At page 1561 Determining the legal standard for testimony to be incredible74 citing cases“for testimony of a government witness to be incredible as a matter of law, it must be 'unbelievable on its face.”
- United States v. Henry De Jesus Lopez Londono, No. 18-12888 (11th Cir. Aug. 20, 2025).unpublished(For testimony of a government witness to be incredible as a matter of law, it must be ‘unbelievable on its face.’)
- United States v. Deon Toril Hepburn, 713 F. App'x 958 (11th Cir. 2017).unpublished([T]he fact that the witness has consistently lied in the past, engaged , in various criminal activities, thought that his testimony would benefit him, and showed elements of mental instability, does not make his testim…)
- United States v. Jojuan Lindsey, No. 24-13953 (11th Cir. June 24, 2026).unpublishedWhen reviewing the district court’s credibility determinations, testimony is “considered incredible as a matter of law” where it is “‘unbelievable on its face, i.e., testimony as to facts that [the witness] could not have possibly observed…
- United States v. Kermon Williams, No. 22-13469 (11th Cir. Jan. 21, 2026).unpublished United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985).
- United States v. Tyree Arvell Monroe, No. 24-12707 (11th Cir. Mar. 12, 2025).unpublishedWe defer to the district court’s “determinations unless [its] understanding of the facts appears to be ‘unbelievable.’” Ramirez-Chilel, 289 F.3d at 749 (quoting United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985)).
- United States v. Hernandez, No. 1:18-cv-20783 (S.D. Fla. Jan. 5, 2024).Therefore, in evaluating a factual version of events, a court “should defer to the magistrate judge’s determinations unless his understanding of the facts appears to be ‘unbelievable.’” Id. (quoting United States v. Rivera, 775 F.2d 1559,…
- United States v. Sergio Neftali Mejia-Duarte, No. 18-12196 (11th Cir. July 2, 2019).unpublished Mejia-Duarte offers us no reason to view this testimony as “unbelievable on its face.” See Calderon, 127 F.3d at 1325 (quoting United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985)).
- United States v. Terrance Harrell, No. 18-11038 (11th Cir. Mar. 8, 2019).unpublishedTo be incredible as a matter of law, testimony must be “unbelievable on its face,” in that it conveys “facts that the witness physically could not have possibly observed or events that could not have occurred under the laws of nature.” Id.…
- United States v. Ozzie Thomas, No. 18-11195 (11th Cir. Feb. 5, 2019).unpublishedFurther, we generally will not question a district court’s assessment of the credibility of witnesses unless a witness’s testimony is “unbelievable on its face.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (citing U…
- United States v. John-Thomas Stokes, 683 F. App'x 856 (11th Cir. 2017).unpublished United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985).
Show 62 more citing cases
- United States v. Jazzy Devante Johnson, 664 F. App'x 785 (11th Cir. 2016).unpublishedUnited States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985).
- United States v. Edmund Lee McCall, 649 F. App'x 945 (11th Cir. 2016).unpublishedHowever, “the fact that [a] witness has ... engaged in various criminal activities [or] thought that his testimony would benefit him ... does not make his testimony incredible.” United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985)…
- United States v. Derrick Dwayne Mackey, 649 F. App'x 713 (11th Cir. 2016).unpublished Thus, we defer to the decision of the fact finder — here, the district court — as to the credibility of a witness “unless the witness’s testimony [i]s unbelievable on its face.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.…
- United States v. Kendall Adam Hester, 627 F. App'x 867 (11th Cir. 2015).unpublishedThat is, Dimitrelos did not testify to facts that he could not possibly have observed or that could not have occurred under the laws of nature. 4 See United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985).
