United States v. Thompson , 335 F. App'x 431 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2009
No. 08-50845
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANDERA THOMPSON
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-29-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
A jury convicted Andera Thompson of possessing with intent to distribute
five grams or more of a mixture or substance containing cocaine base. See 21
U.S.C. § 841(a)(1), (b)(1)(B). He was sentenced to serve 120 months in prison.
On appeal he challenges the district court’s (1) rejection of his hearsay objection
to cellular telephone text messages, and (2) failure to exclude certain
prosecutorial remarks to which he did not object at trial.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50845
At trial, the Government introduced evidence that Thompson had a
cellular phone on his person that contained text messages from an unknown
person apparently seeking to buy drugs and referencing “fronting” drugs.
Thompson contends that the text messages constituted hearsay 1 and that it was
an abuse of discretion to admit them. We pretermit that question, however,
because any abuse of discretion was harmless. See United States v. Yanez Sosa,
513 F.3d 194, 210 (5th Cir. 2008) (stating that an abuse of discretion in
admitting or excluding evidence may be excused if, leaving aside the disputed
evidence or remarks, the remaining evidence was substantial). Even without the
text messages, there was substantial evidence of Thompson’s guilt, including
testimony by a person who spent the day with Thompson and observed his drug
dealing and drugs found in the area of the car where Thompson was sitting when
apprehended.
Thompson also argues that the prosecutor made improper and
impermissible statements in rebuttal closing argument. Because Thompson did
not object to the remarks at trial, review is for plain error. United States v.
Young, 470 U.S. 1, 12 (1985). Even assuming that the prosecutor’s remarks
constituted obvious error, Thompson has not shown that they had the “probable
effect” of preventing the jury from “judg[ing] the evidence fairly.” Id. The
evidence against Thompson was “substantial and virtually uncontradicted,” id.
at 20, and Thompson points to no reason why the jury should not be presumed
to have heeded the district court’s repeated instructions that remarks of counsel
are not evidence. See United States v. Gallardo-Trapero, 185 F.3d 307, 321 (5th
Cir. 1999).
AFFIRMED.
1
The district court found that the messages were co-conspirator statements and, thus,
not hearsay. FED . R. EVID . 801(d)(2)(E). We also note that it is questionable whether they
were offered “to prove the truth of the matter asserted,” FED . R. EVID . 801(c), and, thus,
whether they were even governed by Rule 801. Given our harmless error analysis, we need
not decide either question.
2