USA v. Kevin Duane Byron

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12022
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN DUANE BYRON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20553-PCH-1
____________________
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2 Opinion of the Court 22-12022
Before R OSENBAUM , GRANT, and H ULL , Circuit Judges.
PER CURIAM:
After a jury trial, defendant Kevin Byron appeals his
conviction for possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. § 922(g).
On appeal, Byron argues that at trial, the district court erred
by: (1) admitting evidence of texts and pictures of firearms found
on his cell phone; (2) denying Byron’s motion for a judgment of
acquittal; (3) allowing the government to refer to Byron as a drug
dealer, an inflammatory characterization; and (4) demonstrating
bias against him. After review, we affirm.
I. EVIDENCE AT TRIAL
A. Traffic Stop and Arrest
On June 30, 2021, while on patrol with other officers, police
detective Alejandro Gomez observed a blue Lincoln with heavily
tinted windows. Defendant Byron, a convicted felon, was the sole
occupant and driving.
Believing the window tinting to be illegal, the officers
activated their patrol car’s lights and sirens to conduct a traffic stop.
Byron travelled four blocks and made a left turn before stopping.
Once Byron finally stopped, Detective Gomez approached and
asked Byron to roll down the windows for safety purposes. Byron
rolled down only the driver’s side window. As Byron did so,
Detective Gomez observed Byron lean forward “in a manner kind
of reaching toward the floorboard of the driver’s side of the
vehicle.” Detective Gomez had Byron roll down all the windows
and place his hands on the steering wheel.
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22-12022 Opinion of the Court 3
Detective Gomez immediately smelled a strong odor of
marijuana emitting from the Lincoln. After obtaining Byron’s
driver’s license, which Byron said was suspended, Detective
Gomez asked Byron to exit the Lincoln and placed him in
handcuffs.
Once Byron was outside the Lincoln, Detective Gomez
noticed in plain view an empty gun holster underneath the center
console. Detective Gomez also saw a box of Popeyes chicken
stuffed underneath the driver’s seat, with chicken inside it.
Detective Gomez found this “very unusual,” noting that he had
never seen a box of fast food stuffed under a driver’s seat in that
manner. There also was a Popeyes drink cup on the center console
with condensation on it, indicating it was a fresh drink.
Once the box of chicken caught his attention, Detective
Gomez, from outside the car, angled himself and saw an extended
magazine protruding from underneath the box. Detective Gomez
angled himself a little more and saw that the magazine was
attached to a firearm. The firearm was a Glock 19 semiautomatic
pistol loaded with 29 live rounds of ammunition. A subsequent
search of the Lincoln revealed Byron’s cell phone and, on the
passenger’s side, a backpack containing a “large amount of
marijuana,” packages of THC edibles, and digital scales.
The firearm in the Lincoln was later determined to be
stolen. No latent fingerprints were recovered from the firearm, the
ammunition, or the extended magazine. A crime scene
investigator explained that it was very rare to do so because of the
texture of firearms and ammunition and the way they are used and
cleaned. While detectives learned Byron’s mother owned the
Lincoln, subsequent surveillance indicated Byron drove the car as
if it was his own.
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4 Opinion of the Court 22-12022
Detective Onassis Perdomo obtained a search warrant for
Byron’s cell phone. Detective Perdomo found on the cell phone:
(1) text messages; (2) pictures of two firearms Byron sent to
multiple individuals in 2019, offering to sell the firearms; (3) a
picture of Byron sitting in a car with a Glock handgun in his lap; (4)
a picture of a Glock handgun with an extended magazine next to a
bag of marijuana; and (5) a picture of a Glock handgun with an
extended magazine and a rifle.
A crime gun investigator examined these latter three
pictures and determined: (1) the firearms displayed were authentic,
rather than toys or replicas; and (2) the Glock 19 displayed was the
same firearm recovered from the Lincoln during the June 30 traffic
stop. The crime gun investigator based his latter opinion on a
partial serial number and other markings and wear and tear visible
in the pictures.
B. Indictment and Pretrial Proceedings
A federal grand jury charged Byron with possession of a
firearm and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e)(1).
The government filed a notice of intent to introduce
evidence under Federal Rule of Evidence 404(b). The notice listed
the text messages and firearm pictures extracted from Byron’s
cellphone, which reflected his attempts to sell those firearms. The
government contended this Rule 404(b) evidence was probative of
Byron’s knowing possession of the firearm in the present case.