- United States v. Adrian Perez, 625 F. App'x 919 (11th Cir. 2015).unpublishedUnited States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985). ' The health care fraud statute provides that: , (a) Whoever knowingly and willfully executes, or attempts to execute, a scheme ■or artifice— (1) to defraud any health care bene…
- United States v. Max Felix, 591 F. App'x 777 (11th Cir. 2014).unpublishedAlthough Felix challenges the credibility of Turner and Tanner, we will not revisit the jury’s determination about the credibility of witnesses unless the testimony involved facts that the witness “could not have possibly observed or event…
- United States v. Tayuron Dolomon, 569 F. App'x 889 (11th Cir. 2014).unpublishedNot only was that testimony not “incredible as a matter of law” by describing events the witness “physically could not have possibly observed or events *893 that could not have occurred under the laws of nature,” see United States v. River…
- United States v. Francisco Feliciano, 761 F.3d 1202 (11th Cir. 2014).publishedThe jury has exclusive province over the credibility of witnesses, “and the court of appeals may not revisit this question” unless it is “incredible as a matter of law.” United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir.1999). “[F]o…
- United States v. Francisco Feliciano, 747 F.3d 1284 (11th Cir. 2014).published The jury has exclusive province over the credibility of witnesses, “and the court of appeals may not revisit this question” unless it is “incredible as a matter of law.” United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). “[F]…
- United States v. Louis Allen, 523 F. App'x 542 (11th Cir. 2013).unpublishedWe defer to the lower court’s credibility determinations unless the court’s “understanding of the facts appears to be ‘unbelievable.’ ” Ramirez-Chilel, 289 F.3d at 749 (citing United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985)).
- United States v. Merkuri Stanback, 454 F. App'x 741 (11th Cir. 2011).unpublishedIn fact, testimony is incredible as a matter of law only when it is “unbelievable on its face”—that is, it offers “facts that [the witness] physically could not have possibly observed or events that could not have occurred under the laws o…
- United States v. Dwayne Eric Thompson, 426 F. App'x 860 (11th Cir. 2011).unpublished“Assessing the credibility of one witness is within the jury’s exclusive province,” id. at 1274 , and Kemp’s testimony was not so fantastic or incredible as to “be ‘unbelievable on its face,’ ” United States v. Calderon, 127 F.3d 1314, 132…
- United States v. Brandon Ware, 420 F. App'x 886 (11th Cir. 2011).unpublishedTestimony is incredible only if it relates to “‘facts that [the witness] physically could not have possibly observed or events that could not have occurred under the laws of nature.’” Id. (alteration in original) (quoting United States v.…
- United States v. LaFontante, 417 F. App'x 854 (11th Cir. 2011).unpublishedTestimony is incredible only if it relates to “ ‘facts that [the witness] physically could not have possibly observed or events that could not have occurred under the laws of nature.’ ” Id. (alteration in original) (quoting United States v…
- United States v. Ramon Fuertes, 435 F. App'x 802 (11th Cir. 2011).unpublished“For testimony of a government witness to be incredible as a matter of law, it must be ‘unbelievable on *807 its face.’ ” Id. (quoting United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985)).
- United States v. Denisier Jean Louis, 399 F. App'x 567 (11th Cir. 2010).unpublishedFor testimony to be considered incredible as a matter of law, “it must be unbelievable on its face, i.e., testimony as to facts that [the witness] could not have possibly observed or events that could not have occurred under the laws of na…
- United States v. Julio Cesar Avalos Cerpas, 397 F. App'x 524 (11th Cir. 2010).unpublishedWitness testimony is incredible as a matter of law if it is “unbelievable on its face.” United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985) (quotations omitted).
- United States v. Tremain Hamilton, 356 F. App'x 345 (11th Cir. 2009).unpublishedA judgment of acquittal is not required simply because the government’s case relies on “an array of scoundrels, liars and brigands.” United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985) (internal quotation marks and citation omitte…
- United States v. Thomas Johnson, 348 F. App'x 468 (11th Cir. 2009).unpublishedUnited States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985).
