United States Court of Appeals

For the Eighth Circuit

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No. 16-3547

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Juan Francisco Herrera-Rodriguez

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota - Sioux Falls

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 Submitted: October 16, 2017

 Filed: November 28, 2017

[Unpublished]

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Before WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Juan Francisco Herrera-Rodriguez appeals his conviction by a jury for one

count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§

841(a)(1) and 846. Herrera-Rodriguez contends that a mistrial should have been

granted because the prosecution's law enforcement witness testified about his belief

that Herrera-Rodriguez had been untruthful during his post-arrest interview. Trial
counsel objected and moved for a mistrial after the comment. The district court

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sustained the objection, reserved ruling on the motion for mistrial, and after

consulting with the attorneys about the particular wording, instructed the jury to

disregard the witness's testimony regarding whether a defendant or other witness was

truthful or untruthful, reminding it that a veracity determination was in the exclusive

province of the jury. At the close of the evidence, Herrera-Rodriguez renewed his

motion for mistrial. The district court denied the renewed motion, finding that the

comment happened once, and "any error was cured by the curative instruction."

We review the district court's decision on whether to grant a mistrial for an

abuse of discretion. United States v. Coleman, 349 F.3d 1077, 1087 (8th Cir. 2003). 

Admission of a prejudicial statement is "ordinarily cured by striking the testimony

and instructing the jury to disregard the remark." Id. (quotation omitted). We

presume a jury will follow such an instruction unless there is an "overwhelming

probability" that it would be unable to do so. United States v. Uphoff, 232 F.3d 624,

626 (8th Cir. 2000) (quoting Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)).

Having reviewed the record, we find that the district court did not abuse its

discretion in refusing to grant the mistrial. The district court immediately conducted

a sidebar with counsel, struck the offending statement, instructed the jury to disregard

it, and reminded the jury of its job to decide whether a defendant or witness was

truthful or untruthful. Nothing in the record suggests there was an overwhelming

probability that the jury was unable to follow this instruction. Additionally, the

evidence of Herrera-Rodriguez's guilt was substantial. In addition to the officer's

testimony, the jury heard evidence in the form of confidential informant testimony

and audio recordings about a number of controlled buys involving HerreraRodriguez. Accordingly, any possible prejudice from the jury hearing the improper

The Honorable Karen E. Schreier, United States DistrictJudge for the District 1

of South Dakota.

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comment was minimal and therefore harmless. United States v. Encee, 256 F.3d 852,

854 (8th Cir. 2001) ("Whether a curative instruction is sufficient must be evaluated

in the context of the entire trial, including the strength of the government's

evidence."). We affirm.

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