[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-10015

Non-Argument Calendar

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D.C. Docket No. 5:18-cr-00002-RBD-PRL-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

 versus

JUAN PABLO MALAGON-ALVAREZ, 

Defendant,

AURELIO GOMEZ-ANDRADE, 

JOSE LUCIO MENDOZA SERVIN, 

 Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(June 2, 2021)

Before MARTIN, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Aurelio Gomez-Andrade and Jose Lucio Mendoza Servin appeal their 

convictions for conspiracy to possess heroin with intent to distribute, in violation 

of 21 U.S.C. § 846. Gomez-Andrade argues that he is entitled to a new trial 

because the district court abused its discretion in allowing the government to ask

two leading questions during the direct-examination of a cooperating witness. 

Mendoza argues that the district court abused its discretion in refusing to declare a 

mistrial after the government referred to the drugs as having come “across the 

border” during its closing argument. Mendoza also argues that his ten-year 

mandatory-minimum sentence is a cruel and unusual punishment that is prohibited 

by the Eighth Amendment. After careful consideration, we affirm.

I.

Gomez-Andrade argues that he is entitled to a new trial because the district 

court abused its discretion in overruling his objections to two leading questions 

posed by the government during trial. He contends that the questions were leading

and had a material effect on the outcome of the trial because the questions helped 

establish the temporal scope of the conspiracy. He also maintains that if his 

objections had not been overruled, the temporal scope of the conspiracy would 

have been more limited, and the government might not have been able to prove 

that the conspiracy possessed with the intent to distribute more than one kilogram 

of heroin.

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We review a district court’s evidentiary rulings for abuse of discretion. 

United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015). “A leading question 

is one that suggests to the witness the answer desired by the examiner.” 

1 McCormick on Evidence § 6 (8th ed. Jan. 2020 update); see Azcona v. United 

States, 257 F.2d 462, 466 (5th Cir. 1958). Although a district court “has 

reasonable discretion to permit leading questions,” it abuses that discretion when it 

allows a question that “has the effect of supplying a witness with a false memory.” 

United States v. Johnson, 495 F.2d 1097, 1101 (5th Cir. 1974). However, we will 

not reverse a non-constitutional evidentiary error unless there is “a reasonable 

likelihood that the defendant’s substantial rights were affected.” United States v. 

Reeves, 742 F.3d 487, 501 (11th Cir. 2014) (quotation marks omitted).

To show that a defendant was part of a drug conspiracy, the government 

must prove that: “(1) there was an agreement between two or more people to 

unlawfully distribute . . . controlled substances in violation of [21 U.S.C.] 

§ 841(a)(1); (2) the defendant knew about the agreement; and (3) the defendant 

voluntarily joined the agreement.” United States v. Iriele, 977 F.3d 1155, 1169 

(11th Cir. 2020) (quotation marks omitted). The government need not prove that a 

single defendant “himself possessed [the controlled substances] with intent to 

distribute.” United States v. Curbelo, 726 F.3d 1260, 1269 (11th Cir. 2013). 

Rather, the government must prove only that a defendant “joined a conspiracy that 

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had the ‘object’ of . . . possessing with intent to distribute more than [the controlled 

substances].” Id.; see also Salinas v. United States, 522 U.S. 52, 63–64 (1997)

(“The partners in the criminal plan must agree to pursue the same criminal 

objective and may divide up the work, yet each is responsible for the acts of each 

other.”).

The first question that Gomez-Andrade challenges concerned the temporal 

scope of a cooperating witness’s heroin purchases from a third defendant, Juan 

Pablo Malagon-Alvarez:

1

Q: And from the period of, say, the middle or summer of 2015 up 

until the time of your arrest [in November 2017], approximately what

period of time were you getting heroin from Pablo?”

[Gomez-Andrade’s counsel]: Objection. Leading.

The Court: Objection is overruled.

The Witness: What was the question?

Q: What period of time going back from the date you were arrested 

were you buying heroin from or getting heroin from Pablo, but going 

back as far as a year and a half before, the middle of 2015?

A: About a year.

1 Malagon-Alvarez is not a party to this appeal. See United States v. Malagon-Alvarez, 

819 F. App’x 897, 898 (11th Cir. 2020) (affirming Malagon-Alvarez’s conviction under Anders 

v. California, 386 U.S. 738 (1967)).