Prior to trial, Byron moved to suppress all the evidence
stemming from the June 30 traffic stop and his subsequent arrest,
including the firearm and evidence from his cell phone. At an
evidentiary hearing, the district court asked Byron whether,
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22-12022 Opinion of the Court 5
assuming his motion to suppress was denied, he had any argument
that the text messages and pictures discussing the firearms sale
were inadmissible under Rule 404(b). Byron responded, “No,
there’s – I have no argument about it.” The district court
ultimately denied Byron’s motion to suppress. On appeal, Byron
raises no issue as to this evidentiary ruling.
C. Government’s Case at Trial
As recounted above, the government presented trial
evidence from Detective Gomez, Detective Perdomo, and other
law enforcement officers about the June 30 traffic stop of the
Lincoln driven by Byron and their subsequent investigation.
In addition, Detective Perdomo testified about an affidavit
Byron’s mother, Joyce Byron, prepared and submitted to the State
Attorney General’s office while Byron still faced state charges. In
her affidavit, Ms. Byron attested that she put the firearm in the
Lincoln and that the firearm belonged to Byron’s brother who
passed away in 2011. As part of his investigation, Detective
Perdomo concluded her affidavit could not be true. Detective
Perdomo explained that the firearm could not have belonged to
Byron’s brother because it did not arrive in the United States from
Austria until 2015, years after the brother’s 2011 death.
On cross examination, Detective Perdomo was asked
whether he obtained the search warrant for Byron’s cell phone
because of the marijuana found in the car. Detective Perdomo
responded that he sought a search warrant based on both the
marijuana and the firearm found in the car. Defense counsel then
asked if this was because “historically drug dealers seem to have
evidence on a cellphone,” and Detective Perdomo agreed.
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6 Opinion of the Court 22-12022
On redirect examination, Detective Perdomo testified that,
based on his experience, the evidence found in the Lincoln with
Byron—a large amount of high-grade, expensive marijuana,
several packages of THC edibles, digital scales, and a firearm—
indicated that Byron was selling marijuana. Byron objected to this
testimony as “[c]onclusory” and was overruled.
Detective Perdomo further testified that, in his experience,
people trafficking marijuana often have a firearm as protection
from others who might rob them. Byron objected again,
“[m]ove[d] to strike,” and asked the district court to instruct the
jury to “disregard that,” without giving any basis for the objection.
The district court overruled the objection.
The prosecutor then asked Detective Perdomo, “[i]n your
training and experience, do drug dealers use their phone as part of
their drug dealing?” Detective Perdomo answered yes, and then
explained that drug traffickers use their phones “like a regular job,”
taking orders, calling suppliers, and arranging meeting locations,
and that he almost always obtained a search warrant to review
phones in drug-related offenses.
D. District Court’s Questions About Possible Defense
Witnesses
After the first day of trial, outside the jury’s presence, the
district court called a sidebar conference and asked defense counsel
if Byron was planning to testify. Defense counsel answered in the
affirmative and assured the district court that he had reviewed with
Byron the pros and cons of taking the stand, including that his six
prior felony convictions could be used to impeach him. The
district court asked if defense counsel wanted the court “to do an
inquiry to make sure he understands,” and defense counsel agreed.
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22-12022 Opinion of the Court 7
The district court addressed Byron directly about his
decision whether to testify. Byron stated he understood it was his
decision, and that he would talk again with his attorney about the
pros and cons before deciding. The district court advised Byron
that he should consult with his attorney, but that it was Byron’s
decision whether or not to testify. The district court also advised
Byron that, if he did not testify, the jury would be instructed not to
consider that in deciding whether he was guilty.
The district court also asked if Byron’s mother was going to
testify, and defense counsel indicated that she was. The district
court pointed out Detective Perdomo’s testimony that the firearm
was not in the country until after her son died and asked whether
Byron’s mother needed counsel. When defense counsel answered
in the negative, the district court stated that Byron’s mother “could
be charged with perjury” and suggested defense counsel should
discuss it with Byron. The district court said it was “not getting
further involved,” but observed, “[i]f I were a defendant, I would
be concerned about my mother.”
The government also read into evidence several stipulations
of the parties, including that Byron’s previous felony convictions
included convictions for offenses related to the knowing possession
of firearms.
