United States v. Willis Kendrick, III ( 2012 )


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  •                                                                                  [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT  OF APPEALS
    ELEVENTH CIRCUIT
    JUNE 1, 2012
    No. 11-12620
    ________________________            JOHN LEY
    CLERK
    D.C. Docket No. 0:10-cr-60320-MGC-1
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,
    versus
    WILLIS KENDRICK, III,
    llllllllllllllllllllllllllllllllllllllll                              Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (June 1, 2012)
    Before MARCUS and BLACK, Circuit Judges, and HODGES,* District Judge.
    MARCUS, Circuit Judge:
    *
    Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
    Florida, sitting by designation.
    Willis Kendrick III appeals following his conviction for alien smuggling for
    commercial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Kendrick argues
    that the district court erred by: (1) denying his motion to dismiss the indictment
    based on vindictive prosecution; (2) failing to grant a judgment of acquittal based
    on insufficiency of the evidence; (3) granting the government’s motion in limine
    precluding Kendrick from discussing the events of his prior trial beyond an
    excerpt of his sworn testimony; and (4) denying Kendrick’s motion in limine
    seeking to introduce portions of the prosecutor’s closing argument from
    Kendrick’s prior trial as an admission of a party opponent under Fed. R. Evid.
    801(d)(2). After thorough review we affirm.
    I.
    The relevant facts and procedural history are these. In December 2010, a
    federal grand jury sitting in the Southern District of Florida indicted Kendrick on
    one count of knowingly bringing or attempting to bring an alien into the United
    States for the purpose of commercial advantage and private financial gain, in
    violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Prior to this indictment, a federal grand
    jury had charged Kendrick in June 2010 with marijuana trafficking and firearm
    offenses, in violation of 46 U.S.C. § 70503(a)(2) and 18 U.S.C. § 924(c); he was
    acquitted by a jury on all counts. Both sets of charges arose in connection with an
    2
    incident from May 28-29, 2010, when U.S. Coast Guard personnel boarded a
    vessel that Kendrick was piloting late at night off the coast of Florida, and
    discovered a firearm, 900 pounds of marijuana, and a previously deported illegal
    alien named Robert Harding.
    During the first trial on the drug and firearm charges, Kendrick denied
    knowing about the marijuana, which was found in several hidden compartments,
    but admitted that he had gone to the Bahamas to bring illegal aliens back into the
    United States for money. He first testified that he had called off the alien
    smuggling deal when he found out that the three people he was supposed to bring
    back on the boat did not have passports. On cross-examination, however, he
    conceded that he had agreed to commit the federal offense of alien smuggling in
    exchange for $25,000, and that he knew the people he planned to transport from
    the Bahamas to the United States were illegal aliens. He later retreated from his
    earlier admission, and implied that he thought he was being compensated for
    bringing back legal aliens.1
    1
    The relevant portions of Kendrick’s testimony during his first trial went this way:
    Q:        What happened when you arrived [in the Bahamas]?
    ....
    A:        . . . I [told my contact there], “Well, if they don’t have any kind of passport
    I’m not taking those guys back.”
    3
    Q:   Why is that? Why did you say that?
    A:   Because I know that that’s wrong to do. If they didn’t have any passport
    that they was -- that was illegal.
    ....
    Q:   You are telling this jury under oath that you committed a federal crime of
    alien smuggling.
    A:   Yes, sir.
    Q:   That you knowingly in exchange for $25,000 agreed to smuggle illegal
    aliens into the United States.
    A:   Yes, sir.
    Q:   You understand that could get you in a lot of trouble, right?
    A:   Yes, sir.
    Q:   So if agents came and arrested you, you would be okay with that?
    A:   I done wrong.
    ....
    Q:   It is your testimony that you had no idea you were going to be bringing
    back an illegal alien?
    A:   No. I knew.
    ....
    Q:   . . . So you told the jury a second ago you were very concerned about
    abiding by the law.
    A:   Yes, sir.
    Q:   And yet you did it anyway?
    A:   Yes, sir.
    Q:   And you knew you were going to be smuggling an alien back from the
    Bahamas prior to your departure, didn’t you.
    4
    A:   Yes, sir.
    Q:   Because they were paying you, what, between 25 and 30,000?
    A:   Twenty-five, yes, sir.
    Q:   And you knew these people were not going to be legal.
    A:   Yes, sir.
