[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-12024

Non-Argument Calendar

________________________

D.C. Docket No. 6:14-cr-00096-ACC-GJK-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

XAVIER FRANCISCO VILLANUEVA, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(August 16, 2018)

Before TJOFLAT, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM: 

Case: 17-12024 Date Filed: 08/16/2018 Page: 1 of 18 
2

Xavier Francisco Villanueva, along with his codefendants, Ashley Barnett, 

Keith Romby, and Jose Carmona, was charged with one count of conspiracy to 

commit sex trafficking of a child, in violation of 18 U.S.C. §1594(c), and one 

count of sex trafficking of a child, in violation of 18 U.S.C. §§ 1591(a) and 2. 

After a jury trial, Villanueva was convicted on the conspiracy count and acquitted 

on the sex trafficking count. On appeal, Villanueva argues that the United States 

engaged in prosecutorial misconduct by improperly vouching for the credibility of 

its witnesses and that, but for the improper remarks, the outcome of the trial would 

have been different. After careful review, we affirm. 

I. BACKGROUND

A. Factual Background

G.E. was 14 years old when she met Ashley Barnett at a friend’s house in 

late 2012. Barnett began giving G.E. drugs and taking her to hotels to “hang out” 

with men. Doc. 213 at 133-34.1

 G.E. testified that Barnett “did not directly tell 

[her] to have sex” with the men, but that it was implied that she should do so. Doc. 

231 at 135. 

One day in early 2013, Barnett introduced G.E. to Keith Romby and Jose 

Carmona. That night, Barnett showed G.E. how to make seductive poses, and 

Romby took sexually explicit photographs of G.E. Without G.E.’s knowledge, 

 1 All citations to “Doc. #” refer to docket entries in the district court record.

Case: 17-12024 Date Filed: 08/16/2018 Page: 2 of 18 
3

Romby and Barnett used these photographs to create an online advertisement of 

G.E. as a prostitute. Afterwards, Romby and Carmona gave G.E. drugs and had 

sex with her to “show her who [was] in charge.” Doc. 214 at 142. 

Romby and Carmona told G.E. that she needed to “make . . . up” for the 

large quantity of drugs she had consumed. Doc. 213 at 144-45. G.E. understood 

this to mean that she must prostitute herself to make money for them. G.E. had sex 

with a truck driver, earning $20. She gave the money to Romby, who split it with 

Carmona. Romby then set up five or six “dates” for G.E., negotiated the price, 

transported her to the appointments, and collected the proceeds.

A few days later, Barnett and an unknown man transported G.E. to 

Villanueva’s residence. Villanueva gave G.E. drugs and took over the role of 

negotiating the price for G.E.’s prostitution, transporting G.E. to the locations, and 

collecting the proceeds. Whenever Villanueva was away from his house, G.E. was 

forced to stay in the bathroom. Three girls, one of them with a gun, guarded the 

bathroom door. G.E. nonetheless managed to run away to a nearby gas station 

where she called 911 and was picked up by the police. 

B. Procedural Background

Villanueva and his codefendants were each charged with one count of 

conspiracy to commit sex trafficking of a child, in violation of 18 U.S.C. §1594(c),

and one count of sex trafficking of a child, in violation of 18 U.S.C. §§1591(a) and 

Case: 17-12024 Date Filed: 08/16/2018 Page: 3 of 18 
4

2. Romby entered into a plea agreement with the United States. Under the 

agreement, Romby agreed to testify about all relevant information in exchange for 

a potential sentencing reduction. The other defendants proceeded to trial. 

1. Opening Statement

Before the government’s opening statement, the court instructed the jury as 

follows: 

You must decide the case solely on the evidence presented here in the 

courtroom. . . . Statements and arguments of the lawyers in their 

opening statements and closing arguments—the lawyers will discuss 

the case but their remarks are not evidence. Questions and objections 

of the lawyers—the lawyers[’] questions are not evidence, only the 

witnesses’ answers are evidence. You should not think that something 

is true just because a lawyer[’s] question suggests that it is.