After the government rested, Byron moved for a judgment
of acquittal, arguing the government had failed to prove he
knowingly possessed the firearm in the Lincoln. The district court
denied the motion.
E. Byron’s Defense
Joyce Byron, Byron’s mother, testified that she co-owned
the Lincoln with Byron’s girlfriend, who usually drove the car. A
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8 Opinion of the Court 22-12022
few weeks before Byron’s arrest, Ms. Byron found the firearm in a
closet in her deceased son’s room and assumed the firearm
belonged to him. Without telling Byron or his girlfriend, Ms.
Byron put the firearm under the Lincoln’s driver’s seat, intending
to get rid of it, and then forgot about it.
On cross-examination, Ms. Byron admitted that she was
“just speculating” when she stated under oath in her prior affidavit
that the firearm belonged to her deceased son and that she did not
know to whom the firearm belonged. She did not remember
finding a holster with the firearm and could not explain how the
holster got into the Lincoln.
Following Ms. Byron’s testimony, the district court held
another sidebar conference outside the jury’s presence. The
district court discussed again with defense counsel whether Byron
planned to testify, explaining to defense counsel, who said he was
a “state court guy,” that in federal court the government would be
able to explore the nature of Byron’s six prior convictions on cross-
examination. Defense counsel responded that he would “have a
chat” with Byron about that. A United States Marshal then
announced that Byron just informed him that he was not going to
testify. The district court responded, “Okay. Time out. Go back
and talk to him again. Probably a good decision.” After a brief
recess, defense counsel advised the district court that Byron had
decided not to testify.
Once the jury returned, Byron called Brooke Moreno, his
girlfriend, to testify. Moreno said she was the registered owner and
primary user of the Lincoln, even though she also owned a Jaguar.
Moreno claimed Byron usually did not drive the car.
After Byron rested, he renewed his motion for a judgment
of acquittal. The district court again denied the motion, finding
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22-12022 Opinion of the Court 9
there was plenty of evidence to support a jury finding that Byron
knowingly possessed the firearm and ammunition found in the
Lincoln on June 30, 2021.
F. Prosecutor’s Comments During Closing Argument
Before closing arguments, the district court instructed the
jury that the statements of counsel are not evidence. During
closing argument, the government argued its theory that Byron
possessed the firearm on June 30, 2021 as protection because he
was selling marijuana, as follows:
And why would Mr. Byron have a Glock 19
handgun with an extended magazine and 29 bullets in
it? Well, Detective Perdomo testified that based on
his training and experience, the defendant was
involved in selling drugs since he had more than a
pound of marijuana on him, a digital scale and THC
edibles. Detective Perdomo also testified that in his
training and experience, drug dealers arm themselves
with firearms to protect themselves and their drugs.
Byron raised no objection to the prosecutor’s closing argument.
During the jury charge, the district court instructed the jury
to consider only the evidence admitted at trial and reminded the
jury that the lawyers’ statements were not evidence. The district
court also instructed the jury that, apart from its instructions about
the law, it should disregard any of the court’s comments and arrive
at its own decision about the facts.
G. Conviction and Sentence
The jury returned a guilty verdict.
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10 Opinion of the Court 22-12022
The probation officer prepared a presentence investigation
report (“PSI”) that recommended an advisory guidelines range of
262 to 327 months’ imprisonment. The PSI did not recommend an
obstruction of justice enhancement, and the government did not
seek such an enhancement. The district court notified the parties
to be prepared to respond to whether to apply an obstruction of
justice enhancement under the Sentencing Guidelines.
At sentencing, defense counsel objected to the district court
sua sponte considering an obstruction of justice enhancement.
Defense counsel argued the court was “put[ting] itself almost as an
advocate.” The district court overruled the objection, explaining
that it had an obligation to consider the guidelines and determine
the appropriate sentence. It seemed clear to the court from the trial
evidence that “there was a real issue with regard to obstruction of
justice.”
The government explained that it had not sought an
obstruction enhancement because it was unclear whether Ms.
Byron’s testimony was suborned perjury. The district court
pointed out that to convict, the jury must have found that Ms.
Byron was not telling the truth and expressed its own view that her
testimony was false and that Byron had asked her to give false
testimony. Nonetheless, the district court withdrew its notice and
stated it would not pursue the obstruction of justice enhancement.