- United States v. Carlos Granda, 346 F. App'x 524 (11th Cir. 2009).unpublishedWhile Granda questions the reliability of Fidel Granda’s testimony because Fidel Granda was cooperating with the government, the jury was permitted to credit Fidel Granda’s testimony, unless it was “unbelievable on its face.” United States…
- United States v. Cornelius Clarence Lewis, 340 F. App'x 595 (11th Cir. 2009).unpublishedAnd testimony is incredible only if it is “unbelievable on its face” — it offers “facts that [the witness] physically could not have possibly observed or events that could not have occurred under the laws of nature.” United States v. River…
- United States v. Flores, 572 F.3d 1254 (11th Cir. 2009).published(editing marks omitted)
- United States v. Robert Leroy Blango, 322 F. App'x 811 (11th Cir. 2009).unpublishedTestimony is incredible as a matter of law if it includes “facts that [the witness] physically could not have possibly observed or events that could not have occurred under the laws of nature.” United States v. Rivera, 775 F.2d 1559, 1561…
- United States v. Harold Williams, 291 F. App'x 288 (11th Cir. 2008).unpublishedTestimony is incredible only if it is “unbelievable on its face” — it offers “facts that [the witness] physically could not have possibly observed or events that could not have occurred under the laws of nature.” United States v. Rivera, 7…
- United States v. Jonathan Keith Thomas, 317 F. App'x 852 (11th Cir. 2008).unpublished“For testimony to be considered incredible as a matter of law, ‘it must be unbelievable on its face, ie., testimony as to facts that [the witness] could not have possibly observed or events that could not have occurred under the laws of na…
- United States v. Stiner, 551 F. Supp. 2d 1350 (M.D. Fla. 2008).publishedA reviewing court will defer to a magistrate judge’s determination in evaluating the factual version of events on a motion to suppress evidence, unless the magistrate’s understanding of the facts appears to be “unbelievable.” Id., quoting…
- United States v. Johnny Edward King, 267 F. App'x 851 (11th Cir. 2008).unpublished“For testimony of a government witness to be incredible as a matter of law, it must be ‘unbelievable on its face.’ ” United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985) (citation omitted).
- United States v. Mario L. Dominguez, 242 F. App'x 645 (11th Cir. 2007).unpublishedTestimony is incredible as a matter of law if it includes “facts that [the witness] physically could not have possibly observed or events that could not have occurred under the laws of nature.” United States v. Rivera, 775 F.2d 1559, 1561…
- United States v. Rashard Reddick, 231 F. App'x 903 (11th Cir. 2007).unpublished“The fact that [a witness] *921 has consistently lied in the past, engaged in various criminal activities, [and] thought that his testimony would benefit him ... does not make his testimony incredible.” United States v. Cravero, 530 F.2d 6…
- United States v. Calvin Lee Burrell, 227 F. App'x 827 (11th Cir. 2007).unpublishedTo hold that the testimony of a government witness is incredible as a matter of law, we must find that the testimony is “unbelievable on its face,” meaning that the facts to which the witness testified “physically could not have possibly […
- United States v. Jamar Young, 207 F. App'x 991 (11th Cir. 2006).unpublishedThe jury is given wide latitude to determine whether a government witness is credible, and its determination will not be overturned unless it is “unbelievable on its face.” United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985) (inte…
- United States v. Julian Nicholas, Jr., 136 F. App'x 314 (11th Cir. 2005).unpublished
- United States v. Lanette Black, 134 F. App'x 404 (11th Cir. 2005).unpublished
- United States v. Angel Ruben Castilla, 206 F. App'x 939 (11th Cir. 2006).unpublished
- United States v. Anthony Benjamin Johnson, 168 F. App'x 390 (11th Cir. 2006).unpublished
