UNITED STATES of America, Plaintiff-Appellee, v. Marvin BAKER, Wayne Baptiste a.k.a. "Fat Wayne", Michael Harper a.k.a. "Cuban Mike", Arthur Pless a.k.a. "Plex", Kenneth Williams a.k.a. "Boobie" a.k.a. "Black", Susan Hall Gibson a.k.a. "Miss Sue", Leonard Brown a.k.a. Bo, Efrain Casado a.k.a. "E-4" a.k.a. "Efro", Jonathon Hawthorne a.k.a. "Moose", Malcolm Shaw, Ben H. Johnson a.k.a "Bush", Defendants-Appellants, 432 F.3d 1189

BARKETT, Circuit Judge: Eleven defendants appeal their convictions for drug trafficking offenses after a jury trial. Seven of these defendants also appeal their sentences. We address each of the defendants’ arguments in turn, and AFFIRM the convictions and sentences of Williams, Casado, Harper, Leonard Brown, Malcolm Shaw, Baker, Baptiste, Pless and Gibson; REVERSE the convictions of Johnson and Hawthorne; and REMAND the case to the district court for proceedings consistent with this opinion. I.

BACKGROUND The government accused fifteen defendants of drug trafficking offenses in a seventeen-count indictment: Kenneth Williams, Efrain Casado, Leonard Brown, Lenard Brown, Susan Hall Gibson, Bernard Shaw, Marvin Baker, Malcolm Shaw, Ronald Raye, Wayne Baptiste, Michael Harper, Arthur Pless, Ben Johnson, Jonathon Hawthorne, and Charton Darces. Three defendants, Bernard Shaw, Ronald Raye, and Charlton Darces, pled guilty before the start of trial. Lenard Brown died of a congenital heart defect before trial.

The centerpiece of the government’s case-in-chief was its evidence implicating the remaining eleven defendants in the conspiracy to distribute and to possess with intent to distribute cocaine alleged -in Count 2.

That evidence, part of a thirty-one day trial featuring over one hundred witnesses, accused them of being part of a gang that the media, riffing on Williams’ nickname “Boobie,” had dubbed the “Boobie Boys.” However, the government’s witnesses, many of them incarcerated former associates of Williams or his co-defendants, described the “Boobie Boys” not as a stereotypical “gang” with colors, hand signals, or other visible signs of membership, but rather as an informal association of people from the Miami area.

The overall thrust of the hundreds of hours of witness testimony was that Williams and Casado, who had been operating their own, independent drug distribution networks with their friends in the Miami area, met in prison in 1992 and combined forces to create a massive drug distribution operation based in South Florida, in which the remaining thirteen defendants played a part. Raye, Bernard and Malcolm Shaw, Harper, the Brown twins, and their mother Susan Hall Gibson were all friends of Williams from the Miami neighborhoods of Carol City, Overtown, and Liberty City.

Baptiste was Casado’s close friend and business partner. Pless and Johnson, themselves friends, knew both Casado and Williams. Hawthorne, a paid lookout for a small-time drug dealer who did business with Williams, allegedly started to deal drugs directly with the “Boobie Boys.” Charlton Darces was a Port of Miami longshoreman who, according to the evidence, helped the “Boobie Boys” import cocaine. The government’s case was also replete with evidence, some of it quite graphic, that Williams, Casado, Leonard Brown, Baptiste, Harper, Pless, Johnson, and Hawthorne committed murders in furtherance of this conspiracy.

The crimes alleged in the other sixteen counts were linked to the Count 2 conspiracy. Count 3 accused Williams and Leonard Brown of a conspiracy to import cocaine that, according to the government’s evidence, was related to their drug possession and distribution activities charged by the Count 2 conspiracy. Counts 4-15 alleged instances of drug distribution during the timeframe of the Count 2 conspiracy. Count 16 accused six defendants of conspiring to use and carry a firearm during and in relation to the Count 2 conspiracy.

Count 17 accused Gibson of maintaining a place for manufacturing, distributing, and using cocaine. Count 1 essentially accused Williams and Casado of masterminding the Count 2 conspiracy, the related importation and firearms conspiracy, and the distribution charges listed in Counts 3, 4, 6, 8, 9, and 10. The jury returned guilty verdicts as to all defendants on Counts 1, 2, 3, 4, 6, 8, 9, 10,11,12, 14,15, and 16. The defendants appeal from these convictions, and Williams, Casado, Baptiste, Harper, Malcolm Shaw, Pless, and Hawthorne also challenge their sentences.

We address each of the defendants’ arguments in turn, grouping them whenever possible to avoid repetition. II. DISCUSSION A Evidentiary Errors We first address the defendants’ arguments that the district court erred in admitting twenty items of evidence in violation of Federal Rules of Evidence 802 (hearsay), 404(b) (other crimes, wrongs, or acts), 701 (lay opinion testimony), and 106 (rule of completeness); the Fifth Amendment right against self-incrimination; and the Sixth Amendment’s Confrontation Clause.

Most of the defendants’ claims are grounded in Rules 802 and 404(b), and the Confrontation Clause, and challenge evidence pertaining to violent acts allegedly committed by Williams, Casado, Leonard Brown, Baptiste, Pless, and Hawthorne. We review a district court’s evidentiary rulings for abuse of discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir.2005). An abuse of discretion arises when the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact. United States v.

Frazier, 387 F.3d 1244, 1276 n. 12 (11th Cir.2004) (en banc) (Tjoflat, J., specially concurring). We review preserved evidentiary objections for harmless error. United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999), corrected by 194 F.3d 1186 (11th Cir.1999). However, when a party raises a claim of evidentiary error for the first time on appeal, we review it for plain error only. United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.2003).

Under the plain error standard, “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631-32, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal quotation marks and citations omitted).

Further, we must review the prejudicial effect of all evidentiary errors, evaluated under both preserved and plain error standards, in the aggregate. United States v. Labarbera, 581 F.2d 107, 110 (5th Cir.1978). We will therefore reverse if the cumulative effect of the errors is prejudicial, even if the prejudice caused by each individual error was harmless. United States v. Blasco, 702 F.2d 1315, 1329 (11th Cir.1983) (“A piecemeal review of each incident does not end our inquiry.

We must consider the cumulative effect of these incidents and determine whether, viewing the trial as a whole, appellants received a fair trial as is their due under our Constitution.”). For convenience’s sake, therefore, we defer our cumulative prejudice analysis until the end of this section. 1. Laio

a) Hearsay and the Confrontation Clause The defendants collectively challenge the admission of fifteen items of evidence on the bases that (1) they were inadmissible hearsay and (2) their admission violated the Confrontation Clause. Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.Evid. 801(c). Hearsay is inadmissible unless the statement is not hearsay as provided by Rule 801(d), or falls into one of the hearsay exceptions enumerated in Rules 803, 804, and 807.

Moreover, if hearsay is “testimonial,” that is, for example, “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Crawford v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) the Confrontation Clause prohibits its admission at trial unless (1) the declarant is unavailable, and (2) and the defendant has had a prior opportunity to cross-examine the declarant. See id. at 59, 68, 124 S.Ct. 1354.

While the Supreme Court has not clarified which statements are in fact “testimonial” it has provided some guidance on the term’s meaning. It defined “testimony” as “typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 51, 124 S.Ct. 1354 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). Thus, “formal statements] to government officers” are generally testimonial. Crawford, 541 U.S. at 51, 124 S.Ct. 1354.

So is “ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used proseeutorially.” Id.

Similarly, “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” and “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” fall within the “core class” of testimony. Id. at 51-52, 124 S.Ct. 1354. “Statements taken by police officers in the course of interrogations” are definitively “testimonial.” Id. at 52, 124 S.Ct. 1354.

As the Crawford Court used the term “interrogation” in the “colloquial” and not “technical legal” sense, statements given in a formal interrogation setting at a police station and witness statements given to an investigating police officer are both considered “testimonial.” Id. at 53 n. 4, 124 S.Ct. 1354 (holding that post-Mmmda statement “knowingly given in response to structured police questioning” was testimonial), at 58 n. 8, 124 S.Ct. 1354 (characterizing statement given by victim to an investigating police officer in White v.

Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), as testimonial); see also United States v. Arnold, 410 F.3d 895, 903-04 (6th Cir.2005) (holding that accuser’s 911 call, initial statement to police upon their arrival at the crime scene, and statements made to police a short time later were testimonial). Admission of non-testimonial hearsay against criminal defendants is not governed by Crawford, but still violates the Confrontation Clause unless the statement falls within a firmly rooted hearsay exception, or otherwise carries a particularized guarantee of trustworthiness. Ohio v.

Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). A hearsay exception is firmly rooted if, “in light of longstanding judicial and legislative experience [the exception] rests on such a solid foundation that admission of virtually any evidence within it comports with the substance of the constitutional protection.” Lilly v. Virginia, 527 U.S. 116, 126, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999).

b) Rule bOJpfb) Evidence of “Other Crimes, Wrongs, or Acts” All eleven defendants also challenge the district court’s admission of fourteen instances of “other crimes, wrongs, or acts” under Federal Rule of Evidence 404(b), much of which implicated them in attempted and consummated homicides. Rule 404(

b) forbids the admission of any evidence of “other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). However, such evidence “may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. Rule 404(

b) is a rule of inclusion. United States v. Perez-Tosta, 86 F.3d 1552, 1562 (11th Cir.1994) (noting that “[t]he second sentence of rule 404(

b) is a rule of inclusion, and 404(

b) evidence, like other relevant evidence, should not lightly be excluded when it is central to the prosecution’s case”). If the prior act evidence is relevant to an issue other than the defendant’s character, it may be admissible provided that the government (1) has sufficient proof that the defendant committed the prior act, and (2) can show that the probative value of the evidence is not substantially outweighed by its undue prejudice, and meets the other requirements of Rule 403. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.1992) (en banc); see also Huddleston v.

United States, 485 U.S. 681, 689-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Extrinsic evidence of other crimes, wrongs, or acts is inherently prejudicial to the defendant. United States v. Beechum, 582 F.2d 898, 910 (5th Cir.1978) (en banc). “One of the dangers inherent in the admission of extrinsic offense evidence is that the jury may convict the defendant not for the offense charged but for the extrinsic offense.” Id. at 914.

Additionally, extrinsic evidence “may lead [the jury] to conclude that, having committed a crime of the type charged, [the defendant] is likely to repeat it.” Id. (quotation marks omitted). Either inference may be inimical to the long-standing rule that propensity to commit crimes should not be the basis of a conviction. Moreover, the non-character probity of 404(

b) evidence is not absolute, but rather relative to the other evidence in the proponent’s case. Id. Thus, we have “generally held that if the extrinsic act requires the same intent as the charged offenses and if these acts are proximate in time to the charged offenses, then the extrinsic act is highly probative.” Church, 955 F.2d at 702 (quotation marks omitted). “In its Rule 403 analysis, the trial court should [also] consider ... the probable effectiveness or lack thereof of a limiting instruction.” United States v. Meester, 762 F.2d 867, 875 (11th Cir.1985).

The probative value of extrinsic evidence also depends on the strength of the government’s case concerning the element of intent of the charged crime. The stronger the government’s case on intent, the less the extrinsic evidence will add. United States v. Pollock, 926 F.2d 1044, 1049 (11th Cir.1991); Beechum, 582 F.2d at 914. It follows that if intent is undisputed by the defendant, the evidence is of negligible probative weight compared to its inherent prejudice and is therefore uniformly inadmissible.

Beechum, 582 F.2d at 914-15 (“If the defendant’s intent is not contested, then the incremental probative value of the extrinsic offense [offered to prove intent] is inconsequential when compared to its prejudice; therefore, in this circumstance the evidence is uniformly excluded.”). Finally, we review the admissibility of evidence under Rule 404(

b) for an abuse of discretion. United States v. Giordano, 261 F.3d 1134, 1140 (11th Cir.2001). 2. The Defendants’ Evidentiary Claims Having set forth the relevant legal standards, we first discuss each alleged evidentiary error to determine whether the district court abused its discretion by admitting the testimony at issue. Second, in those cases where the district court did err, we consider whether the errors were sufficiently prejudicial to warrant reversal.

a) Gary Coley Homicide At trial, Sergeant Singer of the Miami-Dade Police Department (MDPD) testified that his investigation of an October 1987 shooting that killed Gary Coley and wounded Steven Jones and Robert Fitzpatrick “revealed” that Williams was the gunman. Singer also testified that Steven Jones, who did not testify at trial, had identified Williams as the shooter. Singer added that Williams later pled guilty to an attempted second-degree murder charge arising from the incident. Defense counsel lodged timely hearsay and 404(

b) objections. Singer’s statement about what Jones told him is unquestionably hearsay; it has no probative value other than to establish that Williams shot Coley, Jones, and Fitzpatrick. Singer’s statements about what his investigation “revealed” are similarly hearsay; even though they do not explicit ly paraphrase the words of others, the only conceivable explanation for how Singer discovered this information is through listening to the statements of others. See United States v.

Shiver, 414 F.2d 461, 463 (5th Cir.1969) (stating that a detective’s testimony that his investigation “revealed” that a certain car was stolen was “pure hearsay, since he could not have known the facts of his own knowledge.”). As the statements do not fall under any of the hearsay exceptions, the district court abused its discretion in admitting them. Defense counsel did not, however, lodge a timely Confrontation Clause objection, and so we review this claim for plain error only.

The district court erred under Crawford, by admitting Singer’s statements because: (1) the hearsay statements, made by accusers to a law enforcement officer in the course of a criminal investigation, were “testimonial;” and (2) the defendants had no opportunity to cross-examine the declarants. See Crawford, 541 U.S. at 58 n. 8, 124 S.Ct. 1354 (characterizing statement given by victim to an investigating police officer at the scene of the crime in White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), as “testimonial”).

This error was also “plain.” Error is “plain” when, at the time of appellate review, it is “obvious” or “clear” under current law, even if the law at the time of trial was settled to the contrary. Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Crawford’s determination that the accuser’s statements to the police in White v. Illinois were testimonial makes it obvious that admitting Sergeant Singer’s accounts of the accusers’ statements in the Coley murder into evidence violated the Confrontation Clause.

Thus, the first two elements necessary to satisfy plain error review are satisfied here. We consider the remaining two elements (i.e., whether the error affected the defendant’s substantial rights and whether it seriously affected the integrity of judicial proceedings) when we later discuss the prejudicial effect of the district court’s errors. Moreover, as the defense contended at trial, admission of this extrinsic evidence also violated Rule 404(b).

Although the government argues that this evidence is relevant to establish Williams’ intent, motive, knowledge, and modus operandi in the drug-related offenses, we are unpersuaded. The Coley murder is unrelated to any of the charged drug- or firearm-related crimes, and predates both of the charged conspiracies and the continuing criminal enterprise. Although we have recognized a connection between narcotics trafficking and violent crime, see, e.g., United States v.

Thomas, 242 F.3d 1028, 1032-33 (11th Cir.2001) (finding prior drug sales relevant to show defendant’s motive in felon in possession charge), the extrinsic evidence must have at least some plausible non-character relevance to the charged conduct to be admissible under 404(b). The evidence never specified what Williams’ intent, motive, or modus operandi was in carrying out the Coley shootings, and thus this incident is only relevant to show that Williams is more likely to commit crimes because he has done so in the past, which is exactly the inference that Rule 404(

b) forbids. Moreover, even if this evidence were relevant to show something other than action in conformity with past crimes, any such relevance is substantially outweighed by the evidence’s dramatic prejudicial effect. See United States v. Sanchez, 722 F.2d 1501, 1507-08 (11th Cir.1984) (holding testimony that the defendant, who was charged with conspiracy to import, importation of, and possession of cocaine, killed two people in furtherance of the conspiracy after he received a bad cocaine shipment was inadmissible under Rule 403); see also, Church, 955 F.2d at 702. The district court thus abused its discretion in admitting this evidence.

b) Domestic Violence Complaint against Williams The district court permitted Florida State Trooper Rodney Polite to testify that he received a complaint from Williams’ girlfriend in 1993 that Williams “had slapped her and beat her up,” over the hearsay objections of the defense. The defendants also raise Confrontation Clause and Rule 404(

b) challenges for the first time on appeal. The district court denied the hearsay objection on the basis that the statement was not offered to prove the truth of the matter asserted. We disagree. The only conceivable probative value of Polite’s testimony is to establish that Williams did beat up his girlfriend, and was thus more likely to commit the charged crimes. And because Polite’s statement clearly does not fall into any hearsay exception, the district court abused its discretion under Rule 802 in admitting it.

c) Palmetto Expressway Triple Murder The government introduced evidence, over a hearsay objection, about a triple homicide committed on March 24, 1995, that it contended was related to Williams’ and Casado’s drug business. MDPD Detective Juan Capote, who responded to the homicide that night, testified that four men in a red car had been shot on the Palmetto Expressway in Miami by bullets from an AK-47 assault rifle. Three men died; one survived.

