United States v. Cummings ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-31285
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRYL CUMMINGS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 96-CR-39-B
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August 3, 1998
Before EMILIO M. GARZA, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
A jury convicted Darryl Cummings of conspiracy to possess
cocaine with intent to distribute. Cummings argues on appeal
that the district court abused its discretion by denying his
motion for a mistrial based on a prosecutorial comment on
Cummings’s failure to take the stand. The Government suggests
that this court should review Cummings’s argument for plain error
on the ground that he failed to lodge a contemporaneous objection
to the comment.
*
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that this opinion should not be published and is not precedent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. 96-31285
-2-
Under the circumstances of this case, because the defense
did not object to the prosecutor’s comment during closing
argument on the defendant’s failure to testify until after the
argument was concluded, we will review for plain error only.
United States v. Ward, 481 F.2d 185, 187 (5th Cir. 1973). Having
reviewed the record and the briefs of the parties, we hold that
the district court did not plainly err in denying Cummings’s
motion for a mistrial. See United States v. Robinson, 485 U.S.
25, 31-34 (1988); United States v. Rodriguez, 43 F.3d 117, 124
(5th Cir. 1995).
AFFIRMED.