Doc. 213 at 73-74. 

In its opening statement, the government said:

Ladies and gentlemen, we’re here because these defendants 

victimized a 14 year-old child by coercing her into their gang world of 

drugs and prostitution. They abused her and used her. They 

manipulated her and made her sell her body for their financial gain. 

And they did it over and over and over again.

Id. at 82. The government immediately followed this statement by saying, “This is 

what you will learn in this case.” Id. The government concluded its opening 

statement by stating, “That, ladies and gentlemen, is what we expect the evidence 

to show in this case,” and it asked the jury to find the defendants guilty “[b]ased on 

the evidence.” Id. at 94. 

Case: 17-12024 Date Filed: 08/16/2018 Page: 4 of 18 
5

2. Referring to G.E. as a “Victim”

While testifying for the government according to the terms of his plea 

agreement, Romby referred to G.E. as a “victim”:

[Prosecutor]: Okay. You’re in the studio, you were 

partying, doing drugs?

[Romby]: And Billy invited Ashley over to the studio 

to hang out and she brought along with her 

the victim which is G.E. 

Doc. 214 at 127-28. Barnett’s counsel—but not Villanueva’s counsel—

objected:

 

[Counsel for Barnett]: Your Honor, I’m going to object to the use 

of the term “victim.” That’s an ultimate fact 

to be decided by the jury. 

[The Court]: All right. Why don’t you just refer to her as 

G.E.

[Romby]: I apologize.

Id. Almost immediately after this exchange, the government referred to G.E. as a 

“victim,” and Barnett’s counsel objected again:

[Prosecutor]: And let me ask you exactly. Were you 

introduced to the victim?

[Romby]: Actually I was, and Ashley introduced –

[Counsel for Barnett]: Your Honor, I’m going to object.

[Prosecutor]: I’m sorry.

[Counsel for Barnett]: It’s the prosecutor now using the term 

“victim.”

Case: 17-12024 Date Filed: 08/16/2018 Page: 5 of 18 
6

[Prosecutor]: I’m sorry, I apologize. I know. 

[The Court]: Okay.

[Prosecutor]: Yes, I did catch myself doing that. I 

apologize. 

Id. at 128-29. 

Barnett’s counsel also objected when Patrick Guckian, an FBI Task Force 

Officer testifying for the government, referred to G.E. as a “child victim” or a 

“human trafficking victim[].” Doc. 215 at 133. The district court sustained the 

first objection and responded to the second objection by stating, “The jury knows 

they’re to make that determination.” Id. at 134.

3. Cross Examination of Romby

While cross examining Romby, Barnett’s counsel asked about Romby’s 

obligations specified in his proffer letter to the government. Romby testified that

the provisions required him “to be truthful.” Doc. 214 at 205. In response,

Barnett’s counsel asked who “determines if you’re truthful,” and Romby replied it 

was his “understanding [that] the government” made that determination. Id. at 

205. Barnett’s counsel further asked: “So as long as the government thinks you’re 

truthful, you’re okay, right,” and Romby replied, “that was . . . my understanding, 

[but] the way you’re asking these questions, maybe it’s up to you, too. I don’t 

know. Like I told you, this is my first time being in this situation.” Id. at 214-15.

Case: 17-12024 Date Filed: 08/16/2018 Page: 6 of 18 
7

On redirect, the government asked “to clarify for the record” whether 

Romby had been told “that the government determines the truth in this case.” Doc. 

215 at 2. Romby twice replied in the affirmative. The government followed up by 

asking, “What exactly did [the prosecutor] tell you about the government 

determining the truth or what the truth might be?” Id. Romby replied, “[The 

prosecutor] didn’t say determine, but she said I had to tell the truth.” Id. at 3. 

Romby then said from “[his] understanding, the courts, the jury, the judge . . . 

everybody” determines the truth. Id.

