IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-50139
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DON GEORGE,
Defendant-Appellant.
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Appeal from the United States District Court
Western District of Texas
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January 12, 2000
Before FARRIS1, WIENER, and STEWART, Circuit Judges.
JEROME FARRIS, Circuit Judge:
Following a jury trial, Defendant-Appellant Don George was convicted of
conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C.
§§ 841(a)(1) and 846. George appeals his conviction, relying on alleged errors by
the district court and the cumulative effect of those errors. We affirm.
George, Jose Calderon, and Norman Compton were charged in a one-count
indictment. Calderon and Compton pleaded guilty prior to George’s trial, and
Compton testified for the Government pursuant to a plea agreement in which the
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Circuit Judge of the Ninth Circuit, sitting by designation.
Government agreed to move for a departure below the mandatory minimum
sentence if Compton provided substantial assistance against George. Eduardo
Duron and Luis Gonzalez, who had been convicted on drug offenses charged in a
separate indictment, also testified against George in the hope of obtaining more
lenient treatment in exchange for their testimony.
The three witnesses implicated George in a conspiracy to transport 50- to
100-pound loads of marijuana from El Paso, Texas, to Alabama between 1993 and
May 1996. It is undisputed that, during part of that period, George owned two
eighteen-wheeler trucks and a gas station/convenience store located in Albertville,
Alabama, and he frequently drove his trucks on cross-country trips.
George acknowledges, as he must, that the witnesses’ testimony, if believed,
was sufficient to convict him. George, instead, attacks the basis for the testimony.
Other than the witnesses’ testimony, there was sparse evidence of George’s guilt.
The Government introduced two Western Union money transfers which purported
to come from a “Tammy Williamson,” which was George’s wife’s maiden name.
Mrs. George denied sending the money orders and the Government did not attempt
to controvert her testimony.
George contends that the jury would have believed him if the district court
had (1) not excluded relevant evidence, (2) not limited his ability to impeach
prosecution witnesses, and (3) taken appropriate action regarding the prosecutor’s
comments during closing argument. George, however, failed to object to the
prosecutor’s closing argument at the time. George also contends that cumulative
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error requires reversal.
While we agree with George that the jury’s evaluation of his credibility and
the credibility of prosecution witnesses was pivotal, we affirm the district court.
Exclusion of Evidence
George contends that the district court abused its discretion by excluding
relevant evidence. We reject the argument.
“‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Fed. R. Evid.
401. “All relevant evidence is admissible . . . [e]vidence which is not relevant is not
admissible.” Fed. R. Evid. 402. We review a district court’s evidentiary rulings for
an abuse of discretion. See United States v. McAfee, 8 F.3d 1010, 1017 (5th Cir.
1993) (exclusion of evidence). The district court’s decision will not be disturbed
unless there is an abuse of discretion. See United States v. Hays, 872 F.2d 582, 587
(5th Cir. 1989). Ultimately, we examine “what effect the error had or reasonably
may be taken to have had upon the jury’s decision.” Id. at 587.
One of the prosecution witnesses, Norman Compton, testified that George
told him that he purchased his store and his two trucks with profits from trafficking
in marijuana. George denied this claim, testifying that he was a legitimate small
business owner and that he had purchased the store and trucks with a combination
of legitimate loans and business profits. George offered, and the district court
admitted, documentary evidence concerning George’s loans and taxes. George also
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attempted to offer into evidence documentation of a $50,000 default judgment that
he had obtained against William Rankin. George had sold his store to Sheila
Rankin, William Rankin’s wife. The Government objected to the evidence as
irrelevant and the district court sustained the objection.
George argues that the default judgment was relevant evidence and should
have been admitted because it supported the truthfulness of his testimony that he
(1) sold his store to Sheila Rankin for $80,000.00, (2) received a $10,000.00 down
payment from her, and (3) used the $10,000.00 as a down payment on the purchase
of his second truck. If the court had admitted the evidence, we would not have
deemed it error, but that is not the question before us.
The default judgment was against William Rankin, not Sheila Rankin. On its
face, nothing tied the default judgment to the sale of the store to Sheila Rankin. Nor
did the figures mesh. While the alleged sales price was $80,000 and the alleged
down payment was $10,000, the default judgment was only $50,000. Also, there
was no evidence of a community debt or that William Rankin played any role in the
transaction. When the Government objected that the default judgment was not
relevant and the district court sustained that objection, George could have offered
more to demonstrate possible relevance. He did not.
