IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41320
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JOHNNY WRIGHT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(01-CR-721)
August 16, 2002
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:*
Johnny Wright appeals his conviction and sentence for
possession with intent to distribute less than 50 kilograms of
marijuana, in violation of 21 U.S.C. § 841. He argues that
prosecutorial misconduct prejudicially affected his substantial
rights, that the district court erred in denying his request for a
minor role adjustment, and that 21 U.S.C. § 841 is
unconstitutional. 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this opinion should not be published and is not precedent except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.
Wright argues that the prosecutor intentionally elicited
inadmissible hearsay testimony from Agent Michelle Williams,
attesting to Wright’s knowledge of the marijuana in the vehicle he
was driving. Although the testimony should not have been elicited,
it did not prejudice Wright’s substantive rights.1 The district
court gave a curative instruction, and the hearsay testimony was
duplicative of testimony given later in the trial. Given the
substantial evidence of Wright’s guilt, we cannot say that the
prosecutor’s comments prejudiced Wright’s substantive rights.
Wright also alleges that the prosecutor elicited hearsay when
she asked Alfredo Ortiz whether he told Agent Williams everything
he knew. As Wright notes, Ortiz’s statement falls under the rule
defining prior consistent statements as non-hearsay only if Ortiz
made the statement to Agent Williams before a motive to fabricate
arose.2 Because defense counsel did not object, we review only for
plain error.3 Ortiz said he was not aware at the time of his
statement to Agent Williams that Wright had implicated him, and he
denied any revenge motives. There was no evidence that Ortiz had
entered into any cooperation agreement at the time he was
interviewed by Agent Williams. Thus it is not obvious that Ortiz’s
statement was made after a motive to fabricate arose, and there is
1
See United States v. Lankford, 196 F.3d 563, 574 (5th Cir.
1999) (outlining two-step process for evaluating prosecutorial
misconduct).
2
FED. R. EVID. 801(d)(1)(B).
3
United States v. Williams, 264 F.3d 561, 576 (5th Cir.
2001).
no plain error here.
Wright also argues that the prosecutor improperly attempted to
elicit from Agent Williams evidence of his post-arrest silence.
Agent Williams testified to the contrary and was precluded from
answering the offending question when the judge noted that the
question was improper.
Wright further alleges that he should have received a
two-level downward adjustment under the Sentencing Guidelines for
being a minor participant in criminal activity. We review a judge's
finding in this regard under a clearly erroneous standard.4 A
defendant has the burden of showing that he is entitled to the
downward adjustment,5 and Wright failed to show that he was
substantially less culpable than Ortiz and Barron in the
transportation of 27 kilograms of marijuana. The denial of the
minor role adjustment was not clear error.
Furthermore, although Wright claims that the provisions of 21
U.S.C. § 841(a) and (b) are unconstitutional under Apprendi v. New
Jersey,6 his argument is foreclosed by our decision in United
States v. Slaughter.7
AFFIRMED.
4
United States v. Garcia, 242 F.3d 593, 598 (5th Cir. 2001).
5
Id.
6
530 U.S. 466 (2000).
7
238 F.3d 580, 582 (5th Cir. 2000).