[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 1 3125

________________________ D.C. Docket No. 1:1 2

- cr - 20339

- RWG

- 2

UNITED STATES OF AMERICA, Plaintiff

- A ppellee,

versus ELLIOT RIVERA , Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ ( March 12, 2015 ) Before TJOFLAT, JULIE CARNES, and GILMAN , * Circuit Judges

. JULIE CARNES, Circuit Judge:

* Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by designation. Case: 13-13125 Date Filed: 03/12/2015 Page: 1 of 342 Defendant Elliot Rivera (“Defendant”) appeals his convictions for murder for hire and conspiracy to commit murder for hire, in violation of 18 U.S.C. § 1958. During a week

- long jury trial, evidence was presented show ing that Defendant attempted to hire a hit man to mu rder a person on whom Defendant held a large life insurance policy

. Seek ing a reversal of his conviction, Defendant argues that the district court erred in admit ting tape

- recorded conversations between him self and the wife of the coconspirator in this plot

. D efendant also contends that the district court erred in allowi ng the wife to testify about her understanding of the meaning of certain parts of the taped conversations between herself and Defendant. Finally , Defendant argues that pros ecutor ial misconduct occurred (1 ) when the prosecutor asked Defendant on cross - examin ation whether other witnesses ha d lied and (2 ) when the prosecutor , in hi s closing argument , suggested to the jury that Defendant had lied during his testimony. We find no reversible error and affirm. I. Background Defendant operated a satellite dish bu siness called All Things Digital. However he may have amassed his wealth, 1 Defendant was prosperous enough to be able to loan a large sum of money to Felipe Caldera, who later became the

1 The evidence at trial indicated that Defendant was a regular purchaser of stolen equipment. In addition, h e told his coconspirator that he f eared an upcoming court proceeding because he would be unable to explain how he acquired the $4 million he had loaned the intended victim in this case.

Case: 13-13125 Date Filed: 03/12/2015 Page: 2 of 343 intended victim of the murder

- for

- hire scheme at issue in this case

. B etween 2004 and 2010, D efendant loaned Caldera approximately $3.5 million as an

“ investment ” in Caldera’s business, and, during that same time period, Caldera paid D efendant approximately $14 million in interest

. Caldera required these loans from D efendant and other “investors” to operate his company , Fab Air Corporation, which sold surplus aircraft parts. In the midst of the 2007 economic recession , Fab Air hit r ough times when the market for aircraft part s took a downturn. To stay afloat, Calde ra began borrowin g from new lenders to meet the demand s of existing lenders . U ltimately , he was paying over half a million dollars in interest each month

. To repay D efendant, who m Caldera still owed $3. 5 million, Caldera offered
him aircraft parts that he claimed were worth over $14 million. In reality , these parts were only wor th about $80,000, a fact that D efendant only learned later

. Despite this significant misrepresentation, Caldera was able to persuade De fendant to loan him an other $350,000 to buy new aircraft parts that the two men could then sell at a profit. But i nstead of buying parts, Caldera used the money to re pay other disgruntled lenders . He later confessed to D efendant that he had spent the money elsewhere. The reafter, De fendant advised Caldera that he had heard “somebody was going to put a bullet in [Caldera’s] head.” D efendant explained that, while he

Case: 13-13125 Date Filed: 03/12/2015 Page: 3 of 344 w ould like to loan Caldera an additional $1.5 million to start a new business , Defendant was worried that his investment

— which with the new loan would top $5 million

— c o uld be at great risk, given th is threat on Caldera’s life. Accordingly,
D efendant suggested that Caldera take out a life insurance policy for $5 million
with D efendant as the beneficiary. Either not recognizing that he was putting a price tag on his own life or just too desperate for money to worry about that, Caldera bought a life insurance policy. 2 At D efendant’s suggestion, Caldera initially named his wife as the beneficiary an d agreed that he would later assign the ownership of th e policy to D efendant. De fendant provided Caldera with the money to pay the premiums on the policy and, in February 2011, Caldera assigned the ownership of the policy to D efendant , who made his company, All Things
Di gital , the new beneficiary

. A little over a year later, in March 2012, D efendant made contact with Ricardo Rodriguez, who m D efendant had known for over ten years and from who m Defendant sometimes bought stolen cable equipment . D efendant remarked that someone had stolen $4 million from him, that he was looking for someone who would kill that individual, and that, in return, D efendant would pay $100,000. Rodriguez said he did not know anyone who would do what Defendant requested

.

2 In fact, Defendant never loaned Cald era the additional $1.5 million. Case: 13-13125 Date Filed: 03/12/2015 Page: 4 of 345 About a week later, Rodriguez was again selling stolen equipment to
D efendant when Defendant encouraged Rodriguez to f ind a hit man for a $100,000
fee. Although Rodriguez did not agree to D efendant’s proposal , Defendant gave him a new telephone number to reach him in the event that Rodriguez found someone to do the job

. Soon after this, Rodriguez was delivering stolen equipment to D efendant when Defendant yet again repeated his need for a hit man

. Giving Rodriguez a subpoena issue d by the bankruptcy court to the intended victim, Felipe Caldera, Defendant explained that if Caldera testified about the $4 million loan, D efendant might be asked to explain how he had been able to acquire $ 4 million to loan Caldera. Plus, according to Defendant , Caldera was a swindler who h ad used phony aircraft parts as a ploy to steal money from people . Finally, if all that wasn’t bad enough, Caldera also beat his wife and children. Finally persuaded, Rodriguez agreed to find a hit man

. Rodriguez contac ted a friend named “Jorge,” who had previously sold Rodriguez stolen equipment and h ad served time in prison. Rodriguez asked for Jorge’s help in finding someone to commit a murder and offered him $50,000 for the job. Jorge agreed. Unfortunately for Rodriguez, Jorge was an FBI informant . Jorge put Rodriguez in touch with “Arturo,” the “hit man” h e purportedly had found . Not