4. Closing Argument

During the closing argument, Villanueva’s counsel attempted to undermine 

G.E.’s credibility. Villanueva argued that G.E. was motivated to lie and pointed

out that her testimony was inconsistent with the recordings of her police 

interviews. He also noted that G.E. initially had given police the wrong phone 

number for Barnett. Barnett’s counsel also pointed out that G.E. had provided 

inconsistent statements describing the details of who had posed her for the sexually 

explicit photographs. Initially she had told law enforcement agents that Romby 

had posed her, but later said that she had been “trying to protect [] Barnett” and 

that it actually was Barnett who had posed her. Doc. 216 at 66. 

Immediately following defendants’ closing arguments, the government in its 

rebuttal addressed G.E.’s inconsistent statements. The government conceded that 

Case: 17-12024 Date Filed: 08/16/2018 Page: 7 of 18 
8

“[i]n fact, [G.E.] initially said that [Barnett] was not there because she was trying 

to protect [Barnett].” Id. at 72. The government continued that “[w]hen [G.E.] 

came in [to the court] she told the truth. She raised her hand and she told the truth. 

And you can tell that was difficult for her because on cross-examination she was 

still trying to protect [Barnett]. She was still so beholden to her.” Id. at 72-73. 

After the closing arguments, the district court instructed the jury as follows: 

Your decision must be based only on the evidence presented during 

the trial. You must not be influenced in any way by either sympathy 

for or prejudice against the defendants or the government.

Id. at 79-80.

The jury convicted Barnett and Carmona on both counts. The jury convicted 

Villanueva on the conspiracy count and acquitted him on the sex trafficking count. 

The district court sentenced him to 235 months in prison. Villanueva appealed. 

II. STANDARD OF REVIEW

Typically, “this court reviews claims of prosecutorial misconduct de novo

because it is a mixed question of law and fact.” United States v. Merrill, 513 F.3d 

1293, 1306 (11th Cir. 2008). But where, as here, the defendant did not object at 

trial, we review only for plain error. Plain error occurs if (1) there was error, (2) 

that was plain, (3) that affected the defendant’s substantial rights, and (4) that 

seriously affected the fairness, integrity, or public reputation of judicial 

proceedings. United States v. Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir.

Case: 17-12024 Date Filed: 08/16/2018 Page: 8 of 18 
9

2003). An error is plain if it is “clear” or “obvious.” United States v. Olano, 

507 U.S. 725, 734 (1993).

III. DISCUSSION

On appeal, Villanueva argues that the government committed prosecutorial 

misconduct by improperly vouching for its witnesses’ credibility. “Ordinarily, it is 

improper for a prosecutor to bolster a witness’s testimony by vouching for that 

witness’s credibility.” United States v. Bernal-Benitez, 594 F.3d 1303, 1313 (11th 

Cir. 2010). A prosecutor’s comments amount to improper vouching if “the jury 

could reasonably believe that the prosecutor was indicating a personal belief in the 

witness’[s] credibility.” United States v. Knowles, 66 F.3d 1146, 1161 (11th Cir. 

1995). This test may be satisfied in two ways: the prosecution may (1) place the 

prestige of government behind the witness by making explicit personal assurances 

of the witness’s veracity or (2) imply the witness’s veracity by indicating that 

information not presented to the jury supports the testimony. Id. 

“The prohibition against vouching does not forbid prosecutors from arguing 

credibility, which may be central to the case.” United States v. Hernandez, 

921 F.2d 1569, 1573 (11th Cir. 1991). “Thus, [m]erely acknowledging that 

adverse legal consequences flow from perjury” does not constitute improper 

bolstering or vouching. United States v. Sosa, 777 F.3d 1279, 1295 (11th Cir. 

2015) (alteration in original) (internal quotation marks omitted). Additionally, we 

Case: 17-12024 Date Filed: 08/16/2018 Page: 9 of 18 
10

have “recognized an exception” to the general rule against vouching, “the so-called 

‘fair response’ rule, that entitles a prosecutor to respond to arguments advanced by 

defense counsel in his or her statement to the jury.” United States v. Lopez, 

590 F.3d 1238, 1256 (11th Cir. 2009) (internal quotation marks omitted).

To establish prosecutorial misconduct, not only must “the remarks be 

improper,” but also “the remarks must prejudicially affect the substantial rights of 

the defendant.” United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) 

(internal quotation marks omitted). “A defendant’s substantial rights are 

prejudicially affected when a reasonable probability arises that, but for the 

remarks, the outcome would be different.” United States v. Hall, 47 F.3d 1091, 

1098 (11th Cir. 1995). 

