UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-10229
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DANA RAEANN BOWERMAN,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(7:00-CR-4-3-R)
____________________________________
December 18, 2001
Before DAVIS, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
Bowerman challenges her conviction and sentence for conspiracy
to possess with intent to distribute methamphetamine. She raises
a number of issues on appeal, none of which have merit.
Bowerman argues first that the district court erred in
permitting Green to testify as a witness for the government when
*
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opinion should not be published and is not precedent except under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.
there were indications that the witness would decline to answer
questions based on Fifth Amendment privilege. Green and a number
of other witnesses were called to testify that they purchased
methamphetamine from Bowerman. Following a few introductory
questions, the witness did indeed decline to answer a number of
questions. Near the end of Green’s testimony, Bowerman moved for
a mistrial on the ground that the judge should have shielded the
jury from Green’s invocation of the Fifth Amendment so that adverse
inferences would not be drawn against Bowerman. The judge denied
the motion.
We are satisfied that Bowerman has not met the standard
required by the Supreme Court and our cases for reversing a
district court’s refusal to grant a mistrial on this ground. Two
situations in which forced invocation of testimonial privilege in
the presence of the jury warrants reversal are where: (l) the
government makes a “conscious and flagrant attempt” to establish
guilt based on inferences arising from claims of privilege, or (2)
those inferences add critical weight to the government’s case in a
form not subject to cross examination. Namet v. United States, 373
U.S. 179, 188 (1963); see also United States v. Brown, 12 F.3d 52,
54 (5th Cir. 1994). Green’s testimony does not approach this high
standard.
Bowerman argues next that the prosecutor, in his rebuttal
argument to the jury, made an improper comment on the defendant’s
failure to testify. After reviewing the record, it is clear to us
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that the challenged remarks were a fair comment on the defense’s
failure to explain the evidence. A prosecutor’s remarks in such a
case are constitutionally permissible unless (l) “the prosecutor’s
manifest intent was to comment on the defendant’s silence”; or (2)
“the character of the remark was such that the jury would naturally
and necessarily construe it as a comment on the defendant’s
silence.” See United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir.
1996), citing United States v. Collins, 972 F.2d 1385, 1406 (5th
Cir. 1992). This argument is without merit.
Bowerman raises a number of sentencing issues. She argues
first that the record does not support the judge’s enhancement of
her sentence for obstruction of justice. Our review of the record
reveals that the district court was entitled to conclude from the
record that Bowerman threatened two witnesses in an attempt to
prevent them from testifying. This argument is meritless.
Second, she argues that the evidence does not support the
quantity of drugs used by the district court in computing her
sentence. Again, our review of the record reveals ample support
for the district court’s computation of quantity.
For these reasons, the defendant’s conviction and sentence are
affirmed.
AFFIRMED.
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