    Q:   So the testimony about the whole, “I wanted to make sure everybody is
    legal. I never would have brought back somebody without papers,” that
    you testified to a moment ago that wasn’t true.
    A:   That’s not true.
    Q:   So when you were testifying under oath a second ago you were lying to
    this jury?
    A:   When I got to Bimini if Mr. Harding had not had a passport I would not
    have brought him back.
    ....
    Q:   Wait a second. So you want this jury to believe you were being paid
    $25,000 to bring back legal people?
    ....
    Q:   . . . These people were willing to pay you $25,000 for a trip that costs a
    hundred bucks.
    A:   Yes, sir.
    Q:   And you’re telling this jury you had no idea that you were going to be
    committing a crime.
    A:   I kind of -- I felt as though as something was wrong about it.
    Q:   But because you were getting paid $25,000 you figure, “Well, I’ll take him
    back anyway.”
    A:   Yes, sir.
    5
    In closing argument, the government said that Kendrick’s claim that he
    thought he was getting $25,000 to transport legal aliens was not credible, and that
    drug trafficking must have also been involved. Following an acquittal, the
    government brought the present alien smuggling charge based, in part, on
    Kendrick’s own testimony in the first trial.
    After pleading not guilty, Kendrick moved to dismiss, arguing that the
    prosecutor had vindictively brought new charges against him in order to retaliate
    for Kendrick’s acquittal in the earlier trial on drug and firearm charges arising out
    of the same conduct. The government responded that, at the time of the original
    indictment, there was insufficient evidence to indict Kendrick for the alien
    smuggling charge, and, indeed, it was not until his admissions during the first case
    that it had a sufficient evidentiary foundation to bring the new charge. The district
    court rejected the defendant’s motion.
    The government also moved in limine to bar the defense from mentioning
    the previous acquittal or trial, or making any argument regarding vindictive
    prosecution. Kendrick objected, claiming that the jury needed to have a full
    understanding of the circumstances surrounding his testimony in the earlier case.
    (Transcript of Kendrick’s testimony at 18-19, 41-42, 44-46).
    6
    The court agreed with the government and granted the motion. Kendrick in turn
    filed a motion in limine seeking to introduce excerpts of the prosecutor’s closing
    argument from the first trial; the district court disagreed and denied the motion.
    At the alien smuggling trial, Immigration and Customs Enforcement
    (“ICE”) Agent Rafael Albuernes read into evidence Kendrick’s portions of sworn
    testimony from the first trial. In that testimony, among others, Kendrick admitted
    to agreeing to smuggle three illegal aliens from Bimini, Bahamas into the United
    States for $25,000. Several Coast Guard officials also testified about their
    interception of Kendrick’s boat. At the conclusion of the government’s case,
    Kendrick moved for a judgment of acquittal, claiming that the government had not
    proven that Kendrick knew Harding was an illegal alien. The court rejected the
    motion.
    In his defense, Kendrick testified that in April 2010, he met two individuals
    who asked him to go to Bimini and pick up three people for $25,000. Kendrick
    said that, when he arrived in Bimini, he did not take the three individuals onto the
    boat with him because they did not possess passports. The defendant added that
    he was then told that Harding (who was not part of the original plan) had a
    passport and just needed to get back to his family in the United States. Kendrick
    claimed that he did not expect to be paid for the last minute arrangement
    7
    concerning Harding. On cross-examination, Kendrick admitted that he had driven
    the boat to the Bahamas under the cover of darkness, and had checked Harding’s
    passport so that, if caught, Kendrick could claim he thought that Harding was
    legal. Harding testified, for his part, that he had never met Kendrick before the
    smuggling incident, that Kendrick never asked to see Harding’s passport or travel
    documents, and that Harding paid another man, not Kendrick, to be smuggled back
    into the United States.
    Thereafter, the jury found Kendrick guilty of the alien smuggling charge.
    This timely appeal followed.
    II.
    We review a district court’s decision whether to dismiss an indictment due
    to prosecutorial misconduct for abuse of discretion, United States v. Jordan, 
    316 F.3d 1215
    , 1248-49 (11th Cir. 2003), and we have applied that standard in a
    prosecutorial vindictiveness case, United States v. Barner, 
    441 F.3d 1310
    , 1315
    (11th Cir. 2006). Abuse-of-discretion review “recognizes the range of possible
    conclusions the trial judge may reach,” United States v. Frazier, 
    387 F.3d 1244
    ,
    1259 (11th Cir. 2004) (en banc), and we must affirm unless we determine that the
    district court made a clear error of judgment or applied an incorrect legal standard,
    United States v. Abreu, 
    406 F.3d 1304
    , 1306 (11th Cir. 2005) (per curiam). We
    8
    review “de novo the legal question of whether a presumption of vindictiveness
    arises from the facts of the case.” United States v. Jones, 
    601 F.3d 1247
    , 1260
    (11th Cir. 2010).
