United States v. Thompson

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS F I L E D
FOR THE FIFTH CIRCUIT
March 21, 2007

Charles R. Fulbruge III
Clerk
No. 06-40961

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

STEVEN LADALE THOMPSON, also known as Rock,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Eastern District of Texas
--------------------

Before KING, WIENER, and OWEN, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Steven Ladale Thompson was convicted by a

jury of knowingly possessing with the intent to distribute more

than five grams of cocaine base. Thompson contends on appeal that

(1) statements made by the prosecutor during closing argument were

so prejudicial that they denied him a fair trial, and (2) the

district court’s allowing the jury to view a videotape of a drug

transaction in which Thompson allegedly participated was error

because it was played to the jury without the accompanying audio

portion albeit with a written transcript of the underlying audio

recording scrolling along on the screen simultaneously with the

video portion. We affirm.
 I. FACTS & PROCEEDINGS

In January 2003, Sergeant Keith Deramus, a narcotics

investigator for the Texas Department of Public Safety, met with a

confidential informant (the “CI”) who had offered to help the local

police with narcotics investigations in exchange for leniency on

several charges he faced. The CI informed Deramus that an

individual nicknamed Rock was selling crack cocaine in

Daingerfield, Texas. Later, through local law enforcement

officials, Deramus learned of Thompson and his use of the nickname

Rock. Deramus obtained a photograph of Thompson and showed it to

the CI, who identified the photo’s subject as the person selling

crack in Daingerfield under the street name of Rock. Deramus then

arranged for the CI to purchase crack cocaine from that person.

In October 2003, the CI consummated three drug transactions

with this person whom he knew as Rock. Deramus recorded the

telephone conversations in which these two men arranged the

transactions and, by using a voice transmitter secretly worn by the

CI, recorded the transactions themselves. The CI later wore a

hidden camera during the third transaction with Rock, which allowed

Deramus to capture the images on videotape as well as the

participants’ voices.

Primarily based on the testimony of Deramus and the CI, as

well as this recorded evidence, a federal grand jury returned a

2
three-count indictment charging Thompson with possessing with

intent to distribute more than five grams of cocaine base. This

led to Thompson’s jury trial.

The only contested issue at trial was whether Thompson was the

individual named Rock from whom the CI had purchased drugs in

October 2003. The CI made a courtroom identification of Thompson

as Rock and, after viewing the videotape of the third transaction

along with the jury, made an in-court identification of Thompson as

the person who sold him drugs on that and previous occasions.

Superimposed on this video was a scrolling transcript, but the

voice recording from which the transcript had been made was not

audible.1

Deramus testified at trial that a person known to the CI only

as Rock was one of the individuals whom the CI mentioned as a

“target” during the CI’s initial debriefing. Deramus also

testified that he had not heard of Rock before the debriefing of

1
The government contends that the video shown to the jury
was a version of the VCR tape marked as Trial Exhibit 12b that
was downloaded to a computer and projected onto a screen in the
courtroom. The government insists that this downloaded version
did contain audio. We are unable to verify this contention, but
we have reviewed the VCR tape itself and confirmed that it
contains no audio. We also note that the trial record includes
transcriptions for all audio recordings played to the jury but
does not include a transcription of the conversation taking place
on the video. We will proceed, therefore, on the assumption that
the jury never heard the audio portion of the video recording of
the third transaction.

3
the CI, but “through research with the local authorities there in

[the] Dangerfield Police Department, they informed me [that] they

knew who this individual was.” Deramus stated at trial that the

local police gave him a photograph of a man whom they identified as

Steven Thompson, the defendant, and whom they knew to go by the

nickname Rock. Deramus then showed this photograph to the CI, who

confirmed that the man in the photograph was the individual whom

the CI had known only as Rock. The same photograph was entered

into evidence at trial, and Deramus pointed out the defendant in

open court as the person in the photograph.

Deramus also testified that after interviewing Thompson in

March 2005, he (Deramus) again listened to the audio tapes of the

transactions between the CI and Rock and recognized both recorded

voices, one as that of the CI and the other as that of Thompson.

Thus, in addition to the identification of Thompson by the CI, the

jury heard Officer Deramus identify the defendant as the person in

the photograph that the Dangerfield police had given to Deramus and

had identified as the defendant, Thompson, aka Rock. The jury also

heard Deramus identify that photograph as the one that he (Deramus)

had shown to the CI, who had then confirmed to Deramus that the

person in the photograph was the man known to the CI as Rock and

named by the CI as a target in his initial debriefing by Deramus.