Byron also objected to the district court considering, as a
sentencing factor, the marijuana found in the Lincoln, arguing it
was uncharged conduct. The district court overruled the
objection, stating that it was uncontested at trial that marijuana
was found in the car. The district court observed that the
“Eleventh Circuit [has] said, from time to time, and I think
common knowledge tells us, guns and drugs go hand in thug [sic].
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22-12022 Opinion of the Court 11
And that’s what I think we had in this case. So I am going to
consider it.” The court stressed that the marijuana found in the car
was “not going to change” the sentence it imposed, but concluded
that it was proper to consider it.
The district court ultimately varied downward from the
advisory guidelines range of 262 to 327 months and imposed a 240-
month sentence. While Byron does not appeal his sentence, he
contends the district court’s comments about the obstruction-of-
justice enhancement show bias.
II. DISCUSSION
On appeal, Byron raises four issues, which we address in
turn.
A. Rule 404(b) Evidence of Prior Firearm Possession
Byron contends the district court erred in admitting the text
messages and photographs of firearms extracted from his cell
phone under Federal Rule of Evidence 404(b).
We ordinarily review a district court’s evidentiary rulings
under Rule 404(b) for “a clear abuse of discretion.” United States v.
Elysee, 993 F.3d 1309, 1347 (11th Cir. 2021) (quotation marks
omitted), cert. denied, 142 S. Ct. 2782 (2022). Here, however, at the
suppression hearing, the district court asked whether Byron had an
objection to the admissibility of cellphone texts and pictures based
on Rule 404(b), and defense counsel responded that Byron did not.
Under such circumstances, we have held that the defendant has
invited error and appellate review is precluded. See United States v.
Thayer, 204 F.3d 1352, 1355 (11th Cir. 2000).
Even if Byron did not invite error, he did not object to the
admission of the texts and pictures extracted from his cellphone in
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12 Opinion of the Court 22-12022
the district court, and there is no error here, much less plain error.
See United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007).
Rule 404(b) prohibits evidence of other crimes, wrongs, or
acts to prove a person’s character in order to show action in
conformity therewith. Fed. R. Evid. 404(b)(1). Such evidence
“may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
Evidence is admissible under Rule 404(b) if: (1) the evidence is
relevant to an issue other than the defendant’s character; (2)
sufficient evidence is presented to allow a jury to find that the
defendant committed the extrinsic act; and (3) the probative value
of the evidence substantially outweighs its undue prejudice. United
States v. Sterling, 738 F.3d 228, 238 (11th Cir. 2013).
Where the mens rea element of an offense is at issue, extrinsic
evidence of the defendant’s prior engagement in acts similar to the
charged offense is highly probative. See United States v. Ramirez, 426
F.3d 1344, 1354 (11th Cir. 2005). A district court does not abuse its
discretion when it admits evidence that a defendant knowingly
possessed a firearm on a prior occasion to prove that the same
defendant knowingly possessed a firearm on a later occasion. See
United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005).
Moreover, a district court’s limiting instruction mitigates the unfair
prejudice posed by evidence admitted under Rule 404(b). United
States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993).
Here, as to the first prong of the Rule 404(b) test for
admissibility, the texts and photographs of Byron possessing
firearms in the past, including the same or a similar Glock 19 with
an extended magazine, are relevant to whether he knowingly
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22-12022 Opinion of the Court 13
possessed the Glock 19 with the extended magazine found under
the driver’s seat on June 30, 2021. See Taylor, 417 F.3d at 1182.
As to the second prong, the record supports a finding by a
preponderance of the evidence that Byron possessed the firearms
in the photographs because the accompanying text messages
indicated Byron was attempting to sell the firearms to another
person. See United States v. Bowe, 221 F.3d 1183, 1192 (11th Cir.
2000) (“The prosecution can introduce evidence of a defendant’s
otherwise admissible acts if the jury could find by a preponderance
of the evidence that the acts did in fact occur.”).
As for the third prong, the prejudicial effect of the
photographs did not substantially outweigh their probative value.
Byron’s mens rea was the primary issue at trial. Thus, evidence of
his prior knowing possession of similar firearms was highly
probative of his knowing possession of the firearm found under his
driver’s seat on June 30, 2021. See Ramirez, 426 F.3d at 1354.