Capote stated that he later “received information” from an anonymous caller that indicated that Williams, Casado, and Marvin Rogers, an associate of Williams, were involved in the shooting, and indicated that the three victims were “street level narcotics dealers” who had been selling drugs on Roger’s drug turf. He further testified that the survivor of the shooting told him that Williams and two other men were the gunmen.

The district court explained that it allowed this testimony because it believed that the statements were relevant not to prove their truth, but rather to explain how Capote conducted his investigation. We do not understand this reasoning. Capote’s investigation was not a complex endeavor; he responded to a homicide call, examined the scene of the crime, and interviewed witnesses.

Nothing the witnesses said shed any additional light on why Capote conducted his investigation in the manner that he did, nor did Capote’s investigation turn up any evidence other than eyewitnesses’ statements accusing Williams and Casado of committing the homicides. Rather, the only relevancy of the witnesses’ statements was to establish that Williams, Casado, and Rogers did in fact commit the homicides.

As the statements also do not fall into any hearsay exception, the district court clearly abused its discretion in allowing their admission. d)1992 Miami Strip Club Shootout MDPD Sergeant Alexander Casas testified that he had responded to a reported shooting at the Club Rolex, a Miami-area strip club. He found .40 caliber shell casings, blood, and clothing at the crime scene, but not the victim, who had already been taken to the hospital.

However, he stated that he also learned upon his arrival that Williams had tried to shoot someone in the parking lot of the club when his gun jammed, and was shot by his intended victim. Finally, Casas said that he thought it strange that Williams never talked to the police about the shooting, because shooting victims are usually cooperative, and opined that the victim of a shooting would not seek out the police in cases where the victim was the aggressor. The district court overruled defendants’ hearsay and Rule 701 objections to this testimony.

Casas’ statements about what he learned are unquestionably inadmissible hearsay, as their only probative value is to establish that Williams had attempted to shoot someone, and are not covered by a hearsay exception. The district court abused its discretion under Rule 802 in admitting this evidence. e) 1992 Murder of “Ankey” A witness for the government testified that Williams and Richard Stit killed a member of the rival “Thomas gang” in Virginia, because Williams believed Thomas gang members responsible for shooting Williams’ business associates.

The defense made no objection to this testimony at trial, but argues on appeal that its admission violated Rule 404(b). The “Ankey” murder was committed during the scope of and in furtherance of the Count 2 conspiracy. It is so closely related to Williams’ participation in the conspiracy that it must be considered “inextricably intertwined” with the evidence of the conspiracy, see Veltmann, 6 F.3d at 1498, and is thus not 404(

b) evidence. It also satisfies Rule 403 because it was significantly probative of Williams’ modus operandi in his drug transaction using violence to eliminate his competitors and avenge attacks on his business associates. Admission of this testimony was not an abuse of discretion.

f) Jetier Homicide MDPD Officer David Sanchez investigated the 1991 shooting of Willie Jetier, who was hospitalized for a short while before succumbing to his wounds. Sanchez testified that he suspected that Casado and Baptiste were the shooters and, fearing that Jetier would die before having an opportunity to identify the perpetrators, he brought them to the hospital, where Jetier identified them as the men who shot him. The defendants objected on hearsay and 404(

b) grounds. Officer Sanchez’s testimony about what Jetier told him is inadmissible hearsay. Its only probative value was to establish that Casado and Baptiste were the shooters, and did not explain any independently relevant aspect of Sanchez’s investigation. Nor does it fall under a hearsay exception. Its admission was thus a clear abuse of discretion.

Finally, Sanchez’ testimony is extrinsic evidence under Rule 404(b), as it is not an uncharged offense which arose out of the same transaction or series of transactions as the charged offenses, necessary to complete the story of the charged crimes, nor inextricably intertwined with the evidence regarding the charged offenses. Moreover, it is only relevant to prove Casado’s and Baptiste’s bad character and to show their action in conformity therewith, which Rule 404(

b) clearly prohibits. It was thus an abuse of discretion to admit it into evidence.

g) Amoco Double Murder MDPD Detective Jeff Lewis testified about his investigation of the murder of Roger Davis and Tyrone Tarver at an Amoco station on February 11, 1998. Although he did not witness the shootings, Lewis told the jury that eyewitnesses had told him the following during his investigation: Davis and Tarver arrived at the Amoco station at about the same time, in separate ears. Shortly thereafter, a blue-green Nissan Altima drove into the station after them. Two men clothed in camouflage, ski masks, and bulletproof vests exited the car toting AK-47s and began shooting at the two men.

Davis and Tarver fled their assailants, but to no avail. The gunmen hunted Davis down near a fence, and shot him while he was apparently trying to surrender. After Davis collapsed, the shooter pressed the gun barrel to his head and shot him again. Tarver, on the other hand, was gunned down as he fled across the street, but did not die immediately. Instead, he lay on the road, crying out in agony that “it burned.” At the scene of the crime, Lewis found 43 spent AK-47 shell casings on the ground, in locations indicating that the gunmen tracked their victims across the Amoco station premises as they fired.

One-and-a-half blocks away, police also recovered the Nissan Altima, and found two AK-47 assault rifles, four ski masks, a “skully,” and some tools that Lewis opined had been used to start the vehicle, which had been reported stolen. Police also discovered that the stolen car’s owner had his or her cellular telephone taken along with the car. A call made from that phone after the theft had occurred was traced to the girlfriend of Corey “Fish Grease” Murcherson, an associate of Williams.

Lewis then stated that another “source” informed him that a rented white Toyota Camry had also been involved in the Amoco shooting. The car was traced to a Miami rental outlet. The rental paperwork listed one Richard Stit as a driver, who, Lewis told the court, the United States Attorney’s Norfolk office identified as an “enforcer” for Williams. Police later located the Camry, which had been destroyed by fire.

Lewis continued, stating that unnamed witnesses identified one passenger in the Altima as a heavyset black male, over 6’ tall, with long, flowing dreadlocks, and the driver as a shorter black male with a medium build. He said that another eyewitness, Mario Frazier, told him that the car’s driver was Casado. He also detailed the contents of a Miami Herald article, admitted into evidence, describing one gunman as a 25-30 year-old, 250-lb black male, 5’ 9” to 6’ tall, with a light complexion, and a long haircut — a description somewhat consistent with photos of a man Lewis identified as Hawthorne.

It described the other gunman as a 20-25 year-old, 160-175 lb black male, 5’ 9”-6’ tall, with a light complexion and Afro haircut. Hawthorne’s involvement, Lewis also testified, was corroborated by an interview he had with a prisoner, Kevin Bovian. Bovian allegedly told Lewis that Hawthorne said he was the driver of the rental car, that he cut his dreadlocks after the press coverage describing the gunmen, and that the shooting was in retaliation for a shooting in which Hawthorne was wounded the month before. According to Lewis, Jesus Wilson also told him that he saw Leonard and Lenard Brown inside the Altima.

Wilson claimed that the Altima had been hidden at the house of a Williams’ associate, earlier on the day of the shooting, along with the bulletproof vests and AK-47s Wilson said were used to kill Davis and Tarver. Lewis said that Wilson told him that the twins asked him to buy dark, full-face ski masks for them, because they did not want to draw attention to themselves by making such a purchase. However, Wilson contradicted Bovian’s statement that Hawthorne was a gunman, telling Lewis instead that the twins killed Davis and Tarver.

