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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATE OF AMERICA,

Plaintiff,

v. Case No.: 3:11cr7/MCR

FLOYD SCOTT MOONEY,

Defendant.

___________________________/

ORDER

This matter is before the court on the defendant’s Motion for New Trial (doc. 42), to

which the government has responded in opposition (doc. 49). Having considered the

defendant’s motion and the government’s response, the court finds that the defendant’s

motion should be denied. 

BACKGROUND

The defendant was convicted on March 23, 2011, of possession of a firearm or

ammunition by a convicted felon. Before trial, the defendant filed a motion to suppress

evidence of firearms and ammunition seized during a search of his residence, claiming the

search was made without a warrant and without valid consent. Following an evidentiary

hearing, the court denied the defendant’s motion, finding that the search was valid. 

Specifically, the court found that the defendant’s wife, Jessica Coleman, gave valid

consent to search the residence and that the defendant, who was present when the search

was conducted, never objected. The defendant renewed his motion to suppress at trial 1

– both at the close of the government’s case and at the close of all the evidence – and also

made a motion for judgment of acquittal based on alleged insufficient evidence of guilt. 

The court’s finding with regard to the defendant’s lack of objection was based on the testimony of

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Coleman and three sheriff’s deputies, all of whom testified unequivocally that the defendant never objected

to the search.

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The court denied both motions. The defendant has filed a motion for a new trial, arguing

that the court erred in that regard. The defendant also claims that the court erred in

overruling certain objections at trial and in denying his motion for a mistrial based on

alleged inappropriate argument by counsel for the government. For the reasons set forth

below, the court finds that, to the extent it erred, the defendant’s substantial rights were not

affected and that his motion, therefore, should be denied. 

DISCUSSION

I. Motion to Suppress 

In support of his claim that the court erred in denying his motion to suppress, the

defendant points to the trial testimony of Guy Beard regarding the defendant’s

whereabouts on the evening prior to his arrest, which he claims contradicted and thus

undermined Coleman’s testimony at the suppression hearing. Even if Beard’s testimony 2

was inconsistent with Coleman’s, which is not altogether clear, such an inconsistency

would have no bearing on the court’s decision regarding the legality of the search. Indeed,

the defendant’s whereabouts on the evening prior to the search is irrelevant to the court’s

decision regarding the validity of the search and, furthermore, even if the court discredited

Coleman’s testimony because of the alleged inconsistency, the result would be the same

based on the testimony of the three law enforcement officers. The court thus finds that it

did not err in denying the defendant’s motion to suppress. 

II. Motion for Judgment of Acquittal

The court also finds that the defendant is not entitled to a judgment of acquittal. 

When considering a motion for judgment of acquittal based on the sufficiency of the

evidence, the court must consider the evidence “in the light most favorable to the

government and resolve all reasonable inferences and credibility evaluations in favor of the

jury's verdict.” United States v. Schmitz, 634 F.3d 1247 (11th Cir. 2011) (internal quotation

marks and citation omitted). “The evidence need not exclude every reasonable hypothesis

Coleman testified at the suppression hearing that she spent the night at the couple’s home the

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evening prior to the defendant’s arrest. Beard testified at trial that he was with the defendant at the W ind

Creek Casino in Atmore, Alabama, until after midnight the evening before the defendant was arrested.

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of innocence or be wholly inconsistent with every conclusion except that of guilt, provided

that a reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt.” Id. (internal quotation marks and citation omitted). Viewed in the light

most favorable to the government, the evidence at trial established that the defendant was

a convicted felon who knowingly possessed six firearms and numerous rounds of

ammunition in his home. Morever, the defendant testified at trial. “[W]hen a defendant

takes the stand in a criminal case and exposes [his] demeanor to the jury, the jury may

make adverse determinations about [his] credibility and reject [his] explanation as a

complete fabrication.” Id. at 1264 (internal quotation marks and citation omitted). “The

testifying defendant thus ‘runs the risk that if disbelieved the jury might conclude the

opposite of [his] testimony is true.’” Id. (quoting United States v. Brown, 53 F.3d 312, 314

