UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-31032
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ISAAC KITT,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
(96-CR-232-9)
August 19, 1998
Before WISDOM, DUHÉ, and DEMOSS, Circuit Judges.
PER CURIAM:*
Isaac Kitt was convicted of one count of conspiracy to
possess with intent to distribute heroin, cocaine, and cocaine
base, and two counts of the use of a communication facility in
the commission of a drug felony in violation of 21 U.S.C. §§
*
Under 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except in
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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843(b) and 846. He was sentenced to prison for 41 months, to be
followed by three years of supervised release. Kitt appeals.
Kitt argues that the district court erred by permitting the
Government to introduce evidence that he had previously been
arrested for possession of cocaine with the intent to distribute.
We review the trial court’s admission of evidence for an abuse of
discretion. United States v. Humphrey, 104 F.3d 65, 70 (5th
Cir.), cert. denied, 117 S. Ct. 1833 (1997). We apply a
two-pronged test to determine the admissibility of evidence under
FED. R. EVID. 404(b). “First, the evidence must be relevant to an
issue other than the defendant's character. Second, the evidence
must have probative value that is not substantially outweighed by
undue prejudice.” United States v. Misher, 99 F.3d 664, 670 (5th
Cir. 1996) (citing United States v. Beechum, 582 F.2d 898, 911
(5th Cir. 1978) (en banc)), cert. denied, 118 S. Ct. 73 (1997).
The evidence of Kitt’s prior conviction tended to show his
knowledge of the drug trafficking trade and his intent to engage
in drug trafficking. The danger of the prejudice of this
evidence was mitigated by the district court’s cautionary
instruction to the jury. The district court did not abuse its
discretion by admitting this evidence.
Kitt also argues that the district court erred by refusing
to grant a mistrial after the prosecutor impermissibly commented
upon his exercise of his Fifth Amendment right to remain silent.
“A statement violates the Fifth Amendment if the prosecutor
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intended to comment on the defendant's failure to testify or if a
jury would naturally and necessarily interpret the prosecutor's
remarks in that light." Montoya v. Collins, 955 F.2d 279, 286
(5th Cir. 1992) (internal quotation marks and citation omitted).
We review the remarks in the context in which they occurred.
Passman v. Blackburn, 797 F.2d 1335, 1346 (5th Cir. 1986).
The prosecutor made the following statements during closing
argument:
And [defense counsel] is a very good lawyer
and he’s a very charming person, but he can’t
sit back there with his client and hope we’ll
forget about him, because we won’t. This
money right here was going home with Isaac
Kitt, “One and a quarter for 75.” He left
his beeper number on there. So what do the
agents do? When they’re trying to find him,
what do they do? They call that exact number
that’s listed to him, Isaac Kitt. There is
no doubt that the person that Michael Shorts
was talking to and was taking this to and who
had an ounce and a quarter of heroin was Mr.
Isaac Kitt; Mr. Isaac Kitt, the West Bank
dope dealer.
And we’ve never said that Isaac Kitt was in
the middle of this conspiracy; he was just on
the edge of it.
R. 15, 850-51. Taking the prosecutor’s remarks in the content in
which they occurred, we agree with the district court that the
jury would not naturally and necessarily interpret those remarks
as a comment on Kitt’s failure to testify. Given the
prosecutor’s statement that Kitt was not in the middle of the
conspiracy, but was just “on the edge of it,” we find that the
prosecutor’s statements were referring to Kitt’s minor role in
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the drug conspiracy and defense counsel’s low profile at trial.
A prosecutor may comment on the failure of the defense, as
opposed to the defendant, to counter or explain the evidence.
See United States v. Borchardt, 809 F.2d 1115, 1119 (5th Cir.
1987). There was no reference to Kitt’s failure to testify. The
district court did not err by refusing to grant a mistrial.
The judgment of the district court is AFFIRMED.