United States v. Williams

United States Court of Appeals Fifth Circuit F I L E D Revised September 8, 2003 August 14, 2003 In the Charles R. Fulbruge III Clerk United States Court of Appeals for the Fifth Circuit _______________ m 02-60519 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS JOHN L. WILLIAMS, JR., Defendant-Appellant. _________________________ Appeal from the United States District Court for the Southern District of Mississippi _________________________ Before DAVIS, SMITH, and DUHÉ, § 242, and discharge of a firearm during and in Circuit Judges. relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). On appeal, Williams pri- JERRY E. SMITH, Circuit Judge: marily argues that the firearm conviction can- not stand because the civil rights count is not John Williams, a deputy sheriff, shot an ap- a “crime of violence.” He also challenges the prehended, unarmed suspect in the back. A civil rights conviction on various evidentiary jury convicted him of deprivation of the and procedural grounds. Finding no error, we suspect’s rights under color of law, 18 U.S.C. affirm. I. heard the dispatch report. Williams ap- Williams was a deputy sheriff; Adam Hall proached the truck, repeatedly questioned was on probation for a felony drug conviction. Hall, and tried to stop him with mace. Hall and his wife drove past Williams’s marked Williams claims to have barely avoided being sheriff’s car. Williams followed Hall for run over. several miles before pulling him over, then approached his truck and spoke with him. A high-speed and dangerous car chase en- After some discussion about the status of sued for about fifteen minutes, beginning, Hall’s driver’s license, Williams asked Hall to coincidentally, near the home of Claude exit the truck and come to Williams’s car. Billings, chief of police of a nearby town. Hall complied. Williams asked Hall whether Billings saw the chase and joined it. After he had any drugs; Hall said no. Williams then Williams radioed for assistance, William used Hall’s social security number to check Cooper, the chief deputy sheriff, and Robert with the dispatcher about the status of Hall’s Barfield, another deputy sheriff, also joined the license. chase. While they waited for the dispatch report, During the chase, Hall turned off the Williams asked Hall whether he could frisk highway where Cooper was parked and Hall. Hall consented. According to Hall, Wil- standing outside his car. Cooper drew his liams found only some loose change in Hall’s weapon and ordered Hall to stop. Hall pocket and a cell phone clipped to his belt. stopped about six feet away from Cooper and Although Williams claims to have discovered asked to speak to Jacob Cartlidge, the sheriff. a rock of crack cocaine, he never produced it. Hall later testified that he asked for Cartlidge because he trusted Cartlidge but feared The dispatcher radioed Williams to report Williams. Cooper apparently did not assuage that Hall’s license was suspended. Hall Hall’s fears, because Hall again sped away just testified that he did not hear this report. At as Barfield and Williams stopped next to this point, their accounts sharply diverge. Cooper. All three officers fired on Hall’s According to Hall, Williams reached for his truck, though Cooper and Barfield later handcuffs. Hall asked why Williams had testified that they intended only to disable the stopped him. Williams did not respond, but truck, not to harm Hall. grabbed Hall’s arm. Hall jerked away and walked to his truck, and called out to his wife They succeeded. A bullet punctured a tire to ensure she was watching, because he had on Hall’s truck, forcing him to stop less than a heard that Williams previously had shot one mile away. He immediately ran from the truck suspect and planted drugs on another. Hall into a field. Although Williams testified that got in his truck and drove away, but not before Hall stopped, returned to his truck, and Williams had sprayed him with mace. Hall grabbed somethingSSimplying that it was a testified that he did not endanger Williams as weaponSSBarfield, Cooper, Billings, and Hall he drove away. testified that Hall did not appear to take anything fro m his truck and certainly did not According to Williams, however, Hall return to it. struck him and ran to the truck as soon as Hall 2 As Williams fled, Barfield and Williams and the cell phone. The officers found neither stopped next to Hall’s truck and chased him a weapon nor any drugs on or around Hall or on foot. Billings drove past them and into the in the truck. field to cut off Hall. Williams testified that Hall reached into his pockets or his waistband, Hall recovered from the gunshot wound bent over as if to drop or throw something on and was never charged with a crime. Cartlidge the ground, and turned toward Barfield and intended to fire Williams, but allowed him to Williams at least once. Barfield, Billings, and resign instead. Cartlidge testified that when he Hall testified that Hall did nothing but run asked why Williams shot Hall, Williams straight from his truck into Billings’s