We cannot say that the district court abused its discretion by denying the
admission of evidence of the default judgment. George’s showing was insufficient
to establish that the default judgment was relevant, see Fed. R. Evid. 401, and
because it was not relevant it was not admissible, see Fed. R. Evid. 402. Also,
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given the district court’s admission of other documentary evidence concerning
George’s loans and taxes, this default judgment would have been a “needless
presentation of cumulative evidence.” Fed. R. Evid. 403. The district court did not
abuse its discretion by excluding the default judgment. See McAfee, 8 F.3d at 1017.
Impeachment of Witnesses
George also contends that the district court abused its discretion by limiting
his ability to impeach two prosecution witnesses. We disagree.
“The admission or exclusion of evidence at trial is a matter committed to the
discretion of the trial court.” United States v. Moody, 903 F.2d 321, 326 (5th Cir.
1990). The trial court is given “wide latitude” in imposing reasonable restraints
upon defendant’s right to cross-examination. See id. at 329; see also Sims v. ANR
Freight System, Inc., 77 F.3d 846, 849 (5th Cir. 1996) (“a district judge has broad
discretion in managing his docket, including trial procedure and the conduct of
trial”).
On re-direct examination of George by his defense counsel, the district court
sustained the prosecutor’s objection to a question that appeared to go outside the
scope of the cross examination. George’s attempt to impeach prosecution witness
Duron, by acknowledging that he knew Duron was a convicted felon was outside
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the scope of the prosecutor’s cross-examination of George.
After George’s defense witness, Vernice Martin, testified about her belief that
prosecution witness Compton was untruthful, the district court sustained the
prosecutor’s objection to a question concerning Compton’s reputation in the
community for truthfulness. George’s counsel failed to lay the proper predicate for
Martin’s testimony concerning Compton’s reputation for truthfulness.
There was no abuse of discretion in limiting George’s ability to impeach these
two prosecution witnesses. See Moody, 903 F.2d at 326; see also United States v.
Privett, 68 F.3d 101, 105 (5th Cir. 1995) (noting that a district court does not abuse
its discretion by rejecting cumulative evidence or evidence for which a proper
predicate has not been laid).
Prosecutor’s Closing Comments
George also contends that the district court erred by allowing inappropriate
remarks by the prosecutor in her closing argument. We disagree.
Because George failed to object to the prosecutor’s closing argument, we
review for plain error. See United States v. Munoz, 150 F.3d 401, 415 (5th Cir.
1998), cert. denied, 119 S. Ct. 887 (1999).
The prosecutor told the jury that “the reason the government brought this case
is because we sincerely believe that this man is a co-conspirator in this drug
operation.” She also commented on the fact that George’s only character witnesses
were his wife, his wife’s sister, and a friend of his wife’s. The prosecutor then told
the jury that the reasonable inference was that George did not call his own friends as
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witnesses because they would not “come in and lie for him.”
It is well settled that “a prosecutor may not interject h[er] personal opinion
concerning the merits of the case or of the credibility of a witness.” United States v.
Anchondo-Sandoval, 910 F.2d 1234, 1238 (5th Cir. 1990). When a prosecutor
commits what she must know is plain error in an effort to bolster her case, the
reviewing court should closely scrutinize the record. While the statements to which
George now objects were improper, we are convinced that “the prosecutor’s
remarks [do not] cast serious doubt on the correctness of the jury’s verdict.” United
States v. Iredia, 866 F.2d 114, 118 (5th Cir. 1989).
In his opening statement, defense counsel raised a question of why the
government brought this case against George. The prosecutor’s closing comment
can possibly be explained as an answer to this question. In addition, the
prosecutor’s character-witness comment appears to have been part of a rhetorical
question to help the jurors understand what reasonable inferences they might draw.
None of this excuses these inappropriate comments. They should not have been
made, but the record of the trial leaves no doubt that it was the jurors who made any
reasonable inferences from the evidence. The prosecutor also told the jurors that
they were to be “the sole judges of the credibility or believability of the witness[es]
and the weight to be given to their testimony.” Our careful review of the record
satisfies us that these circumstances do not evince plain error and the jury’s verdict
did not turn on the prosecutor’s comments. See Iredia, 866 F.2d at 118.
Conclusion
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The district court’s evidentiary rulings did not deprive George of his
constitutional rights to present a defense or confront adverse witnesses, the
prosecutor’s closing comments did not deprive him of a fair trial, and there was no
cumulative error requiring reversal.
AFFIRMED.
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