Case: 13-13125 Date Filed: 03/12/2015 Page: 5 of 346 surprisingly, Arturo was also an FBI informant. In a recorded conversation, Rodriguez told Arturo that he wanted him to kill a person who had stolen $4
million from Rodriguez’s fam ily. Arturo agreed to do the job for $50,000. Rodriguez then gav e Arturo the piece of paper on which he had copied i nformation given to him by D efendant, including Caldera’s full name, a general address, and the make, model, and license plate number of Caldera’s car. Rodriguez said that the plan was to summon Caldera to All Things Digital, after which Arturo would follow Caldera as he left the bu siness, and kill him elsewhere. At Arturo’s request, Rodriguez gave him the gun he had obtained for the job and agreed to deliver a $25,000 advance within the week. Rodriguez reported back to D efendant that the hit man he had hired wanted $25,000 in ad vance. D efendant took , in cash, $19,000 from a box in his car and $6,000 from his pocket , and gave it to Rodriguez. D efendant told Rodriguez he would pay him the remaining $25,000 after “everything was ready,” which Rodriguez understood to mean after Cal dera was dead

. Later on, Rodriguez gave the $25,000 installment payment to Arturo , at which point the FBI arrested him

. Rodriguez called his wife, Lucienne, told her he had been arrested, and asked her to call Defendant , explaining that Defendant was “the only one that was going to be able to help.” Lucienne contacted D efendant, who pressed her as to why her husband had been arrested

— a question she tol d him

Case: 13-13125 Date Filed: 03/12/2015 Page: 6 of 347 she was unable to answer

— but D efendant nonetheless gave her $5 , 000 to hire a lawyer and $1 , 000 to recover Rodriguez’s impounded truck

. Within a few days, both Rodriguez and his wife Lucienne agreed to cooperate with the government. Thereafter, Lucienne wore a wire and recorded her conversations with D efendant. These conversations are the subject of two of
D efendant’s assertions of error and will be discussed i n more detail below. In
summary , while Defendant’s comm ents were sometimes c lipped , he eventually agreed to give Lucienne the $100,000 she demanded in exchange for her husband’s silence and for her delivery of a tape recording she claimed to possess of the conversation in which D efendant had given Rodriguez $25,000 to murder Caldera.
Defendant later gave Lucienne a $20,000 advance on the promised $1 00,000 hush money, after which she gave him the purported tape made by her husband. T he
FBI immediately moved in and arrested D efendant, find ing papers in h is truck that showed Caldera’s name, former address, and license plate number , as well as Lucienne’ s license plate number.
II. Standards of Review
We ordinarily review a district court’s evidentiary rulings for abuse of discretion. United States v. Dortch , 696 F.3d 1104, 1110 (11th Cir. 2012). Where a defendant raises an evidentiary error for the first time on appeal, we review only for plain error. United States v. Wetherald , 636 F.3d 1315, 1320 (11th Cir. 20 11 ).

Case: 13-13125 Date Filed: 03/12/2015 Page: 7 of 348 Generally, w e re view de novo claims of prosecutorial misconduct. United States v.
House , 684 F.3d 1173, 1197 (11th Cir. 2012). “But where a defendant fails to make a contemporaneous objection to the alleged misconduct in the district court, we review such claims for plain error.” Id. To establish plain error, a defendant must show that “ (1) there is an error; (2) that is plain or obv io us; (3) affecting the defendant’ s substantial rights in that it was prejudicial and not harmless; and (4) that seriously affects the fairness, integrity or public reputati on of the judicial proceedings. ” United States v. Hoffman

- Vaile , 568 F. 3d 1335, 1340 (11th Cir. 2009). III. Discussion
A. Hearsay Audio recording s of four conversations between Defendant and Lucienne were admitted at trial. Defendant concedes that any rem arks he made in those conversations were admissible, b ut he argues on appeal that the portion s of the recordings reflecting Lucienne’s part of the conversation should have been excluded as inadmissible hearsay. He did not make this objection at trial. We conclude that the remarks of neither speaker constituted hearsay and accordi ngly find no error in their admission.

Case: 13-13125 Date Filed: 03/12/2015 Page: 8 of 349 1. Content of Recorded Conversations At issue are the recordings of four conversations between Lucienne and
D efendant that were admitted by the district court

. 3 During a May 6, 2012, telephone conversation, Lucienne told D efendant that her husband, Ricardo Rodriguez , had been arrested and had asked her to call D efendant because he would be able to help. Several times, Lucienne expressed her concern that she would not be able to pay Rodriguez’s attorney , an d she repeatedly told Defendant how distressed she was at her husband’s incarceration. Lucienne requested to meet with D efendant in person because she did not want to discuss the reason for Rodriguez’s arrest over the telephone. At an in

- person meeting l ater that same day, Lucienne told D efendant that Rodriguez was facing ten years’ imprisonment, but she repeatedly assured him that Rodriguez was going to be “a man” about the situation and keep quiet. Al though Lucienne never told Defendant why Rodriguez h ad been arrest ed , Defendant appeared to know , without asking, because he wondered aloud how Rodriguez could be facing ten years’ imprisonment if there was no victim. De fendant later admitted to Lucienne that he had previously talked to Rodriguez about “ fo llowing

someone, ” but Defendant said that the person he had asked Rodriguez to follow

3 While the recordings were in Spanish, the jury was provided with transcripts of the conversations in both English and Spanish. The parties stipulated that the transcripts and translations were true and correct reflections of the recorded conversations.

