United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit August 18, 2003
Charles R. Fulbruge III
Clerk
No. 02-50889
UNITED STATES OF AMERICA
Plaintiff - Appellee
VERSUS
JIMMY DEAN MITCHELL, SR.
Defendant - Appellant
Appeal from the United States District Court
For the Western District of Texas, San Antonio
SA-00-CR-456-ALL
Before DAVIS, SMITH and DUHE’, Circuit Judges.
PER CURIAM:*
Mitchell challenges his conviction on drug trafficking
charges. He argues first that the district court erred in refusing
to suppress statements he made at the time of his arrest. These
statements were made to officers while they were executing a search
warrant on Raul Garza’s mobile home where Mitchell was a guest.
Mitchell and the other occupants of the mobile home were detained
*
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opinion should not be published and is not precedent except under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.
during the search and before Mitchell made his statements.
Mitchell argues that the officers arrested him without probable
cause and the district court should have excluded his statements as
a fruit of that violation.
The district court correctly rejected Mitchell’s argument
because the law is clear that “a warrant to search for contraband
founded on probable cause implicitly carries with it the limited
authority to detain the occupants of the premises while a proper
search is conducted.” Michigan v. Summers, 452 U.S. 692, 705
(1981). During that detention, officers may draw their weapons,
handcuff the occupants, United States v. Cavazos, 288 F.3d 706 (5th
Cir. 2002), and bring the occupants outside the residence. United
States v. Broussard, 80 F.3d 1025, 1033 (5th Cir. 1996). These
same cases hold that voluntary statements made during this
detention are admissible against the defendants. See Cavazos, 288
F.3d at 712; Broussard, 80 F.3d at 1033.
Mitchell argues next that the prosecutor improperly bolstered
the credibility of the testimony of key prosecution witness Timothy
Sanchez in three statements during his closing argument. As there
was no objection to these comments, this court reviews for plain
error. United States v. Goff, 847 F.2d 149, 162 (5th Cir. 1997).
The first comment was a fair response to the defense’s argument
that Sanchez was a liar and that his testimony should not be
believed because the government agreed to a lesser sentence based
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on the number of times he testified for the government. The second
challenged comment was in regard to Sanchez’s plea agreement. When,
as here, the defense contends that a plea agreement between the
government and a witness is an incentive for the witness to lie to
get a lower sentence, the government may present what amounts to
argument bolstering the credibility of a witness if it is
specifically done in rebuttal to the defense’s comments. United
States v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995). The
third challenged statement was a comment by the prosecutor that the
jury should believe Sanchez over a defense witness Warren Stalbird
because both had testified before another jury that had believed
Sanchez and found Stalbird guilty. This evidence was already in
the record and the prosecutor could permissibly indicate to the
jury the inferences and conclusions he wanted them to reach from
evidence in the record. Id. The district court also instructed
the jury to consider the testimony of Sanchez with great care.
There is no error on this point.
Finally, Mitchell argues that the district court erred in
failing to resolve his objection to the pre-sentence report’s(PSR)
treatment of his prior offenses as unrelated. This argument is
belied by the record. The district court accepted the facts found
in the PSR. The PSR recommended assigning career status to
Mitchell because his three previous convictions were unrelated. In
response to Mitchell’s objection to this recommendation, the
probation officer gave detailed reasons why he disagreed with the
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objection. He asserted that (1) the prior offenses occurred on
separate occasions and were the subject of three separate
indictments; and (2) the three separate indictments were not
consolidated for sentencing. At sentencing Mitchell objected to
the characterization of the offenses as unrelated but offered no
evidence or substantive arguments tending to refute the probation
officer’s reasoning. The district court overruled Mitchell’s
objection. Under these circumstances, the district court’s
acceptance of facts asserted in the PSR and overruling of
Mitchell’s arguments were adequate to resolve this disputed
sentencing issue.
Because we find no reversible error, we affirm Mitchell’s
conviction and sentence.
AFFIRMED.
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