United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3459
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Isaac Gibson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 19, 1997
Filed: February 26, 1997
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Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
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PER CURIAM.
Isaac Gibson appeals his conviction for bank robbery, alleging
plain error misconduct by the district court1 and the prosecutor, and
insufficiency of the evidence. We affirm.
Gibson first argues that the district court improperly
influenced a key defense witness--who had been indicted for the same
robbery--to assert his Fifth Amendment right not to testify. Because
Gibson did not object at trial, we review this issue for plain error.
See Fed. R. Crim. P. 52(b). After the witness expressed uncertainty
whether he would waive his right against self-incrimination, the
district court discussed this issue with him outside the presence of
the jury. During this exchange, the district court advised the
1
The HONORABLE CATHERINE D. PERRY, United States District
Judge for the Eastern District of Missouri.
witness of his Fifth Amendment right,
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noted the penalties for perjured testimony, and declined to speculate
whether testifying would have any impact on the witness's prospects
for a plea bargain. There was no plain error. See United States v.
Valdez, 16 F.3d 1324, 1331 (2d Cir.), cert. denied, 115 S. Ct. 60
(1994).
Next, Gibson contends that he was the victim of prosecutorial
misconduct because the Assistant United States Attorney repeatedly
cross-examined Gibson about his use of drugs and referred during
closing argument to Gibson's drug use and to matters not in evidence.
Again, we review for plain error as Gibson did not raise these issues
at trial. The cross examination was not plain error because Gibson's
drug use on the day of the robbery and before was relevant to issues
such as credibility and motive. There was no plain error in closing
argument because the prosecutor did not refer to matters not in
evidence and the references to Gibson's drug use, even if overblown,
did not deprive him of a fair trial given the strength of the
government's case and the district court's cautionary instruction
that Gibson was being tried only for the charged offense. See United
States v. Jackson, 41 F.3d 1231, 1233 (8th Cir. 1994) (per curiam).
Finally, we reject Gibson's challenge to the sufficiency of the
evidence that he knowingly aided and abetted a bank robbery. The
jury could have found from the government's evidence that Gibson
drove to the bank believing his passenger would rob the bank and
share the proceeds with Gibson; that the passenger exited the car,
robbed the bank, returned, and told Gibson to "go"; and that Gibson
then drove the car away at high speed.
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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