UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20793
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NELSON BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-96-65-2)
July 15, 1997
Before POLITZ, Chief Judge, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
Nelson Brown appeals his conviction and sentence following a jury trial for
conspiracy to possess with intent to distribute cocaine base and aiding and abetting
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
to possess with intent to distribute cocaine base.1 Brown contends that: (1) the
evidence demonstrated his actions were committed under duress; (2) the district
court committed plain error in instructing the jury that he had the burden to prove
the affirmative defense of duress by a preponderance of the evidence; (3) the
district court erred in denying his motion for a judgment of acquittal because the
government failed to prove beyond a reasonable doubt that he conspired to possess
with intent to distribute cocaine base; and (4) the prosecutor’s improper statements
during closing argument substantially affected his right to a fair trial.
Assuming per arguendo that the issue that a preponderance of the evidence
demonstrated that Brown’s actions were committed under duress is cognizable, our
review of the record persuades that Brown did not demonstrate at trial that he acted
under duress.2 The district court did not commit plain error in instructing the jury
on Brown’s duress defense.3 The evidence before the jury was sufficient to support
1
21 U.S.C. §§ 841(b)(1)(A), 846.
2
United States v. Harvey, 897 F.2d 1300 (5th Cir.), cert. denied, 498 U.S. 1003 (1990),
overruled on other grounds, United States v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en
banc); United States v. Gant, 691 F.2d 1159 (5th Cir. 1982).
3
United States v. Willis, 38 F.3d 170 (5th Cir. 1994), cert. denied, 115 S.Ct. 2585
(1995).
2
the conviction for conspiracy to possess cocaine base with intent to distribute. 4
Finally, we conclude that Brown’s right to a fair trial was not substantially affected
by comments by the prosecutor during closing argument.5 The challenged
comments by the prosecutor, albeit inappropriate, did not rise to the level of
tainting the trial.
The convictions and sentences are AFFIRMED.
4
United States v. Stephens, 964 F.2d 424 (5th Cir. 1992); United States v. Maltos, 985
F.2d 743 (5th Cir. 1992); United States v. Ramirez, 963 F.2d 693 (5th Cir.), cert. denied,
506 U.S. 944 (1992).
5
United States v. Andrews, 22 F.3d 1328 (5th cir.), cert. denied, 513 U.S. 941 (1994).
3