Case: 13-13125 Date Filed: 03/12/2015 Page: 9 of 3410 had likely not done anything to Rodriguez and that th e person did not even know Rodriguez. D efendant also assured Lucienne that the person who m Rodriguez was supposed to follow was “fine” and “nothing” had happened to him. On May 15, 2012, Lucienne and D efendant met in person for a second time. Lucienne revealed that Rodriguez had now told her the whole truth about “ Felipe ” (Caldera), but , not to worry, Rodriguez had taken the blame and he would be receiv ing a ten

- year sentence. Elab o rating on this re assurance, she recounted Rodriguez’s promise to stay quiet , but also stated that Rodriguez would require

som ething in return from Defendant. Specifically, Lucienne said, “ [H] e’ll keep silent; he won’t mention anyone, neither you nor anyone, but that the only thing he asks from you . . . You had offered him [$100,000].” In case Defendant had not caught the drift of her remarks, she repeated, “H e said you offered him $100,000, and that if you give me the $100,000 he’ll keep silent and it will all end here.”
After D efendant initially denied giving Rodriguez anything, Lucienne responded , “[Y] ou gave him [$25,000] and he recorded it . . .

. I foun d the recording and I have it in a safe place.” This revelation appeared to jo g Defendant’s memory, and he then recalled that , in fact, he had loaned Rodriguez some money and assured
L ucienne that he , D efendant, was a “man of [his] word.” D efendant further stated that Rodriguez had “offered to do it” and that he had told Rodriguez not to do it

Case: 13-13125 Date Filed: 03/12/2015 Page: 10 of 3411 himself. Later, D efendant told Lucienne that he could not give her all of the money at once , but he would give her $10,000 a month. A week later, o n May 22, 2012, Lucienne met with D efendant for the purpose of exchanging the tape recording she claimed to possess in return for cash from Defendant. She gave him the purported recording of Rod riguez’s conversation with D efendant. As noted above, D efendant th en gave her $20,000 , and he was promptly arrested.
2. Analysis Defendant makes a rather unconventional argument. He contends that whenever admission of a tape

- recorded conversation is sought, only the statements of the party against whom the conversati on is being admitted (here D efendant) can be admitted. The statem ents of the other participant in the conversation (here Lucie nne) are not admissible, according to Defendant, because they are out

- of

court statements that shoul d be excluded as he arsay. If D efendant ’s position were correct, it would mean that , except for the criminal defendant against whom the
statements are being admitted, the voice of any other participant to the taped conversation would have to be removed . Further , any accompa nying transcript of the conve rsation would have to redact any statements not made by the defendant. In other words, the jury would hear only a soliloquy by the defendant , with no knowledge of the substance of any comments by others to whom the defendant w as

Case: 13-13125 Date Filed: 03/12/2015 Page: 11 of 3412 responding. Unable to discern the context of a defendant’s remarks, a jury would almost never be able to make much sense of a defendant’s statement s . In effect, Defendant’s argument would c ast doubt on a longstanding practice, occurring over decades a nd in innumerable trials, of permitting the jury to hear a taped conversation between a defendant and another person

. But Defendant is not right. T he hearsay rule may sometimes require the exclusion of particular statements that are part of a recounted conversation, whether taped or merely recalled by the witness . But it does not operate to exclude , wholesale, remarks made by another participant to the conversation , merely because those remarks occurred outside the courtroom

. Moreover, Defendant did not even object at trial that , as a general matter, Lucienne’s statements were hearsay , nor did he object to any particular statements as being hearsay. Because Defendant asserted no objections at trial on an issue that he now

r aises on appeal, we review this is sue for plain error

. See Wetherald , 636 F.3d at
1320. Hearsay is a statement, other than one made by a declarant while testifying
at t rial, offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Generally, an out

- of

- court statement admitted to show its effect on the hearer is not hearsay. United States v. Cruz, 805 F.2d 1464, 1478 (11th Cir. 1986). “Such verbal acts are not in the first instance assertive statements and not offered

Case: 13-13125 Date Filed: 03/12/2015 Page: 12 of 3413 to prove the truth of the matter asserted.” Id. Likewise, out

- of

- court declarations that are “more in the nature of an order or a request” and that, “to a large degree, [are] not even capable of being true or false” are also not hearsay. Id.
D efendan t conc edes that his own statements in the recordings were admissible un der Federal Rule of Evidence 801(d)(2)(A) as statement s of a party

opponent. See United States v. Brown , 441 F.3d 1330, 1358 (11th Cir. 2006) ; United States v. Munoz , 16 F.3d 1116, 1120 (11t h Cir. 1994) (“ [A] statement is not hearsay if it is the statement of the party against whom it is offered”)

. As to Lucienne’s statements, D efendant does not identify any speci fic statements as being hearsay , but simply contends that none of her statements should have been admitted because they were all made outside of the courtroom. Nonetheless , we have review ed the tape recording transcripts and c onclude that almost all of Lucienne’s statements fall into one of two categories, nei ther of which are hearsay : (1) non

- assertive statements that are incapable of being true or false or (2) statements that are indisputably false. In both cases, her out

- of

- court declarations were offered only to show their effect on the listener : D efenda nt Rivera

. This is not surprising because Lucienne’s entire purpose in making the tape was to prompt Defendant to talk. Her own statements, by themselves, were important only to the extent they provided a context to assess Defendant’s

Case: 13-13125 Date Filed: 03/12/2015 Page: 13 of 3414 response. Her stat ements therefore were not offered for the truth of the matter s asserted