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The question was not leading because it did not suggest an answer to the witness.2 

Rather, the question oriented the witness to a particular time frame and asked the 

witness how long—within that time frame—he had been purchasing heroin from 

Malagon-Alvarez. The question’s framing did not suggest an answer to that 

question.

The second question concerned the circumstances of the witness’s heroin 

purchases from Malagon-Alvarez:

Q: After you called Pablo to make contact to get the heroin, when 

you went to pick up the heroin, where would you go?

A: Out to the farm.

Q: And who would be there?

A: Whoever was there. Whoever was working there, I guess.

Q: Was there a particular individual that you described already that 

you would actually get heroin from?

[Gomez-Andrade’s counsel]: Objection. Leading.

The Court: Objection is overruled.

A: Yeah.

Q: And who was that?

2 Even if the question was leading, Gomez-Andrade concedes that the witness “did not 

take all the bait.” The trial record confirms that view. Assuming that the government was 

attempting to lead the witness into answering that he had been purchasing heroin from MalagonAlvarez for approximately one-and-a-half to two years, the witness limited the scope of his 

involvement to “[a]bout a year.” Accordingly, if the government’s question was leading, there is 

no reasonable likelihood that the question affected Gomez-Andrade’s substantial rights. Reeves, 

742 F.3d at 501.

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A: [Gomez-Andrade].

Shortly before the question was posed, the witness testified that he purchased 

heroin from both Malagon-Alvarez and Gomez-Andrade. Thus, this second 

question was leading because it suggested that the witness’s answer should identify 

either Malagon-Alvarez or Gomez-Andrade.

Nevertheless, there is no reasonable likelihood that the question affected 

Gomez-Andrade’s substantial rights. Reeves, 742 F.3d at 501. During trial, the 

jury heard testimony that implicated Gomez-Andrade as a member of the drug 

conspiracy. Two cooperating government witnesses testified that they purchased 

drugs from the defendants, including Gomez-Andrade.3

 And the government 

introduced other evidence of Gomez-Andrade’s participation in the conspiracy, 

including an audio recording of a drug transaction in which Gomez-Andrade 

participated and extensive text communications between the defendants. Thus, 

contrary to Gomez-Andrade’s position, there is not a reasonable likelihood that the 

outcome of his trial would have been different absent the leading question.4

3 Gomez-Andrade questions the credibility of the government’s cooperating witnesses. 

But “[q]uestions of witness credibility are the exclusive province of the jury, and credibility 

issues will not be entertained on appeal.” United States v. Hernandez, 743 F.3d 812, 815 (11th 

Cir. 2014).

4 Gomez-Andrade suggests that there was a reasonable probability that the leading 

question affected his substantial rights because the question elicited an answer that was critical to 

establishing that Gomez-Andrade joined the conspiracy in time to be responsible for possession 

with intent to distribute more than a kilogram of heroin. That argument fails because, as GomezAndrade concedes, the jury had already heard testimony from a cooperating government witness 

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II.

Mendoza argues that the district court abused its discretion in refusing to 

grant his motion for a mistrial after a prosecutor referenced drugs coming “across 

the border” during closing arguments. He contends that because the government’s 

case was not overwhelming and the “citizens of this country are biased against 

Mexican immigrants,” there is a reasonable probability that the outcome of the trial 

would have been different if the comment had not been made.

The reference occurred during the prosecutor’s description of the 

defendants’ roles in a larger conspiracy. The prosecutor explained that drug 

conspiracies often involve “different sellers that work for a common supplier” and 

that co-conspirators in such schemes often assume “different roles,” including 

conspirators who “might be bringing drugs in from across the border.” Counsel for 

Mendoza’s co-defendant objected and requested a mistrial, which the district court 

denied.5

 The district court then offered to provide a curative instruction, and 

Mendoza’s counsel accepted that offer because he believed that “asking the jury to 

disregard any reference to the source of the origin of the drugs would be sufficient”

that was “easily supportive of the liability of all three defendants for more than a kilogram of 

heroin.”