Lewis concluded by opining to the court that “based on his investigation,” he thought that the Amoco murders were the result of a turf war between the “Boobie boys” and a rival gang called “Vonda’s gang.” Finally, Lewis told the court that Williams’ friend and associate Corey Murcherson, was killed shortly after the Amoco double murder in which he had allegedly participated. Lewis testified that he believed Williams and Brown thought Murcherson was a liability after the Amoco murder and sought to have him killed.

Lewis’ speculation about Williams’ motives became more convincing after Murcherson’s former lawyer, Karen Mills-Francis, testified for the defense that on November 16, 2005, Murcherson admitted to her that he was in fact a gunman in the Amoco murders. The defendants raised a hearsay objection to this evidence at trial, but also argue for the first time on appeal that its admission violated Rule 404(b). Lewis’ recollection of what eyewitnesses told him about the murder is inadmissible hearsay, as are his statements about what Bovian and Wilson told him.

They were offered to establish their truth — who killed Davis and Tarver, and how — and do not fall into any hearsay exception. The district court thus abused its discretion in allowing this testimony. . The Miami Herald articles are also inadmissible hearsay, as they are relevant primarily to establish the truth of their contents — the identity of the gunmen.

The articles might be permissible for the non-hearsay purpose of establishing that the descriptions of the gunmen had been made public, but in the absence of any non-hearsay evidence concerning the description of the gunmen, the prejudice stemming from the hearsay use of the evidence substantially outweighs the articles’ probative value to establish the murders’ publicity. Thus, their admission constitutes an abuse of discretion under Rule 802.

Lewis’ statement about the white Camry, on the other hand, was not hearsay because it was probative to establish why he procured the car’s paperwork, and was properly admitted. Nonetheless, his account of what the U.S. Attorney’s office told him about Richard Stit was offered to prove the truth of its contents, and is inadmissible hearsay, the allowance of which was an abuse of discretion. Finally, the entire testimony concerning the Amoco murders and Murcherson’s murder plainly violates Rule 404(b).

All three killings occurred outside the temporal scope of all of the charged crimes, including the Count 2 conspiracy, and there is hardly any evidence, beyond Detective Lewis’ rank speculation, linking the shootings to any of the charges in the indictment. Its only real probative value is to establish the criminal propensities of those involved. And even if this evidence did have some probative worth, the details of the Amoco double homicide are so chilling that its prejudicial impact substantially outweighs any such probative value. The admission of this evidence thus constitutes error that is plain.

See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.2003) (“It is the law of this circuit that, at least where the explicit language of a statute or rule does not specifically resolve an issue, there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it.”); United States v. Gore, 298 F.3d 322, 324-25 (5th Cir.2002) (holding that error was “plain” when the district court’s ruling was obviously contrary to the text of a federal statute).

In sum, admission of this evidence was an abuse of discretion under Rule 802, and represented an error that was plain under Rule 404(b).

h) Benny Brownlee Murder The government’s case accused Williams and other unnamed individuals of the 1994 murder of Benny Brownlee, allegedly carried out in retaliation for the murder of Williams’ associate and friend Gary Dukes. Dukes was killed in a drive-by shooting while at a barbershop run by Jesus Wilson, a drug dealer and barber who bought cocaine from Williams and Harper.

Johnny Hankins, a Williams associate who was also shot in the drive-by, testified that Williams told him that Williams and Marvin Rogers avenged Dukes’ murder by killing a member of the Thomas gang, and that Harper had driven the car they used in committing the murder. The government alleged that this member of the Thomas gang was Benny Brownlee, who was killed hours after the Dukes killing. The MDPD detective who had responded to the Brownlee homicide, Gus Borges, gave a detailed account of the killing on the basis of statements he took from three eyewitnesses.

He said that he learned from one eyewitness, Marlin Randal, that men in a beige Honda shot Brownlee as he fled from his attackers. Randal then reportedly said that Brownlee fell “on the ground and defenseless, [and] two subjects walked up to him and continued shooting him.” This commentary, Borges stated, was confirmed by two security guards present at the shooting. Moreover, he testified that the doctor who performed Brownlee’s autopsy classified the death as a homicide. There was no evidence that these three eyewitnesses were unavailable to testify at trial.

Borges also found a beeper at the Brownlee crime scene that had telephone numbers from received calls stored in its memory. Police called the stored numbers and stated that the persons who answered the phone told him that they had paged the beeper trying to reach Marvin Rogers. Borges further testified that he “learned” that Marvin Rogers was part of a “group operating in the Carol City area” known as the primary street-level drug dealers in that area.

He concluded by telling the jury that Williams, Rogers, Raye, and Bernard Shaw emerged as primary suspects in the slaying, but that there was never sufficient evidence to arrest anyone for the crime. The defense raised a hearsay objection to this evidence at trial. Although Borges’ testimony about the recovered beeper and the numbers it contained remain unobjectionable, Borges’ testimony about what others told him or about what he had “learned” in the course of his investigation is only relevant to establish its truth, that Williams, Rogers, Raye, and Bernard Shaw killed Benny Brownlee.

The fact that it explains what Borges did in the course of his investigation is immaterial, because Borges’ investigation is only relevant to prove the very same impermissible thing — that these men in fact killed Benny Brownlee. Likewise, Borges’ testimony that Williams, Rogers, Raye and Bernard Shaw emerged as the primary suspects in the shooting itself remains inadmissible hearsay, as it is founded on the hearsay statements of others. The statements are therefore hearsay, and because they do not fall into any hearsay exception, the district court abused its discretion in admitting them.

i) Fatso and Hollywood Murders About one month after the Brownlee homicide, two more Thomas gang members were murdered: Walter “Fatso” Betterson and Derrick “Hollywood” Harris. Betterson’s mother and Harris’ father both testified that their children had told them shortly before they were shot that they were having problems with Williams and feared that Williams was going to kill them. However, the government introduced other non-hearsay evidence at trial linking Williams and Casado with the murders.

Williams’ friend and associate Johnny Hankins testified that Williams told him that Betterson and Harris had killed a witness to the Dukes murder, and that Williams, Casado, and Marvin Rogers had killed them in revenge. Hankins’ testimony was corroborated by Betterson’s neighbor Johnny Hampton. Hampton testified that he saw a Chevrolet Impala chase Betterson’s car into his neighborhood. Betterson’s car crashed into a pole on the side of the road near his house, and the Impala pulled up alongside it. Someone inside Betterson’s car got out and ran, pursued by an occupant of the Impala.

Immediately afterwards, three men arrived in a Delta ’88. Two passengers emerged, fired shots into Betterson’s automobile, and then fled the scene in the Delta. Minutes later, Hampton approached Betterson’s car and saw two bodies in the car, later identified as Harris and Betterson. Hampton further identified Williams and Leonard Brown as two of the shooters from the Delta ’88. The defendants raised a hearsay objection at trial, and also raise a Rule 404(

b) challenge for the first time on appeal. The parents’ statements about what their children told them are hearsay, but are excepted as present sense impressions under Rule 803(1) or as statements expressing then-existing mental, emotional, or physical condition under Rule 803(3). The district court thus did not abuse its discretion in allowing this testimony. Moreover, the parents’ testimony is not 404(

b) evidence because it is inextricably intertwined with the evidence regarding the charged offense. See Veltmann, 6 F.3d at 1498. Evidence at trial tied these murders to Williams’ feud with the rival Thomas gang and the Thomas gang’s murder of Gary Dukes, which in turn was part of the prosecution’s case against the defendants in the Count 2 conspiracy. Moreover, it satisfies Rule 403 because it is significantly probative of the defendants’ modus operandi in their drug business. The admission of this testimony was thus not error under Rule 404(b), much less plain error.

j) Colors Apartment Triple Murders Detective Simmons’ testimony also linked Pless to the 1995 triple murder of Otis Green, Green’s girlfriend Alicia, and Alicia’s five-year-old son Mikie, at the Colors Apartment complex in Miami. Green was a small-time drug dealer who sold at the Colors complex, which was considered his “spot.” However, Pless also sold drugs there, as did David Pagan, Pless’s supplier and an associate of Casado. Witnesses testified that a dispute had arisen between Pagan and Green, and that Pagan had put a hit out on him.