4
 In addition, Joe Farino, the police chief of Daingerfield,

Texas, testified that (1) he had served as the Daingerfield police

chief for twelve years, (2) he knew almost everyone in town, but

admittedly not every last member of the community,2 (3) he knew

Thompson, (4) he knew that Thompson’s nickname was Rock, and (5) he

did not know of anyone else in the community with the nickname

Rock. The defense presented no witnesses.

In the government’s closing argument, the prosecutor

repeatedly punctuated his remarks to the jury with assertions that

Thompson was the only person in Daingerfield, Texas nicknamed Rock.

Thompson points to four such instances. First, the prosecutor

began his closing argument by telling the jury that “there is only

one Steven Thompson and only one individual known as Rock in

Daingerfield, Texas, and that is the defendant.” Later, the

prosecutor showed the jury the photo of Thompson that Deramus had

identified when it was entered into evidence and stated: “[T]his is

Rock. And this is the only Steven Thompson in Daingerfield, Texas,

and this is the only individual known as Rock in Daingerfield,

Texas.” Next, In summarizing the testimony of Chief Farino, the

prosecutor told the jury that Farino “testified that there is only

2
According to one demographic data-collection website, the
estimated population of Daingerfield, Texas in July 2005 was
2,470 (1,149 males and 1,368 females). See
http://www.city-data.com/city/Daingerfield-Texas.html.

5
one Steven Thompson, who is also known as Rock in Daingerfield,

Texas.” Finally, after defense counsel’s closing argument, in

which he urged the jury to consider that Rock may have been someone

other than Thompson, possibly someone from outside of Daingerfield,

the prosecutor concluded his rebuttal by telling the jury that

“there is only one Steven Thompson and only one individual named

Rock in Daingerfield, Texas and that is the defendant right here.”

After deliberating for three hours, the jury informed the

court that it could not reach a unanimous decision. Over

Thompson’s objection, the court gave the jury a Modified Allen

Charge from the Fifth Circuit Pattern Jury Instructions, and

deliberations resumed. Thirty minutes later, the jury returned a

verdict of guilty on all counts of the indictment.

II. ANALYSIS

A. The Prosecutor’s Statements

1. Standard of Review

As Thompson failed to object timely to the prosecutor’s

comments, we review them for plain error.3

2. Applicable Law

3
United States v. Mares, 402 F.3d 511, 515 (5th Cir. 2005).

6
 Even when a defendant timely objects to remarks made by a

prosecutor in closing argument, the defense burden of establishing

that such remarks denied the defendant a fair trial is

substantial.4 We accord “wide latitude to counsel during closing

argument.”5 In so doing, we analyze closing argument in the

context of the trial as a whole, recognizing that “[i]nappropriate

prosecutorial comments, standing alone” will not justify reversal

of a conviction obtained in an otherwise fair proceeding.6 The

determinative question in our inquiry is “whether the prosecutor's

remarks cast serious doubt on the correctness of the jury's

verdict.”7 In answering this question, we consider “(1) the

magnitude of the prejudicial effect of the prosecutor's remarks,

(2) the efficacy of any cautionary instruction by the judge, and

(3) the strength of the evidence supporting the conviction.”8

3. Merits

4
United States v. Guidry, 456 F.3d 493, 505 (5th Cir.
2006).
5
United States v. Hernandez-Guevara, 162 F.3d 863, 874 (5th
Cir. 1998).
6
United States v. Young, 470 U.S. 1, 11 (1985).
7
United States v. Virgen-Moreno, 265 F.3d 276, 290 (5th
Cir. 2001).
8
Guidry, 456 F.3d at 505 (quoting United States v. Palmer,
37 F.3d 1080, 1085 (5th Cir. 1994)).

7
 a. Prejudicial Effect

Thompson contends that the magnitude of the unfair prejudice

in this case was great, largely because the prosecutor’s statements

negated defense counsel’s argument as to the one and only contested

issue at trial —— whether the evidence proves beyond a reasonable

doubt that Thompson was the person nicknamed Rock who sold drugs to

the CI in October 2003. Thompson insists that the prosecutor’s

remarks (1) amounted to improper personal testimony, (2) were

unsupported by the evidence, and (3) misstated witness testimony.