position. answered that “he was tired of chasing [Hall] and tired of fooling with [Hall].” Billings exited his car and successfully intercepted Hall. He pointed a rifle at Hall and As the basis for the civil rights count, the ordered him to stop. Hall immediately did so government alleged that the shooting violated and raised his arms above his head with his Hall’s right not to be deprived of liberty hands open and empty. Billings later testified without due process of law and his right to be that he never intended to shoot Hall, because free from an unreasonable use of force. “the threat level never got that high.” Cooper, Barfield agreed to plead guilty and testify who had followed Billings into the field, later against Williams. testified that he saw Hall standing motionless with his arms raised. Cooper therefore The evidence against Williams consisted deemed the situation “under control” and primarily of the multiple eyewitness accounts. turned his car around to return to Hall’s truck. Williams’s testimony conflicted with that of Billings, Barfield, Cooper, Windom, Cartlidge, Williams, however, asked Barfield for his Hall, and Mrs. Hall. Unlike Williams, these weapon and then shot Hall in the upper back. witnesses testified that Hall did not return to Williams admitted t hat he gave Hall no his truck to grab something, never turned warning. Billings, Barfield, and Hall testified around or bent over during the chase, was that Hall was standing motionless with his standing motionless with his arms above his arms raised and facing Billings when Williams head when Williams shot him, and generally shot Hall. Allen Windom, a civilian who made no threatening movements. witnessed the foot chase from the highway, confirmed their testimony. Williams’s testimony also conflicted with his earlier written statements, which did not al- Hall fell to the ground but kept his arms lege that Hall had bent over or turned around raised. As Billings and Barfield approached during the foot chase or that Barfield stopped Hall, Williams never warned them that Hall to look for something that Hall allegedly had might be armed. Billings ordered Hall to lie on thrown on the ground. Finally, Williams’s tes- the ground, and Hall complied. Barfield timony conflicted with the limited real reached Hall first and kicked him twice, then evidence, i.e., the absence of a firearm and handcuffed him and kicked him again. Cooper drugs on or around Williams and in his truck. returned to the scene to pick up Hall. He frisked Hall and found only the loose change Williams was convicted on both counts. 3 The court sentenced him to eighteen months’ person . . . may be used in the course of imprisonment on the civil rights count and im- committing the offense,” 18 U.S.C. § 924- posed the mandatory minimum of ten years’ (c)(3)(B). imprisonment on the firearm count. We use the so-called categorical approach II. when applying these definitions to the Williams argues that his firearm conviction predicate offense statute. “The proper inquiry must be vacated because deprivation of rights is whether a particular defined offense, in the under color of law, § 242, is not a “crime of abstract, is a crime of violence[.]” United violence” as defined by 18 U.S.C. § 924(c)(3). States v. Chapa-Garza, 243 F.3d 921, 924 We review for plain error, because Williams (5th Cir. 2001) (applying 18 U.S.C. § 16(b)).2 did not object on this ground in the district We do not consider the facts underlying court. United States v. Gracia-Cantu, 302 Williams’s conviction; his actual conduct is F.3d 308, 310 (5th Cir. 2002).1 Because there immaterial. Instead, we examine only the is no error at all, we affirm the firearm statutory text of § 242 to determine whether it conviction. satisfies the definition of § 924(c)(3). Section 924(c)(1) states that “any person That is easier said than done. Section 242 who, during and in relation to any crime of vi- is one long sentence with three clauses olence . . . uses . . . a firearm . . . shall, . . . if separated by two semicolons. The first clause the firearm is discharged, be sentenced to a states the three basic elements of any § 242 term of imprisonment of not less than 10 offenseSS(1) wilful (2) deprivation of a federal years.” 18 U.S.C. § 924(c)(1)(A)(iii). right (3) under color of lawSSand sets the Williams obviously discharged a firearm during maximum term of imprisonment at one year.3 and in relation to the deprivation of Hall’s The second clause increases the maximum to rights. He contends, though, that deprivation ten years if the deprivation results in “bodily of rights under color of law, § 242, is not a injury” or “include[s] the use, attempted use, “crime of violence.” Section 924(c)(3) defines or threatened use of a dangerous weapon, ex- “crime of violence,” in relevant part, as a fel- plosives, or fire.” The third clause increases ony offense that either “has as an element the the maximum to life imprisonment or the death use, attempted use, or threatened use of penalty if the deprivation results in death or physical force