    We review de novo the denial of a motion for a judgment of acquittal based
    on the insufficiency of the evidence. United States v. Gari, 
    572 F.3d 1352
    , 1359
    (11th Cir. 2009). In doing so, we view the evidence in the light most favorable to
    the government and draw all reasonable inferences and credibility determinations
    in favor of the jury’s verdict. United States v. Taylor, 
    480 F.3d 1025
    , 1026 (11th
    Cir. 2007). Finally, we review a district court’s ruling on a motion in limine for
    abuse of discretion. See United States v. Thompson, 
    25 F.3d 1558
    , 1563 (11th
    Cir. 1994). Even if the evidence was admitted or excluded improperly, we will not
    vacate unless the defendant’s substantial rights were affected. See United States
    v. Quinn, 
    123 F.3d 1415
    , 1420-21 (11th Cir. 1997).
    III.
    First, we are unpersuaded by Kendrick’s claim that the district court abused
    its discretion by denying his motion to dismiss the indictment based on vindictive
    prosecution. Generally, if a prosecutor has probable cause to believe that the
    defendant committed a crime, “the courts have no authority to interfere with a
    prosecutor’s decision to prosecute.” 
    Barner, 441 F.3d at 1315
    . However,
    9
    “[r]eindictment violates due process whenever a prosecutor adds new charges
    merely to retaliate against the defendant for exercising statutory or constitutional
    rights.” United States v. Spence, 
    719 F.2d 358
    , 361 (11th Cir. 1983) (per curiam).
    “A prosecutor’s charging decision does not impose an improper ‘penalty’ on a
    defendant unless it results from the defendant’s exercise of a protected legal right,
    as opposed to the prosecutor’s normal assessment of the social interests to be
    vindicated by the prosecution.” United States v. Taylor, 
    749 F.2d 1511
    , 1514
    (11th Cir. 1985) (per curiam) (citing 
    Spence, 719 F.2d at 364
    ).
    “A prosecutor’s decision to seek heightened charges after a defendant
    successfully appeals his conviction for the same conduct is presumed to be
    vindictive.” 
    Barner, 441 F.3d at 1315
    -16. However, the prosecution may rebut
    the presumption by establishing reasons for adding the new charges other than to
    punish the defendant for exercising his legal rights. 
    Jones, 601 F.3d at 1260
    . This
    may include showing that it could not have proceeded previously on the
    additional charge. Id.; see also Hardwick v. Doolittle, 
    558 F.2d 292
    , 301 (5th Cir.
    1977) (noting that vindictiveness may be negated where “evidence of the
    additional crimes may not have been obtained until after the first indictment or
    10
    information [was] filed”).2 Once the prosecution has rebutted the presumption, the
    burden rests on the defendant to demonstrate actual prosecutorial vindictiveness,
    which essentially requires a showing that the prosecution’s justification is
    pretextual. 
    Jones, 601 F.3d at 1261
    .
    We have also said that adding new charges based on independent acts,
    “even where the separate acts that prompted the new charges occurred in the same
    ‘spree of activity,’” does not create a presumption of prosecutorial vindictiveness.
    
    Id. at 1261
    n.5 (quotation omitted). Under these circumstances, the defendant
    must prove actual vindictiveness. Id.; see also 
    Taylor, 749 F.2d at 1513
    .
    While our case law has focused on second indictments brought after a
    defendant has successfully appealed his conviction, several of our sister circuits
    have addressed the precise issue before us: second indictments brought after
    acquittals. They have uniformly concluded that when the government brings a
    second federal indictment against a defendant after he was acquitted of different
    offenses arising out of the same incident, the acquittal alone is insufficient to give
    rise to a presumption of prosecutorial vindictiveness. In the first of these cases,
    United States v. Esposito, 
    968 F.2d 300
    (3d Cir. 1992), the defendant was
    2
    In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), we
    adopted as binding precedent all decisions of the former Fifth Circuit issued before October 1,
    1981.