Pagan himself testified that Pless had engaged in a shootout with Green’s workers at the Colors complex a few months before the murders. Brian Gibson, a Colors resident who was with Green, Alicia, and Mikie at the time of the shooting, testified that they were parked near the Colors complex when men in ski masks approached the car with large guns and opened fire, killing everyone but him. He also stated that earlier that night he had seen Casado and Baptiste around the Colors complex, and had seen Pless’s truck nearby.

Detective Simmons testified that he learned from Anthony Brantley that Pless, Casado, and Johnson had planned and carried out the murders. Brantley ostensibly told Simmons that Pless solicited him to drive the getaway car. Simmons stated that Brantley said he met Pless and Johnson at Casado’s warehouse, where they retrieved a stolen car and equipped themselves with assault weapons, dark clothes, and bulletproof vests, and then carried out the killings while Casado watched from a distance.

The government also introduced into evidence a photo of a tattoo Pless had depicting a young boy praying over a cracifixshaped tombstone engraved with the letters “RIP” that read, “Dear God Can You Save Me.” Simmons said that Pless had told him he got this tattoo after the Colors murders to deflect suspicion that he had been involved. The defendants did not raise an objection to this testimony at trial, but now argue that admission of Anthony Brantley’s statements violated Rule 802 and the Confrontation Clause. Admission of the statements did plainly violate the hearsay rule.

Simmons’ testimony was clearly admitted for its truth, and concerns statements Brantley made in the course of a police interrogation — in this case, an interview with Detective Simmons as part of a criminal investigation. However, it is apparent from the record that counsel for Arthur Pless invited this error while attempting to undermine the credibility of Simmons’ investigation.

During cross-examination, Pless’s attorney asked Simmons whether Brantley was among the “quality people” that Simmons had relied on in his investigation of the murders and subsequent questioning of Pless: Q: And Anthony Brantley, Cedrick’s brother, that’s the word of another person upon whom you were getting ready to interrogate my client to determine if he was going to incriminate himself in the triple homicide over there in the Colors apartments of Otis Green, his girlfriend, and Michael Frazier, correct? A: What was the first part of your question?

Q: Anthony Brantley is the person upon whom you are relying for your information that you got before my client surrendered and you started talking to him about that homicide? A: In part. Anthony Brantley was a young man recruited by Efrain Casado, Arthur Pless and Benjamin Johnson to drive a vehicle. He was the getaway driver in the Colors apartments complex in which the little boy was killed along with his mother. He drove the vehicle and provided sworn testimony before the grand jury which was corroborated in every respect through our investigation, and others.

It was not totally based on one person’s testimony, sir. Q: And Anthony Brantley didn’t get arrested or charged with it even though he claimed to you under sworn testimony that he was the driver, that he was taking him to and from a hit where these people were killed. He wasn’t arrested and charged or indicted downtown to stand trial for first degree murder and look at death in the electric chair or a lethal injection now, was he? A: No, sir. Counsel also noted that Anthony Brantley had recently been released from jail.

On re-direct examination, Detective Simmons related that Anthony Brantley had spoken to him in the course of the investigation, and had testified before a grand jury, both times describing his involvement in the Colors murders.

According to Simmons, Anthony Brantley had confessed that he was recruited by Casado to assist in the murder of Otis Green, and had driven the car from which Johnson and Pless emerged before committing the murders, and in which Casado, Baptiste, Johnson and Pless apparently escaped after the murders. “[I]t is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party. The doctrine of invited error is implicated when a party induces or invites the district court into making an error.

Where invited error exists, it precludes a court from invoking the plain error rule and reversing.” United States v. Silvestri 409 F.3d 1311, 1327 (11th Cir.2005) (citations and internal quotation marks omitted); United States v. Martinez, 604 F.2d 361, 366 (5th Cir.1979) (“The accepted rule is that where injection of allegedly inadmissible evidence is attributable to the action of the defense, its introduction does not constitute reversible error.”) (quoting United States v. Doran, 564 F.2d 1176, 1177 (5th Cir.1977)).

Moreover, a defendant can “invite” non-responsive testimony when he insists on pursuing a line of questioning after it becomes apparent that further cross-examination will elicit potentially damaging testimony, and fails to object to the non-responsive answer when it is given. See id. (finding non-responsive testimony invited when counsel “pursued his questioning until he dragged the prejudicial statements out of the witness”). It can be fairly said that Pless’s counsel elicited the Anthony Brantley testimony from Simmons on cross.

Pless’s counsel specifically referred to “sworn testimony” in which Brantley supposedly stated that “he was the driver, that he was taking him [Pless] to and from a hit where these people were killed.” He also did not object when Simmons gave his non-responsive answer. The re-direct testimony merely elaborated on Simmons’ response to this question, which presented the basic outline of the Brantley statement. Thus, Pless cannot now complain about the district court’s error.

However, the other defendants may still fairly object to the introduction of this testimony on appeal, as the errors of Pless’s counsel are not their own, and they in no way were responsible for Simmons’ testimony on cross. Moreover, any objection that they could have made on redirect was foreclosed, as the prosecutor was entitled to elaborate on the information yielded in cross. However, because they raised no objection at the trial court, their claims are subject only to review for plain error. Simmons’ testimony that Brantley told him that Casado and Johnson carried out the murders was inadmissible hearsay.

That error satisfies the first two prongs of the plain error test. We reserve our discussion of the remaining two prongs for our discussion of prejudice.

k) Johnny Belliard Murder The government’s case also connected Pless to the murder of Johnny Belliard, a drug dealer who had been threatening to steal money and drugs from Pless. MDPD Detective David Simmons told the jury that he worked on a task force investigating homicides “that was [sic] committed by members of the Boobie boys.” He testified that Cedric Brantley, an associate of Pless’s who sold drugs for him in Pensacola, told him in a prison interview that Pless and Casado hired Brantley’s brother Anthony to kill Belliard.

The defense did not object to this testimony at trial but now argues that admission of the statements violated Rule 802 and the Confrontation Clause. We therefore review the district court’s decision for plain error only. The statements are plainly hearsay; they were made by an out-of-court declarant and their only probative value is for their truth. In sum, admission of this evidence violated Rule 802; that error is now plain. 1) 1997 Car Chase and Robert Sawyer Shooting Robert Sawyer was a drug dealer whose business interests sometimes conflicted with Williams’ and Casado’s.

At trial, Jesus Wilson testified that Sawyer had threatened to Mil both Williams and Casado over a drug dispute, and that.Casado had returned the threat. Later, Sawyer shot, but did not MU, Casado outside Casado’s house. Wilson also testified that he, Williams, and others had learned that Sawyer had Mlled Marvin Rogers, Williams’ associate who had participated in the clashes with the Thomas gang. In response, Williams placed a price on Sawyer’s life. Officer Ariel Saud testified that on March 23, 1997, he had attempted to stop a black Honda in the Overtown

section of Miami. The car fled, prompting a car chase. Saud testified that he saw weapons being tossed from the car, and that eventually the occupants of the car fled on foot. Saud and fellow Officers Miguel Rodriguez, Steven Walthen, and David Sanchez testified that they pursued the fleeing suspects and eventually captured Williams, Casado, and James Deleveaux, a Williams associate. The police found Williams behind a woodpile, and Casado and Deleveaux in the shower of a nearby residence.

The officers testified that the owners of the properties where the three men were found said that they did not have permission to be there. Various weapons, including assault rifles, as well as camouflage clothing and armored vests were recovered from the scene. Rene Texidor, Casado’s friend, testified that Williams, Casado, and Deleveaux had been on their way to Mil Sawyer when they were captured. Jesus Wilson also testified that in February 1998, he had been in an apartment with Williams, Casado, Lenard Brown, Roshawn Davis, and others, who had assembled weapons and were planning to Mil Sawyer.

Later, Wilson said, Lenard Brown and Roshawn Davis told him that Lenard, Williams, and Casado had shot Sawyer from their car while traveling next to him on the highway, but that Sawyer survived. The defense raised hearsay and 404(

b) objections.to this evidence at trial. Wilson’s statements relating what Lenard Brown and Roshawn Davis told him are not hearsay because under Rule 801(d)(2)(

E) they are co-conspirator statements made during the course and in furtherance of the Count 2 drug conspiracy. However, the officers’ testimony about statements made by the owners of the properties where Williams, Casado, and Delevaux were found are hearsay, and do not fall into a hearsay exception. Their admission therefore was an abuse of discretion. However, their admission did not violate the Confrontation Clause. The statements were not “testimonial” under Crawford because there is insufficient evidence to say that they were accusatory in nature.