5 At the beginning of trial, the district court advised the parties that it was “going to 

presume . . . that if [counsel for any defendant] disagree[d] with [his] colleague’s position . . .

you’ll let me know.” Mendoza’s counsel did not express any disagreement with his co-counsel’s 

objection to the remark. Thus, the government concedes that Mendoza’s counsel did not waive 

any objection by failing to raise the objection himself.

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to cure any prejudice.6 The district court then issued the curative instruction to the 

jury: “Ladies and gentlemen, there’s no evidence in this case as to the origin of any 

of the alleged illegal substances. So [to] the extent the Government may have 

suggested something about the origin, you should disregard that.” The district 

court also instructed the jury at the beginning and the end of trial that it could 

“consider only the evidence that I have admitted in the case” and that “anything the 

lawyers say is not evidence in the case.” 

We review a district court’s denial of a motion for mistrial for abuse of 

discretion. United States v. Green, 981 F.3d 945, 959 (11th Cir. 2020). To be 

entitled to a mistrial ruling, a defendant must show substantial prejudice, which 

occurs “when there is a reasonable probability that, but for the alleged error, the 

outcome of the trial would have been different. United States v. Grzybowicz, 747 

F.3d 1296, 1311 (11th Cir. 2014). “[T]he prejudicial effect[] of an improper 

statement may be reduced or eliminated where ‘the record contains sufficient 

6 This concession by Mendoza’s counsel potentially forecloses his challenge to the 

remark under the invited-error doctrine because he represented to the district court that the 

curative instruction “would be sufficient.” “[T]he doctrine of invited error is implicated when a 

party induces or invites the district court into making an error.” United States v. Brannan, 562 

F.3d 1300, 1306 (11th Cir. 2009) (quotation omitted). And when “a party invites error, [we are]

precluded from reviewing that error on appeal.” United States v. Harris, 443 F.3d 822, 823–24 

(11th Cir. 2006) (quotation omitted). We decline to resolve Mendoza’s challenge on this ground 

because the parties have not briefed the issue and, as we will explain, Mendoza’s challenge fails 

on the merits.

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independent evidence of guilt.’” Id. (quoting United States v. Newsome, 475 F.3d 

1221, 1227 (11th Cir. 2007)).

At the same time, we review a claim of prosecutorial misconduct de novo. 

United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). Such misconduct 

occurs when a prosecutor makes: (1) improper remarks that (2) prejudicially affect 

the defendant’s substantial rights. Id. The second element is met where it is 

reasonably probable that, but for the remarks, the outcome of the trial would have 

been different. Id. However, if the trial “record contains sufficient independent 

evidence of a defendant’s guilt, any error is harmless.” Id. 

In determining whether prosecutorial misconduct occurred, we consider: 

(1) whether the challenged comments had a tendency to mislead the 

jury or prejudice the defendant; (2) whether the comments were 

isolated or extensive; (3) whether the comments were deliberately or 

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

competent proof establishing the guilt of the defendant.

Reeves, 742 F.3d at 505. When the challenged comment is made during closing 

argument, the statement must be viewed in the context of the entire trial, including 

any curative instruction. United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 

2009). “Because 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.” Id. (quotation marks omitted). And “we 

presume that the jury followed a district court’s curative instructions.” Id. Thus, 

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when a district court gives a curative instruction, we will reverse “only if the 

evidence is so prejudicial as to be incurable.” Id. 

Mendoza has not met his burden to show that the prosecutor’s reference to 

drugs coming “across the border” during closing argument amounted to 

prosecutorial misconduct warranting a new trial. Turning to the first factor, the 

reference did not tend to prejudice Mendoza by suggesting that Mendoza had a 

connection to Mexico for several reasons.

7

 The jury had already observed that 

Mendoza utilized a Spanish interpreter during trial and received evidence that the 

defendants typically conducted heroin sales in Spanish. And, as Mendoza

concedes, the trial record was replete with references to Spanish names and the 

Spanish language. Moreover, considering the entire trial record, we think it is 

implausible that the jury ignored the possibility of an international drug conspiracy 

until the moment the prosecutor made a passing comment that was not directed at 

either defendant. Thus, Mendoza cannot show that the remark had a tendency to 

mislead or prejudice the jury. Considering the second factor, the reference to drugs 

coming from “across the border” was an isolated incident at a four-day trial. The 

fourth factor also favors the government because it presented a strong case against 

Mendoza, which was buttressed by the testimony of two cooperating witnesses 

7 Because we find that the remark did not prejudice Mendoza, we need not determine 

whether it is appropriate to assume—as Mendoza does—that the jury suffered from antiimmigrant bias or whether the remark would serve to trigger any such bias.