    11
    acquitted of Racketeer Influenced and Corrupt Organizations Act (“RICO”)
    charges, and later indicted for offenses based on the same drug transactions that
    formed a basis for the RICO charges. The Third Circuit held that it would “not
    apply a presumption of vindictiveness to a subsequent criminal case where the
    basis for that case [was] justified by the evidence and [did] not put the defendant
    twice in jeopardy.” 
    Id. at 306.
    The court noted that creating a presumption in
    these circumstances would be “tantamount to making an acquittal a waiver of
    criminal liability for conduct that arose from the operative facts of the first
    prosecution.” 
    Id. It distinguished
    the commencement of new charges after a
    successful appeal from bringing them after an acquittal because “[n]o defendant
    will be deterred from exercising his right to go to trial because of fear that
    following an acquittal the prosecution may bring additional outstanding charges.
    Those charges exist and can be brought even if the defendant is convicted.” 
    Id. at 305.
    Relying on the Third Circuit’s holding in Esposito, the Eighth Circuit -- in a
    case where the defendants had previously been acquitted of possession with intent
    to distribute controlled substances charges, and were later indicted for firearm and
    other new charges -- likewise concluded that “the defendants’ acquittals on the . . .
    charges in the first trial did not involve the exercise of a right by the defendants
    12
    which would raise a presumption of vindictiveness.” United States v. Rodgers, 
    18 F.3d 1425
    , 1430 (8th Cir. 1994). Similarly, the Tenth Circuit, also relying on
    Esposito, held in a case involving bank fraud that an “acquittal itself cannot form
    the basis for a charge of prosecutorial vindictiveness.” United States v. Wall, 
    37 F.3d 1443
    , 1449 (10th Cir. 1994). And, finally, in United States v. Johnson, 
    171 F.3d 139
    , 140-41 (2d Cir. 1999) (per curiam), which involved a second indictment
    for firearm charges after the defendant was acquitted on RICO charges, the Second
    Circuit joined the Third, Eighth, and Tenth Circuits in holding that “a new federal
    prosecution following an acquittal on separate federal charges does not, without
    more, give rise to a presumption of vindictiveness.”
    Kendrick’s violation of 8 U.S.C. § 1324(a)(2)(B)(ii), relating to alien
    smuggling, carried a penalty of three to ten years’ imprisonment. 8 U.S.C. §
    1324(a)(2)(B). His earlier charge, knowingly and intentionally possessing
    marijuana with intent to distribute while aboard a vessel, in violation of 46 U.S.C.
    § 70503(a)(2), subjected him to a greater penalty of five to forty years’
    imprisonment. See 46 U.S.C. § 70506(a); 21 U.S.C. § 960(b)(2)(G). Similarly,
    when the government previously charged him with possession of a firearm during
    a drug trafficking offense, in violation of 18 U.S.C. § 924(c), he faced a minimum
    penalty of five years’ imprisonment. 18 U.S.C. § 924(c)(1)(A)(i).
    13
    In this case, there is no presumption of vindictiveness. For starters, the
    second indictment did not follow a successful appeal by Kendrick nor did it seek
    heightened charges. See 
    Barner, 441 F.3d at 1315
    -16; compare 8 U.S.C. §
    1324(a)(2)(B), with 18 U.S.C. § 924(c)(1)(A)(i), 21 U.S.C. § 960(b)(2)(G), and 46
    U.S.C. § 70506(a). Moreover, the alien smuggling charge was based on acts
    independent of the drug and weapons offenses adjudicated in the first trial, so even
    though the alien smuggling arose out of the same “spree of activity,” we do not
    presume vindictiveness. See 
    Jones, 601 F.3d at 1261
    n.5; 
    Taylor, 749 F.2d at 1513
    . There is no presumption of vindictiveness for still another reason: we agree
    with our sister circuits that bringing a second indictment, supported by evidence,
    against a defendant after an acquittal does not result in a presumption of
    vindictiveness. See 
    Johnson, 171 F.3d at 141
    ; 
    Wall, 37 F.3d at 1449
    ; 
    Rodgers, 18 F.3d at 1430
    ; 
    Esposito, 968 F.2d at 304
    , 306.3
    But even if a presumption of vindictiveness somehow arose as a matter of
    law, the government rebutted the presumption by explaining that it did not bring
    the alien smuggling charge to punish Kendrick because it did not have sufficient
    3
    Although Kendrick argues that reliance on Esposito and Johnson is misplaced, because
    they involved RICO offenses that are very different from the case at hand, the holdings in those
    cases were not dependent on the type of offenses involved, see 
    Johnson, 171 F.3d at 141
    ;
    
    Esposito, 968 F.2d at 304
    , 306. Nor has Kendrick challenged the holdings of the Eighth and
    Tenth Circuits, which did not involve RICO charges.