. T he majority of Lucienne’s statements are not hearsay because they a re not “assertive” in nature. That is, many of her statements are , “to a large degree, not

even capable of being true or false. ” See Cruz , 805 F.2d at 1478

. For example, Lucienne peppered Defendant with questions throughout the four recorded conversations, asking him things such as, “And who’s Felipe?”; “Why don’t you tell me what’s going on?”; “Why do I have to p ut my purse away? What’s the problem?”; “[W] hat would [my husband] gain with all of this, buddy?”; and “[My husband went down] for being an asshole, for being stupid?” The transcripts are also replete with short utterances by Lucienne that are part of an y normal conversation, such as “Yeah”; “All right”; “You know what I mean?”; and “Oh, my God.” These questions and statements

— and many others like these

— are simply incapable of being true or false and thus are not hearsay

. But the jury needed to hear the m to give context to Defendant’s responses , which otherwise would have been no more than a d isjointed and incoherent monologue. Id. The remainder of Lucienne ’s statements we re not hearsay because they were indisputably false and therefore could not possibly have been offered to prove the truth of the matter asserted. See United States v. Bowles , 751 F.3d 35, 39

– 40 (1st Cir. 2014) (concluding that signature endorsements on the backs of checks were

Case: 13-13125 Date Filed: 03/12/2015 Page: 14 of 3415 not inadmissible hearsay because the large majority of endorsements purported to represent the signatures of deceased individuals and thus were indisputably false)

. L ucienne made numerous statements to D efendant that Rodriguez was being “a man,” taking the blame, and remaining silent. B ut, of course, that was not true. Whether or not he was being a man, Rodriguez was certainly not remaining silent because he was already cooperating with the government. In fact, Rodriguez had testified o n this point at trial , prior to the admission of these conversations. Additionally, Lucienne stated to Defendant that Rodriguez had recorded the conversation with Defendant when Defendant paid him $25,000 as part of the
murder

- for

- hire scheme. This st atement too was obviously false

. Lucienne had made up the existence of a recording in order to get Defendant’s reaction , and hopefully an incriminating admission

. Likewise, Lucienne’s statement to Defendant, “I don’t work for the police,” was patently false. She was voluntarily wearing a wire placed on her person by the FBI. All these statements were offered as evidence “solely for the fact that [they were] made and the effect [they] might have upon [their] hearer.” See Cruz , 805 F.2d at 1478. Finally, we recognize that one o f Lucienne’s statements arguably may have constituted hearsay though , again , we note that Defendant did not object to it at trial

. She told Defendant, “ [My husband] said you offered him 100,000 dollars, and that if you give me the 100,000 dollars, he’ll keep silent and it will all end here

Case: 13-13125 Date Filed: 03/12/2015 Page: 15 of 3416 . . . . On April 20 you gave him 25,000 dollars and he recorded it . . . .” It was the government’s theory that p art of this statement wa s true : t hat is, Defendant had offered Rodriguez $100,000 and he had given him a $2 5 ,000 down

- payment

. But

e ven if the government hoped that the jury would ultimately conclude that Defendant had offered a $100,000 bounty on Caldera’s head, with a $25,000
down

- payment, it did not need Lucienne’s taped statement to Defendant to prove th at point

. Her husband and Defendant’s coconspirator, Ricardo Rodriguez , had earlier testified that Defendant had offered and paid him money to have Caldera killed, and Rodriguez was subject to cross

- examination by Defendant on that assertion

. Clearly, Rodriguez’s testimony did not constitute hearsay. Rather, Lucienne’s taped statements on this point were offered merely to show the effect those statements had on D efendant and to provide context for his later response and agreement to pay Lucienne $100,000. See id. ; United States v. Price , 792 F.2d 994, 997 (11th Cir. 1986) ( recorded statements offer ed to “make understandable to the jury the statements made by [the defendant]” w ere not inadmissible hearsay ). Still, if Defendant had any concern s t hat any of Lucienne’s statements were improperly being offered for the truth of the matter asserted, he sh ould have objected and gotten an appropriate limiting instruction. He failed to do so. In short, where the admission of the substance of a communic ation between the defendant and another person is sought, the fact that the statements made by the

Case: 13-13125 Date Filed: 03/12/2015 Page: 16 of 3417 other person were out of court does not, as a blanket matter, preclude admission. Certainly, specific statements in the conversation may be vulnerable to a hearsay objection. But first the defendant has to identify these statements and objec t to their admission . That did not happen here, and o ur own review reveals no improper hearsay within the taped conversation that could have prejudiced Defendant

. Finall y, b ecause Lucienne’s statements and testimony were not hearsay, there is no need for them to fit within an exception to the rule against hearsay. See United States v. Mateos , 623 F.3d 1350, 1364 (11th Cir. 2010) (“I f the statement is not hearsay in the first place, there is no need for it to fit within an exception to the rule against hearsay

. ”) . Accordingly, De fendant’s argument that Lucienne’s taped statements were not admissible as statements of a coconspirator m ade in furtherance of the conspiracy , under Rule 801(d)(2)(E) , is beside the point

. In short, we find no hearsay and we find no error

— plain or otherwise

— in the admission of the taped conversations between Lucienne Rodriguez and Defendant.
B. Opinion Test imony
D efendant also contends that the district court improperly admitted into evidence Lucienne’s opinion testimony as to the meaning of D efendant ’s recorded
statements. Rule 701 of the Federal Rules of Evidence permits opinion testimony

Case: 13-13125 Date Filed: 03/12/2015 Page: 17 of 3418 by lay witnesses

. To qualify , a witness’ s opinion is limited to opinions that are

“ (a) rationally based on the witness’s perception; (b) helpful to clear ly understanding the witness ’ s testimony or to determin ing a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. Lay opinion testimony must be based on “first

hand knowl edge or observation ” and “helpful in resolving issues.” United States v. Jayyousi , 657 F.3d 1085, 1102 (11th Cir. 2011). Where a witness’ s testimony is based upon her “perceptions of the conversations [,]