against the person,” 18 U.S.C. involves certain enumerated serious felonies. § 924(c)(3)(A), or “by its nature, involves a substantial risk that physical force against the 2 Section 924(c)(3) is materially identical to the generic definition in 18 U.S.C. § 16. The only dif- 1 “Plain error review is very limited. There ference is that § 16(a) applies to misdemeanors, must be ‘error’ that is ‘plain’ and that affects ‘sub- whereas § 924(c)(3)(A) applies only to felonies. stantial rights,’ and even then we have discretion 3 not to correct the error unless it ‘seriously affects To be precise, the first clause identifies other the fairness, integrity or public reputation of ju- elementsSSe.g., deprivation on account of race, dicial proceedings.’” United States v. Phipps, 319 color, or alienage and deprivation within certain F.3d 177, 189 (5th Cir. 2003) (quoting United geographic localesSSbut they are not disputed in States v. Olano, 507 U.S. 725, 732 (1993)). this case. 4 Williams and the government disagree essentially dispute whether § 242 defines three about which clause of § 242 we should separate offenses or one offense with two examine; Williams argues that we may look sentence enhancements. And with that, they only to the first. If he is correct, we must have bought “a ticket to Apprendi-land.” Ring reverse the firearm conviction, because the v. Arizona, 536 U.S. 584, 613 (2002) (Scalia, offense defined by the first clauseSSwilful J., concurring). Traditionally, an “offense” deprivation of rights under color of lawSSis was defined by its “elements,” i.e., facts not a “crime of violence.” These facts do not necessary to support a conviction for the satisfy the definition in § 924(c)(3)(A), offense. These “elements” had to be pleaded because they do not include the use, attempted in the indictment and proved to a jury beyond use, or threatened use of physical force. Nor a reasonable doubt to convict a defendant of do they satisfy the definition in § 924(c)(3)(B), an “offense.” A “sentence enhancement,” on because they do not, by their nature, involve a the other hand, could be based on additional substantial risk of physical force.4 “sentencing factors,” which a judge could find by a preponderance of the evidence. The government counters that we also should examine the second clause, because The landmark case of Apprendi v. New Williams was indicted, convicted, and Jersey, 530 U.S. 466 (2000), altered this tra- sentenced pursuant to it. If the government is ditional understanding. Now, “any fact (other correct, we must affirm the firearm conviction, than prior conviction) that increases the because the additional fact in the second maximum penalty for a crime must be charged clauseSSbodily injury or use of a dangerous in an indictment, submitted to a jury, and weaponSScreates a separate offense that nec- proven beyond a reasonable doubt.” Id. at 476 essarily satisfies either § 924(c)(3)(A) or (B).5 (quotation marks omitted). After Apprendi, terms such as “offense” and “elements,” and Thus, Williams and the government “sentence enhancement” and “sentencing factors,” are “conclusions, not reasons for a conclusion.” United States v. Gonzales, 327 4 We recognize that, as a practical matter, § 242 F.3d 416, 419 (5th Cir. 2003). A court must prosecutions almost always involve an excessive not carelessly toss these labels around, but use of force by a law enfor cement officer. Yet, instead must examine concretely how all the there are far too many hypothetical ways wilfully facts in the statutory text affect the sentence. to deprive one of rights under color of law without If a fact increases the statutory maximum, it using forceSSfor example, stealing ballots from a may be called an “element”; if not, it may be predominantly minority precinct or depriving a called a “sentencing factor.” “What matters, criminal defendant of legal counselSSto hold that though, is the effect of the fact on the the first clause of § 242 “by its nature” involves a statutory maximum.” Id. at 420. substantial risk of force. 5 “[C]ausing bodily injury necessarily includes The rule of Apprendi dictates that the facts the element of use of physical force.” United in the second clause of § 242SSbodily injury or States v. Shelton, 325 F.3d 553, 555 (5th Cir. use of a dangerous weaponSSmust be pleaded 2003). The use, attempted use, or threatened use in the indictment and proved to the jury of a dangerous weapon obviously creates a sub- beyond a reasonable doubt (as they were stantial risk of physical force. 