United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 27, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-51469
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIAS GONZALES,
Defendant-Appellant.
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Appeal From the United States District Court
for the Western District of Texas
5:04-CR-305-1
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Before JOLLY, HIGGINBOTHAM and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant, Elias Gonzales, was convicted of
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1), and sentenced to 51 months of imprisonment
and two years of supervised release. He appealed, and 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this opinion should not be published and is not precedent except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.
No. 05-51469
-2-
After Gonzales left the scene of a domestic
altercation, his ex-wife and her friend called the
police. Law enforcement officers intercepted Gonzales in
his car and pulled him over. They searched his vehicle
and discovered a firearm.
Gonzales argues that he was deprived of a fair trial
by prosecutorial remarks during the closing statement
suggesting that Gonzales’s ex-wife and friend called the
police in fear because Gonzales had threatened to shoot
them. He also asserts that the district court abused its
discretion in excluding the audio portion of the
videotape of the search of Gonzales’s car. At trial,
Gonzales sought to use the audio portion of the tape to
impeach witnesses who testified against him, particularly
two of his friends, who were in the car during the
search, as well as an officer who participated in the
search and who questioned Gonzales’s friends about the
firearm at that time. Gonzales wanted to use the tape to
show that: 1) during the search his friends denied
knowing anything about the firearm; and 2) the officer’s
questioning of his friends was unduly forceful or
No. 05-51469
-3-
suggestive. He challenges the district court’s exclusion
of the audio portion of the tape.1
After reviewing the evidence and the record, we
conclude that each of these arguments is without merit.
Even assuming (without deciding) that the prosecutor’s
remarks during his closing argument were improper,
Gonzales has not shown that the remarks affected his
substantial rights. Similarly, even assuming arguendo
that the district court abused its discretion in
excluding the audio portion of the tape, such error is
harmless because the record indicates it could have had
no more than a minimal effect on the jury’s verdict. Both
of Gonzales’s friends admitted on the stand that they had
made prior inconsistent statements, and the officer
involved in their questioning likewise acknowledged the
flaws in his interrogative technique. Even without the
audio evidence, the jury had a clear, accurate picture of
what transpired. Accordingly, the defendant’s conviction
and sentence are AFFIRMED.
1
Gonzales also challenges the constitutionality of the
statute under which he was convicted, 18 U.S.C. § 922(g)(1). He
acknowledges that the issue is foreclosed by circuit precedent.
See United States v. Rawls, 85 F.3d 240, 242 (5th Cir.
1996)(rejecting arguments identical to those raised by Gonzales).