United States v. Smith , 85 F. App'x 5 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 5, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-60826
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
L. B. SMITH, III,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CR-1-4-LN
--------------------
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
L. B. Smith, III, appeals from his convictions for
conspiracy to distribute, and attempted possession with the
intent to distribute, approximately 11.5 kilograms of cocaine
hydrochloride, in violation of 18 U.S.C. § 2, and 21 U.S.C.
§§ 841(a)(1) & 846. The Government has filed an unopposed motion
to file record excerpts out-of-time. The Government’s motion is
GRANTED.
*
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that this opinion should not be published and is not precedent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. 02-60826
-2-
Smith argues that 1) the evidence was insufficient to
support his convictions, 2) the district court erred in admitting
case agent Ryan Spradlin’s testimony attributing a cell phone to
Smith at the time of his arrest, and 3) the prosecutor improperly
referred to Smith, and testified as an unsworn witness, when
cross-examining co-defendant Travis Burks in connection with
Burks’s guilty plea.
We have reviewed the record and the briefs submitted by the
parties and hold that the evidence presented at Smith’s jury
trial was sufficient to support his convictions. See United
States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999); United
States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998); United
States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994). Evidence
adduced at trial indicated that Smith accompanied his co-
defendant to the site of the drug deal, possessed and used a cell
phone to communicate with individuals and locations involved in
the drug trafficking, was referred to as a “partner” in the drug
trafficking, possessed a loaded 9 millimeter handgun at the scene
of the drug deal, and remained at the scene of the drug deal
after it was clear that drugs were present. This evidence is
sufficient to maintain Smith’s conviction. See United States v.
Gamez-Gonzalez, 319 F.3d 695, 698 (5th Cir. 2003); United States
v. Dean, 59 F.3d 1479, 1486 (5th Cir. 1995).
Spradlin’s challenged statement, regarding Smith’s
possession of a cell phone, was cumulative to testimony
No. 02-60826
-3-
previously introduced at trial. Accordingly, any error resulting
from its admission was harmless. See United States v. Edwards,
303 F.3d 606, 623 (5th Cir.), cert. denied, 537 U.S. 1192 (2002).
Smith’s remaining argument, concerning the prosecutor’s alleged
improper cross-examination of co-defendant Burks, fails to
survive plain-error review. See United States v. Olano, 507 U.S.
725, 732 (1993); United States v. Lankford, 196 F.3d 563, 574
(5th Cir. 1999).
AFFIRMED.