    14
    evidence at the time of the original indictment to charge Kendrick with knowingly
    smuggling an alien for profit. See 
    Jones, 601 F.3d at 1260
    ; 
    Hardwick, 558 F.2d at 301
    . At the time of the original indictment, Harding had not implicated Kendrick,
    and during his arrest, Kendrick had admitted that he was smuggling drugs, not
    aliens; thus, prior to Kendrick’s admissions about alien smuggling during the first
    trial, there was precious little evidence of Kendrick’s knowledge of Harding’s
    immigration status, or, for that matter, of Kendrick’s prior financial arrangement to
    smuggle illegal aliens.
    Furthermore, Kendrick has not offered the slightest shred of evidence
    supporting a claim of actual prosecutorial vindictiveness. Rather, he asserts only
    at the highest order of abstraction that the government prosecuted him in the
    second trial with evidence that it had previously argued was false. The
    government had argued at the first trial that it did not make sense that Kendrick
    would be paid $25,000 to transport legal aliens. The prosecutor also claimed in
    closing argument that the $25,000 that Kendrick was to receive was for smuggling
    drugs into the country, not aliens. However, at no time did the prosecutor argue
    that Kendrick had not agreed to smuggle an illegal alien into the country, or that
    the defendant did not have some sort of financial motive for doing so.
    15
    Moreover, the prosecutor never claimed that Kendrick’s entire testimony
    was false, but rather, only that the defendant’s version of the events relating to the
    transportation of legal aliens for a large amount of cash strained credulity. We add
    that in the indictment for alien smuggling following Kendrick’s acquittal for the
    drug and firearm offenses, the government did not charge that Kendrick was paid
    $25,000 in order to bring an illegal alien into the United States. The indictment
    only alleged that Kendrick knowingly brought or attempted to bring an illegal
    alien into the United States for profit. In short, the record is barren of support for
    the claim that the government attempted to prosecute Kendrick with evidence that
    it knew to be false, or that it had otherwise evinced actual vindictiveness. The
    district court did not abuse its discretion in rejecting the prosecutorial
    vindictiveness claim.
    IV.
    We also can discern no merit in Kendrick’s argument that the district court
    erred in failing to grant a judgment of acquittal based on insufficiency of the
    evidence. In reviewing a sufficiency claim, the ultimate question is whether a
    reasonable trier of fact could have found guilt beyond a reasonable doubt. 
    Gari, 572 F.3d at 1359
    . “The test for sufficiency of evidence is identical regardless of
    whether the evidence is direct or circumstantial, and no distinction is to be made
    16
    between the weight given to either direct or circumstantial evidence.” United
    States v. Doe, 
    661 F.3d 550
    , 560 (11th Cir. 2011) (quotation omitted). After
    hearing the defendant testify, the jury is free to believe the exact opposite of that
    testimony. See United States v. Brown, 
    53 F.3d 312
    , 314 (11th Cir. 1995).
    In order to sustain a charge that a defendant is guilty of smuggling an alien
    for commercial gain, the government must prove beyond a reasonable doubt that
    the defendant: (1) knowingly brought an alien into the United States; (2) knew or
    recklessly disregarded the fact that the alien had not received prior official
    authorization to come to or enter the United States; and (3) participated in the
    smuggling for the purpose of commercial advantage or private financial gain.
    United States v. Dominguez, 
    661 F.3d 1051
    , 1063-64, 1066 (11th Cir. 2011); see
    also 8 U.S.C. § 1324(a)(2)(B)(ii).4 As for the first two elements, “a specific intent
    to violate the law is not required,” and the defendant need not know that the act is
    illegal or wrong. 
    Dominguez, 661 F.3d at 1068-69
    . Rather, “‘knowingly’ merely
    requires proof of knowledge of the facts that constitute the offense.” 
