United States v. Reginald Anderson

USCA11 Case: 22-10619 Document: 68-1 Date Filed: 01/06/2025 Page: 1 of 15

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10619

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REGINALD ANDERSON,

a.k.a. Red,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 4:19-cr-00183-RSB-CLR-1

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2 Opinion of the Court 22-10619

____________________

Before LAGOA, BRASHER, and WILSON, Circuit Judges.

PER CURIAM:

Reginald Anderson was convicted of three counts of distri-

bution of methamphetamine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(C),

after selling it three times to confidential informants working for

the Drug Enforcement Administration.

The conduct and evidence underlying Anderson’s convic-

tions are straightforward, so we do not recite in detail the factual

or procedural background of this case. Instead, relevant here, a

grand jury indicted Anderson on three counts of drug distribution

based on three drug transactions—one per count—that he made

with the confidential informants. The first two transactions took

place the morning and afternoon of June 5, 2018. The third oc-

curred on June 12, 2018. A jury convicted Anderson of all three

counts after seeing exhibits collected from each transaction, that

DEA chemists confirmed were methamphetamine; after hearing

the confidential informants testify about each transaction; and after

seeing audio-video recordings and transcripts of the last two trans-

actions.

On appeal, Anderson does not challenge any of the evidence

above. Instead, he first challenges the district court’s decision to

permit a DEA agent to testify as an expert and offer testimony that

he argues was improper on several grounds. Second, he challenges

the district court’s denial of his motion for mistrial after

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22-10619 Opinion of the Court 3

government witnesses implied that he was involved in prior drug

transactions outside this case. Third, he argues that his convictions

should be reversed because the government committed prosecuto-

rial misconduct during its closing argument and the district court

failed to take curative action after that misconduct. Fourth, he ar-

gues that these errors cumulatively warrant a reversal of his con-

victions. For the reasons below, each challenge fails, and we affirm.

I.

We begin with Anderson’s challenges to a DEA agent’s tes-

timony. At trial, the government called Robert Livingston, a DEA

agent who worked with the confidential informants to set up the

transactions underlying Anderson’s drug distribution convictions.

On appeal, Anderson contends that the district court should not

have permitted Livingston to (1) testify as an expert and (2) provide

testimony that Anderson alleges is hearsay, improper identification

testimony, and testimony violating the Confrontation Clause.

Three standards of review apply. First, we review a district

court’s “evidentiary rulings on the admission of expert witness tes-

timony for abuse of discretion.” United States v. Jayyousi, 657 F.3d

1085, 1106 (11th Cir. 2011) (cleaned up). Similarly, we review “a

district court’s decisions regarding the admissibility of evidence and

testimony for abuse of discretion.” United States v. Hawkins, 934

F.3d 1251, 1264 (11th Cir. 2019). A district court has considerable

leeway in its evidentiary rulings, see United States v. Barton, 909 F.3d

1323, 1330 (11th Cir. 2018), and abuses its discretion when it “ap-

plies an incorrect legal standard or makes findings of fact that are

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4 Opinion of the Court 22-10619

clearly erroneous.” United States v. Azmat, 805 F.3d 1018, 1041 (11th

Cir. 2015) (cleaned up). Importantly, an abuse of discretion will not

warrant reversal “unless the objecting party has shown a substan-

tial prejudicial effect from the ruling.” Barton, 909 F.3d at 1330–31

(cleaned up). “Substantial prejudice goes to the outcome of the

trial,” and “where an error had no substantial influence on the out-

come, and sufficient evidence uninfected by error supports the ver-

dict, reversal is not warranted.” Id. at 1331 (cleaned up).

Second, if a defendant fails to preserve an issue below, we

review the issue for plain error. See Hawkins, 934 F.3d at 1264. “To

establish plain error, a defendant must show (1) error; (2) that is

plain; (3) that affects his substantial rights; and (4) that seriously af-

fects the fairness, integrity, or public reputation of judicial proceed-

ings.” United States v. Lewis, 40 F.4th 1229, 1246 (11th Cir. 2022). To

establish that an error affected his substantial rights—the third

prong of the plain error test—a defendant must establish “a reason-

able probability that, but for the error, a different outcome would

have occurred.” United States v. Margarita Garcia, 906 F.3d 1255,

1267 (11th Cir. 2018).