There is no indication as to whether the declarants knew that their statements would be used at trial later. Roberts therefore governs their admission. Because the details of the surrounding testimony make it almost impossible for the owners’ statements to have been false, the statements carry a particularized guarantee of trustworthiness, and their admission does not violate the Confrontation Clause. Finally, we need not analyze whether admission of this evidence violated 404(

b) because none of it is “extrinsic.” It clearly concerns an “uncharged offense which arose out of the same transaction or séries of transactions as the charged offense.” See Veltmann, 6 F.3d at 1498. The dispute with Sawyer arose out of the defendants’ involvement in the Count 2 drug conspiracy. Moreover, the testimony does not pose a significant enough risk of unfair prejudice to substantially outweigh its probative value in demonstrating the modus operandi of the defendants’ drug business. Its admission was thus not an abuse of discretion.

In sum, only admission of the statements by the property owners that Williams and Casado lacked permission to be on their land was an abuse of discretion under Rule 802. m) 1997 Armed Robbery MDPD Officer Steven Waltham and Detective David Richards testified that a stolen ATM card and checkbook were found in the black Honda used by Williams, Casado, and Delevaux in the March 23,1997 car chase.

Detective Richards stated that several months earlier, the owner of the ATM card and checkbook had reported that she had those items stolen from her at gunpoint, by someone she later identified in a photographic lineup as Williams. The district court allowed this testimony over a hearsay objection, believing that it was not hearsay because it was a statement of identification. Rule 801(d)(1)(

C) does state that statements of “identification of a person made after perceiving the person” are not hearsay, but only if the declarant testifies at trial and is subject to cross examination concerning the statement. See, e.g., United States v. Brewer, 36 F.3d 266, 271 (2d. Cir.1994) (“Under Rule 801(d)(1)(C), a statement of prior identification may be received in evidence only if the declarant testifies at trial and is subject to cross-examination concerning the prior identification.”) (internal quotation marks omitted). The victim of the theft never testified at trial, so the testimony is hearsay. Since no hearsay exception applies, its admission was an abuse of discretion.

n) Everett Cooper Murder The government’s case accused Pless and Casado of killing small-time drug dealer Everett Cooper (a.k.a. “Charlie Paul”) in September 1994. Cooper dealt drugs at the Silver Blue Lakes apartment complex in Miami, where Pless also sold cocaine. Detective Michael Malott, who investigated the murder, stated that eyewitnesses told him that a man got out of a Lincoln Town Car and shot Cooper with a chrome revolver. Malott further stated that Casado “had been known” to drive a blue Town Car, and that shell casings found at the scene matched those found at the scene of the Colors triple murder. The defense lodged a hearsay objection at trial, and also raises a 404(

b) challenge for the first time on appeal. Malott’s testimony about what eyewitnesses told him and about what Casado “had been known” to do is inadmissible hearsay because it is only relevant for its truth — to establish that Casado and Pless were responsible for Cooper’s death. As no hearsay exceptions apply, admission of this testimony was an abuse of discretion.

However, admission of Malott’s testimony did not violate Rule 404(b), much less constitute plain error, because like the government’s evidence concerning the “Ankey” murder, evidence that Pless and Casado killed a rival drug dealer during the scope of the Count 2 conspiracy is inextricably intertwined with the evidence of their involvement in that conspiracy. See Veltmann, 6 F.3d at 1498.

And although the evidence is certainly prejudicial, it still satisfies Rule 403 because the danger of unfair prejudice does not substantially outweigh its significant probative value in establishing Pless’s involvement in the Count 2 drug conspiracy.

o) America’s Most Wanted/Crimestoppers Deputy U.S. Marshal Michael Moran testified that Williams had appeared on the television programs Crimes-toppers and America’s Most Wanted around 1998. The defense made an objection at trial based on hearsay, and Rules 403 and 404(b). Although the government offered this testimony to provide background on Williams’ status as a fugitive, it is nonetheless inadmissible hearsay. The only relevance of the testimony is to show that Williams was, in fact, wanted by law enforcement.

As it falls under none of the hearsay exceptions, it was an abuse of discretion to admit it into evidence. Finally, although this evidence may be “inextricably intertwined with the evidence regarding the charged' offense” since it demonstrates that Williams was trying to elude capture for the charged offenses and thus tends to show his cognizance of his own guilt, see People v. Slater, 268 A.D.2d 260, 260, 701 N.Y.S.2d 371 (N.Y.App.Div.2000), it does not satisfy Rule 403 in this case.

While this evidence has virtually no probative value, it is incredibly and unfairly prejudicial — essentially telling the jurors to believe that Williams is guilty of the charged offenses because he appeared on two well-known television programs featuring individuals that police consider responsible for committing crimes. See Ford v. Curtis, 277 F.3d 806, 811 (6th Cir.2002) (finding “references to the F.B.I’s Ten Most Wanted List and to America’s Most Wanted” in the government’s case constituted 404(

b) evidence that was “of nominal relevance and prejudicial”); Wilding v. State, 674 So.2d 114, 119 (Fla.1996), overruled on other grounds by Devoney v. State, 717 So.2d 501 (Fla.1998) (“The fact that [the defendant] was the subject of [the] widely viewed television program [America’s Most Wanted] clearly was irrelevant and highly prejudicial.”). Permitting the admission of this evidence was thus an abuse of discretion. p) 1997 Staged Drug Rip-Off Government witnesses testified that defendant Baker, an MDPD officer, had been hired by Williams, Shaw, and Harper to steal drugs and money from their customers.

MDPD officers also testified that Baker participated in an unrelated drug rip-off for a different drug dealer in 1997 that had been staged by the MDPD’s Internal Affairs Department. In particular, Detective Joe Gross, who supervised a surveillance operation against Baker, testified as to what other officers who were watching Baker told him over police radio about Baker’s actions. The defense made a hearsay objection to Gross’ testimony at trial, and raises a 404(

b) challenge to its admission for the first time on appeal. We need not reach the defendants’ 404(

b) contentions, as Gross’ statements were inadmissible hearsay. Although they were relevant to explain how Gross conducted his sting operation, their primary probative value was to prove that Baker was accepting money in return for helping drug dealers rip off their customers. The testimony does not fall into any hearsay exception, and thus its admission was an abuse of discretion.

q) Threats Made By Williams, Baptiste, and Brown to Witnesses in Holding Cells Errol Sawyer, an acquaintance of many of the defendants, testified for the government that Leonard Brown, Baptiste, Shaw, and Williams threatened him while he was in a holding cell waiting to testify.

Sawyer said that Brown told him that “black grease-ass kid’s mother is sitting over there [in the courtroom] with his kid” and to “be careful about your son ‘cause we’re going to get him on the streets and [fuck] him.” He said that Shaw asked him why he let the “white people” make him start talking, that Williams made “sly remarks,” and that both said, “You ain’t going to get forty years off of me.” Witness Reggie White testified that he also overheard Williams and Brown make threatening remarks to Sawyer. The defense objected to this testimony on Rule 404(

b) grounds. Although prejudicial, “[cjourts may consider evidence of threats to witnesses as relevant in showing consciousness of guilt” under Rule 404(b). United States v. Gonzalez, 703 F.2d 1222, 1223 (11th Cir.1983). However, “[b]ecause the potential prejudice from death threats may be great, the government must have an important purpose for introducing the evidence in order to satisfy the balancing test of Rule 403.” Id. (internal citation omitted).

We have held that a trial court did not abuse its discretion when it allowed a government informant to testify in a multi-defendant trial that one defendant threatened his life two weeks before trial, when the court had given a limiting instruction to the jury to consider the testimony only with respect to the defendant who had made the threat. Id.

Although we realize that the district court has wide discretion in admitting evidence, id. at 1224, it is clear to us that the district court abused that discretion in allowing the evidence of the threats in this case, to the extent that it refused to give such a limiting instruction to the jury commanding them to only consider the evidence against Shaw, Williams, Leonard Brown, and Baptiste, in light of the extreme prejudice that such evidence can create with respect to other co-defendants.