    Id. at 1068
    (quotation omitted). “To act with ‘reckless disregard’ means to be aware of, but
    4
    In relevant part, the statute provides for criminal penalties against an individual who,
    “for the purpose of commercial advantage or private financial gain,” “knowing or in reckless
    disregard of the fact that an alien has not received prior official authorization to come to, enter, or
    reside in the United States, brings to or attempts to bring to the United States in any manner
    whatsoever, such alien.” 8 U.S.C. § 1324(a)(2)(B)(ii).
    17
    consciously and carelessly ignore, facts and circumstances clearly indicating that
    the person transported was an alien who had entered or remained in the United
    States in violation of law.” United States v. Perez, 
    443 F.3d 772
    , 781 (11th Cir.
    2006) (emphasis omitted). As for the third element, there need not be evidence of
    actual payment or even an agreement to pay; rather, it is sufficient if the defendant
    acted for the purpose of financial gain. 
    Dominguez, 661 F.3d at 1066
    .
    Viewed in the light most favorable to the government, the evidence was
    sufficient to allow the jury to reasonably find beyond a reasonable doubt that
    Kendrick knowingly smuggled an alien into the United States for profit. As the
    record shows, there was sufficient evidence for the jury to conclude that Kendrick
    knew or was in reckless disregard of the fact that Harding did not have
    authorization to enter the United States. See 
    id. at 1063-64.
    First, the jury was
    entitled to rely on Kendrick’s admission from his prior sworn testimony that he
    knew that he was “going to be bringing back an illegal alien.” Although Kendrick
    testified that he did not know that Harding was an illegal alien and that Kendrick’s
    prior testimony referred to three other individuals whom he decided not to
    smuggle into the United States, the jury could have found that Kendrick’s prior
    sworn testimony was credible, and that his testimony during the second trial was
    not; we are obliged to view credibility choices in favor of the jury’s verdict. See
    18
    
    Taylor, 480 F.3d at 1026
    . Moreover, when a criminal defendant chooses to testify
    on his own behalf, his statements, if disbelieved by the jury, may be considered as
    substantive evidence of his guilt. 
    Brown, 53 F.3d at 314
    .
    In the second place, a Coast Guard officer testified at the second trial that at
    night Kendrick fled from her vessel and ignored her repeated hails. Indeed, it was
    not until another Coast Guard crew aboard a faster vessel approached with their
    weapons drawn that Kendrick brought his vessel to a stop. The jury could have
    drawn the reasonable inference that Kendrick would not have fled from the Coast
    Guard if he did not believe that he was doing something illegal. Although
    Kendrick denied that he fled from the Coast Guard vessel, the officer testified that
    her vessel’s navigator lights could be seen from six miles away, the flashing blue
    light could be seen from at least one mile away, the vessel’s siren was very loud,
    and her vessel was, at times, alongside Kendrick’s vessel only about 800 yards
    away.
    Third, since Harding was not a United States citizen and was being
    transported from a foreign country to the United States on a boat in the middle of
    the night, the jury could well have concluded that, even if Kendrick did not know
    for sure that Harding was an illegal alien, he consciously ignored facts that clearly
    indicated that Harding was not legal. See 
    Perez, 443 F.3d at 781
    . Furthermore,
    19
    Kendrick claimed that he checked Harding’s passport before commencing the
    voyage and that he believed Harding’s possession of a passport made Harding
    legal, but Harding testified that Kendrick never asked to see his passport or any
    travel documents, and the jury plainly was entitled to credit Harding’s testimony
    over Kendrick’s.
    There was also sufficient evidence for the jury to conclude that Kendrick
    smuggled Harding into the United States for profit. In Kendrick’s prior testimony,
    he admitted that he had agreed to be paid to smuggle an alien into the United
    States. Harding also testified that he agreed to pay smugglers $5,000 to be
    transported to the United States, even though he did not pay Kendrick directly.
    While Kendrick claimed that he had a change of heart about the first three aliens,
    and agreed to take Harding to the United States without any expectation of
    payment, the jury was free not to believe that Kendrick intended to bring Harding
    into the United States in the dead of night out of the simple goodness of his heart,
    especially considering the obvious risks associated with the venture. And, even if
    the jury believed that Harding was not part of the original deal, as Kendrick
    contends, evidence of an actual agreement to be paid was not necessary.
    
    Dominguez, 661 F.3d at 1066
    . It is enough if Kendrick acted “for the purpose of
    financial gain.” See 
    id. In short,
    on this record, a reasonable trier of fact could
    20
    have determined that Kendrick knowingly smuggled an illegal alien into the
    United States for profit. See 
    Gari, 572 F.3d at 1359
    .