Third, we review de novo whether testimony violates the

Confrontation Clause. United States v. Kent, 93 F.4th 1213, 1217

(11th Cir. 2024). With these three standards in mind, we address—

and reject—Anderson’s arguments on Livingston’s testimony.

A.

We first address Anderson’s argument that the court should

not have permitted Livingston to testify as an expert. At trial, the

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government sought to qualify Livingston as an expert in “drug traf-

ficking and distribution.” Anderson objected that Livingston would

be unable to provide information not already “within the ken of

the jury.” The district court overruled the objection and permitted

Livingston to testify as an expert. In so doing, the court did not

abuse its discretion.

“Federal Rule of Evidence 702 permits expert testimony if

specialized knowledge will help the jury to understand the evi-

dence or to determine a fact in issue.” United States v. Garcia, 447

F.3d 1327, 1334 (11th Cir. 2006) (cleaned up). And a witness can be

qualified as an expert, based on his knowledge, skill, experience,

training, or education. See id. at 1335.

Here, Livingston was qualified to testify as an expert in drug

trafficking and distribution, and his testimony was helpful to the

jury. Livingston had extensive experience, training, and knowledge

in drug operations: he was a DEA agent for over 20 years, received

training in drug code and surveillance methods, and conducted

dozens if not hundreds of narcotics investigations. See id. at 1332,

1335 (district court did not abuse its discretion in permitting a wit-

ness to testify as an expert in drug distribution when the witness

was a DEA agent for several years, received training on the opera-

tion of drug organizations, and was involved in at least 50 drug in-

vestigations). And Livingston’s testimony—which covered con-

trolled purchases and the meanings of code terms used in drug

trades—helped the jury understand the drug distribution evidence

underlying Anderson’s convictions. See Hawkins, 934 F.3d at 1261

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6 Opinion of the Court 22-10619

(we have “repeatedly” held that “narcotics agents may testify as ex-

perts to help juries understand the drug business, codes, and jar-

gon”); Garcia, 447 F.3d at 1334 (the “operations of narcotics dealers

are a proper subject for expert testimony under Rule 702” (cleaned

up)).

Anderson argues that Livingston’s testimony was unhelpful

to the jury because “any reasonable juror would have understood”

the terms that Livingston interpreted—terms Anderson suggests

are “ordinary English.” See Hawkins, 934 F.3d at 1256, 1264–65 (it

was improper for a DEA agent “to ‘interpret’ uncoded, ordinary

language”). But Livingston interpreted drug code—e.g., he testified

that “sevens” meant seven grams of a drug, “whole” meant a whole

ounce of a drug, and “fronted” meant dealing a quantity of drugs

to a customer who would pay later. And we have “affirmed the

admission of expert testimony by law enforcement officers inter-

preting drug codes and jargon,” United States v. Holt, 777 F.3d 1234,

1265 (11th Cir. 2015), including words similar to the ones here, see,

e.g., id. at 1252, 1265 (district court did not err in allowing agent to

provide expert testimony on drug code, including that “‘228’ re-

ferred to 228 grams”).

Citing our decision in Hawkins, Anderson also argues that

the district court abused its discretion by permitting Livingston’s

“indiscriminate merging of fact testimony with expert testimony.”

934 F.3d at 1266. Anderson contends that Livingston testified as an

expert even on factual matters on which he lacked special expertise,

thus conferring an unwarranted “aura of special reliability” around

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22-10619 Opinion of the Court 7

Livingston’s factual testimony. This fact-expert merging substan-

tially prejudiced him, he argues, because his defense “relied exclu-

sively” on challenging the credibility of prosecution witnesses, and

Livingston bolstered their credibility by testifying as an expert on

“every critical fact.”