- United States v. Samuel Hill, 176 F. App'x 22 (11th Cir. 2006).unpublished
- United States v. Derek Tyrone Jackson, 194 F. App'x 588 (11th Cir. 2006).unpublished
- United States v. Michael Reese Coffman, 188 F. App'x 945 (11th Cir. 2006).unpublished
- United States v. Geneva Ellwood, 188 F. App'x 935 (11th Cir. 2006).unpublished
- United States v. Joseph Lee Holmes, Jr., 270 F. App'x 914 (11th Cir. 2008).unpublished
- United States v. Marcus Rolle, 284 F. App'x 709 (11th Cir. 2008).unpublished
- United States v. Calderon, No. 90-6020 (11th Cir. Nov. 14, 1997).published
- United States v. Carlos Enrique Ramirez-Chilel, 289 F.3d 744 (11th Cir. 2002).published
- United States v. Gerald Eugene Bennett, 368 F.3d 1343 (11th Cir. 2004).published
- United States v. Jose Rolando Garcia, 405 F.3d 1260 (11th Cir. 2005).published
- United States v. Elizabeth Marie Morse Thompson, 422 F.3d 1285 (11th Cir. 2005).published
- United States v. Michael Phillip Kessler, 418 F. App'x 806 (11th Cir. 2011).unpublished
- E.K. Wilcox, Jr. v. J. Paul Ford, 813 F.2d 1140 (11th Cir. 1987).published
- McKinley Dudley v. Jack Duckworth, 854 F.2d 967 (7th Cir. 1988).published
- United States v. Edward Kuzniar, 881 F.2d 466 (7th Cir. 1989).published
- United States v. Anthony Keith Jones, A/K/A Kenneth R. Jones, David Michael Minyard, Michael Cavaliere, Bonnie Grisson Russell, United States of Am. v. Daniel Michael Minyard, 913 F.2d 1552 (11th Cir. 1990).published
- Santiago Tapia v. Robert Tansy, 926 F.2d 1554 (10th Cir. 1991).published
- United States v. Felix Oriakhi, 953 F.2d 640 (4th Cir. 1992).unpublished
- United States v. Alberto Calderon, 127 F.3d 1314 (11th Cir. 1997).published
- United States v. Keith Bernard Crenshaw, United States of Am. v. Kamil Hakeem Johnson, United States of Am. v. Timothy Kevin McGruder, 359 F.3d 977 (8th Cir. 2004).published
- United States v. Hunt, 412 F. Supp. 2d 1277 (M.D. Ga. 2005).published
- United States v. Eric Lee Spooner, 560 F. App'x 876 (11th Cir. 2014).unpublished
- United States v. Keith Crenshaw, No. 02-4084 (8th Cir. Mar. 2, 2004).published
- United States v. Jones, 913 F.2d 1552 (11th Cir. 1990).published
- Antuna v. Johnson (Charlotte Cnty.), No. 2:17-cv-00233 (M.D. Fla. Apr. 20, 2020).
- United States v. Rodolfo Maisonet, 121 F.4th 194 (11th Cir. 2024).published
- United States v. Robert Damaine Salter, No. 23-14068 (11th Cir. Mar. 18, 2025).unpublished
At page 1562 Sufficiency of evidence for facilitating narcotics offense16 citing casesnoting that defendant made calls “simply to find out whether any sales had been made,” not to facilitate the sales
- Perez v. City of Hialeah, No. 1:19-cv-24047 (S.D. Fla. Aug. 24, 2021).(rejecting defense argument that witness’ perjurious character, previous felonious acts, other evidence which undermined his testimony, and preferential treatment provided by the prosecutors rendered the testimony incred…)
- Woodhull Freedom Found. v. United States, 948 F.3d 363 (D.C. Cir. 2020).publishedThe common meaning of facilitate is “‘to make easier’ or less difficult, or to assist or aid.” United States v. Rivera, 775 F.2d 1559, 1562 (11th Cir. 1985) (quoting United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. 1981)); see also…
- United States v. Michael Owens, 641 F. App'x 949 (11th Cir. 2016).unpublished To prove facilitation, “the [gjovernment must show that the telephone call comes within the common meaning of facilitate — to make easier or less difficult, or to assist or aid.” United States v. Rivera, 775 F.2d 1559, 1562 (11th Cir.1985).
- United States v. Mark Anthony Myrie, 479 F. App'x 898 (11th Cir. 2012).unpublishedUnited States v. Rivera, 775 F.2d 1559, 1562 (11th Cir.1985).
- United States v. Michael Lee Boykins, 380 F. App'x 930 (11th Cir. 2010).unpublishedUnited States v. Rivera, 775 F.2d 1559, 1562 (11th Cir.1985).
- United States v. James R. Russell, 378 F. App'x 884 (11th Cir. 2010).unpublishedUnited States v. Rivera, 775 F.2d 1559, 1562 (11th Cir.1985).