See id. at 1223-24 (presence of limiting instruction important in determination that district court did not abuse its discretion in admitting this evidence with respect to the defendants that did not make threats). The district court therefore abused its discretion in admitting this evidence as to Casado, Harper, Pless, Johnson, Hawthorne, Gibson, and Baker.

As to the four defendants that actually made the threats, whether admission of this testimony was proper remains a close call, but we ultimately conclude that the district court did not abuse its discretion in admitting it as to Williams, Shaw, Baptiste, and Leonard Brown.

r) Gibson’s 1980s Drug Sales Several government witnesses testified that Gibson, with the help of her twin sons, engaged in many drug transactions in Overtown in the 1980s, before the time period covered by the Count 2 conspiracy. These witnesses said that Gibson had a “spot” in Overtown near her house where she would give small quantities of cocaine and heroin to small children, to sell on the street for her. Leonard and Lenard Brown, who at that time were still in their early teens, allegedly helped Gibson pack cocaine, cook it into crack, and sell cocaine and heroin on the street along with other children. The defense raised a 404(

b) objection at trial. This evidence of Gibson’s drug sales before any of the charged conduct in the indictment is “extrinsic” evidence whose admission is regulated by Rule 404(b). Under that Rule, this evidence was probative of Gibson’s intent on the Count 17 charge of knowingly maintaining a place for the purpose of manufacturing, distributing, and using drugs. United States v. Cardenas, 895 F.2d 1338, 1342 (11th Cir.1990) (holding that “when a defendant charged with conspiracy enters a not guilty plea, he makes intent a material issue in the case and imposes a substantial burden on the government. Thus, the government may introduce extrinsic offenses which qualify under 404(

b) to prove defendant’s state of mind, unless defendant takes affirmative steps to remove the issue of intent from the case.”) (internal quotation marks and citations omitted). Thus, the district court did not abuse its discretion in admitting testimony concerning Gibson’s extrinsic drug sales.

s) Reference to Pless’s PosUMiranda Silence Pless raises a Fifth Amendment due process challenge to Detective Simmons’ testimony regarding Simmons’ post-arrest questioning of Pless regarding the Everett Cooper murder and Pless’s refusal to answer certain questions. The following exchange ensued: Q [AUSA]: Did there come a time that your interview of Mr. Pless terminated, told you he didn’t want to talk to you any further? A [SIMMONS]: Yes. But prior to doing’so, he mentioned— MR. MATTERS: Objection. I would like to preserve that for a sidebar. THE COURT: Sustained. THE WITNESS: Yes, sir.

Q: What subject matter were you relating to him when the interview ended? MR. MATTERS: Objection, Judge. THE COURT: Overruled. THE WITNESS: We started to inquire of Mr. Pless as to his involvement in homicides. Q: And was the interview ended at that time? A: Yes, sir. Counsel for Pless moved for a mistrial, arguing that the testimony was a direct reflection upon Pless’s Fifth Amendment right against self-incrimination. The court denied the motion.

Use of the defendant’s silence at the time of arrest and after receiving Miranda warnings in an effort to impeach him at trial violates the Due Process Clause and its guarantee against fundamental unfairness. United States v. Miller, 255 F.3d 1282, 1285 (11th Cir.2001) (citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)). Such improper use occurs when a prosecutor “call[s] attention” to the defendant’s silence. Id.

On the other hand, “[w]hile a single comment alone may sometimes constitute a Doyle violation, the Supreme Court[ ] ... [made] clear that a single mention does not automatically suffice ... when the government does not specifically and expressly attempt to use ... the improper comment to impeach the defendant.” United States v. Stubbs, 944 F.2d 828, 835 (11th Cir.1991) (citing Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987)).

Thus, we have held that if the prosecution mentions the defendant’s silence only in passing, and makes no specific inquiry or argument about the defendant’s post-arrest silence, there is no due process violation. United States v. Cayasso, 130 Fed.Appx. 371, 373 (11th Cir.2005). Here, while the Government’s question was unnecessary and inappropriate, because it suggested that Pless had refused to answer any questions about the murders because of his involvement in them, the reference was too brief to constitute a Fifth Amendment violation under Cayasso and Stubbs.

The Government elicited only a single reference to Pless’s refusal to respond to questioning, and apparently never referred to the matter again, either in subsequent witness examination or in closing argument. Thus, the denial of a mistrial was not error.

t) Pless’s Exculpato'i'y Posh-Arrest Statements Pless also challenges the court’s denial of his motion to cross-examine Detective Simmons on the exculpatory portions of Pless’s post-arrest statements. At trial, the Government objected to the request on hearsay grounds. Although Simmons had been permitted to testify regarding inculpatory portions of the statements, the court sustained the Government’s objections. The prosecution now correctly concedes that the denial of Pless’s request was error.

Federal Rule of Evidence 106 states that “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” Fed.R.Evid. 106; United States v. Range, 94 F.3d 614, 620-21 (11th Cir.1996).

We have extended Rule 106 to oral testimony in light of Rule 611(a)’s requirement that the district court exercise “reasonable control” over witness interrogation and the presentation of evidence to make them effective vehicles “for the ascertainment of truth.” Range, 94 F.3d at 621 (citing United States v. Castro, 813 F.2d 571, 576 (2d Cir.1987)). Thus, the exculpatory portion of a defendant’s statement should be admitted if it is relevant to an issue in the case and necessary to clarify or explain the portion received. Range, 94 F.3d at 621.

In this case, Pless’s exculpatory statements were relevant to his involvement in acts impheating him in the Count 2 conspiracy, and were necessary to clarify those portions related by Detective Simmons. The district court therefore abused its discretion in denying Pless’s motion. 3. Prejudice All eleven defendants argue that the district court’s evidentiary errors were not harmless, considered individually or cumulatively, and entitle them to a new trial.

The cumulative error doctrine “provides that an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield a denial of the constitutional right to a fair trial, which calls for reversal.” United States v. Munoz, 150 F.3d 401, 418 (5th Cir.1998); see also Labarbera, 581 F.2d at 110; United States v.

Necoechea, 986 F.2d 1273, 1282-83 (9th Cir.1993) (“In reviewing for cumulative error, the court must review all errors preserved for appeal and all plain errors.”). “The harmlessness of cumulative error is determined by conducting the same inquiry as for individual error— courts look to see whether the defendant’s substantial rights were affected.” United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir.1990) (en banc) (citing United States v. Kartman, 417 F.2d 893, 894, 898 (9th Cir.1969)).

However, the cumulative prejudicial effect of many errors may be greater than the sum of the prejudice caused by each individual error. United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir.1993). The total effect of the errors on the trial will depend, among other things, on “the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the district court dealt with the errors as they arose (including the efficacy — or lack of efficacy — of any remedial efforts); [] the strength of the government’s case,” and the length of trial.

Id. at 1196; Hands, 184 F.3d at 1329 (“We determine whether an error had substantial influence on the outcome by weighing the record as a whole, examining the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt.”) (internal quotations marks and citations omitted). Kotteakos v.

United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), provides that non-constitutional error is harmless “if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error. ... The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” See also United States v.

Frazier, 387 F.3d 1244, 1266 n. 20 (11th Cir.2004) (en banc) (“Errors do affect a substantial right of a party if they have a ‘substantial influence’ on the outcome of a case or leave ‘grave doubt’ as to whether they affected the outcome of a case.”). The same standard is employed to review the prejudicial effects of a district court’s plain error, be it of constitutional or non-constitutional dimensions. United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir.2005) (“The non-constitutional harmless error standard is not easy for the government to meet.

It is as difficult for the government to meet that standard as it is for a defendant to meet the third-prong prejudice standard for plain error review.”). Moreover, we note in passing that “[a]n error may substantially influence an outcome and thus warrant reversal even if the evidence, had no error occurred, would have been sufficient to support the conviction.” . Hands, 184 F.3d at 1329. We also review the record de novo when conducting a harmless error analysis, unlike our review of sufficiency of the evidence challenges, in which we view witness credibility in the light most favorable to the government.