Furthermore, the district court gave a limiting instruction to
the jury, which mitigated any unfair prejudice stemming from the
photographs. See Diaz-Lizaraza, 981 F.2d at 1225. Specifically, the
district court instructed the jury that it could consider the text
messages and photographs only for the limited purpose of
determining whether Byron “had the state of mind or the intent
necessary to commit the crime” or whether Byron “committed the
acts charged in the indictment by accident or by mistake.” For
these reasons, the district court did not abuse its discretion, much
less plainly err, in admitting the texts and photographs of the
firearms.
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14 Opinion of the Court 22-12022
B. Motion for Judgment of Acquittal
To obtain a conviction under 18 U.S.C. § 922(g), the
government must prove that: (1) the defendant knew that he
possessed (2) a firearm (3) that had travelled in interstate commerce
(4) with knowledge of his status as one prohibited from possessing
a firearm. See United States v. Johnson, 981 F.3d 1171, 1179, 1181
(11th Cir. 2020); see also Rehaif v. United States, 588 U.S. ____, 139
S. Ct. 2191, 2200 (2019). “Possession of a firearm may be either
actual or constructive.” United States v. Perez, 661 F.3d 568, 576
(11th Cir. 2011).
“Actual possession exists when a person has direct physical
control over a thing.” United States v. Ochoa, 941 F.3d 1074, 1104
(11th Cir. 2019) (quotation marks omitted). “Constructive
possession of a firearm exists when a defendant does not have
actual possession but instead knowingly has the power or right,
and intention to exercise dominion and control over the firearm.”
Perez, 661 F.3d at 576. Mere proximity to a firearm is insufficient
to establish constructive possession. Ochoa, 941 F.3d at 1104.
Rather, “the government [must] prove, through direct or
circumstantial evidence, that the defendant was aware or knew of
the firearm’s presence and had the ability and intent to later
exercise dominion and control over the firearm.” Id.
We review de novo the denial of a motion for a judgment of
acquittal, “viewing the evidence in the light most favorable to the
government and drawing all reasonable inferences in favor of the
jury’s verdict.” United States v. Martin, 803 F.3d 581, 587 (11th Cir.
2015). “The issue is not whether a jury reasonably could have
acquitted but whether it reasonably could have found guilt beyond
a reasonable doubt.” Id. (alteration adopted and quotation marks
omitted).
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22-12022 Opinion of the Court 15
Here, the government presented ample evidence from
which the jury could reasonably find that Byron knowingly
possessed the Glock 19 found underneath the driver’s seat of the
car he was driving. Detective Gomez testified that Byron failed to
pull over for four blocks while being pursued by a patrol car with
lights and sirens activated. Once he finally stopped, Byron reached
toward the floorboard beneath his seat, the same area where
moments later Detective Gomez found the firearm. A box of
Popeyes chicken was shoved underneath the driver’s seat and on
top of the firearm in an unusual manner. Condensation on the
Popeyes drink in the cupholder indicated the chicken was Byron’s
and recently purchased. Meanwhile, the firearm’s holster was in
plain view inside the center console. From this evidence, the jury
could reasonably infer that Byron knew the firearm was in the
Lincoln and attempted to hide it under his driver’s seat using the
box of chicken before pulling over.
In addition, the presence of the backpack containing a large
amount of marijuana and drug dealing paraphernalia in the car
near the firearm and the holster, along with Detective Perdomo’s
testimony of the common connection between drug dealing and
firearms, was circumstantial evidence that Byron knowingly
possessed the firearm to protect himself while selling the
marijuana. See United States v. Thomas, 242 F.3d 1028, 1031-33 (11th
Cir. 2001) (concluding evidence of drug trafficking found inside a
home in close physical and temporal proximity to weapons was
relevant to proving knowing possession of the weapons and thus
properly admitted).
Finally, the government’s firearms identification expert
testified that the Glock 19 found underneath Byron’s seat was likely
the same Glock 19 Byron was holding in his lap in one of the
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16 Opinion of the Court 22-12022
pictures extracted from his cell phone. And the pictures of firearms
found on Byron’s cell phone—which, as already discussed, were
properly admitted under Rule 404(b)—support a finding that his
proximity to the firearm under the seat was not a mistake.