- United States v. Mincoff, 574 F.3d 1186 (9th Cir. 2009).published (noting that defendant made calls “simply to find out whether any sales had been made,” not to facilitate the sales)
- United States v. Emma Gonzalez-Rodriguez, 966 F.2d 918 (5th Cir. 1992).published
- United States v. Mertilus, 111 F.3d 870 (11th Cir. 1997).published
- United States v. Lester Rogers, United States of Am. v. Lester Rogers, 788 F.2d 1472 (11th Cir. 1986).published
Show 4 more citing cases
- United States v. Timothy Jones, 839 F.2d 1041 (5th Cir. 1988).published
- United States v. Ezequiel Orihuela, 320 F.3d 1302 (11th Cir. 2003).published
- United States v. Antonio Dawon Woodley, 484 F. App'x 310 (11th Cir. 2012).unpublished
- Woodhull Freedom Found. v. United States, 72 F.4th 1286 (D.C. Cir. 2023).published
At page 1564 Review of trial error and severance motion merits7 citing casessel joined Platt’s argument that the testimony should be stricken. Over the government’s objection the testimony was stricken and the jury instructed to ignore…
- United States v. James Caporale, Alfred Pilotto, Seymour A. Gopman, Bernard Rubin, George Wuagneux, Salvatore Tricario, Louis C. Ostrer, & John Giardiello, Defendants- United States of Am. v. Seymour Gopman, Salvatore Tricario, George Wuagneux, Louis C. Ostrer, John Giardiello, James Caporale, Alfred Pilotto & Bernard Rubin, Defendants, 806 F.2d 1487 (11th Cir. 1986).published
- United States v. Joseph Lee Lachance, 817 F.2d 1491 (11th Cir. 1987).published
- United States v. Raymond Casamayor, United States of Am. v. Carroll Key, Carol Hardin, Janet Cates, Michael Cates, Raymond Casamayor, Russell Barker, John R. Roberts, Buford E. Clark, Michael Alan Clark, Aristides M. Brito, Miguel Brito-Williams, Antonio Diaz, 837 F.2d 1509 (11th Cir. 1988).published
- United States v. Billy Eugene Gossett, Jr., United States of Am. v. William Rector, 877 F.2d 901 (11th Cir. 1989).published
- United States v. Noriega, 746 F. Supp. 1548 (S.D. Fla. 1990).published
- United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986).published
- United States v. Casamayor, 837 F.2d 1509 (11th Cir. 1988).published
v.
Gilbert RIVERA and Albert Saul Platt, Defendants-Appellants
Platt and Rivera appeal their convictions for aiding and abetting in possessing, with intent to distribute, approximately 100,000 Methaqualone tablets (commonly known as quaaludes) (Count 1). Platt appeals his conviction for using a telephone, on nine occasions, to cause and facilitate the possession of quaaludes with intent to distribute them (Counts 2-10). Platt asserts that the testimony of Weiss, the principal government witness, is incredible or unsubstantial on its face, that the district court erred in finding sufficient evidence to submit to the jury the nine telephone counts, and that the improper remarks of the prosecutor mandates reversal. He joins his co-defendant Rivera in asserting that it was error for the district court to rule that the government could impeach the testimony of Mogeil, one of Platt’s witnesses, thus requiring Platt to move to strike the testimony of this witness. Rivera also claims error in the district court’s refusal to grant him a severance. We disagree with the contentions of both Platt and Rivera as to Count 1 and affirm as to both defendants. We agree with Platt that there is insufficient evidence to sustain his conviction on[*1561] the nine telephone counts and reverse as to these.
In 1981 Weiss was a dealer in illicit drugs. He met with Platt, Mogell and others in Miami, Florida to negotiate a. deal. He had a pill making machine, and as a part of the deal the machine was to be transferred as collateral to Platt who was to provide approximately 350,000 metha-qualone tablets to Weiss. They agreed how the pills would be sold and how the proceeds would be divided. Weiss said he could move the pills quickly through his contacts in Indiana. He contacted Rivera and instructed him to meet them in Ft. Lauderdale, Florida. Rivera did so and thereafter transported the quaaludes to Gary, Indiana. Sales went slowly there, but an undercover agent led Weiss to believe he could arrange a sale for the quaa-ludes in the Gadsden, Alabama area. Weiss went to a Ramada Inn in Atalla, Alabama, a Gadsden suburb, and Platt remained in Birmingham. The nine telephone calls in question were from Platt in Birmingham to Weiss in Atalla with one exception when Jackson, an undercover agent, answered the telephone in Weiss’ room.