But even assuming without deciding that Anderson pre-

served this challenge and that the district court erred, Anderson has

failed to demonstrate that any error caused him substantial preju-

dice. See Barton, 909 F.3d at 1330–31. The evidence of Anderson’s

guilt—even if not bolstered by Livingston’s status as an expert—

was overwhelming. First, substances collected from all three of An-

derson’s transactions were published to the jury as Exhibits 1, 5,

and 12, and DEA chemists testified that these substances were

methamphetamine. Second, the two confidential informants—

D.W. and E.M.—both testified on how all three transactions took

place. Third, the jury heard audio-video recordings and read tran-

script excerpts of the last two transactions, all of which were pub-

lished to the jury during E.M.’s testimony. So, even if the district

court erred by permitting Anderson to mix fact and expert testi-

mony without enough demarcation, that error lacks the prejudice

to warrant reversal. See Barton, 909 F.3d at 1331 (“where an error

had no substantial influence on the outcome, and sufficient evi-

dence uninfected by error supports the verdict, reversal is not war-

ranted” (cleaned up)).

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8 Opinion of the Court 22-10619

B.

Next, Anderson argues that Livingston’s testimony violated

rules against hearsay and improper identification and violated the

Confrontation Clause. Specifically, Anderson challenges Living-

ston’s testimony: (1) on D.W.’s history with drugs; (2) on D.W.’s

relationship with E.M.; (3) on information that E.M. shared with

Livingston about Anderson; (4) on Anderson’s three transactions

underlying his charges; (5) on conversations that E.M. had with An-

derson when a particular photograph of them was taken; (6) iden-

tifying Anderson as the man in photographs shown to the jury at

trial; (7) on Anderson’s giving of his phone number to E.M. during

the first transaction; and (8) that two exhibits published to the

jury—Exhibits 1 and 5—were methamphetamine. Anderson con-

tends that this testimony was hearsay, improper identification tes-

timony, testimony violating the Confrontation Clause, or some

combination of these categories.

But again, Anderson’s contentions fail because no error

caused him substantial prejudice. See Barton, 909 F.3d at 1330–31.

First, Anderson has failed to explain how D.W.’s history with drugs

or his relationship with E.M. even contributed to the jury’s verdict

on Anderson’s conduct. Second, even had the jury not heard Living-

ston’s testimony on the eight matters above, it would have learned

about most of them through D.W.’s or E.M.’s testimony. They tes-

tified about D.W.’s drug history, his relationship with E.M., infor-

mation or material related to Anderson that E.M. shared with Liv-

ingston, and that Anderson had given E.M. his number and she

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then shared it with Livingston. Likewise, DEA chemists testified

that the exhibits were methamphetamine, and there were audio-

video recordings of two of the drug transactions. Third, as ex-

plained above, the unchallenged testimony from the DEA chem-

ists, D.W., and E.M., as well as the audio-video recordings and tran-

scripts published to the jury, overwhelmingly supported Ander-

son’s convictions. See Barton, 909 F.3d at 1331.

Finally, we reject Anderson’s contention that the court vio-

lated his rights under the Confrontation Clause by permitting Liv-

ingston to testify on the matters above. “[T]he Sixth Amendment

does not prohibit the admission of an out-of-court statement when

the declarant testifies at trial to the same statement.” Garcia, 447

F.3d at 1329. Here, even assuming that Livingston was recounting

information he learned from others—specifically, as Anderson’s ap-

pellate brief mentions, “[D.W., E.M.], and the [DEA] chemists”—

those “declarants” testified at trial on most of the above matters

and were all subject to cross-examination. And, partly because of

their testimony, the evidence against Anderson was overwhelming

even apart from Livingston’s challenged testimony.

II.

We next address the district court’s denial of Anderson’s mo-

tion for mistrial after three government witnesses indicated that he

had been involved in other transactions.

At trial, Livingston, D.W., and E.M. all indicated that Ander-

son had engaged in prior drug transactions not at issue in this case.