Byron emphasizes that there was no DNA or fingerprint
evidence tying him to the firearm. But the government’s evidence
did not need to rule out conclusively every reasonable hypothesis
of innocence, so long as a jury could reasonably find Byron guilty
beyond a reasonable doubt. See United States v. Toler, 144 F.3d 1423,
1433 (11th Cir. 1998). The government’s evidence was more than
sufficient for a jury to find beyond a reasonable doubt that Byron
knowingly possessed, either actually or constructively, the firearm
found under his seat.
C. Claim of Prosecutorial Misconduct
Byron contends prosecutorial misconduct occurred when
the prosecutor solicited testimony from Detective Perdomo on
redirect examination that Byron was a “drug dealer” and then
referred to Byron as a “drug dealer” during closing argument.
We first point out that Byron does not raise any evidentiary
issue as to Detective Perdomo’s testimony. That is, Byron does
not argue that Detective Perdomo’s testimony—that the quantity
of marijuana and the presence of a digital scale in the Lincoln
indicated that Byron was selling marijuana—was inadmissible
under the Federal Rules of Evidence.
Instead, Byron argues that the prosecutor’s questions to
Detective Perdomo and comments during closing argument using
the inflammatory characterization “drug dealer” amounted to
prosecutorial misconduct. He also argues the prosecutor’s
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22-12022 Opinion of the Court 17
questions about Byron being a drug dealer were beyond the scope
of redirect examination.
Ordinarily, we review a claim of prosecutorial misconduct
de novo. United States v. Flanders, 752 F.3d 1317, 1332 (11th Cir. 2014).
However, where, as here, “a defendant fails to make a
contemporaneous objection to the alleged misconduct in the
district court, we review such claims for plain error.” Id. at 1332-33
(quotation marks omitted).1 Under plain error review, the
defendant must show that there is (1) error, (2) that is plain, (3) that
affected his substantial rights, and (4) that seriously affected the
fairness of the judicial proceedings. Id. at 1333.
“To find prosecutorial misconduct, a two-element test must
be met: (1) the questions or comments must be improper, and
(2) the questions or comments must prejudicially affect the
substantial rights of the defendant.” United States v. Schmitz, 634
F.3d 1247, 1267 (11th Cir. 2011). Here, we find nothing improper
or unduly prejudicial in the prosecutor’s questions or comments.
During redirect examination, the prosecutor solicited
testimony from Detective Perdomo that—based on his training
and experience in law enforcement—the quantity and quality of
the marijuana and presence of a digital scale indicated to him that
Byron was selling the marijuana and had the firearm for protection.
1 Byron objected to Detective Perdomo’s testimony as conclusory. But he did
not object to the prosecutor’s questions to Detective Perdomo—about
whether the evidence found in the Lincoln indicated Byron was selling
marijuana and how drug dealers use their cell phones to conduct drug deals—
as improper or inflammatory or otherwise give the district court notice that
Byron believed the prosecutor had engaged in misconduct. See United States
v. Madruga, 810 F.2d 1010, 1014 (11th Cir. 1987) (stating that to preserve an
objection, a party must state the specific ground that underlies the objection).
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18 Opinion of the Court 22-12022
The prosecutor properly solicited this testimony as circumstantial
evidence of Byron’s knowledge of the firearm found underneath
his driver’s seat and in close proximity to the marijuana. The
prosecutor’s questions were relevant, did not go outside the
evidence, and did not impugn Byron’s character without any
evidentiary basis.
The prosecutor then asked Detective Perdomo whether
“drug dealers use their phone as part of their drug dealing,” the
prosecutor’s only use of the phrase “drug dealer” during redirect
examination. This question was not improper given Byron’s cross
examination of Detective Perdomo.
On cross examination, Byron questioned Detective
Perdomo’s reasons for obtaining a search warrant for Byron’s cell
phone, including asking about the marijuana found in the Lincoln.
Byron also asked if Detective Perdomo sought the search warrant
because “historically drug dealers seem to have evidence on a
cellphone,”—using the phrase “drug dealer” Byron now claims was
inflammatory even before the prosecutor did. Moreover, Byron’s
questioning of Detective Perdomo’s investigative rationale and the
marijuana found in the Lincoln opened the door to the
government to ask Perdomo about the conclusions he had drawn
from the drugs and firearm found together in Byron’s car and how
that shaped his application for a search warrant. See United States v.
Elliott, 849 F.2d 554, 559 (11th Cir. 1988) (concluding the trial court
was correct to allow the government on redirect examination to
go into evidence of other drug activity because defense counsel’s
cross-examination first elicited testimony about that drug activity).