Four factors guide us in determining whether a prosecutor’s conduct had a 

reasonable probability of changing the outcome of a trial: 

(1) the degree to which the challenged remarks have a tendency to 

mislead the jury and to prejudice the accused; (2) whether they are 

isolated or extensive; (3) whether they were deliberately or 

accidentally placed before the jury; and (4) the strength of the 

competent proof to establish the guilt of the accused. 

Lopez, 590 F.3d at 1256. Improper statements may be rectified by a curative 

instruction. Id. We consider whether a defendant’s substantial rights were 

prejudiced “in the context of the entire trial and in light of any curative 

instruction.” Wilson, 149 F.3d at 1301 (internal quotation marks omitted).

Case: 17-12024 Date Filed: 08/16/2018 Page: 10 of 18 
11

Villanueva challenges as improper four remarks by the government. First, 

Villanueva argues that during opening statement the prosecutor improperly 

asserted her personal belief in the witnesses’ truthfulness and implied that the jury 

trial was unnecessary. Second, he argues that the prosecutor improperly implied a 

personal belief in G.E.’s truthfulness by referring to her as a “victim.” Third, he 

argues that the prosecutor improperly asserted knowledge of Villanueva’s guilt by 

eliciting testimony that it was up to the government to determine the truth. Fourth, 

he argues that the prosecutor improperly asserted during closing argument that 

G.E. had told the truth on the stand. Villanueva claims that these remarks both 

individually and cumulatively deprived him of his right to a fair trial. We address 

Villanueva’s arguments in turn. 

A. The Government’s Opening Statement 

Villanueva challenges as improper the following statement that the 

government made during its opening statement: 

[W]e’re here because these defendants victimized a 14 year-old child 

by coercing her into their gang world of drugs and prostitution. They 

abused her and used her. They manipulated her and made her sell her 

body for their financial gain. And they did it over and over and over 

again. 

Doc. 213 at 82. Villanueva argues that this statement improperly implied that the 

government’s witnesses were truthful and that the jury trial was unnecessary. We 

disagree. 

Case: 17-12024 Date Filed: 08/16/2018 Page: 11 of 18 
12

In Sosa, we explained that we must look at the government’s statements in 

“relevant context.” 777 F.3d at 1297. In that case, the context demonstrated that 

the following, much more direct, comment about truthfulness made by the 

government during closing argument was not improper: 

[Defendants] are saying, “I had no idea about all of this. I was duped. 

I was an innocent bystander.” That’s not true. I will talk about each 

of them separately because there are two defendants here. You will 

have to consider what each one of them knew. You will have to 

consider them separately.

Id. We decided that the relevant context showed that “the prosecutor made it 

sufficiently clear that he was urging the jury” to make a conclusion “based on a 

consideration of the relevant evidence” by “immediately follow[ing] that statement 

by asking the jury to consider the evidence concerning what the defendants knew.” 

Id. We thus concluded that the defendant failed to establish any error. Id. 

Like the prosecutor in Sosa who immediately followed the statement in 

question by asking the jury to consider the evidence, the prosecutor here 

immediately followed the objected-to statement by explaining that “[t]his is what 

you will learn in this case.” Doc. 213 at 82. The government also concluded the 

opening statement by stating, “That, ladies and gentlemen, is what we expect the 

evidence to show in this case,” and by asking the jury to find the defendant guilty 

“[b]ased on the evidence.” Id. at 94. A consideration of the relevant context 

shows that the government’s statement was not improper. See also United States v. 