. . . the accuracy of those perceptions [is] a question for the jury.” United States v. Davis , 787 F.2d 1501, 1505 (11th C ir. 1986). Additionally , a witness may clarify conversations that are “abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that [were] clear only to the [defendant] and [the witness].” United States v. Awan , 966 F.2d 1415, 1430 (11th Cir. 1992) (internal quotation marks omitted)

. In their briefs, the parties point to six instances where the district court overruled D efendant’s recurring objection that Lucienne was offering opinion testimony. First, d uring th eir taped May 6, 2012, in

- person meeting, in explaining how Rodriguez was caught, Lucienne started to tell D efendant that “it look[ed] like [Rodriguez] went to see somebody and he paid him the money and all that . . . .”
D efendant completed Lucienne’s sta tement with , “ [ t ] o do what has to be done.”

Case: 13-13125 Date Filed: 03/12/2015 Page: 18 of 3419 Lucienne testified that she understood this to mean that D efendant was “already aware of what was going on.” Second, in attempting to distance himself from whatever Rod riguez might have done or been accused of doing, D efendant told Lucienne , “I talked to him about . . . how should I put it? Following someone, but in the investigation, not for, for something, you understand what I’m saying? Look, that’s true, I tell him, ‘Look . . . this person . . .

. ’” As ked to explain , Lucienne testi fied that “[D efendant], what he was explaining to me was t hat [Rodriguez] was to follow that individual.” While testifying about that same conversation, Lucienne was asked what she though t was being discussed when D efendant had stated , “H ey, I’ll tell you something. That’s impossible because first of all, the person that talke d to him went and told him, ‘L ook I’m going to give you this for you to investigate, that’s all[]. ’ ” Lucienne testified that she un derstood t his to mean that D efendant had asked Rodriguez only to investigate someone. D efendant later told Lucienne “. . . paying someone else to do something bad to another person, but, uh, it was a mistake I made.” Lucienne testified that , to her , this meant tha t “it was something that he was paying for that it was a mistake that he made.”
D uring their May 15, 2014, in

- person conversation, after Lucienne confronted Defendant about having offered Rodriguez $100,000 to hire a hit man

Case: 13-13125 Date Filed: 03/12/2015 Page: 19 of 3420 and about having alre ady pa id Rodr iguez $25,000 for the job , Defendant stated ,

“ T ell him I’m a man of my word and I’m going to come through. But he has to understand that nobody’s going to talk about what he thin k s you’ve told me and what answer can I give you? [sic] You follow me? Nobody’s going to tell you.” Lucienne testified that she understood this statement to mean that nobody was going to tell her the truth. A t the end of their conversation, D efendant stated to Lucienne , “A ll right. It’s going to be 100

- 100.” Lucienne te stified that she understood this to mean that she would be paid $100,000 , and Rodriguez would keep silent. The district court did not abuse its discretion by admitting the above testimony that clarified Lucienne’s understanding of the substance of h er conversation with D efendant . First, Lucienne’s testimony was rationally based on her perception , f irst

- hand knowledge , and observation

. See Jayyousi , 657 F.3d at
1102. S he was a participant in the conversations , and the statements by Defendant at iss ue were made directly to her. See Awan , 966 F.2d at 1430 (undercover agent’s opinion testimony was based on his personal perception because he “was actually present and participating in the conversation and observing what was happening at the time”). Second, her testimony was helpful to the jury in understanding the facts at issue. Lucienne was clarifying a back

- and

- forth dialogue that contained

Case: 13-13125 Date Filed: 03/12/2015 Page: 20 of 3421 abbreviated and unfinished sentences , with occasional unclear responses and ambiguous references to events. See id. ; Jayyousi , 657 F.3d at 1103 (“ We have held that a lay witness may provide interpretations of code words when the meaning of these words [is] not perfectly clear without [the witness’s] explanations.” ) (internal quotations omitted)

. For example, she was asked what
vague statements meant to her, such as “to do what has to be done,” “in the investigation . . . for something,” and being given “this ” to investigate. In short, we conclude that the district court did not abuse its discretion by permitting Lucienne to clarify the conversations between her self and Defendant in the above

- described instances.
C. Prosecutorial Misconduct Through The Cross

- Examination of the Defendant
Defendant contends that the prosecutor engaged in misconduct when, several times during c ross - examination , he asked Defendant whether other witnesses who had testified contrary to Defendant on particular matters were lying

. Defendant objected to most, but not all, of these kinds of questions. The district court overruled some of Defendant’s objections , but sustained others. 4

4 For example, the prosecutor asked Defendant the following questions during cross

examination : Q

. Now, we heard from Mr. Bolufé, the individual who you’ve known for a while, who introduced you to Felipe Caldera. He told you don’t invest with Felipe after a while, didn ’t he? A. That’s ironic when he’s the one who told me to invest with him. Case: 13-13125 Date Filed: 03/12/2015 Page: 21 of 3422 1. Standard Governing “Were

- T hey

- L ying” Questions A prosecutor’s comments amount to misconduct whe n the comments a re both improper and prejudicial to the defendant’s substantial rights. United States v. Eckhardt , 466 F.3d 938, 947 (11th Cir. 2006). The defendant’s substantial rights are prejudicially affected when a reasonable probability arises that, but for the

co mments, the outcome of the trial would have been different. Id . “When the record contains sufficient independent evidence of guilt, any error is harmless.” Id.