Thompson emphasizes that the prosecutor repeated his improper

remarks at the close of his rebuttal argument, knowing that defense

counsel would have no further opportunity to address the jury.

The government counters that the prosecutor was simply asking

the jury to draw reasonable inferences from the evidence presented

to it. The government contends that the prosecutor’s remarks had,

at most, an insignificant prejudicial impact.

We are satisfied that the prosecutor’s remarks were not

actionably improper, much less so erroneous as to constitute plain

error. We have long recognized that the proper function of the

attorneys in closing argument is “to assist the jury in analyzing,

evaluating and applying the evidence” and not “to ‘testify’ as an

8
‘expert witness.’”9 Nevertheless, “the assistance permitted

includes counsel's right to state his contention as to the

conclusions that the jury should draw from the evidence.”10 It is

permissible, therefore, for an attorney “to make statements that

indicate his opinion or knowledge of the case . . . if the attorney

makes it clear that the conclusions he is urging are conclusions to

be drawn from the evidence.”11 “Except to the extent he bases any

opinion on the evidence in the case, he may not express his

personal opinion on the merits of the case or the credibility of

witnesses.”12

Here, there is no question but that the prosecutor voiced his

opinion about the conclusions that the jury should reach based on

the evidence, and engaged in a bit of oratory and hyperbole, as

trial lawyers are want to do in closing arguments. And, absent

some evidentiary basis for those conclusions, his statements might

have constituted improper prosecutorial “testimony.” In his

closing argument, however, the prosecutor directly linked his

assertions to the evidence presented at trial. After the second of

9
United States v. Morris, 568 F.2d 396, 401 (5th Cir.
1978).
10
Id.
11
Id.
12
United States v. Garza, 608 F.2d 659, 663 (5th Cir.
1979).
9
his allegedly prejudicial statements, the prosecutor told the jury:

“Now you know that [that Thompson is Rock] from the testimony that

you heard here this morning.” He then recounted all of the

evidence presented at trial, before again repeating his assertion

that Thompson was the person nicknamed Rock who sold drugs to the

CI. Similarly, the prosecutor ended his rebuttal argument by

saying: “Ladies and Gentlemen, you have all the evidence before

you, and I will tell you again there is only one Steven Thompson

and one individual named Rock in Daingerfield, Texas . . . .”

The record makes clear that (1) the prosecutor’s putatively

improper statements were based on and linked to evidence presented

during the trial, and (2) the evidentiary basis for those

statements was obvious to the jury. Contrary to Thompson’s

contention, the fact that the prosecutor’s remarks concerned the

only issue contested at trial actually decreases its prejudicial

impact. Having been presented evidence for the exclusive purpose

of establishing Thompson’s identity as Rock, the jury was not

likely to mistake the prosecutor’s statements for trustworthy

conclusions based on his own knowledge or expertise, and was better

prepared to recognize them for what they were, i.e., an obviously

partisan prosecuting attorney’s own opinions based on the same

evidence that had been presented to the jury. Viewed from this

10
perspective, the prejudicial effect of the prosecutor’s remarks was

minimal at worst.

b. Cautionary Instructions

On five separate occasions, the jury was informed that

statements by attorneys were not to be treated as evidence: (1)

during jury voir dire, (2) prior to opening statements, (3) prior

to closing arguments, (4) during defense counsel’s closing

argument, and (5) in the written jury instructions. Thompson would

have us rule that, because the prosecutor repeated his remarks so

often and they concerned the sole contested issue at trial, these

admonitions to the jury were insufficient to cure any prejudice.

We disagree.

First, having been presented with evidence exclusively

intended either to establish or to call into question Thompson’s

identity as Rock, the jury likely was keenly aware that (1) it must

decide whether this fact was proved beyond a reasonable doubt, and

(2) the prosecutor’s remarks were part of his argument, and did not

amount to testimony, much less unduly influential quasi-expert

testimony. Second, the repeated instructions not to consider

statements by attorneys as evidence must be assigned some curative

effect. These instructions were given at each stage of trial and

were repeated before, during, and —— in writing —— after the

prosecutor’s assertedly improper closing argument. Finally, the

11
prosecutor’s remarks were expressed as conclusions to be drawn from

the evidence presented at trial, and any prejudicial impact was

negligible. Consequently, we conclude that the cautionary

instructions to the jury were more than sufficient to offset any

unfair prejudicial effect of the prosecutor’s remarks.