5 here). A defendant convicted of a deprivation Our decision in United States v. Harris, of rights under color of law that did not result 293 F.3d 863 (5th Cir.), cert. denied, 123 S. in bodily injury or involve a dangerous weapon Ct. 395 (2002), also demonstrates that § 242 would face a maximum sentence of one year. defines three separate offenses. In Harris, the Add those facts to the mix, however, and the defendant appealed the sufficiency of the evi- defendant faces a maximum sentence of ten dence for his § 242 conviction. He was years. indicted and convicted pursuant to the second clause of § 242. Id. at 868-69. On appeal, he In other words, the facts in the second argued that he had not caused the victim’s clause of § 242 are “elements” that define an injuries. Id. at 869-70. We noted that “the “offense.” Furthermore, this “offense,” which particular crime charged in the indictment re- includes the “elements” of the first clause, quired ‘bodily injury’ or ‘the use, attempted must be distinct from the “offense” defined use, or threatened use of a dangerous wea- solely by the “elements” of the first clause, be- pon.’” Id. at 870 (first emphasis added). In cause one can deprive another of rights under the next sentence, we explained that “[t]he tri- color of law without inflicting bodily injury or al court’s instructions to the jury correctly de- using a dangerous weapon. scribed this element of the crime.” Id. (emphasis added). We concluded that there We could not hold otherwise without fla- was sufficient evidence that the defendant used grantly violating the rule of Apprendi. Were a “dangerous weapon,” hence we did not need we to declare that § 242 defines a single to consider whether he caused bodily injury. “offense” with two sentence enhancements, Id. that holding would mean that the facts in the second and third clauses are not “elements” Harris inescapably treats the second clause and thus need not be pleaded in the indictment of § 242 as a separate offense. The defendant and proved to the jury beyond a reasonable faced a single § 242 count. If § 242 did not doubt. It would mean, for example, that define multiple offenses, we would not have Williams could have been sentenced to ten identified the “particular crime charged” years even if the government had not pleaded because the defendant could have faced only and proved bodily injury or use of a dangerous the basic § 242 offense. Furthermore, we weapon. We reject this flatly unconstitutional explicitly called the facts in the second clause result.6 an “element” of the crime. To reiterate, this characterization means that those facts must be pleaded and proved, which in turn means that 6 they define a separate “offense.” Indeed, un- See Jones v. United States, 526 U.S. 227, der Harris they must be “elements” of a 239-52 (1999) (applying the canon of constitu- separate “offense,” because one can violate tional doubt to hold that the carjacking statute, 18 U.S.C. § 2119, defines three separate offenses, not (the first clause of) § 242 without inflicting one offense with two sentence enhancements). Al- bodily injury or using a dangerous weapon. though Jones preceded Apprendi by a year, the rule of Apprendi “was foreshadowed by [the Court’s] opinion in Jones[.]” Apprendi, 530 U.S. at 476. 6 In fact, the rule of Apprendi is a quotation from (...continued) Jones. See id. (quoting Jones, 526 U.S. at 243 n.6). 6 In Apprendi-land, therefore, § 242 defines and allegations of prosecutorial misconduct for three separate offenses, not one offense with abuse of discretion and harmless error. United two sentence enhancements. 7 From his States v. Coleman, 78 F.3d 154, 156 (5th Cir. sentence and indictment,8 we know that 1996) (evidentiary rulings); United States v. Williams was indicted for and convicted of the Wyly, 193 F.3d 289, 298-99 (5th Cir. 1999) offense defined in the second clause of § 242. (prosecutorial misconduct). As we explained earlier, this offense is unquestionably a “crime of violence” under A. § 924(c)(3). We therefore affirm his firearm 1. conviction. Williams contends that the court violated FED. R. EVID. 704 by allowing Barfield, III. Cooper, and Billings to testify that the Williams argues that we must reverse his shooting was not reasonable. He did not, civil rights conviction because of two however, object on this basis in the district evidentiary errors and alleged prosecutorial court,9 so we review this argument under the misconduct. We review evidentiary rulings even more deferential plain error standard. United States v. Green, 324 F.3d 375, 381 (5th Cir.), petition for cert. filed, 71 U.S.L.W. 7 Section 242 effectively defines the basic of- 3791 (June 6, 2003) (No. 02-1811). fense of deprivation of rights under color of law and two aggravated offenses, which one might call The prosecutor questioned Barfield, Bill- a deprivation resulting in bodily injury or involving ings, and Cooper extensively about the a dangerous weapon and a deprivation resulting in circumstances of the shooting. To sum up death or involving certain serious felonies. Cf. their testimony, the prosecutor asked each United States v. Matthews, 312 F.3d 652, 655 (5th officer whether he thought the shooting was Cir. 2002) (applying this reasoning to the similar statute of 18 U.S.C. § 2119), cert. denied, 123 S. reasonable. More importantly, she asked them Ct. 1604 (2003). to answer based o n their training and experience as law enforcement officers. Each 8 Our use of the indictment does not violate the categorical approach. Where a single statute con- 9 tains multiple offenses, some of which are a “crime Williams did not object at all when the pro- of violence” and others which are not, we may ex- secutor posed the question to Barfield. When the amine the indictment to determine the offense of prosecutor asked Cooper, Williams objected that which the defendant was convicted. Taylor v. the question called for speculation since Cooper did United States, 495 U.S. 575, 602 (1990). We use not see the shooting. Williams voiced only a gen- the indictment not to determine whether the de- eral objection when the prosecutor asked Billings. fendant’s particular conduct actually involved vio- The court soon thereafter asked counsel, in a sua lence, but merely to identify the statutory offense of sponte sidebar, whether it had committed error un- which the defendant was convicted. Once we iden- der rule 701 by allowing Billings to give expert tes- tify that offense, we then examine its statutory text timony without first qualifying him as an expert. without reference to the defendant’s particular con- Williams’s counsel reiterated his objection to the duct, to decide whether the offense is a “crime of question, but the context demonstrates that he was violence.” See United States v. Calderon-Pena, objecting to an unqualified lay witness’s giving ex- 2003 U.S. App. LEXIS 14348, at *20-*21 (5th pert testimony in violation of Rule 701, not to tes- Cir. July 27, 2003). timony in violation of rule 704. 7 answered that the shooting was unreasonable. violate rule 704(b). Williams argues that, for two reasons, these On the other hand, the court erred under answers were impermissible opinion testimony. rule 704(a) by allowing the officers’ testimony First, he contends that the officers’ testimony about the reasonableness of the shooting. violated rule 704(b), which prohibits experts Rule 704(a) “does not allow a witness to give from testifying that a criminal defendant “did legal conclusions.” Izydore, 167 F.3d at 218. or did not have the mental state or condition See 3 STEPHEN A. SALTZBURG, MICHAEL M. constituting an element of the crime.” FED. R. MARTIN & DANIEL J. CAPRA, FEDERAL RULES EVID. 704(b). Although the officers did not OF EVIDENCE MANUAL § 704.02[4] (Matthew testify as experts, Williams argues that their Bender 2002). Reasonableness under the opinion testimony about the reasonableness of Fourth Amendment or Due Process Clause is the shooting should be treated as expert a legal conclusion. See, e.g., United States v. testimony because it was “based on . . . Chavez, 281 F.3d 479, 483 (5th Cir. 2002). specialized knowledge within the scope of Nevertheless, we are confident that this error [FED. R. EVID.] 702.” FED. R. EVID. 701. did not affect the outcome of Williams’s trial. Second, Williams contends that the officers’ testimony violated rule 704(a), which prohibits The evidence against Williams was any witness, expert or lay, from testifying to a overwhelming.11 The officers’ brief opinions legal conclusion. United States v. Izydore, followed their damning factual testimony 167 F.3d 213, 218 (5th Cir. 1999) (citing FED. about the circumstances of the shooting. R. EVID. 704(a)). Windom, Mrs. Hall, and Hall corroborated the officers’ factual testimony without improperly Even if we treat the officers’ testimony opining on reasonableness. No one, on the about the reasonableness of the shooting as ex- pert testimony, that testimony would not vio- late rule 704(b), because the officers did not 10 (...continued) testify to Williams’s mental state. To be sure, under the Fourth Amendment or the Due Process an element of any § 242 offense is deprivation Clause. See, e.g., United States v. Gutierrez- of a federal right, in this case an unreasonable Farias, 294 F.3d 657, 662-63 (5th Cir. 2002) use of force under the Fourth Amendment or (testimony regarding knowledge), cert. denied, 123 Due Process Clause. The reasonableness of a S. Ct. 869 (2003); United States v. Levine, 80 use of force, though, is no more a mental state F.3d 129, 134-35 (5th Cir. 1996) (testimony re- than is action under color of law or bodily in- garding insanity); United States v. Dotson, 817 jury. The requisite mental state of any § 242 F.2d 1127, 1132 (5th Cir. 1987) (testimony re- offense is wilfulness, about which the officers garding wilfulness), modified, 821 F.2d 1034 (5th did not testify.10 Thus, the testimony did not Cir. 1987). 11 We have affirmed convictions based on the strength of the evidence as a whole, notwithstand- 10 This court’s precedent confirms that rule ing opinion testimony admitted in violation of rule 704(b) applies to traditional mental states or con- 704. See, e.g., Gutierrez-Farias, 294 F.3d at 663 ditions such as intent, knowledge, and insanity, not (holding that error was harmless); Izydore, 167 substantive determinations such as reasonableness F.3d at 218 (holding that error, if any, was (continued...) harmless). 