Q. At the beginning. A. And throughout. Q. So, he was lying? A. I can’t speak for him. Q. Well, you heard what he said on the stand. A. I heard what he said. Q. Was what he said true or not true? A. You know, what he’s saying. I really can’t speak for him. But that’s not what he told me, no. Q. Okay. So, what you’re saying is what he testified to on the stand was a lie.
A. Correct. While Defendant did not obje ct to the above exchange, he objected when the prosecutor later asked, “So, Mark Hemmerle was lying?” The district court overruled Defendant’s objection. Later during cross

- examina tion, the prosecutor asked D efendant , “S o everybody you do business w ith, at the time you do business, they’re no t liars, but once they testify in court, they

. . . .” D efendant objected to this question as being argumentative, but the district court o verruled the objection, and D efendant testified , “N o, I didn’t say that. ”

Case: 13-13125 Date Filed: 03/12/2015 Page: 22 of 3423 As to the propriety of questions by a prosecutor that prod a d efendant to accuse another w itness of lying , we have held that such questions are not proper. United States v. Schmitz , 634 F.3d 1247, 1268 (11th Cir. 2011). We forbid such questions for several reasons. First, there are technical sorts of rationales for disallowing them. As we noted in Schmitz , the Federal Rules of Evidence do not permit such questions. Id. While Rule 608(a) permits a witness to testify as to another witness’s general character for truthfulne ss or untruthfulness, the rule does not allow the witness to opine about another witness ’s truthfulness on a particular occasion , such as while on the witness stand

. Id. Second, t he duty to make credibility determinations about a trial witness falls squa rely in the province of the jury , and it is not appropriate for another witness , even the defendant, to tread on the jury’s turf. Id. at 1269. Third, asking a defendant to brand as a liar another witness whose testimony is at odds with the defendant ’s ig nores the fact that two witnesses can testify inconsistently without either of them necessarily having purposely lied. I nnocent, alternative explanations for discrepancies in testimony

can includ e “lapses in memory, differences in perception, or a genuine misunderstanding.” Id. Beyond just the technical reasons for disfavoring th ese type s of question s is the fact that questioning along these lines can distract the jury from its central task of trying to figure out which version of events is accurate , not what label to place

Case: 13-13125 Date Filed: 03/12/2015 Page: 23 of 3424 on the witness whose narrative appears less accurate

. Id

. Further, the “ were - they

lying ” line of questions can rapidly become argumentative to the extent that the questions force the defendant to hurl accusations at contrary wit ness es . Id. Of course, the fact that a prosecutor should not ask a testifying defendant whether another witness was lying does not mean that the prosecutor will be prohibited from pin ning down a defendant ’s testimony by focusing the latter on conflict s b etween his account of a certain event and another witness’s testimony on that point

. Indeed, in Schmitz , we cited with approval the Third Circuit’s observation that “it is often necessary on cross

- examination to focus a witness on the differences and similarities between his testimony and that of another witness. This is permissible provided he is not aske d to testify as to the veracity of the other witness.” Schmitz , 634 F.3d at 1269

– 70 (quoting United States v. Harris , 471 F.3d 507, 512 (3d Cir. 2006) )

. In short, this is an area in which f orm could perhaps be said to trump substance , and , given this real ity, a prudent prosecutor must work to frame his questions properly. No doubt, there are a number of ways in which a skilled cross

examiner can properly highlight conflicts between the defendant’s testimony and that of other witnesses. What he cannot do , though, is ask the testifying defendant whether a particular witness was lying . And here, several times, the prosecutor did frame his question in the prohibited manner.

Case: 13-13125 Date Filed: 03/12/2015 Page: 24 of 3425 So, Defendant has succeeded in meeting the first prong of the test for prosecutorial misconduct: showing that some of the prosecutor’s comments (or here, his questions) were improper. But there is a second prong that Defendant must also satisfy, which is demonstrating that the improper questions were prejudicial to the defendant’s substantial rights. As noted supra , a defendant’s substantial rights are prejudicially affected when a reasonable probab i lity arises that, but for the questions , the outcome of the trial would have been different. If the record reveals sufficient independent evidence of the defendant’s guilt, the prosecutor’s asking of th e verboten question at issue will be deemed harmless. We therefore proceed to a review of the evidence here to determine whether any error resulting from the prosecutor’s questions can be fairly said to be harmless. Our review confirm s that, given the substantial evidence pointing to D efendant ’s guilt,

one can reasonably conclude that Defendant would have been convicted , regardless of the prosecutor’s “were

- they

- lying” questions

. 2. Substantial Evidence of Defendant’s Guilt Ricardo Rodriguez , Defendant’s coconspirator and the intermediary who was to have hired the hit man, testified that : (1) D efendant offered him $100,000

to find someone to kil l Caldera; (2) D efendant provided him with Caldera’s contact information; and (3) once Rodriguez found a hit man, D efendant gave him $25,000 as a down payment for the hi t man. Certainly there was irrefutable evidence that

Case: 13-13125 Date Filed: 03/12/2015 Page: 25 of 3426 Rodriguez did all the above acts, and thus all that was left to implicate Defendant was to confirm Rodriguez’s testimony that Defendant was behind the plot. T hat corroboration occurred through D efendant ’s own statements and acts, when he was being covertly taped by Lucienne Rodriguez. For example, even though Lucienne did not tell Defendant why Rodriguez was arrested, Defendant already seemed to know the reason and the identity of the intended v ictim . He stated that the victim was okay, that the victim owed “everyone” money, and that many people were “after the victim.” He acknowledged that he had asked Rodriguez to follow someone, but initially denied that he had wanted Rodriguez to do any mor e than that. When Lucienne told Defendant that she had a copy of a tape

- recorded conversation between Defendant and Rodriguez , during which conversation Defendant had given Rodriguez $25,000 for the hit, Defendant’s response was not to say that there coul d be no such taped conversation because such an exchange never occurred. Instead, he immediately agreed to pay Lucienne $100,000 in exchange for Rodriguez’s silence and the purported recording of the incriminating conversation . In deed, Defendant subseque ntly gave Lucienne $20,000 for th at
very recording. In addition, there was ample evidence of Defendant’s motive to kill Cal dera. Caldera had effectively stolen from Defendant when he had grossly overstated the value of airplane parts that he gave Defendant as repayment for a large loan.