c. Strength of the Government’s Case

In an effort to elevate the relative strength of the

prosecutor’s comments, the defense purports to identify numerous

weaknesses in the government’s case. First, Thompson notes that

the CI did not know the name Steven Thompson, and that Rock was the

only name ever mentioned on any of the audio recordings in

evidence. He also points out that, on the videotape of the third

transaction, the dealer’s face is not recognizable. Thompson

further observes that Deramus’s testimony about Thompson’s voice

matching that on the audio recordings was based on nothing more

than a single, fifteen-minute conversation that Deramus had with

Thompson in March 2005. Thompson also catalogues numerous reasons

why the CI’s credibility could be questioned13 and points to the

lack of any corroborating evidence linking Thompson to the

locations of the drug deals or the drugs themselves. Finally,

13
The CI had been, inter alia, (1) paid for his services,
(2) promised leniency in a felony prosecution in exchange for his
cooperation in investigating Thompson,(3) later caught selling
cocaine in Louisiana in violation of his cooperation agreement.
12
Thompson highlights the fact that the jury initially could not

reach a decision and only returned a guilty verdict after receiving

an Allen charge.

The government acknowledges that its case “was founded on the

testimony of Sergeant Deramus and the CI,” with the various

recordings “corroborating” that testimony. We see Thompson’s

decision not to testify as rendering the government’s audio

evidence largely ineffectual to prove that the defendant and Rock

are one and the same: The jury heard nothing from Thompson to

compare to the voice on the audio recordings, and the video

evidence appears to have been insufficiently clear to establish the

drug dealer’s identity, especially in light of the cosmetic changes

that Thompson had made in his appearance before trial, e.g.,

shaving, getting a haircut, wearing a different style of clothes,

etc. In addition, Deramus’s testimony that he was satisfied, after

a fifteen-minute conversation in 2005, that it was Thompson’s voice

on the low-quality audio recordings from 2003 is subject to

question, as is the credibility of the CI. The jury’s inability to

reach a unanimous verdict until re-charged further supports

Thompson’s contention that the government’s case was a weak one.

Nevertheless, as our earlier recitation of the evidence

presented in this case makes clear, the testimony and the exhibits

offered by the government were sufficient to connect all the dots

13
for the jury. We are satisfied that, based on, inter alia, the

testimony of not just the questionably credible CI, but also the

very credible Deramus, and the photograph and other exhibits, the

jury had an evidentiary basis to find that: (1) The defendant,

Steven Thompson, also known by the Dangerfield police as Rock, was

the same Steven Thompson whose photograph these local police had

produced and given to Deramus after he told them that he was

looking for a suspected drug dealer known on the street as Rock;

and (2) Deramus then showed this photograph of Thompson to the CI

who verified that the man in the photograph was the person known to

the CI as Rock and previously named by the CI as one of the drug

dealers to be targeted by Deramus.

We are satisfied that the prosecutor’s comments in his closing

argument were at most minimally prejudicial and that the jury was

effectively instructed not to treat statements by the lawyers as

evidence. We hold, therefore, that the prosecutor’s remarks

complained of here do not “cast serious doubt on the correctness of

the jury's verdict” and do not amount to plain error.

B. The Videotape Evidence

We have long recognized that “the use of tape recordings

obviously is acceptable as long as a proper foundation has been

laid and that recordings constitute real, as opposed to

14
testimonial, evidence.”14 We have also recognized that “it is

within the discretion of the trial court to allow a transcript to

be used by the jury ‘to assist the jury as it listens to the

tape.’”15 This assistance will be necessary when “portions of a

tape may be relatively inaudible” or “without the aid of a

transcript, it may be difficult to identify the speakers.”16

Neither party directs us to any case —— and we have found none ——

in which facts and circumstances like those presented in this case

were implicated, i.e., a transcript-assisted video recording shown

to the jury without contemporaneously playing the underlying audio

recording represented in the transcript.

A supplemental transcript is intended only to aid the jury in

its assessment of real evidence (the actual audio recording), so

the omission of the underlying audio recording may constitute

error. The trial court apparently recognized this when it

instructed the jury:

I have admitted the transcript for the limited and
secondary purpose of aiding you in following the content
of the conversation as you listen to the tape recording,
and also to aid you in identifying the speakers.