    V.
    We are, likewise, unpersuaded by Kendrick’s claim that the district court
    abused its discretion in granting the government’s motion in limine precluding the
    defendant from discussing the events of his prior trial, even though a few excerpts
    of Kendrick’s testimony from the prior trial (the substance of which we’ve set out
    in footnote one) were presented to the jury. Under Fed. R. Evid. 403, relevant
    evidence may be excluded if its probative value is substantially outweighed by the
    danger of unfair prejudice, confusing the issues, misleading the jury, undue delay,
    wasting time, or needlessly presenting cumulative evidence. “It is the province of
    the trial judge to weigh any materiality against any prejudice and, unless the
    judge’s reading is ‘off the scale,’ his discretion is not abused.” United States v.
    Shelley, 
    405 F.3d 1195
    , 1201 (11th Cir. 2005).
    Moreover, judgments of acquittal are hearsay, and do not fall within any
    exception to the rule against the admission of hearsay evidence. United States v.
    Irvin, 
    787 F.2d 1506
    , 1516-17 (11th Cir. 1986). In Irvin, we concluded that a
    district court did not abuse its discretion in granting the government’s motion in
    limine, which prevented the defendant from mentioning, referring to, or soliciting
    21
    information about the acquittals of his co-defendants in a previous trial. 
    Id. at 1516.
    After noting that a judgment of acquittal is inadmissible hearsay, 
    id., we said
    that, “[e]ven if the evidence of prior acquittal was otherwise admissible, it
    would be properly excludable under [Fed. R. Evid. 403], because its probative
    value is outweighed by the danger of unfair prejudice, confusion of the issues, or
    misleading the jury.” 
    Id. at 1517.
    Here, the district court did not abuse its discretion. To begin, the evidence
    of Kendrick’s prior acquittal was inadmissible hearsay. See 
    id. at 1516.
    Additionally, any discussion of the marijuana and firearm offenses on which
    Kendrick was acquitted may well have only confused the jury, and this risk
    arguably outweighed any probative value that the information may have had. See
    
    id. at 1517;
    see also United States v. Lyons, 
    403 F.3d 1248
    , 1256 (11th Cir. 2005)
    (concluding that the relevance of the defendant’s prior acquittal was “exceedingly
    marginal and, given that it may have confused the jury, we can find no abuse of
    discretion in the district court’s decision to exclude this evidence”). In this
    connection, Kendrick only claims that, had he been allowed to discuss the
    marijuana crime during the alien smuggling case, he could have argued that
    Harding was not part of the original deal and was only an afterthought, which
    would have supported his claim that he did not smuggle Harding for profit. The
    22
    problem with the argument is that Kendrick did actually testify at trial that
    Harding was only an afterthought and was not part of the original smuggling deal.
    Moreover, an Immigration and Customs Enforcement agent testified that Kendrick
    said Harding was just an afterthought and not part of the original deal, and
    Kendrick admits in his brief on appeal that he and the agent gave testimony to that
    effect at trial. Whether the original deal involved marijuana or the smuggling of
    three individuals other than Harding, Kendrick was still able to assert (and did)
    through the testimony of two witnesses that Harding was not part of the original
    deal. Thus, even if the district court had improperly excluded the evidence
    relating to the marijuana offense -- and it did not -- we do not see how Kendrick’s
    substantial rights were affected. See 
    Quinn, 123 F.3d at 1420-21
    .
    Finally, we are unpersuaded by Kendrick’s claim that the district court
    abused its discretion in denying his motion in limine because the prosecutor’s
    closing argument in the first trial was an admission of a party opponent under Fed.
    R. Evid. 801(d)(2). At the outset, we observe that “statements and arguments of
    counsel are not evidence.” United States v. Lopez, 
    590 F.3d 1238
    , 1256 (11th Cir.
    2009) (quoting United States v. Smith, 
    918 F.2d 1551
    , 1562 (11th Cir. 1990)). In
    fact, the district court so instructed the jury in this case, observing that “what the
    lawyers say to you is not evidence, but merely their opportunity to explain what
    23
    they think has been proven in this case.” See also 11th Cir. Pattern Jury
    Instruction 4 (“[A]nything the lawyers say is not evidence and isn’t binding on
    you.”).