(11th Cir.1995)). “And, at least where ‘some corroborative evidence of guilt exists for the

charged offense[,]’ as in this case, ‘the defendant's testimony, denying guilt, may establish,

by itself, elements of the offense.’” Id. at 1265 (quoting Brown, 53 F.3d at 314–15). “‘This

rule applies with special force where the elements to be proved for a conviction include

highly subjective elements,’” such as “‘the defendant's intent or knowledge.’” Id. (quoting

Brown, 53 F.3d at 315). In this case, the defendant was charged with knowingly

possessing a firearm or ammunition after having been convicted of a felony. The

government’s evidence, coupled with the defendant’s testimony, which the jury rejected,

amply supports the defendant’s conviction on that charge. 

III. Motion for New Trial

A. Prosecutorial Misconduct: Questions and Remarks 

Regarding the Veracity of Other Witnesses

The defendant also seeks a new trial based on the court’s rulings on certain

objections at trial and the denial of his motion for a mistrial. Specifically, the defendant

argues the court erred in overruling his counsel’s objections to cross-examination questions

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designed to “unnecessarily pit him against law enforcement and other witnesses.” In order

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to establish prosecutorial misconduct, the defendant must show that (1) the questions or

comments were improper; and (2) they prejudicially affected his substantial rights. See id

at 1267. “A defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for the remarks, the outcome [of the trial] would be different.” 

United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (internal quotation marks

and citation omitted). The court considers the following four factors in determining whether

the alleged misconduct had a reasonable probability of affecting the outcome of the 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.” United States v. Lopez, 590 F.3d 1238, 1256

(11th Cir. 2009). “Prosecutorial misconduct must be considered in the context of the entire

trial, along with any curative instruction.” Id. To the extent the government’s questions

elicited testimony from the defendant regarding the veracity of other witnesses’ testimony,

they were improper and should not have been allowed over counsel’s objection. See 4

Schmitz, 634 F.3d at 1268. Considering the four factors listed above, however, the court

finds that neither the questions posed by the government’s counsel nor the defendant’s

On cross-examination, counsel for the government asked the defendant whether he told the sheriff’s

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deputies that they could not search his residence. After the defendant responded that he had, counsel for the

government asked the defendant if he was telling the jury that the deputies were mistaken when they testified

otherwise. Defense counsel objected to the question as a “mis-characterization,” and the court overruled the

objection. Counsel for the government then attempted to get the defendant to acknowledge the deputies’

testimony. Defense counsel again objected, this time on the basis that the question had already been asked

and that counsel for the government continued to ask the question for an improper purpose. The court

overruled the second objection as well, finding that the government was entitled to point out inconsistencies

in testimony. Counsel for the defendant agreed with the court’s finding, but argued that counsel for the

government was asking the question repeatedly in an attempt to provoke argument from the defendant. The

court again overruled the objection. Counsel for the government then asked the defendant if the deputies

were telling the truth when they testified that the defendant never objected to the search. Defense counsel

did not object to that question.

 As noted above, counsel for the defendant did not object when counsel for the government asked

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the defendant if the sheriff’s deputies testified truthfully. Because defense counsel objected to several

preceding and related questions, however, the court finds that the defendant’s objections were sufficient to

allow him to challenge the entire line of questioning. See Wilson, 149 F.3d at 1300 fn.5.

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responses had a reasonable probability of affecting the outcome of the trial. Indeed,

neither the questions nor the defendant’s responses were misleading in any way; to the

extent they were prejudicial, they were only minimally so. Although the questions were

asked deliberately, they were fairly isolated and not intended to prejudice the defendant. 

And there was substantial evidence of the defendant’s guilt. Moreover, before closing

arguments, the court specifically instructed the jury that it was to decide whether it believed

what each witness had to say and how important that testimony was and that, in making

such decision, the jury could believe or disbelieve any witness, in whole or in part. The

court also instructed the jury that it should evaluate the defendant’s testimony and assess

its credibility the same as it did for other witnesses. In light of the above, the court finds

that the defendant’s substantial rights were not prejudicially affected by the government’s

questions or the defendant’s responses. See United States v. Thomas, 453 F.3d 838, 846

(7th Cir. 2006); United States v. Sullivan, 85 F.3d 743, 750 (1st Cir. 1996). 