Similarly, we see no impropriety in the prosecutor’s
statements during closing argument. To explain why Byron had a
firearm in the Lincoln, the prosecutor pointed to Detective
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22-12022 Opinion of the Court 19
Perdomo’s testimony that Byron “was involved in selling drugs
since he had more than a pound of marijuana on him, a digital scale
and THC edibles,” and that “drug dealers arm themselves with
firearms to protect themselves and their drugs.” Given Detective
Perdomo’s testimony outlined above, the government was not
forbidden from using the “drug dealer” language, even if colorful,
in closing argument because the evidence supported it. See United
States v. Cooper, 926 F.3d 718, 739 (11th Cir. 2019). In addition, the
prosecutor was entitled to urge the conclusions he thought the jury
should draw from the evidence. See United States v. Calderon, 127
F.3d 1314, 1336 (11th Cir. 1997).
Byron relies on United States v. Blakey, 14 F.3d 1557 (11th Cir.
1994), but Blakey is materially distinguishable. In Blakey, the
prosecutor’s characterization of the defendant as a “professional
criminal” during closing arguments was improper because there
was no evidence at trial to support that characterization. 14 F.3d
at 1559-60. “Thus, the prosecutor’s comment went outside the
evidence, and impugned Blakey’s character with an inaccurate
characterization.” Id.
In contrast, here the prosecutor’s description of Byron as
“involved in selling drugs” and a “drug dealer” was supported by
the trial evidence, including the photographs of, and testimony
about, the marijuana and drug trafficking paraphernalia found in
Byron’s car. Unlike in Blakey, the prosecutor here did not go
outside the evidence or impugn Byron’s character with an
inaccurate characterization.
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20 Opinion of the Court 22-12022
D. Constitutional Claim of Judicial Bias
Finally, Byron contends the district court demonstrated
improper bias against him in violation of his due process rights
under the Fifth Amendment.2
The Due Process Clause of the Fifth Amendment
“guarantees an absence of actual bias on the part of a judge.”
Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (quotation marks
omitted); Norris v. United States, 820 F.3d 1261, 1265 (11th Cir. 2016).
Additionally, “[t]he Supreme Court has decided that in at least
some situations the probability of actual bias is enough to violate
due process.” United States v. Rodriguez, 627 F.3d 1372, 1382 (11th
Cir. 2010) (citing Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009),
in which a judge accepted from a litigant significant contributions
to his campaign for office). However, neither this Court nor the
Supreme Court has held that the mere appearance of bias violates
the Due Process Clause. Id. at 1381-82.
While the “Due Process Clause demarks only the outer
boundaries of judicial disqualifications,” the federal recusal statute,
28 U.S.C. § 455, “sets a higher bar,” requiring a judge to recuse
where the judge has a personal bias or prejudice concerning a party.
Norris, 820 F.3d at 1265 (quotation marks omitted). On appeal,
2 In the district court, Byron did not move for the judge’s recusal or raise an
explicit bias objection. On appeal, the parties disagree about whether we
should review Byron’s due process claim for plain error or structural error.
See Norris v. United States, 820 F.3d 1261, 1266 (11th Cir. 2016) (stating that
“structural error occurs when a judge with actual bias against a defendant pre-
sides at his trial”); United States v. Rodriguez, 627 F.3d 1372, 1379 (11th Cir. 2010)
(stating that “if a party does not move to recuse a judge on actual bias grounds,
review is only for plain error”). Because we find no constitutional error at all,
we do not reach that issue.
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22-12022 Opinion of the Court 21
Byron raises only a due process challenge and thus has abandoned
any claim based on the federal recusal statute. See United States v.
Campbell, 26 F.4th 860, 871 (11th Cir.) (en banc), cert. denied, 143 S.
Ct. 95 (2022) (“Typically, issues not raised in the initial brief on
appeal are deemed abandoned.”).
Nonetheless, we look to our decisions in the context of the
federal recusal statute for guidance because judicial conduct that
does not meet even those stricter recusal standards will not amount
to a due process violation. See Bracy v. Gramley, 520 U.S. 899, 904-
05 (1997) (noting that most questions of judicial disqualification are
not constitutional ones because the Due Process Clause merely
“establishes a constitutional floor”). In that stricter context, we
have applied a general rule “that bias sufficient to disqualify a judge
must stem from extrajudicial sources and must be focused against
a party to the proceedings.” United States v. Ramos, 933 F.2d 968,
973 (11th Cir. 1991) (quotation marks omitted); see also Liteky v.