8 other hand, corroborated Williams’s determine whether the evidence was intrinsic testimony, which itself contradicted his prior or extrinsic.” Coleman, 78 F.3d at 156. See written statements. Moreover, even if the jury 1 STEPHEN A. SALTZBURG, MICHAEL M. MAR- uncritically accepted the officers’ opinion TIN & DANIEL J. CAPRA, FEDERAL RULES OF testimony, this did not necessitate a guilty EVIDENCE MANUAL § 404.02[11] (Matthew verdict, because the reasonableness of the Bender 2002). shooting was not the ultimate issue; the jury still could have acquitted Williams, for Extrinsic evidence must satisfy rule 404(b), example, by finding that he did not act wilfully. whereas “[i]ntrinsic evidence does not Izydore, 167 F.3d at 218. implicate Rule 404(b).” Id. Evidence of another act is “intrinsic” if it and “evidence of 2. the crime charged are ‘inextri cably Williams contends that the court improperly intertwined’ or both acts are part of a ‘single admitted character evidence in violation of criminal episode’ or the other acts were FED. R. EVID. 404(b). The government want- ‘necessary preliminaries’ to the crime ed Hall to testify that he fled from Williams be- charged.” Id. (quoting United States v. cause he knew that Williams previously had Williams, 900 F.2d 823, 825 (5th Cir. 1990)). shot another suspect.12 Hall objected. The Under this definition, Hall’s testimony about government explained that this testimony an old and unrelated shooting is plainly would help the jury to understand why Hall, an extrinsic evidence subject to rule 404(b). unsympathetic victim, fled from Williams. The court ruled that Hall could testify to his In United States v. Beechum, 582 F.2d 898 knowledge of the shooting but not to the (5th Cir. 1978) (en banc), we est ablished a surrounding circumstances, including whether two-step test for the admissibility of extrinsic Williams had shot the suspect in the back or evidence under rule 404(b). “First, it must be whether the shooting was justified. Thus, Hall determined that the extrinsic offense evidence testified that he feared Williams “because I is relevant to an issue other than the knowed he had shot a guy in Hollandale.” defendant’s character.” Id. at 911. The Immediately after he left the stand, the court government argues that Hall’s knowledge of gave the jury a thorough limiting instruction Williams’s prior shooting was critical to Hall’s on this testimony. state of mind. Williams disparages this theory, asking how the victim’s state of mind could be “Evidence of other crimes, wrongs, or acts relevant to the defendant’s offenses. is not admissible to prove the character of a person in order to show action in conformity Though a victim’s state of mind indeed therewith. It may, however, be admissible for rarely matters, in this case it somewhat helped other purposes . . . .” FED. R. EVID. 404(b). the government disprove Williams’s main de- “To determine whether ‘other acts’ evidence fense. The jury had to determine whether Wil- was erroneously admitted, first we must liams acted reasonably when he shot Hall. This judgment turned on a credibility assessment: Was Williams telling the truth 12 Hall alleged that Williams shot the suspect in when he testified that Hall made several the back. Williams admitted to having shot a sus- threatening movements before Williams shot pect before, but denied shooting him in the back. 9 him, or were the other witnesses telling the discretion by permitting the testimony under truth when they denied such movements? If rule 404(b).13 Hall feared that Williams might shoot him, the government argues, then Hall would avoid B. anything that might provoke Williams to Williams further argues that the prosecutor shoot. engaged in misconduct by forcing Williams, through a series of rhetorical questions, to call For example, Hall would not rifle around the other witnesses liars. “In reviewing an as- his truck or reach into his pants as if to grab a sertion of prosecutorial misconduct, this weapon. Although the conflicting eyewitness [c]ourt employs a two-step analysis.” United testimony easily disproved Williams’s defense, States v. Wise, 221 F.3d 140, 152 (5th Cir. we cannot say that Hall’s fear of being shot 2000), cert. denied, 532 U.S. 959 (2001). We and the basis of that fear did not have “any initially must determine whether “the tendency” to disprove Williams’s defense. prosecutor made an improper remark.” Id. FED. R. EVID. 401. The government concedes that the prosecutor acted improperly by asking Williams about the The second step of the Beechum test is that other witnesses’ veracity. United States v. “the evidence must possess probative value Thomas, 246 F.3d 438, 439 n.1 (5th Cir. that is not substantially outweighed by its un- 2001). due prejudice and must meet the other requirements of [R]ule 403.” Beechum, 582 “[T]he second step is to evaluate whether F.2d at 911. Hall’s testimony did not unduly the remark affected the substantial rights of the prejudice Williams; indeed, it probably did not defendant[ ].” Wise, 221 F.3d at 152. When prejudice him at all. Hall merely testified that applying this standard, we “consider three fac- Williams had previously shot a suspect, not that the suspect was a drug dealer or that Williams shot him in the back. Without that 