After Livingston mentioned that D.W. had engaged in a

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10 Opinion of the Court 22-10619

transaction with “another informant,” Anderson objected; the

court then struck Livingston’s testimony and instructed the jury to

not consider testimony “regarding any other transactions other

than the three that are at issue in this case.” Later, D.W. testified

that he “had another transaction” with Anderson “in another case”;

Anderson then moved for a mistrial. The court denied that motion,

but struck that piece of D.W.’s testimony and gave a curative in-

struction directing the jury to not consider it but instead to consider

only the “testimony about the transactions that are alleged in this

case.” At the end of D.W.’s testimony, the court instructed the jury

again to “[d]isregard any testimony about any other alleged inter-

actions” “outside of the three alleged interactions charged in this

case.” Next, E.M. mentioned that Anderson had “given [metham-

phetamine] to [her] before.” And the government, when question-

ing her, suggested that she would be familiar with drug slang

“based on [her] former dealings with [Anderson].” Anderson did

not object below to these parts of E.M.’s testimony.

On appeal, Anderson argues that the district court should

have granted his motion for mistrial because the government failed

to give notice before Livingston, D.W., and E.M. testified on the

prior transactions. See Fed. R. Evid. 404(b).

We ordinarily review a district court’s decision not to grant

a mistrial for abuse of discretion, see United States v. Emmanuel, 565

F.3d 1324, 1334 (11th Cir. 2009), but review only for plain error is-

sues not preserved below, see Hawkins, 934 F.3d at 1264.

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“A defendant is entitled to a mistrial only if he shows sub-

stantial prejudice, meaning that it is reasonably probable that, but

for the alleged error, the outcome of the trial would have been dif-

ferent.” United States v. Gallardo, 977 F.3d 1126, 1138 (11th Cir.

2020). “We make this determination in the context of the entire

trial and in light of any curative instruction.” United States v. New-

some, 475 F.3d 1221, 1227 (11th Cir. 2007). “When the district court

gives a curative instruction, we presume that the jury followed it.”

Gallardo, 977 F.3d at 1138. If the district court issued a curative in-

struction, we reverse only “if the evidence is so highly prejudicial

as to be incurable.” United States v. Melgen, 967 F.3d 1250, 1262 (11th

Cir. 2020) (cleaned up). And, “when the record contains sufficient

independent evidence of guilt, any error was harmless.” Newsome,

475 F.3d at 1227.

Here, Anderson has failed to establish the substantial preju-

dice needed for a mistrial. See Gallardo, 977 F.3d at 1138. Livingston

and D.W. did not discuss in detail the other transactions, and im-

mediately after they referenced those transactions, the district

court struck their comments and instructed the jury to consider

only the drug transactions at issue in this case. After D.W. left the

stand, the court gave another curative instruction to the same ef-

fect. We presume the jury followed the court’s curative instruc-

tions and disregarded the stricken testimony. See id.; United States

v. Oscar, 877 F.3d 1270, 1283–84 (11th Cir. 2017) (district court’s

strong curative instructions cured any alleged prejudice after the

prosecution implied that a defendant had been involved in a death

separate from his charged offenses). And, other unchallenged

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12 Opinion of the Court 22-10619

evidence—which, again, included testimony from D.W. and E.M.

describing the transactions at issue, testimony from DEA chemists

identifying methamphetamine collected from those transactions,

and audio-video recordings of the last two transactions—was “suf-

ficient independent evidence” of Anderson’s guilt. Newsome, 475

F.3d at 1227.

Anderson compares this case to United States v. Harriston,

where we vacated a defendant’s conspiracy convictions because

the government introduced evidence of a prior unrelated murder

conviction. See 329 F.3d 779, 786–89 (11th Cir. 2003). But Harriston

is distinguishable. There, the evidence of the defendant’s guilt was

not overwhelming, the government asked questions that exposed

a prior guilty plea to murder, and we reversed the court’s partial

denial of a mistrial in part because of the “seriousness” of the prior

murder conviction. See id. Here, the evidence was overwhelming,

and Livingston and D.W. referred to a prior transaction that lacks

the same prejudice as does a prior murder.

As to the parts of E.M.’s testimony suggesting prior drug

transactions, Anderson did not preserve the issue below, so we re-

view his challenge on plain error. See Hawkins, 934 F.3d at 1264.