Platt ultimately told Weiss that they could sell the quaaludes to a customer in the Tampa, Florida area. They returned to Florida, but Weiss was arrested in Bro-ward County, Florida after he attempted to sell quaaludes to an undercover police officer.
WEISS’ TESTIMONY
Platt argues that the combination of four factors show that Weiss’ testimony was incredible. They are (1) the preferential treatment accorded Weiss by the federal government in disposing of numerous drug related convictions, (2) Weiss’ penurious character, (3) previous felonious acts by Weiss, and (4) defense evidence that undermines the testimony of Weiss.
There can be no doubt that Weiss was a drug dealer and an outlaw. He had been involved in several drug trafficking schemes. He entered into a plea agreement with the government on the present charges. The charge that Weiss perjured himself or that the defense evidence undermined Weiss’ testimony, while bearing on Weiss’ credibility are not factors in determining incredibility as a matter of law and were certainly matters wholly within the province of the jury. For testimony of a government witness to be incredible as a matter of law, it must be “unbelievable on its face.” United States v. Cravero, 530 F.2d 666, 670 (5th Cir.1976). Further, “the fact that [the witness] has consistently lied in the past, engaged in various criminal activities, thought that his testimony would benefit him, and showed elements of mental instability does not make his testimony incredible.” Id. In United States v. Garner, 581 F.2d 481 (5th Cir.1978) the court underlined the stringent rule that “for the testimony to be considered incredible, ‘it must be unbelievable on its face’, i.e., testimony as to ‘facts that [the witness] physically could not have possibly observed or events that could not have occurred under the laws of nature.’ ” Id. at 485. (quoting Cravero, 530 F.2d at 670).
Under this test, Weiss’ testimony was not incredible as a matter of law. A judgment of acquittal “is not required because the government’s case includes testimony by ‘an array of scoundrels, liars and brigands.’ ” United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir.1981), quoting United States v. Tiche, 424 F.Supp. 996, 1000-01 (W.D.Pa.), aff'd mem., 564 F.2d 90 (3rd Cir.1977). The jury’s decision as to the credibility of Weiss will not be disturbed on appeal. United States v. Palacios, 612 F.2d 972, 973 (5th Cir.1980); United States v. Hewitt, 663 F.2d at 1386. Moreover, there was extensive corroboration of Weiss’ testimony by witness Smith as to the meetings with Platt, the drug conversations and schemes, the agreement to purchase and distribute quaaludes, Platt’s possession of Weiss’ pill machine as collateral, the purchase of cheap suitcases in which to carry the quaaludes, and the travel together of Platt and Weiss. Jackson, an undercover operator (which Weiss did not know) recorded many conversations with Weiss in which numerous references are made to Platt and Rivero. Finally, the[*1562] motel registration signed by Platt at the Ramada Inn in Birmingham and the record of telephone calls made from there to Weiss gave corroborative substance to Weiss’ testimony.
In the face of extensive impeachment of Weiss on cross examination concerning Weiss’ bad acts and bad character the jury chose to believe him. There the matter ends.
THE TELEPHONE CALLS
Counts Two through Ten of the Indictment charged Platt with using a telephone in Birmingham to call Weiss in Atalla, Alabama to cause and facilitate the felony of possession with intent to distribute methaqualone pills in violation of 21 U.S.C. §§ 841(a)(1) and 848(b) (1976). Each count specified an exact time on June 27, 1981 that the calls were made. On one occasion (but without proof of which of the nine calls it was) undercover agent Jackson was in Weiss’ room and answered a call from Platt in Weiss’ absence. All that Platt said was that he needed to talk with Weiss right away. Other than this call the government’s proof was that Platt called Weiss numerous times, but the calls were never identified as having been made at the precise times set forth in the indictment. The most incriminating evidence the government produced was that all calls were substantially the same, and in each one of them Platt asked Weiss “how are we doing with sales, and where is the money?” Given the fact that in our review of the sufficiency of the evidence it, and all reasonable inferences therefrom, must be viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), and that our determination is limited to whether a reasonably minded jury must necessarily entertain a reasonable doubt of Platt’s guilt, United States v. Rodriguez, 654 F.2d 315, 317 (5th Cir.1981); United States v. Bulman, 667 F.2d 1374, 1377 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982), we conclude that the evidence adduced by the government on Counts 2-10 was insufficient to sustain a guilty verdict.