Case: 13-13125 Date Filed: 03/12/2015 Page: 26 of 3427 Further, when Defendant had loaned Caldera an additional $350,000 to take

measure s to repay the almost $4 million that he owed D efendant , Caldera had instead spent the money elsewhere. Of course, Defendant’s stron gest motive to kill Caldera was the fact that D efendant’s company was the owner and beneficiary of a $5 million life insurance policy on Caldera ’s life

. In response to this very damning evidence, D efendant testified, but offered only confusing and inconsistent explanations. In trying to explain his conversation with Lucienne, Defendant claimed that he believed he and Lucienne were discussing stolen equipment he had purchased from Rodriguez, not a murder

- for

hire scheme. Yet this explanation was co ntradicted by his earlier testimony that he had never known n or had reason to believe that the equipment he purchased from Rodriguez was stolen , not to mention the fact that, at some point in his ongoing dialogue with Lucienne , Defendant clearly had to be on notice of the reasons for Rodriguez’s arrest

. As to the murder

- for

- hire scheme, he testified that , in his conversations with Lucienne, he had pretend ed to be involved only in order to learn more about what was going on and that he had agreed to pay Lucienne $100,000 only in order to buy time to fi gure out what really happened. Yet, he subsequently acknowledged that he was going to give Lucienne $100,000 to help her pay for Rodriguez’s attorney. And whatever reasons he might have asserted for a prom ise to pay

Case: 13-13125 Date Filed: 03/12/2015 Page: 27 of 3428 $100,000 in the future, there is the fact, confirmed by the tape

- recorded conversation between him and Lucienne, that he actually did pay her $25,000 for what he and she agreed would be Rodriguez’s silence and a copy of the purported tape record ing of the conversation between Rodriguez and Defendant

. Finally,
D efendant denied that he even cared that Caldera ow ed him almost $4 million

. Defendant’s lack of concern , he said, was because that money represented only interest, not principal

. This unimpressive account of events by Defendant did, by itself, potentially constitute substantive evidence of Defendant’s guilt. This is so because a jury i s fre e to disbelieve a d efendant’s testimony and consider it as substantive evidence of the latter’s guilt. See United States v. McDowell , 250 F.3d 1354, 1367 (11th Cir. 2001). Given the inconsistencies and implausibility of much of Defendant’s testimony, one can reasonably infer that the jury so interpreted his test imony

. In short, there was abundant e vidence presented at trial to support a conclusion that, beyond any reasonable doubt, Defendant was guilty. Further, while the prosecutor should not have asked Defendant whether the latter was accusing various witnesses of lying, in truth, the existence o f substantial inconsistencies between the testimony of those witnesses and of Defendant was an appropriate matter for the jury to consider in evaluating the credibility of each witness and, ultimately, in deciding exactly what had happened. Finally, th e

Case: 13-13125 Date Filed: 03/12/2015 Page: 28 of 3429 d istrict court made clear in its instruct ions that it was up to the jury to “decide whether [it] believe[d] what each witness had to say and how important that testimony was. In making that decision [it] may believe or disbelieve any witness in whole or in part.” Accordingly, any error created by the prosecutor asking the “ were - they

lying ” questions was harmless and not a persuasive ground for reversal

. See United States v. Thomas , 453 F.3d 838, 846 (7th Cir. 2006) (concluding that questions did not influence the jury’s verdict because of the weight of the evidence and the standard jury instruction advising the jury of its role to decide the credibility of all witnesses and to judge the testimony of the defendant in the same way as any other witness); United States v. Williams , 343 F.3d 423, 437

– 38 (5th Cir. 2003) (concluding that questioning did not affect the defendant’s substantial rights because the prejudicial effect was small, the jury was properly instructed on its role as a fact

- finder, and the evidence of guilt was overwhelming); United States v. Sullivan , 85 F.3d 743, 750 (1st Cir. 1996) (finding that questions were harmless error because evidence of guilt was very strong and the error was on a minor point); United States v. Boyd , 54 F.3d 868, 872 (D.C. Cir. 1995) (finding no prejudice from the prosecutor’s questions, in part, because of an instruction that advised the jury that the statements and arguments of counsel are not evidence and because of the minimal importance of the challenged ques tio n).

Case: 13-13125 Date Filed: 03/12/2015 Page: 29 of 3430 Yet, while this type of error will often be harmless, 5 we do not mean by this observation to offer encouragement to prosecutors to continue the practice at issue here

. A sking a question in this prohibited form creates a needless appellate issue,

an d prosecutors cannot be assured that the error will always be harmless. Given how easy it would be to properly frame a question that focuses on inconsistencies between the testifying defendant and another witness, a prosecutor commits an unforced error wh en he phrases the question incorrectly

. And because a skilled

cross - examiner could cover the same ground without slipping into error, we suspect that a prosecutor who so missteps may well be unaware of the prohibition against this line of questioning. For that reason, we urge U nited States Attorney’s offices in our circuit to do a better job of training their attorneys on this point

. H ere, however, the error was clearly harmless and not a ground for reversal.

