USCA11 Case: 22-10369 Document: 45-1 Date Filed: 08/24/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10369
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD EDWARD ALBRITTON, III,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00234-CEH-AAS-4
____________________
USCA11 Case: 22-10369 Document: 45-1 Date Filed: 08/24/2023 Page: 2 of 4
2 Opinion of the Court 22-10369
Before LAGOA, BRASHER and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Clifford Albritton appeals his convictions for pos-
session of fentanyl with intent to distribute and conspiring to do
the same, in violation of
21 U.S.C. §§ 846, 841(b)(1)(A), and
841(a)(1) and (b)(1)(B). On appeal, Albritton argues that the district
court erred by allowing the government to conduct a demonstra-
tion during closing argument that impermissibly exceeded the
scope of the evidence. Having read the parties’ briefs and reviewed
the record, we affirm Albritton’s convictions.
I.
“In the absence of a contemporaneous objection, we review
the district court’s failure to correct an improper closing argument
for plain error.” United States v. Pendergraft,
297 F.3d 1198, 1204
(11th Cir. 2002). To correct under plain-error review, (1) there
must be error; (2) the error must be plain; (3) the error must affect
the appellant’s substantial rights; and (4) the error must seriously
affect the fairness, integrity, or public reputation of judicial pro-
ceedings. Johnson v. United States,
520 U.S. 461, 467-68,
117 S. Ct.
1544, 1549 (1997).
II.
An appellant’s substantial rights are prejudiced when there
is a reasonable probability that, but for the error, the outcome of
the trial would have been different. United States v. Maradiaga, 987
USCA11 Case: 22-10369 Document: 45-1 Date Filed: 08/24/2023 Page: 3 of 4
22-10369 Opinion of the Court
3
F.3d 1315, 1324 (11th Cir. 2021). The burden is on the defendant
to show that the error affected the outcome of the proceedings.
United States v. Rodriguez,
398 F.3d 1291, 1299 (11th Cir. 2005). If
the effect of the error is uncertain, we do not find plain error.
Id.
at 1300. “Where errors could have cut either way and uncertainty
exists, the burden is the decisive factor in the third prong of the
plain error test, and the burden is on the defendant.”
Id.
III.
The record demonstrates that Albritton did not object to the
prosecutor’s closing demonstration and cannot meet his burden of
showing plain error. See Pendergraft,
297 F.3d at 1204. The ques-
tionable demonstration at issue occurred when the prosecutor
asked DEA Special Agent Hery to demonstrate how an individual
could hide drugs in his pants. Agent Hery was the case agent for
the drug investigation, and he worked with the Tampa Police De-
partment to arrest Albritton and his co-conspirator. While arrest-
ing Albritton, an officer searched him and found multiple bags of a
substance later proven to be illegal drugs underneath the waist-
band of Albritton’s shorts. Another special agent with the DEA
testified that Albritton was wearing tight-fitting jean shorts at the
time of his arrest. This agent also testified that she saw another
officer remove the drugs from Albritton’s shorts. The prosecutor
conducted the demonstration in response to Albritton’s closing ar-
gument that it was impossible for him to have hidden the drugs in
his shorts, and his assertion that the drugs were on the ground and
not in his possession.
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4 Opinion of the Court 22-10369
Even assuming it was error for the district court to allow the
demonstration, Albritton cannot meet his burden to show that the
demonstration likely affected the outcome of the trial. See Rodri-
guez,
398 F.3d at 1299. The demonstration only affected the issue
of whether Albritton possessed the drugs at the time of his arrest.
The government presented significant independent evidence that
the drugs were in Albritton’s shorts when he was arrested. None
of the supposed inconsistencies argued for by Albritton during clos-
ing argument were affected by the demonstration. Moreover, the
district court instructed the jury that none of the attorneys’ com-
ments during closing argument were to be considered as evidence,
and they were to decide the case based solely on the evidence pre-
sented at trial. This cured any possible prejudice to Albritton re-
sulting from the prosecutor’s demonstration. See United States v.
Bailey,
123 F.3d 1381, 1402 (11th Cir. 1997). Because Albritton can-
not show that the error affected the outcome of the proceedings,
we conclude that there was no plain error. See Rodriguez,
398 F.3d
at 1300.
Accordingly, based on the aforementioned reasons, we af-
firm Albritton’s convictions.
AFFIRMED