The government relies on United States v. Phillips, 664 F.2d 971 (5th Cir.1981) (Unit B), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982) and United States v. McLernon, 746 F.2d 1098 (6th Cir.1984). In Phillips the court concluded that the evidence taken in context and in its totality showed that defendant Myers had a connection with a load of marijuana and that he gave assurances to co-defendant Meinster about the resolution of the problem of quickly disposing of the marijuana. This was sufficient to show that Myers’ conversation with Meinster had the unlawful purpose of facilitating the commission of the illegal possession with intent to distribute. The court pointed out that:
[i]n order to prove a violation of 21 U.S. C.A. § 843(b), the Government must establish that the defendant knowingly and intentionally used a communications facility, e.g., a telephone, to facilitate the commission of a narcotics offense. United States v. Rey, 641 F.2d 222, 224 n. 6 (5th Cir.1981). In order to establish the facilitation element, the Government must show that the telephone call comes within the common meaning of facilitate —‘to make easier’ or less difficult, or to assist or aid. United States v. Watson, 594 F.2d 1330, 1343 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979).
We agree with the court’s definition of “facilitation,” and its finding, under the facts in Phillips, that facilitation was proved. But here, Platt’s calls were simply to find out whether any sales had been made, and if so where was the money he was supposed to get. We fail to see how Platt’s calls can be said to make easier or less difficult, or to assist or aid the possession with intent to distribute the metha-qualone pills.
In McLemon the court held that the several telephone conversations must be considered in context and that in six calls the defendant Valdez “either informed the agents of the progress of the deal or of[*1563] the next step in the transaction.” 746 F.2d at 1106. Those calls taken together were held to be sufficient to uphold the conviction. In the case sub judice, however, Platt’s communications were an attempt to find out how the deal was progressing so he could get his money. We hold that this is not proof of “facilitation” and Counts 2-10 must fall.
THE PROSECUTOR’S REMARKS
Defense witness Cacciatore was a detective who had arrested both Weiss and government witness Smith for the sale of over one hundred thousand quaaludes to him in his undercover role. Under cross examination he testified that this was the largest pill case ever made in his department and was a “record.” On redirect examination Cacciatore was asked why this case was so unique that he did not have to rely on his notes. His response was that this was the largest hand to hand purchase ever accomplished by an undercover agent in the Sheriff’s Department. The following then ensued:
Q. You’re the record holder?
A. I guess you would say so.
Q. You and Don Weiss and Walter Smith?
A. That’s correct.
Ms. Powell (government prosecutor): And Mr. Platt.
Defense counsel moved for a mistrial. Ms. Powell apologized. The court stated that it was an improper remark but that there was not that much harm done by it and denied the motion for a mistrial.
There is no doubt that the remark “And Mr. Platt” was improper, but we do not agree with Platt’s argument that it was reversible error. The touchstone of due process analysis in such a case is the fairness of the trial not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87 (1982). The prosecutor’s isolated remark cannot be said to have inflamed or appealed to the passion of the jury. Nor did it refer to anything which was not in evidence or which was unknown to, or previously unheard by the jury. Viewed in the context of the entire trial, the remark did not prejudice the substantial rights of Platt, and at best was harmless error. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314, 1318 (1935), United States v. Esle, 743 F.2d 1465, 1477 (11th Cir.1984).
THE STRIKING OF DEFENSE WITNESS MOGELL’S EVIDENCE
Platt’s first witness was Mogell, a close friend of Platt’s for a number of years. Mogell testified that the only connection between Platt, Weiss, Smith and Mogell had to do with setting up a business association for the sale of carpets. The meetings that they had dealt only with the carpet business and did not have anything to do with quaaludes, their distribution or any other illicit drug activity. He emphasized that drugs were never discussed and, had the subject even been mentioned, he would have immediately departed. After Mo-gell’s direct testimony, the prosecution made the court aware that the government had tape recordings of Mogell in which he discussed the purchase of up to 50,000 quaaludes in Florida, that he admitted purchasing quaaludes on numerous occasions, discussed his drug sale procedure, the identity of his contacts for drug sales, and the transportation of quaaludes from Florida to other states without detection. The government proposed to cross examine Mo-gell concerning these conversations to impeach his credibility regarding his testimony that no drug transactions were discussed at any meetings with Platt, Weiss, and Smith and that if drugs had been mentioned he would have immediately left. The court ruled that the government could question Mogell about these matters. In chambers the court informed Mogell that the government could cross examine him about the tapes, instructed him concerning his fifth amendment rights and advised him to contact a lawyer. The government proposed giving Mogell an opportunity to recant. After Mogell conferred with his attorney he indicated that he would not recant and would invoke his fifth amendment privilege. At this juncture Platt moved to strike Mogell’s testimony. Rivera’s coun[*1564] sel joined Platt’s argument that the testimony should be stricken. Over the government’s objection the testimony was stricken and the jury instructed to ignore anything Mogell said.
