IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30637
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN DUNCAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CR-39-ALL-B
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July 18, 2002
Before JOLLY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Brian Duncan appeals his jury-trial conviction for
carjacking and using and carrying a firearm during a crime of
violence, in violation of 18 U.S.C. §§ 2119, 924(c). Duncan
avers that the Government failed to prove an essential element of
the offense of carjacking, namely, that he intended to cause
death or serious bodily injury during the carjacking.
The victim testified that Duncan opened the door to her car,
ordered her to get out of the car, and held a handgun to her face
*
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that this opinion should not be published and is not precedent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.
No. 01-30637
-2-
when doing so. Moreover, there was testimony that immediately
preceding the carjacking, Duncan had brandished the gun and fired
several shots. Finally, there was evidence that immediately
before happening upon the victim, Duncan was being pursued by the
police.
The jury could have inferred from this evidence that Duncan
would have attempted to seriously harm or kill the victim if that
had been necessary to complete the taking of the car in order to
elude the police. See Holloway v. United States, 526 U.S. 1, 11-
12 (1999). Taking the evidence in the light most favorable to
the Government, the evidence was sufficient to support Duncan’s
carjacking conviction. United States v. Maseratti, 1 F.3d 330,
337 (5th Cir. 1993).
In his “Statement of the Issues,” Duncan lists as an issue
that the evidence was insufficient to support his firearm
conviction. However, in the body of his brief, he argues only
that the evidence was insufficient to support his carjacking
conviction. Accordingly, Duncan is deemed to have abandoned any
challenge to his firearm conviction on appeal. Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993).
Duncan avers that the court erred in failing to grant a
mistrial on the basis that the jury heard references to an
uncharged murder. He contends these references before the jury
constituted a violation of FED. R. EVID. 404(b), which provides in
No. 01-30637
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pertinent part that evidence of other crimes, wrongs, or acts is
not admissible to show action in conformity therewith.
“This court will reverse a district court’s refusal to grant
a mistrial only for an abuse of discretion.” United States v.
Limones, 8 F.3d 1004, 1007 (5th Cir. 1993). The district court
did not abuse its discretion in denying Duncan’s motion for
mistrial. As found by the court, the remarks were innocuous.
Moreover, both witnesses immediately proceeded to testify as to
other matters and were never questioned again regarding the
references they made. Finally, even if it is assumed that the
two brief remarks were prejudicial, the court’s curative measures
and explicit instructions, which the jury is presumed to have
followed, effectively cured any taint created by the testimony.
United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998).
Duncan avers that jury was subject to extrinsic influence
that tainted the jury panel and served to deny him a fair trial.
He contends that the trial court should have held an evidentiary
hearing to determine what if anything was heard by the jury.
Duncan has failed to make a colorable showing that an
extrinsic influence was actually made on the jury. See United
States v. Kelley, 140 F.3d 596, 608 (5th Cir. 1998).
At trial, counsel only made vague references to the alleged
“histrionics” and did not state with precision what was allegedly
overheard. Moreover, the trial judge, who was also present in
the same courtroom as the jury at the time of the alleged
No. 01-30637
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conversation, stated on the record that he did not overhear any
discernable conversation. Given the foregoing, the judgment of
the district court is affirmed.
AFFIRMED.