[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 22-10369

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

CLIFFORD EDWARD ALBRITTON, III, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:20-cr-00234-CEH-AAS-4

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2 Opinion of the Court 22-10369

Before LAGOA, BRASHER and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Clifford Albritton appeals his convictions for possession of fentanyl with intent to distribute and conspiring to do 

the same, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A), and 

841(a)(1) and (b)(1)(B). On appeal, Albritton argues that the district 

court erred by allowing the government to conduct a demonstration during closing argument that impermissibly exceeded the 

scope of the evidence. Having read the parties’ briefs and reviewed 

the record, we affirm Albritton’s convictions.

I.

“In the absence of a contemporaneous objection, we review 

the district court’s failure to correct an improper closing argument 

for plain error.” United States v. Pendergraft, 297 F.3d 1198, 1204 

(11th Cir. 2002). To correct under plain-error review, (1) there 

must be error; (2) the error must be plain; (3) the error must affect 

the appellant’s substantial rights; and (4) the error must seriously 

affect the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 467-68, 117 S. Ct. 

1544, 1549 (1997).

II.

An appellant’s substantial rights are prejudiced when there 

is a reasonable probability that, but for the error, the outcome of 

the trial would have been different. United States v. Maradiaga, 987 

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22-10369 Opinion of the Court 3

F.3d 1315, 1324 (11th Cir. 2021). The burden is on the defendant 

to show that the error affected the outcome of the proceedings. 

United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). If 

the effect of the error is uncertain, we do not find plain error. Id.

at 1300. “Where errors could have cut either way and uncertainty 

exists, the burden is the decisive factor in the third prong of the 

plain error test, and the burden is on the defendant.” Id. 

III.

The record demonstrates that Albritton did not object to the

prosecutor’s closing demonstration and cannot meet his burden of 

showing plain error. See Pendergraft, 297 F.3d at 1204. The questionable demonstration at issue occurred when the prosecutor 

asked DEA Special Agent Hery to demonstrate how an individual 

could hide drugs in his pants. Agent Hery was the case agent for 

the drug investigation, and he worked with the Tampa Police Department to arrest Albritton and his co-conspirator. While arresting Albritton, an officer searched him and found multiple bags of a 

substance later proven to be illegal drugs underneath the waistband of Albritton’s shorts. Another special agent with the DEA 

testified that Albritton was wearing tight-fitting jean shorts at the 

time of his arrest. This agent also testified that she saw another 

officer remove the drugs from Albritton’s shorts. The prosecutor 

conducted the demonstration in response to Albritton’s closing argument that it was impossible for him to have hidden the drugs in 

his shorts, and his assertion that the drugs were on the ground and 

not in his possession. 

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4 Opinion of the Court 22-10369

Even assuming it was error for the district court to allow the 

demonstration, Albritton cannot meet his burden to show that the 

demonstration likely affected the outcome of the trial. See Rodriguez, 398 F.3d at 1299. The demonstration only affected the issue 

of whether Albritton possessed the drugs at the time of his arrest. 

The government presented significant independent evidence that 

the drugs were in Albritton’s shorts when he was arrested. None 

of the supposed inconsistencies argued for by Albritton during closing argument were affected by the demonstration. Moreover, the 

district court instructed the jury that none of the attorneys’ comments during closing argument were to be considered as evidence, 

and they were to decide the case based solely on the evidence presented at trial. This cured any possible prejudice to Albritton resulting from the prosecutor’s demonstration. See United States v. 

Bailey, 123 F.3d 1381, 1402 (11th Cir. 1997). Because Albritton cannot show that the error affected the outcome of the proceedings, 

we conclude that there was no plain error. See Rodriguez, 398 F.3d 

at 1300.

Accordingly, based on the aforementioned reasons, we affirm Albritton’s convictions.

AFFIRMED

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