Id. at 1330 n. 23. By contrast, as discussed above, under the plain error standard we may not correct an error unless: (1) there is error; (2) that is plain; and (3) that affects substantial rights. If these three conditions are met, we may exercise our discretion to correct the error, if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Cotton, 535 U.S. at 631-32, 122 S.Ct. 1781 (2002).

Thus, because the defendants did not preserve any of their constitutional evidentiary claims, we review the aggregate effect of the district court’s constitutional and non-constitutional errors under the Kotteakos standard for each defendant. If we find the errors’ cumulative effect insufficient to necessitate reversal, we need not consider each individual error’s impact as to a defendant.

a) Williams The erroneously admitted evidence implicating Williams consisted of:

(1) Sergeant Singer’s testimony regarding the Gary Coley murder and Williams’ subsequent guilty plea to attempted second degree murder;

(2) Officer Polite’s testimony that Williams had beaten his girlfriend;

(3) Detective Capote’s testimony about the witness identification of Williams and Casado in the Palmetto Expressway murder;

(4) Sergeant Casas’ testimony about Williams’ involvement in a 1992 shootout at a Miami strip club; (5) testimony that Williams did not have permission to be on the property where he was found following a 1997 car chase;

(6) Officer Waltham and Detective Richard’s testimony about an armed robbery Williams committed in 1997;

(7) Detective Lewis’ testimony about Williams’ connection to the Amoco double murder and subsequent murder of Corey Murcherson;

(8) Lewis’ testimony that he was told Richard Stit worked as an “enforcer” for Williams;

(9) Detective Borges’ testimony about Williams’ involvement in the Brownlee murder; and

(10) Deputy U.S. Marshal Moran’s testimony about Williams’ appearance on Crimestoppers and America’s Most Wanted. Two of these items of evidence were independently corroborated by admissible evidence. First, Johnny Hankins corroborated Capote’s testimony concerning the Palmetto Expressway murders, recounting a conversation in which Williams confided that he and Casado killed several individuals on an expressway. Second, Lewis’s testimony concerning Stit’s role as “an enforcer” for Williams was corroborated by Becton, who testified that both he and Stit worked for Williams in Virginia.

This independent testimony mitigates the prejudicial effect of the inadmissible Lewis and Capote testimony. Cf. United States v. DeLoach, 654 F.2d 763, 771 (D.C.Cir.1980) (holding that admission of hearsay testimony was harmless where the jury heard admissible testimony from three other sources to the same effect). Moreover, the cumulative effect of the district court’s errors was harmless given the avalanche of admissible, inculpatory evidence admitted against Williams at trial with respect to every count for which he was indicted.

Specifically, nineteen witnesses testified that they personally witnessed or participated in Williams’ drug sales operation. Becton also testified that he, Stit, and others transported drugs to Georgia for Williams. Likewise, Hankins said that Marvin Rogers and Gary Dukes transported drugs to Georgia on Williams’ behalf. McCrea further told the jury that Williams had “lieutenants” deliver drugs for him, while both Byrd and Royal testified that Byrd transported drugs for Williams.

In addition to conceding his own involvement, Hankins also testified that Murcherson, Wilson, and an individual named “Donkey Kong” also worked for Williams. Voluminous evidence also implicated Williams in violence committed in furtherance of the conspiracy, including: (1) testimony from both Becton and Hankins concerning Williams’ involvement in the Rolex shootout; (2) testimony from Becton concerning Williams’ role in the “Ankey” murder; and

(3) Johnny Hampton’s testimony that he personally witnessed Williams’ involvement in the Harris/Betterson murders. Texidor- and Wilson also testified that Williams and Casado planned to'murder Robert Sawyer. ■ Police Officers Saud, Rodriguez, and Walthen explained that they arrested Williams (along with Casado) after firearms were thrown from the car in which they were travelling. Finally, numerous witnesses testified that Williams regularly carried firearms.

In this light, even given the district court’s numerous evidentiary mistakes, we can still say with “fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. The district court’s evidentiary errors are thus harmless as to Williams.

b) Casado The district court erroneously admitted evidence of Casado’s participation in: (1) the Palmetto Expressway murders; (2) the Jetier murder; (3) the Colors triple murder; (4) the Everett Cooper murder; (5) and the Amoco murders. The lower court also incorrectly allowed the jury to hear evidence that Casado did not have permission to be on the property where he was found following a 1997 car chase, and erred by failing to give a limiting instruction about the threats that Williams, Shaw, Leonard Brown, and Baptiste made to Errol Sawyer.

The prejudice resulting from these errors is tempered by the fact that independent admissible testimony corroborated two of the improper pieces of evidence. First, as discussed above, the testimony linking Capote to the Palmetto Expressway murders was corroborated by Johnny Hankins. Second, the inadmissible testimony concerning Casado’s involvement in the Jetier shooting was confirmed by Officer Sanchez’s testimony that he himself witnessed the shooting and that Casado had been the shooter.

Though the remaining evidentiary errors remain troubling, there was such a mountain of admissible evidence implicating Casado in all of the offenses for which he was convicted that we can fairly say that the evidentiary errors did not affect his substantial rights. Indeed, six witnesses testified that Casado and Williams collaborated in selling cocaine. Hankins specifically testified that whenever Williams and Harper had no cocaine to sell, he bought from Casado. Similarly, McCrea testified that Williams said he was “taking over everything” regarding drug sales while Casado served a prison sentence.

Numerous witnesses also testified that Baptiste worked selling drugs for Casado. Sanchez-Carillo testified that he sold cocaine to Casado; Texidor said that the Cruz brothers sold cocaine to Casado; and Sam Jones added that Casado distributed drugs to Pensacola. The government’s evidence also linked Casado to the violent activities committed in furtherance of the charged conspiracy. Brian Wilson testified that Casado was present at the Colors Murders, while McCullough told the jury that according to Hawthorne, Hawthorne and Casado were involved in the Amoco murders.

Officer Sanchez stated that he observed that Jetier was shot by individuals in a car in which Casado was travelling with Baptiste. Similarly, Texidor stated that Casado said he (Casado) had shot Jetier. As discussed above, Texidor and Wilson both explained that Casado and Williams planned to murder Robert Sawyer. Wilson further testified that he had been robbed of drugs by assailants traveling in Casado’s car. Han-kins told the jury that Williams said Casado had been involved in the Harris/Better-son murders.

As noted above, Officers Sanchez, Rodriguez, Saud, and Walthen also testified that they arrested Casado after firearms and other items were thrown from the car in which they were traveling. Finally, numerous witnesses testified that Casado regularly carried firearms. In light of this overwhelming admissible evidence, the prejudice resulting from the district court’s evidentiary errors proves insufficient to necessitate reversal of Casado’s conviction.

c) Harper The district court erred by admitting evidence of Harper’s involvement in the Brownlee murder, and by failing to give a limiting instruction about the threats that Williams, Shaw, Leonard Brown, and Baptiste made to Errol Sawyer. However, this evidence proves harmless in light of the large volume of admissible evidence the prosecution amassed against Harper. That evidence included:

(1) Hankins’ testimony that Harper sold cocaine at the Matchbox with Williams;

(2) Becton’s testimony that Harper supplied Williams with cocaine; and (3) testimony from Texidor and Hall that Harper bought cocaine from Casado. Hall and Nero also told the jury that they bought cocaine from Harper, while Kerry Smith stated that Harper sold crack in Atlanta and West Palm Beach. Pagan also testified that he sold cocaine to Harper. Rose’s testimony that she overheard Nero and Harper discussing drug deals bolstered this evidence. Admissible evidence also linked Harper to some of the violent incidents committed in furtherance of the conspiracy.

Hankins told the jury that Harper was present when Williams fought with a member of the rival Thomas gang, while Becton said that Harper was present at the Rolex when Williams fought with other members of the Thomas gang. Hall further testified that Harper often carried firearms.

In sum, when viewed against the quantum of admissible evidence concerning Harper’s participation in all of the offenses for which he was charged, we can fairly say that the evidentiary errors remain harmless. d)Leonard Brown The only evidentiary error affecting Leonard Brown’s convictions was the admission of Detective Lewis’ testimony about his involvement in the Amoco double murder. As an initial matter, this evidence relates only to Counts 2 and 16 of the indictment, as it bears no discernable relationship to the im

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