Case: 17-12024 Date Filed: 08/16/2018 Page: 12 of 18 
13

Lacayo, 758 F.2d 1559, 1565 (11th Cir. 1989) (holding that the prosecutor’s 

comment that “what you are about to hear is a true story” was not improper where

the government prefaced the statement with the standard language of “The 

evidence will show and I submit to you”). 

But even if the statement had been improper, the district court cured any 

prejudice by issuing curative instructions. See Lopez, 590 F.3d at 1256. At the 

beginning of the trial, the district court instructed the jury that “[s]tatements and 

arguments of the lawyers in their opening statements and closing arguments . . . are 

not evidence.” Doc. 213 at 73. At the end of the trial, the district court charged

the jury: “Your decision must be based only on the evidence presented during the 

trial. You must not be influenced in any way by either sympathy for or prejudice. . 

. . [A]nything the lawyers say is not evidence and isn’t binding on you.” Doc. 216 

at 79-81. We presume that the jury followed these instructions. See United States 

v. Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996). For these reasons, Villanueva 

has failed to show error, much less plain error, based on the government’s opening 

statement.

Case: 17-12024 Date Filed: 08/16/2018 Page: 13 of 18 
14

B. Referring to G.E. as the “Victim”

Villanueva next argues that the prosecutor’s use of the word “victim” when 

referring to G.E. during Romby’s direct examination was improper.2

 Villanueva 

argues that using the word “victim” expressed the prosecutor’s personal belief in 

G.E.’s testimony and explicitly advised the jury that G.E. was in fact a victim. 

In United States v. Suarez, 601 F.3d 1202 (11th Cir. 2010), we found no 

reversible error despite the prosecutor’s suggestion that the witness was telling the 

truth because the district court made “multiple attempts to ameliorate any possible 

prejudice to the jury” by sustaining the objections and instructing the jury to 

evaluate the witnesses’ credibility. Id. at 1218. Like the district court in Suarez, 

the district court in this case also made multiple attempts to ameliorate any 

prejudice. The district court sustained Barnett’s objections arguing that G.E.’s 

status as a victim was an ultimate fact to be decided by the jury.3 The district court 

also instructed the jury that “[q]uestions and objections of the lawyers . . . are not 

evidence.” Doc. 213 at 73. Again, we presume that the jury followed these 

instructions. See Shenberg, 89 F.3d at 1472. On this record, the government’s use 

 2 Barnett objected to this usage, but at no point did Villanueva, nor did he adopt her 

objection. We thus review for plain error. See United States v. Hernandez, 896 F.2d 513, 523 

(11th Cir. 1990). Because we find no error, plain or otherwise, the standard of review is not 

determinative, however. 

3 When another government witness referred to G.E. as a “child victim” and Barnett 

objected again on the same basis, the district court repeated the instruction, stating, “[t]he jury 

knows they’re to make that determination.” Doc. 215 at 134. 

Case: 17-12024 Date Filed: 08/16/2018 Page: 14 of 18 
15

of the term “victim” did not constitute prosecutorial misconduct warranting 

reversal.

C. The Government Determining the Truth

Villanueva argues that the following exchange between the government and 

Romby during a redirect examination was improper because it suggested that the 

government was the final arbiter of the truth and amounted to improper vouching: 

[Government]: I want to clarify for the record. Has [the 

prosecutor] ever told you that the government 

determines the truth in this case?”

[Romby]: Yes, ma’am.

[Government]: Sorry?

[Romby]: Yes, ma’am. 

Doc. 215 at 2. He argues that this exchange implied that his guilt was 

pre-determined. 

In context, however, the government’s questions were not improper. While

questioning Romby about his proffer letter to the government, Barnett’s counsel

asked Romby who determined if he was being truthful. Because Romby replied, 

“[from] my understanding, the government,” Doc. 214 at 205, the government was 

entitled to question him about his answer “to clarify for the record . . . [w]hat 

exactly . . . [the prosecutor] [told him] about the government determining the truth 

or what the truth might be.” Doc. 215 at 2-3. After the government made a 

Case: 17-12024 Date Filed: 08/16/2018 Page: 15 of 18 
16

number of attempts to clarify Romby’s statement that it was up to the government 

to determine the truth, Romby replied that “[the prosecutor] didn’t say determine, 

but she said I had to tell the truth.” Id. (emphasis added). This context reveals that 

the government’s questions were not improper: the government was in fact trying 

to eradicate the impression that the government determined Villanueva’s guilt in 

this case, and it immediately attempted to clarify the meaning of Romby’s 

erroneous answer. Further, there was no reasonable probability that Romby’s brief 

misstatement, which was promptly corrected, affected the outcome of the trial. 

