Case: 11-50605 Document: 00511879606 Page: 1 Date Filed: 06/07/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 7, 2012
No. 11-50605
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BONGANI CHARLES CALHOUN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CR-351-2
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Bongani Charles Calhoun appeals his convictions and sentences for
conspiracy to possess with intent to distribute five kilograms or more of cocaine,
attempt to possess with intent to distribute five kilograms or more of cocaine,
and possession of a firearm in furtherance of a drug trafficking crime. Calhoun
first argues that he is entitled to a new trial because the prosecutor asked a
highly prejudicial and racially inflammatory question while cross-examining him
and raised the sentiment again during the Government’s closing argument. The
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-50605
question in dispute was, “You’ve got African-Americans, you’ve got Hispanics,
you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in
your head and say, This is a drug deal?” Calhoun responded, “No, sir.”
Plain error review applies to this issue, as Calhoun did not object to the
prosecutor’s question or the prosecutor’s explanation of the question in his
closing argument. See United States v. Gracia, 522 F.3d 597, 599-600 (5th Cir.
2008). To show plain error, the appellant must show a forfeited error that is
clear or obvious and that affects his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). In the context of improper prosecutorial remarks, the
substantial rights prong “sets a high bar,” with the determinative question being
“whether the prosecutor’s remarks cast serious doubt on the correctness of the
jury’s verdict.” United States v. Morin, 627 F.3d 985, 1000 (5th Cir. 2010), cert.
denied, 131 S. Ct. 2126 (2011) (internal quotation marks and citation omitted).
In answering that 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.”
United States v. Thompson, 482 F.3d 781, 785 (5th Cir. 2007) (internal quotation
marks and citation omitted). If Calhoun meets his burden under the first three
prongs of the plain error standard, we have the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See Gracia, 522 F.3d at 600.
Calhoun has not satisfied his burden. First, the improper racial overtone
of the question was isolated, and the prosecutor moved on to another line of
questioning after Calhoun responded negatively to the question. See Morin, 627
F.3d at 1000. The prosecutor’s remarks in his closing argument were made in
response to defense counsel’s reference of the question and focused on the
presence of the large sum of money rather than the race of the participants.
Second, the prejudicial effect of the prosecutor’s remarks was mitigated by
the district court’s instruction to the jury that the statements and arguments of
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the attorneys were not evidence and that the verdict must be based only on the
evidence. See id. At defense counsel’s request, the district court had also
ensured during jury selection that no juror felt that he or she would be
influenced by the fact that Calhoun was African-American.
Third, the evidence against Calhoun was strong, as the testimony of
several witnesses indicated that he was a knowing participant in the drug
transaction. Although Calhoun testified that he was not aware of the drug
transaction, his testimony also established that the other participants knowingly
displayed over $400,000 in cash in front of him and brought him to the scene of
their planned drug purchase. Calhoun’s argument is unavailing, as the
prosecutor’s remarks do not “cast serious doubt on the correctness of the jury’s
verdict.” See id.
Calhoun also contends that his sentences totaling 180 months of
imprisonment are unreasonable because the district court failed to consider
under 18 U.S.C. § 3553(a)(6) the disparity between Calhoun’s sentences and
those of his co-participants in the attempted drug transaction. For each
conviction, the district court sentenced Calhoun to the relevant statutory
minimum term of imprisonment. See 21 U.S.C. § 841(b)(1)(A); 21 U.S.C. § 846;
18 U.S.C. § 924(c)(1)(A)(i), (D)(ii). Because the district court lacked the power
to sentence Calhoun below those statutory minimums, his challenge to his
sentence is unavailing. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir.
2011).
Although neither party has noted an error in the written judgment, the
written judgment indicates that Calhoun received concurrent five-year terms of
supervised release on all three of his convictions while the district court orally
pronounced concurrent five-year terms of supervised release on Calhoun’s two
drug convictions and a concurrent three-year term of supervised release for his
firearm conviction. Where there is a conflict between the oral pronouncement
of a sentence and the written judgment, the oral pronouncement prevails.
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United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). Accordingly,
the judgment is AFFIRMED, and the case is REMANDED for the limited
purpose of correcting the clerical error in the judgment. See FED. R. CRIM. P. 36;
United States v. Johnson, 588 F.2d 961, 964 (5th Cir. 1979).
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HAYNES, Circuit Judge, concurring:
I concur fully in the majority opinion. Specifically, I agree that Calhoun
has not shown reversible plain error as a result of the prosecutor’s remarks.
That said, I write separately to express deep concern about this conduct.
First, it should be very clear (certainly to a lawyer licensed thirty-seven
years in Texas) that such racially-charged comments are completely
inappropriate for any lawyer. TEX. DISCIPLINARY RULES OF PROF’L CONDUCT R.
5.08. Next, it is particularly inappropriate for an Assistant United States
Attorney – a prosecutor – to behave this way. Prosecutors are held to a higher
standard than even the high professional standards applicable to all attorneys.
Berger v. United States, 295 U.S. 78, 88 (1935); see also TEX. DISCIPLINARY RULES
OF PROF’L CONDUCT R. 3.09, cmt. 1 (“A prosecutor has the responsibility to see
that justice is done, and not simply to be an advocate.”). “The United States
Attorney is the representative . . . of a sovereignty . . . whose interest . . . in a
criminal prosecution is not that it shall win a case, but that justice shall be done.
. . . He may prosecute with earnestness, . . . [b]ut, while he may strike hard
blows, he is not at liberty to strike foul ones.” Berger, 295 U.S. at 88 (emphasis
added). It is hard to think of a more foul blow than implying that the race or
national origin of a group of people has anything to do with whether Calhoun
should have known they were involved in dealing drugs.
Finally, perhaps the most troubling of all is how the United States
Attorney’s Office has handled this matter thereafter. While I do not fault the
determination to argue in favor of sustaining the verdict, I am dismayed by the
cavalier approach to this situation. The Government’s brief calls the question
“impolitic” and states: “even assuming the question crossed the line,” as if that
is in doubt. Let me clear up any confusion – the question crossed the line. An
apology is in order, and I do not see it in the briefing. Indeed, it should trouble
the Assistant United States Attorney in question and all those in his office not
just that he said such a thing, but that he thought it. The title “prosecutor”–
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indeed, the title “lawyer” – demands better. I hope I will not have to say this
again.
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