5 Defendant has cited no case in which a convict ion has been reversed due to a “were

they

- lying” question being asked. Without being able to definitively state that no federal court has ever reversed a conviction on this ground, we do note that o ur own non - exhaustive survey of this area vindicates Defendant’s inability to find such cases. For sure, o ur sister circuits agree that these types of questions are inappropriate. See Schmitz , 634 F.3d at 1268 (compiling case law from other circuits). Yet despite their disapproval of such questions, circuit courts have consistently found th is error harmless. Id

. Although not made explicit in the caselaw, this result may largely be due to the fact that the flaw in the question lies mainly in its form, not its substance, as the existence of an inconsistency between the testimony of two witnesses is a matter that juries are affirmatively instructed to consider in assessing credibility.

Case: 13-13125 Date Filed: 03/12/2015 Page: 30 of 3431 D. Alleged Prosecutorial Misconduct in Closing Argument In a related challenge, D efendant also contends that some of the prosecutor’s comments during closing argument were improper attacks on his credibility. We disagree. The prosecutor argued: [Co

- counsel] and I went home last night and t ried to make a chart of every single lie and inconsistency in the defendant’s testimony over two days. You know what? We would be here for another two weeks. It was nonstop. At one point his attorney had to tell him to answer the question. He could no t give a straight answer on anything. And recall, every time we took a break he talked to his attorneys, the story changed

. . . . Yes, you saw the frustration on my face. I could not get a straight answer to one question. Not only that, the story ch anged so many times I couldn’t remember the whole story, just like the argument that was just made. It is full of contradictions. The prosecutor also contrasted Defendant with Rodriguez , after pointing out that Rodriguez was totally honest throughout the course of his ten meetings with law enforcement: Now, we saw the defendant testify for two days. I don’t think I asked him 1,000 questions, but , frankly, after all that I don’t remember. I don’t think he said one thing that was true in front of all of you. Not one thing. No matter what they asked Ricardo Rodriguez, his story s tay ed the exact same. No matter how hard they pressed, his story never changed. Not once. We cannot say the same thing for the defendant. Case: 13-13125 Date Filed: 03/12/2015 Page: 31 of 3432 Defendant did not object to the prosecutor’s statements during closing argument , so we review for plain error. See House , 684 F.3d at 1197. A prosecutor is expected to refrain from offering his personal views on a defendant’s guilt or on the evidence. Parker v. Allen , 565 F.3d 125 8, 1273 (11th Cir. 2009). Yet, a prosecutor is free to suggest during oral argument what the jury should conclude from the evidence before it. United States v. Johns , 734 F.2 d 657, 663 (11th Cir. 1984). “ [A] n attorney’s statements that indicate his opinion or knowledge of the case as theretofore presented b efore the court and jury are permissible if the attorney makes it clear that the conclusions he is urging are conclusions to be drawn from the evidence.” Id. We evaluate the prosecutor’s
comments in the context of the full trial and any curative instructions “to determine whether the comments so unfairly affected the trial.” Parker , 565 F.3d at 1273. We conclude t here was no error here. When viewed in context, the prosecutor was urging the jur y to draw certain conclusions from the evidence . He was not i n terjecting his personal views of the evid ence or D efendant’s guilt. In both statements recited above , the prosecutor offered a conclusion that he suggested the ju ry could properly draw: that D efendant’s denials of involvement in the conspiracy were no t credible, while Rodriguez’s testimony was entirely credible

. The prosecutor made the first challenged comment after providing two specific exam ples of inconsistencies in D efendant’s testimony. After making the Case: 13-13125 Date Filed: 03/12/2015 Page: 32 of 3433 comment about attempting to create a chart of Defendant’s lies and inconsistencies, the prosecutor then went on to describe other specif ic inconsistencies between D efendant’s actions and testimony. Likewise, in the second comment, the prosecutor focused on the fact that Rodriguez’s story and testimony had remained consistent , while D efendant’s story had repeatedly changed.
D efendant relies on Schmitz in arguing that the prosecutor’s comments during closing arguments were improper. During closing arguments in Schmitz , the prosecutor “hammer[ed] home the idea of a ‘liar list, ’ which was a metaphor improperly developed during Schmitz’s cross

- examination. ” Schmitz , 634 F.3d at
1270. While cross

- examining Schmitz, the prosecutor had asked “were

- they

lying” questions by call ing out the names of twelve witnesses who had testified , and then ask ing Schmitz if each one should be added to the “list” of people that Schmit z claimed were lying. Id. at 1267. Then, in closing arguments, the prosecutor mad e at least two references to the “liar list” that he had create d on

cross - examination. Id. We concluded that the comments about the “liar list” during closing arguments we re improper precisely because they were a “clear

Case: 13-13125 Date Filed: 03/12/2015 Page: 33 of 3434 continuation of the improper questions posed previously during Schmitz’s cross

examination.” 6 Id. at 1270.
D efendant’s reliance on Schmitz to argue similar misconduct here is misplaced because the facts are distinguishable. Here, the prosecutor’s comments
were not a “clear continuation” of improper cross

- examination questions. During

cross - examin ation, the prosecutor asked D efendant multiple times whethe r other witnesses were lying. But in cl osing arguments, the prosecutor’s challenged comments were not focused on whether Defendant had accused other witnesses of lying . Instea d, the comments focused on D efendant’s own credibility and the inconsistencies in his own testimony , as contrasted with the consistency of a government witness’ s testimony

. In short , Defendant argues that, although he never objected to the prosecutor’s comments in closing argument, the district court should have taken it on itself to interrupt opposing counsel’s argum ent and strike the comments at issue. According to Defendant, the district court’s failure to so act was plain error . We disagree and find no error here. For the foregoing reasons, Defendant ’s convictions are AFFIRMED.

6 We, however, declined to reverse Schmitz’s conviction because of the improper cross

examination or the emphasis on that question ing during closing argument: Schmitz had not objected to either at trial and, applying a plain error standard, we found no reversible error

. Schmitz , 634 F.3d at 1271.

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