14
United States v. Onori, 535 F.2d 938, 947 (5th Cir.
1976).
15
Id. (quoting United States v. McMillan, 508 F.2d 101, 105
(8th Cir. 1974).
16
Id.
15
 You are specifically instructed that whether the
transcript correctly or incorrectly reflects the content
of the conversation or the identity of the speakers is
entirely for you to determine based upon your own
evaluation of the testimony you have heard concerning the
preparation of the transcript, and from your own
examination of the transcript in relation to your hearing
of the tape recording itself as the primary evidence of
its own contents; and if you should determine that the
transcript is in any respect incorrect or unreliable, you
should disregard it to that extent.17

Despite the government’s insistence otherwise at oral argument, we

do not believe that the audio portion of this filming was played to

the jury, but neither do we find anything in the record reflecting

that Thompson objected to the playing of the videotape and

transcript without the contemporaneous playing of the audio

portion. He now must show, therefore, that the district court

committed plain error by allowing the video tapes to be entered

into evidence and played with only a transcript and not the audio

portion as well.18

To show plain error, Thompson must demonstrate that admitting

the videotape and transcript without the underlying audio was error

that was clear or obvious. The government emphasizes that, before

trial, the parties had agreed to the use of a transcript that the

defense had seen and that the transcript would appear on the video

17
Emphasis added.
18
United States v. Thompson, 454 F.3d 459, 464 (5th Cir.
2006).
16
screen and scroll along as the tape was played. Thompson does not

challenge the accuracy or authenticity of the transcript, but

challenges the failure of the government to play both the

transcript and the underlying audio to the jury while it was

viewing the video portion. Without the audio portion, Thompson

contends, the jury was unable to evaluate the accuracy of the

transcript or, more importantly, to compare the voices on the

other recordings (and the CI’s voice, which the jury heard at

trial) to the voices of the individuals who appear on the

videotape.

Even if the omission of the audio portion of the recording

were unintentional (as it appears to have been), the district court

should have recognized and corrected the mistake as soon as the

video started to play. As it did not do so, we are constrained to

treat the district court’s failure to do so as clear or obvious

error.

For this clear error to rise to the level of plain error,

however, Thompson must also show that it affected his substantial

rights. Thompson contends that it did because omission of the

audio from the videotape bolstered both the CI’s and Deramus’s

testimony that Thompson was the drug dealer depicted on the

videotape. Thompson’s contention on this point, however, depends

on the supposition that hearing the voice of the dealer on the

17
videotape was somehow essential to the jury’s determination of

Thompson’s identity and thus his guilt. This defies logic.

First, as Thompson never spoke at trial, the voice on the

videotape could not have provided a basis for the jury’s own

identification of Thompson as the drug dealer. Second, the jury’s

inability to verify the accuracy of the transcript is immaterial,

because Thompson neither challenges that nor disputes that the

video shows a drug deal taking place. Third, the fact that the

jury could not compare the voice on the videotape to the voice on

the other audio recordings is inconsequential. The transcripts

make clear that, in each audio recording (including the unplayed

one underlying the transcript) the CI spoke with an individual

named Rock. The jury heard the audio recordings of the telephone

conversations in which the CI and Rock agreed to meet for the third

transaction, the one that was videotaped. Consequently, Thompson’s

contention that hearing the audio of the dealer’s voice during the

videotaped third transaction somehow could have altered the jury’s

perception of the evidence rests on the completely implausible

assumption that the CI might have conducted the third transaction

with an individual called Rock entirely different from the one with

whom the CI spoke by phone when arranging the meeting earlier that

day.

18
 Given the totality of these observations, we conclude that

Thompson’s substantial rights were not affected by the omission of

the underlying audio recording when the video and the transcript of

the third transaction was shown to the jury. Consequently, the

district court did not commit plain error when it allowed the jury

to view that videotape and transcript in the absence of the audio

portion of the recording.

III. CONCLUSION

The prosecutor’s statements during closing argument did not

deny Thompson a fair trial, and the district court’s admission of

the videotape recording of the third drug transaction with an

accompanying transcript but without the underlying audio recording

did not constitute plain error. Thompson’s conviction and sentence

are, in all respects,

AFFIRMED.

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