’s decision not to testify. Instead, the prosecutor’s statement was similar to

that in Chirinos, where the prosecutor asked the jury members if they had heard

any contrary evidence from the witnesses. As in Chirinos, the jury in this case

could have construed the prosecutor’s remarks as referencing a failure of the

defense to present evidence rather than a failure of the defendant to testify. 

Chirinos, 112 F.3d at 1099-1100. This conclusion is especially true even though

the prosecutor mentioned Reyes both times because the prosecutor prefaced his

argument as a rebuttal to the defense’s statement during opening argument that

Reyes did exactly what he was asked to do, and the prosecutor later reminded the

jury that only the government carried the burden of proof. Watson, 866 F.2d at

386. Therefore, the jury would not necessarily have construed the remarks as

referencing Reyes’s right not to testify. Chirinos, 112 F.3d at 1099-1100. 

Significantly, the district judge’s instructions, issued almost immediately after

Reyes’s counsel moved for mistrial, reminded the jury that Reyes was under no

obligation to testify and that the arguments of the lawyers were not evidence. 

Chirinos, 112 F.3d at 1100.

Reyes has not carried his burden of showing that the remarks in question
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were manifestly intended to comment on his failure to testify because the

prosecutor’s reference to the witnesses plausibly could have been meant to refer to

the fact that every officer who witnessed the events said that Reyes resisted the

boarding. Furthermore, the remarks would not necessarily have been construed as

referring to Reyes’s silence by the jurors, who could have construed the

prosecutor’s remarks as referencing a failure of the defense to present evidence

rather than as a failure of Reyes to testify. Therefore, the district judge did not

abuse his discretion in denying Reyes’s motion for a mistrial or, alternatively, a

new trial. 

III. CONCLUSION

Reyes has appealed his conviction for obstruction of a boarding and

unauthorized entry into Cuban territorial waters. Because Reyes has not met his

burden of showing that the subject remarks were intended to comment on his

failure to testify, or that they necessarily would have been construed as such by the

jury, the district judge’s denying Reyes’s motion for a mistrial or, alternatively, a

new trial was appropriate. Therefore, Reyes’s conviction is AFFIRMED.