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who had purchased heroin from Mendoza. Even if, under the third factor, the 

prosecutor’s remark was intentionally placed before the jury—as Mendoza

contends8

—we conclude that the other factors weigh heavily against him. 

Accordingly, Mendoza has failed to show prosecutorial conduct, and there is no 

reasonable probability that the outcome of the trial would have been different if the 

reference to drugs coming “across the border” was not made.

Even if there was some doubt on that score, the district court’s curative 

instruction was sufficient to overcome the remark’s potentially prejudicial effect. 

The district court immediately issued a curative instruction, and it instructed the 

jury at the beginning and end of trial to consider only evidence admitted at trial. 

Under these circumstances, we reject Mendoza’s argument that the prosecutor’s 

remark was “so prejudicial as to be incurable.” Lopez, 590 F.3d at 1256. 

For all these reasons, the district court did not abuse its discretion by 

refusing to declare a mistrial.

III.

Mendoza also argues that the district court plainly erred in sentencing him to 

a ten-year mandatory minimum because that sentence violates the Eighth 

Amendment’s prohibition of cruel and unusual punishment.

8 The parties dispute whether the prosecutor made the remark intentionally. We need not 

resolve this dispute because the remaining factors weigh heavily against Mendoza.

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Ordinarily, we review the constitutionality of a statute de novo but, when as 

happened here, the issue is raised for the first time on appeal, we review only for 

plain error. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). To 

prevail under plain error review, a defendant “must show that the district court 

made an error, that the error was plain, and that it affected his substantial rights.” 

Iriele, 977 F.3d at 1177. If he makes that showing, we have discretion to reverse 

the district court “only if the error seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” Id. “[T]here can be no plain error where there 

is no precedent from the Supreme Court or this Court directly resolving” the issue. 

United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (quotation omitted).

Mendoza was convicted of one count of conspiracy to possess with the 

intent to distribute one kilogram or more of a mixture and substance containing a 

detectable amount of heroin. Thus, he was subject to a ten-year mandatoryminimum sentence. 21 U.S.C. § 841(b)(1)(A)(i). The district court imposed that 

mandatory-minimum sentence (120 months), followed by five years of supervised 

release.

The Eighth Amendment prohibits imposing “cruel and unusual 

punishments.” U.S. Const. amend. VIII. In a non-capital case, the Eighth 

Amendment “encompasses, at most, only a narrow proportionality principle.” 

United States v. Suarez, 893 F.3d 1330, 1335-36 (11th Cir. 2018) (quotation 

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omitted). The defendant bears the burden of showing “that the sentence imposed is 

grossly disproportionate to the offense committed.” United States v. Johnson, 451 

F.3d 1239, 1243 (11th Cir. 2006) (quotation omitted). But in non-capital cases, 

“successful Eighth Amendment challenges are exceedingly rare.” United States v. 

Flanders, 752 F.3d 1317, 1342 (11th Cir. 2014) (quotation marks omitted). 

Indeed, as recently as Suarez, “we have never held that a non-capital sentence for 

an adult has violated the Eighth Amendment.” Suarez, 893 F.3d at 1336.

Mendoza argues that his ten-year sentence is grossly disproportionate to the 

offense committed because he had no prior criminal history and treatment and 

education would be more effective means of rehabilitation. He does not identify 

any decision from the Supreme Court or this Circuit that holds that the ten-year 

mandatory-minimum sentence prescribed by § 841(b)(1)(A) violates the Eighth 

Amendment. Because Mendoza cannot identify any “precedent from the Supreme 

Court or this Court directly resolving” the constitutionality of the ten-year 

mandatory-minimum sentence, he has failed to show that the district court 

committed any error that was plain. Chau, 426 F.3d at 1322 (quotation omitted).9

AFFIRMED.

9 In his reply brief, Mendoza appears to concede that his argument fails plain-error 

review. Thus, he notes that he is preserving the argument for further review.

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