13 Williams also contends the court abused its context, the testimony hardly impugns discretion by allowing Hall to testify that he feared Williams’s character. Law enforcement Williams might plant drugs on him. To justify this officers must shoot suspects sometimes, and fear, Hall proposed to testify that he had heard that the jury just as easily could have believed that Williams had planted drugs on other suspects. The the prior shooting was justified and that Hall’s court ruled that Hall could state his fear but could fear was unfounded. Moreover, the limiting not testify to any hearsay allegations of Williams’s instruction “further mitigated any potential planting drugs on suspects. Thus, Hall testified prejudicial effect.” United States v. Gonzalez, only tha t he feared Williams might “throw down 328 F.3d 755, 760 n.2 (5th Cir. 2003). drugs on [me] when [I was] stopped.” Because this testimony refers only to Hall’s unsupported belief, not any other act by Williams, it cannot violate rule As for the other requirements of rule 403, 404(b). Williams does not seriously contend that this single line of minor testimony could have con- Finally, Williams avers that we must reverse fused the issues, misled the jury, wasted time, because the court did not make on-the-record find- or resulted in cumulative evidence. FED. R. ings for its Beechum analysis. Williams, however, EVID. 403. The court did not abuse its never requested such findings. United States v. Robinson, 700 F.2d 205, 213 (5th Cir. 1983). 10 tors: (1) the magnitude of the prejudicial effect fantastic testimony that Hall made any of the prosecutor’s remarks, (2) the efficacy of threatening movements. Four eyewitnesses any cautionary instruction by the judge, and (Billings, Barfield, Windom, and Hall) testified (3) the strength of the evidence supporting the that Williams shot Hall while Hall was facing conviction.” Wyly, 193 F.3d at 299 (quotation the other direction and standing motionless marks omitted). All three factors lead us to with his arms raised. Cartlidge testified that conclude that the improper questioning did not Williams admitted to shooting Hall out of affect Williams’s substantial rights. frustration or anger. Williams gave no “reason for the jury to disbelieve th[is] substantial First, the magnitude o f the prejudicial ef- incriminating testimony.” United States v. fect, weighed in context, id., was surely small. Boyd, 54 F.3d 868, 872 (D.C. Cir. 1995). The questioning lasted just moments at the end of a long and devastating cross-examination. Tellingly, Williams offers no examples of a The prosecutor had skillfully and properly led court of appeals’ reversing a conviction be- Williams to contradict directly the testimony of cause a prosecutor improperly questioned a all other witnesses. Thus, Williams already defendant about another witness’s veracity. had called these witnesses liars, albeit This court has disapproved this tactic at least implicitly. “Pointing out the obvious most twice, but did not reverse for that reason in ei- likely scored the government, at most, ther case. Thomas, 246 F.3d at 439 n.1; Unit- rhetorical points. We cannot say that these ed States v. Johnston, 127 F.3d 380, 389 (5th few largely rhetorical questions from the pro- Cir. 1997). The First and District of Columbia secutor affected at all the outcome of the Circuits have affirmed convictions despite trial.” United States v. Sullivan, 85 F.3d 743, identical misconduct, which they dismissed as 750 (1st Cir. 1996). merely stating the obvious or as minimally important. Sullivan, 85 F.3d at 751; Boyd, 54 Second, the court properly instructed the F.3d at 872 (plain error review). Even in jury on its role as fact-finder. As with Wise, Williams’s main cases, the Second and Ninth 221 F.3d at 153, and Wyly, 193 F.3d at 299, Circuits disapproved of this tactic, but there is no indication, much less an reversed the conviction because of other, more “overwhelming probability,” that the jury serious errors. United States v. Sanchez, 176 could not follow that instruction. Moreover, F.3d 1214, 1220, 1225 (9th Cir. 1999); United the instruction immediately preceded the jury’s States v. Richter, 826 F.2d 206, 208 (2d Cir. deliberations, whereas the improper 1987). The questioning, though inappropriate, questioning occurred earlier in the trial. Wyly, is not reversible error.14 193 F.3d at 300. Third, “the evidence of guilt was over- 14 Williams also asserts that in closing argu- whelming.” Id. Williams does not dispute that ment, the prosecutor improperly vouched for Bar- he shot an unarmed man in the back. His tes- field’s credibility. The prosecutor did not intimate timony contradicted his prior written personal knowledge of Barfield’s credibility, but statements. Six eyewitnesses (Billings, merely reminded the jury that Barfield began co- Barfield, Windom, Cooper, Mrs. Hall, and operating with the government before receiving a Hall) expressly contradicted Williams’s plea agreement and asked it to infer, altogether rea- (continued...) 