Although Mogell’s testimony was stricken on the motion of Platt, he argues, without benefit of citation of any authority, that this, in some inexplicable way, prejudiced Platt’s right to a fair trial. Suffice it to say that we are unimpressed by the argument that although the district court granted the relief requested by Platt, he can argue on appeal that this was somehow error, or that the district court should not have permitted the government to cross examine Mogell for the purpose of impeaching him. Such a ruling would have placed the government in a grossly unfair position and would have led the jury to mistakenly believe that Mogell was a lily white witness.
Rivera’s contention that this series of events in some way denied him due process is wholly without merit. Equally unimpressive are his arguments that this issue is one involving improper impeachment of Mogell regarding his arrest on a non-related drug charge or that this somehow involves extrinsic evidence under Fed.R.Evid. 404(b). There was no impeachment of Mogell as to his prior drug conversations and his credibility on those matters was not attacked. In any event Mogell did testify that he did not know Rivera and had never seen him before. Finally, Rivera’s counsel not only did not object to striking Mogell’s testimony, he argued strenuously that the district court should do so. Rivera’s arguments on this issue have no merit.
RIVERA’S MOTION FOR SEVERANCE
One week after trial commenced, Rivera moved for a severance. As grounds he asserted the then unresolved situation regarding Mogell and the resulting possibility of a spill over effect on Rivera, even though Mogell had testified that he did not know Rivera. The district court denied the motion.
Whether a motion for severance should be granted is governed by Fed.R. Crim.P. 14 which provides in part that if a defendant is prejudiced by a joinder of defendants in an indictment, the court may grant a severance. Unless a defendant can establish that he was subjected to compelling prejudice against which the district court could not afford protection, persons indicted together should be tried together. United States v. Harper, 680 F.2d 731, 733 (11th Cir.) (citations omitted), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 182 (1982); United States v. McCulley, 673 F.2d 346, 349 (11th Cir.), cert. denied, 459 U.S. 852, 103 S.Ct. 116, 74 L.Ed.2d 102 (1982) ; United States v. Kabbaby, 672 F.2d 857, 861 (11th Cir.1982). Here there was no confusion of evidence between the two defendants. Rivera’s “spill over” argument is imaginative and unsupported in light of the fact Mogell never mentioned Rivera except to say that he did not know him. Moreover, the district court gave clear instructions concerning the separate treatment to be accorded each defendant. Under the circumstances of this case, it was, as a practical matter, within the capacity of the jury to follow the admonitory instructions of the court, and the mere fact that Rivera might have had a better chance of acquittal if he had been tried at a separate trial is not compelling prejudice. United States v. Hewes, 729 F.2d 1302, 1319 (11th Cir.1984), (citation omitted), cert. denied, — U.S. -, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985); see United States v. Marszalkowski, 669 F.2d 655 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 167 (1982). The decision of whether to sever is within the sound discretion of the district court, United States v. Kopituk, 690 F.2d 1289, 1314-15 (11th Cir.1982) (citations omitted), cert. denied, 463 U.S. 1209, 103 S.Ct. 3542, 77 L.Ed.2d 1391 (1983) . There was no abuse of discretion in denying Rivera’s motion for a severance.
The judgment of conviction of Platt and Rivera on Count 1 of the indictment is affirmed. The judgment of conviction of Platt on Counts 2-10 of the indictment is reversed.
AFFIRMED in part and REVERSED in part.