Accordingly, Villanueva has failed to show plain error.

D. The Government’s Closing Argument

Villanueva argues that the following remark the government made during 

closing argument was improper: “When [G.E.] came in here[,] she told the truth. 

She raised her hand[,] and she told the truth.” Doc. 216 at 72. He argues that the 

impropriety was blatant and uncontroverted. 

In support of his argument, Villanueva relies on United States v. Lamerson,

457 F.2d 371 (5th Cir. 1972).4

 In Lamerson, the defendant objected to the 

following statement the government made during its closing argument as improper: 

Again, you are supposed to judge the demeanor and the way a witness 

conducts himself on the stand; whether you would believe or not, that 

 4 Decisions of the former Fifth Circuit rendered prior to close of business on September 

30, 1981 are binding on this Court. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th 

Cir. 1981) (en banc).

Case: 17-12024 Date Filed: 08/16/2018 Page: 16 of 18 
17

is your job to determine who you can believe and who you can't 

believe. And, I think Officer McPherson and Agent Stymus

. . . showed sincerity. I firmly believe what they said is the truth. I 

know it is the truth, and I expect you do, too. 

Id. at 372. We determined that with its statement, “I know it is the truth,” the 

government had gone beyond the “mere indiscretion” of simply providing a 

personal opinion about the truthfulness of the witnesses’ testimony. Id. Rather, 

the government had “overstepped the bounds of propriety” by implying it had 

outside knowledge supporting its belief in its witnesses’ testimony. Id. Its 

comment therefore amounted to reversible error. 

But unlike the prosecutor in Lamerson who implied to the jury that the 

government had outside knowledge of the veracity of the witness’s testimony, the 

prosecutor here did not imply that the government had outside knowledge for 

believing G.E.’s testimony. Instead, the comment—a “fair response” to

Villanueva’s and Barnett’s attacks on G.E.’s credibility, Lopez, 590 F.3d at 1256—

suggested that the consequences of perjury made it more likely that G.E. was 

telling the truth. See Sosa, 777 F.3d at 1296 (holding that prosecutor’s emphasis, 

during rebuttal, of witness’s absence of motivation to commit perjury was not 

placing the prestige of the government behind the witness, but merely 

acknowledging the adverse legal consequences of perjury, and therefore was not 

plainly erroneous).

Case: 17-12024 Date Filed: 08/16/2018 Page: 17 of 18 
18

Even if the government’s statement had been improper, however, it did not 

prejudice Villanueva’s substantial rights. See Lopez, 590 F.3d at 1257. Given the 

context, the statement had little tendency to mislead the jury or prejudice 

Villanueva. The statement was isolated and minimal—only two sentences in eight 

pages of the government’s closing argument during a four day trial. See id. 

Furthermore, the district court issued curative instructions, twice explaining that 

the attorney’s arguments were not evidence. See id. The government’s statement 

during closing argument therefore did not amount to plain error.5

IV. CONCLUSION

For the reasons discussed above, we affirm Villanueva’s conviction. 

AFFIRMED.

 5 We also reject Villanueva’s argument that the above statements resulted in cumulative 

error. “In addressing a claim of cumulative error, we must examine the trial as a whole to 

determine whether the appellant was afforded a fundamentally fair trial.” Lopez, 590 F.3d at 

1258 (internal quotation marks omitted). We conclude, “from our review of the trial as a whole, 

that the cumulative effects of [these] alleged errors did not deny [Villanueva] a fair trial.” Id.

Case: 17-12024 Date Filed: 08/16/2018 Page: 18 of 18