The defendant also complains that the court erred when it overruled his counsel’s

objections during the government’s closing argument and denied his motion for a mistrial

in regard to the following statement of the Assistant United States Attorney: “You have to

ask yourself: do you believe the Defendant, or do you believe the officers?” According to

the defendant, the comment “was accompanied by multiple requests that the jury use their

common sense as well as assertions regarding the careers of the various law enforcement

officers, improperly vouching for their credibility.” An attorney may express his opinion or

knowledge of the case as it was presented before the court and jury as long as the attorney

“makes it clear that the conclusions he is urging are conclusions to be drawn from the

evidence.” Schmitz, 634 F.3d at 1270 (internal quotation marks and citation omitted). In

other words, “a prosecutor is justified in arguing during closing arguments that a particular

witness is lying, if that is an inference supported by the evidence at trial.” Id. Indeed,

although “[a] prosecutor’s remarks are improper if they attempt to bolster the credibility of

a witness based on the government’s reputation or through alluding to evidence not

permitted at trial . . . [t]his prohibition against vouching does not . . . forbid prosecutors from

arguing credibility.” Lopez, 590 F.3d at 1256. Id. Comments regarding a witness’s

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credibility are not permissible, however, when they are a “clear continuation of the improper

questions posed previously during a defendant’s cross-examination.” Schmitz, 634 F.3d

at 1270. Although counsel for the government was not attempting to bolster the credibility

of its witnesses based on any association with the government when he suggested that the

jury needed to decide whom to believe, such a statement at least arguably was improper

as a continuation of the improper cross-examination questions regarding the truthfulness

of the deputies’ testimony and should not have been allowed. Again, however, considering

the court’s instructions to the jury – which included, in addition to the instructions cited

above, an instruction that anything the lawyers say is not evidence in the case and is not

binding on them – and the overwhelming evidence of guilt, the court finds that the remarks 5

did not prejudicially affect the defendant’s substantial rights. See Lopez, 590 F.3d at 1256

(noting that “[b]ecause statements and arguments of counsel are not evidence, improper

statements can be rectified by the district court’s instruction to the jury that only the

evidence in the case be considered”); Johnson v. Alabama, 256 F.3d 1156, 1184-85 (11th

Cir. 2001) (noting that juries are presumed to follow instructions as to the evidence it may

consider); see also Thomas, 453 F.3d at 846; United States v. Boyd, 54 F.3d 868, 872

(D.C. Cir. 1995).

B. Prosecutorial Misconduct: Shifting the Burden of Proof

The defendant further contends that the court erred in overruling objections to the

government’s attempt to improperly shift the burden of proof. Even assuming, arguendo,

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that counsel for the government suggested during closing argument that the defendant

bore the burden of proof, any possibility of prejudice was cured by the court’s instructions

to the jury regarding the government’s burden of proof and the absence of any burden on

the defendant. Schmitz, 634 F.3d at 1267 (noting that the Eleventh Circuit has held that

any comment that could result in a shifting of the burden of proof may be cured by an

The court gave this instruction both before and immediately following the government’s closing

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argument.

In his motion, the defendant refers only to the “government’s ‘burden shifting’” and offers no

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explanation or description of the comments he challenges.

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instruction regarding the burden of proof). 

C. Prosecutorial Misconduct: Testifying During Closing Argument

Finally, the defendant argues that the court erred in allowing counsel for the

government to testify during his closing argument. Yet, in his motion, the defendant simply

refers to “the government’s attorney ‘testifying,’” without citing any specific examples of the

alleged “testimony.” Because the defendant has failed to specify the alleged improper

statements, the court cannot find that such statements prejudiced the defendant’s

substantial rights. The court therefore rejects this argument as well. 

CONCLUSION

Accordingly, it is hereby ORDERED that defendant’s motion for a new trial (doc. 42)

is DENIED. 

DONE AND ORDERED this 6th day of July, 2011.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

Case No 3:11cr7/MCR

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