Even if we assume that the district court plainly erred in permitting

E.M. (and the government, in its questions) to indicate that Ander-

son had engaged in drug transactions not at issue in this case, An-

derson’s challenge fails. Again, plain error requires that Anderson

demonstrate a “reasonable probability that, but for the error, a dif-

ferent outcome would have occurred.” See Garcia, 906 F.3d at 1267.

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Given the overwhelming evidence of Anderson’s guilt, as ex-

plained above, it is not reasonably probable that the trial outcome

would have differed even if the jury had not heard E.M.’s or the

government’s passing references to prior transactions.

III.

Next, Anderson argues that his convictions should be re-

versed because the government committed prosecutorial miscon-

duct when presenting its closing argument and the district court

failed to “take any curative action” after that misconduct. In his

view, the government committed prosecutorial misconduct when

it suggested that he was to blame for damage done by drug distrib-

utors to the community and that the jurors were victims of Ander-

son’s conduct and responsible for the health of their community.

See generally United States v. Beasley, 2 F.3d 1551, 1559–60 (prosecu-

tion’s closing argument comments that referred to the “war on

drugs,” that appealed to “the conscience of the community,” and

that were “calculated to inflame,” were improper (cleaned up)).

We generally review de novo a claim of prosecutorial mis-

conduct during closing arguments. United States v. Sosa, 777 F.3d

1279, 1294 (11th Cir. 2015). “To establish prosecutorial miscon-

duct, (1) the remarks must be improper, and (2) the remarks must

prejudicially affect the substantial rights of the defendant.”

Id. (cleaned up). A defendant’s substantial rights are prejudicially

affected when it is reasonably probable that, but for the remarks,

the trial outcome would have been different. Id. “When the record

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14 Opinion of the Court 22-10619

contains sufficient independent evidence of guilt, any error is harm-

less.” Id. (cleaned up).

Here, Anderson’s prosecutorial-misconduct challenge fails,

because he has not established the prejudice necessary to demon-

strate prosecutorial misconduct. Even if we assume that the prose-

cutor’s comments were improper, the district court repeatedly in-

structed the jury that statements and arguments made by the attor-

neys were not evidence to be considered. See United States v. Al

Jaberi, 97 F.4th 1310, 1328 (11th Cir. 2024) (“Because the statements

of counsel are not evidence, the district court may rectify improper

prosecutorial statements by instructing the jury that only the evi-

dence in the case is to be considered.” (cleaned up)). And, as ex-

plained above, the other evidence against Anderson—witness tes-

timony, recordings of the last two transactions, and drugs collected

from all three transactions—was overwhelming. See Sosa, 777 F.3d

at 1294. Because Anderson has not established prosecutorial mis-

conduct, we do not address his argument that the district court

erred by declining to take curative action following prosecutorial

misconduct. Ultimately, the government’s comments at closing ar-

gument do not justify a reversal of Anderson’s convictions.

IV.

Lastly, Anderson argues that his convictions should be re-

versed because of the cumulative effect of his alleged errors. He

contends that the trial consisted of only “one day of substantive ev-

idence,” and that in a single day the government presented

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22-10619 Opinion of the Court 15

inadmissible expert testimony, prior bad act testimony, and im-

proper closing arguments.

We review de novo the cumulative impact of trial errors.

United States v. Pendergrass, 995 F.3d 858, 881 (11th Cir. 2021). “The

cumulative-error doctrine calls for reversal of a conviction if, in to-

tal, the non-reversible errors result in a denial of the constitutional

right to a fair trial.” Id. “No cumulative error exists where a crimi-

nal defendant cannot establish that the combined errors affected

his substantial rights,” and those rights are not affected if “properly

admitted evidence sufficiently established” the defendant’s guilt.

Id. (cleaned up). Here, the assumed errors, even when combined,

did not affect Anderson’s substantial rights given that his convic-

tions were supported—as explained above—by overwhelming ev-

idence unchallenged on appeal.

V.

The district court is AFFIRMED.