United States, 510 U.S. 540, 554 (1994). An exception to this rule
exists where the judge’s remarks demonstrate such pervasive bias
and prejudice that it unfairly prejudices one of the parties. Ramos,
933 F.2d at 973.
Further, “opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for
a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible.” Liteky, 510 U.S. at 555. Finally, a judge’s statements
made outside the presence of the jury are less likely to result in
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22 Opinion of the Court 22-12022
prejudice to the defendant justifying a reversal on judicial bias
grounds. See United States v. Cook, 461 F.2d 906, 912 (5th Cir. 1972).3
Byron points to the following comments the district court
made at trial outside the presence of the jury, which he contends
were improper and are objective proof the judge was biased: (1) the
district court inquired into whether Byron would testify and later,
when it was announced that he would not, stated “[p]robably a
good decision”; and (2) the district court questioned whether
Byron’s mother should testify, pointing out that Detective Perdomo
already had testified that the firearm was not in the United States
until after her son died and that she could be charged with perjury.
The district court’s discussion with defense counsel about
Byron’s decision to testify did not demonstrate bias at all but was
instead primarily concerned with ensuring that Byron’s counsel
had fully briefed Byron on the pros and cons of testifying, including
the important distinction between the state and federal rules
regarding impeachment. As for the district court’s comments
related to Byron’s mother, these were permissible commentary on
the evidence and expressions of concern that, based on the
evidence, Byron might be exposing his mother to a perjury charge.
See United States v. James, 510 F.2d 546, 550 (5th Cir. 1975) (“[A]
federal trial judge is more than a moderator; in fulfilling his duty to
see that the law is administered properly, he may question
witnesses and comment on the evidence.”).
We also reject Byron’s characterization of these comments
(1) as an attempt to persuade Byron and his mother not to testify,
3 This Court adopted as binding precedent all Fifth Circuit decisions prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc).
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22-12022 Opinion of the Court 23
or (2) as an indication the district court “had pre-judged” guilt. And
because the comments were made outside the presence of the jury,
they certainly did not result in prejudice to Byron that would
warrant reversal of his conviction. See Cook, 461 F.2d at 912.
Byron also points to the district court’s statements before
and during sentencing suggesting that an obstruction-of-justice
enhancement may be warranted because Byron had suborned his
mother’s perjury. These statements expressed the district court’s
opinions formed based on the evidence presented at trial and on
the jury’s verdict. These statements clearly do not “display a deep-
seated favoritism or antagonism that would make fair judgment
impossible.” See Liteky, 510 U.S. at 555; Ramos, 933 F.2d at 973.
Nor did the district court impermissibly become “an
advocate” for the sentencing enhancement or “insert[ ] himself into
[the] process.” As the district court itself pointed out, at sentencing
it is obliged to calculate correctly the sentencing range prescribed
by the Sentencing Guidelines before determining the appropriate
sentence. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.
2005). Notably too, Byron’s claim ignores that the district court
ultimately decided not to impose an obstruction-of-justice
enhancement and then varied downward by 22 months from the
low end of the advisory guidelines range it calculated without the
proposed enhancement. Based on the record as a whole, we readily
conclude the district court’s brief, sua sponte consideration of an
obstruction-of-justice enhancement did not demonstrate bias at all,
much less the kind of bias that violates due process.4
4 Byron also contends the district court “alluded to Byron being ‘a thug’ at
sentencing.” Byron refers to the district court’s observation that the “Eleventh
Circuit said, from time to time, and I think common knowledge tells us, guns
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24 Opinion of the Court 22-12022
III. CONCLUSION
For these reasons, we affirm Byron’s conviction for
possession of a firearm and ammunition by a convicted felon.
AFFIRMED.
and drugs go hand in thug.” Byron admits the district court may have meant
to say hand-in-glove and merely misspoke. We agree, as the phrase
commonly appearing in our decisions is that guns and drugs go hand-in-hand.
See, e.g., United States v. Hromada, 49 F.3d 685, 689 (11th Cir. 1995). When read
in context, the district court’s comment appears to be a misstatement rather
than a pejorative reference to Byron.
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