    Pursuant to Fed. R. Evid. 801(d)(2)(A)-(B), a statement by a party opponent
    is not considered hearsay if it “was made by the party in an individual or
    representative capacity,” or is a statement that “the party manifested that it adopted
    or believed to be true.” In United States v. DeLoach, 
    34 F.3d 1001
    (11th Cir.
    1994) (per curiam), we addressed the defendant’s claim that, based on Second
    Circuit case law, statements the prosecutor made in closing argument in a previous
    case against a co-defendant, which were inconsistent with allegations made by the
    prosecutor in a subsequent case against the defendant, should have been
    admissible in the second case as admissions by a party opponent under Rule
    801(d)(2). The district court in that case had denied admission of the prosecutor’s
    statements, noting that an attorney’s arguments are not evidence and that
    admission of the statements “would create a substantial likelihood of jury
    confusion under [Fed. R. Evid. 403].” 
    Id. at 1005
    n.7. We observed that, “in the
    Second Circuit an attorney’s arguments may be admissible, but admissibility is
    tightly circumscribed.” 
    Id. at 1005
    . Thus, the Second Circuit required that, for
    statements like these to be admissible, they must be: (1) “assertions of fact that are
    24
    the equivalent of a testimonial statement by the [client]”; and (2) “inconsistent
    with similar assertions in a subsequent trial.” 
    Id. (quotation omitted).
    We noted in
    DeLoach, however, that the prosecutor’s statements there related to advocacy
    concerning the credibility of the witnesses and invitations for the jury to draw
    inferences, which would not be admissible even under the Second Circuit’s test.
    
    Id. at 1005
    -06. We also determined that the prosecutor’s comments in the first
    trial were not “clearly inconsistent” with the evidence presented in the second
    case, and, significantly, were not statements of fact equivalent to a testimonial
    statement by a client. 
    Id. at 1006.
    Thus, we concluded that the district court did
    not abuse its discretion by excluding the prosecutor’s comments, because the
    statements “would be inadmissible as admissions of a party opponent even under
    the cases relied upon by [the defendant].” 
    Id. In this
    case, the district court correctly determined that closing argument
    comments by counsel are not evidence, see 
    Lopez, 590 F.3d at 1256
    , and
    therefore, that the prosecutor’s statements drawn from the previous trial could not
    be admitted as evidence in the second trial as Kendrick had requested. But even
    if we were to consider the possibility of admitting the prosecutor’s comments as
    statements of a party opponent under the Second Circuit’s standard -- which we
    did not expressly adopt in DeLoach -- the district court still would not have abused
    25
    its discretion in denying the admission of the prosecutor’s statements. In the first
    place, the prosecutor’s comment in the first trial -- that Kendrick’s explanation
    that he was transporting legal aliens for $25,000 did not make sense -- went to
    Kendrick’s credibility and undermined the defense’s case, and would not have
    been admissible even using the Second Circuit’s approach. See 
    DeLoach, 34 F.3d at 1005
    . Moreover, as we’ve already said, the prosecutor’s arguments in the
    second trial were not clearly inconsistent with his statements in the first one. See
    
    id. at 1005-06.
    Finally, the only statement by the prosecutor that could even
    possibly be construed as a statement of fact was the prosecutor’s comment that
    “[t]he 25 to $30,000 is the cut [Kendrick] gets for the risk he’s taking for
    smuggling the drugs into the country, not an alien.” However, in context, it is
    clear that the prosecutor was inviting the jury to draw the inference that the
    $25,000 was for smuggling drugs, not for just smuggling aliens. See 
    id. at 1005.
    Moreover, if the prosecutor during the first trial actually had expressed his
    “personal belief or opinion as to the truth or falsity of any testimony or evidence or
    the guilt of the defendant” -- and we do not believe he did -- Kendrick should have
    objected to these prosecutorial remarks (which he did not), because plainly they
    would have been improper. See United States v. Lacayo, 
    758 F.2d 1559
    , 1565
    (11th Cir. 1985) (quoting ABA Stds. for Crim. Justice 3-5.8(b) (2d ed. 1980)).
    26
    Finally, even if the statements somehow were considered to be evidence, the
    court would have properly excluded them under Rule 403, because their admission
    likely would have opened the door widely to an entirely new set of evidence and
    hypotheses to be drawn from the marijuana and firearm charges, and likely would
    have confused the jury in the process. Cf. United States v. Delgado, 
    903 F.2d 1495
    , 1499 (11th Cir. 1990).
    AFFIRMED.
    27