IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50327
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERRY TYRONE GOOSBY,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(MO-00-CR-134-1)
May 3, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Kerry Tyrone Goosby appeals his conviction, after a jury
trial, of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). He argues that certain comments of the
prosecutor impermissibly shifted the burden of proof to the
defense. Finding no error, plain or otherwise, we affirm.
*
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should not be published and is not precedent except under the limited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.
After an audio tape of Goosby’s admission that he had given a
firearm to Jackie Lennard was admitted into evidence, along with
statements Goosby made to police that he had obtained the gun for
Lennard, Goosby took the stand and testified that the gun to which
he was referring on the tape was in fact a homemade “tattoo gun”
and he had lied to the police when he gave his statement. The
prosecution, on cross-examination, asked Goosby whether or not
there were any witnesses who could testify that they had seen him
with a tattoo gun or saw him give a tattoo gun to Jackie Lennard.
Goosby did not object to portions of the cross-examination at
issue here, and therefore our review is for plain error only. We
will reverse only if there is (1) error, which is (2) plain, (3)
the error affects substantial rights, and (4) also seriously
affects the fairness, integrity, or public reputation of the
proceedings.1
The prosecutor cannot shift the burden of proof to the
defendant in a criminal trial.2 However, the prosecutor is free,
without fear of reversal, “to comment on the defendant’s failure to
produce evidence on a phase of the defense upon which he seeks to
rely.”3 The questioning of the prosecution in this case amounted
to nothing more than an inquiry into the lack of evidence
1
United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000).
2
United States v. Bermea, 30 F.3d 1539, 1563 (5th Cir. 1994).
3
United States v. Mackay, 33 F.3d 489, 496 (5th Cir. 1994) (quoting United
States v. Dula, 989 F.2d 772, 777 (5th Cir. 1993)).
2
supporting Goosby’s “tattoo gun” defense. We find no error here.4
Furthermore, even assuming the existence of error, it does not meet
the high threshold necessary for reversal on plain error review.
AFFIRMED.
4
See United States v. Robles-Vertiz, 155 F.3d 725, 730-31 (5th Cir. 1998)
(finding no error where prosecutor, in closing argument, commented on defense’s
lack of evidence supporting honest mistake theory by imploring the jury to “[a]sk
... where the evidence is.”); Mackay, 33 F.3d at 496 (finding no error where
prosecutor commented on defendant’s lack of evidence of lawful purchase of
backhoe where defense had referred to legitimate sale in opening argument).
3