11 IV. jail still for up to two years, absolutely will go Finally, Williams argues that the prosecutor for at least five months. Somewhere in be- violated his due process rights during rebuttal tween there. It will be up to the court. What closing arguments by stating that Barfield a deal.” The court, however, later sentenced would be sentenced to at least five months’ Barfield to six months’ home confinement. imprisonment under his plea agreement. We review de novo an alleged due process “When the ‘reliability of a given witness violation, United States v. Runyan, 290 F.3d may well be determinative of guilt or 223, 245 (5th Cir.), cert. denied, 123 S. Ct. innocence,’ nondisclosure of evidence 137 (2002), and conclude that the comments affecting credibility falls within [the] general did not violate Williams’s due process rights. rule of Brady [v. Maryland, 373 U.S. 83 (1963)].” United States v. Scott, 48 F.3d In closing argument, Williams’s counsel 1389, 1395 (5th Cir. 1995) (quoting Giglio v. hammered away at Barfield’s testimony. He United States, 405 U.S. 150, 154 (1972)). contended that Barfield lied to obtain a This rule applies to “any understanding or sweetheart plea agreement. In her rebuttal agreement as to a future prosecution.” Giglio, closing, the prosecutor countered this 405 U.S. at 155. A Giglio violation usually argument in several ways. First, she noted that occurs when a cooperating witness denies Barfield was only one of three officers who having a plea agreement and the prosecutor testified against Williams. Next, she reminded fails to correct the misstatement. See, e.g., the jury that Barfield revealed to the United States v. Mason, 293 F.3d 826, 828 government the events to which he later (5th Cir. 2002). A prosecutor violates Giglio, testified before he received a plea agreement. however, if he denies the existence or Finally, the prosecutor disagreed that misrepresents the terms of a plea agreement. Barfield’s agreement was generous. Armour v. Salisbury, 492 F.2d 1032, 1037 Specifically, she stated, “He’s going to jail, (6th Cir. 1974). ladies and gentleman. He is going to jail. There is no chance for him not to go to To prove a due process violation, Williams jail . . . .” must establish that the prosecutor knowingly made a false and material statement during the Williams’s counsel objected here, but the rebuttal closing. Cf. Mason, 293 F.3d at 828 court overruled the objection. The prosecutor (explaining standard for knowing use of false then stated, “[Barfield] told you that what his testimony). Williams has not satisfied this understanding of what that plea agreement was standard, because the prosecutor did not mis- and what his deal was, was that he can go to represent Barfield’s plea agreement. Rather, she merely explained its terms, which call for five months’ to two years’ imprisonment. Ev- (...continued) en if she somewhat overzealously asserted that sonably, that the agreement did not alter Barfield’s “[t]here is no chance for him not to go to jail” testimony. This kind of request for a favorable in- and “[he] absolutely will go for at least five ference from record evidence is not improper months,” these statements must be read in vouching, especially because Williams had at- context, where the prosecutor also explained tacked Barfield’s credibility. United States v. that the court ultimately would decide Bar- Munoz, 150 F.3d 401, 414-15 (5th Cir. 1998). 12 field’s sentence. Moreover, Barfield did not get away scot- free; home confinement, like imprisonment, is a kind of confinement, and Barfield received a sentence within the agreed range. This situ- ation therefore differs in kind, not merely in degree, from cases in which the prosecutor and cooperating witness conceal from the jury the existence of the plea agreement altogether. See Giglio, 405 U.S. at 151-53; Mason, 293 F.3d at 828-29; United States v. Bigeleisen, 625 F.2d 203, 208 (8th Cir. 1980). We further note that Barfield’s sentence was not material to the jury’s assessment of his credibility. Williams and the government dis- puted the effect of the plea agreement on Bar- field’s veracity. To assess Barfield’s cred- ibility, the jury needed to know the range of punishment that Barfield expected under the plea agreement at the time of his testimony, not his actual, later punishment. See Scott, 48 F.3d at 1394-95. Barfield testified that he expected imprisonment for a term of five months to two years, exactly what the plea agreement specified. Thus, the jury had the essential fact needed to assess the effect of the plea agreement on Barfield’s credibility. Finally, the prosecutor’s initial point in her opening rebuttal must not be forgotten: Bar- field was only one of several witnesses against Williams. On appeal, Williams asserts that Barfield’s testimony was critical because he was the closest eyewitness. Maybe so, but Williams does little to undermine the testimony of Billings, Cooper, and Windom. Moreover, Williams forgets the testimony of Cartlidge, Hall, and Mrs. Hall, not to mention his own contradictory written statements. AFFIRMED. 13