United States v. Jackson , 230 F. App'x 425 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 6, 2007
Charles R. Fulbruge III
Clerk
No. 06-30456
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIUS L. JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:04-CR-10019-2
Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.
PER CURIAM:*
Julius L. Jackson appeals from his conviction of
assaulting a fellow prisoner and causing serious bodily harm. He
contends that the Government engaged in misconduct during closing
arguments by relying on his codefendants’ guilty pleas as evidence
of his own guilt and that the district court’s instructions did not
cure the Government’s misconduct. Jackson did not object to the
arguments or instructions in the district court; our review thus is
for plain error. See FED. R. CRIM. P. 52(b).
*
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this opinion should not be published and is not precedent except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.
Defense counsel elicited the testimony of Jackson’s
codefendants that they had pleaded guilty. Counsel presented a
theory of the case implicating the codefendants and not Jackson.
Moreover, the testimony of one codefendant suggested that the
victim initiated physical contact. Because Jackson relied on his
codefendants’ guilty pleas as part of his own case, the Government
was allowed to use them as substantive evidence of Jackson’s guilt.
See United States v. Samak, 7 F.3d 1196, 1198-99 (5th Cir. 1993).
Moreover, Jackson has not demonstrated that the prosecutor’s
remarks were prejudicial. See United States v. Rocha, 196 F.2d
219, 234 (5th Cir. 1990).
The district court’s instruction regarding the
codefendants’ guilty pleas was sufficient to mitigate any
suggestion by the Government that Jackson should be convicted
because his codefendants pleaded guilty. See United States v.
Mattoni, 698 F.2d 691, 694 (5th Cir. 1983). Finally, the timing of
the instruction in Jackson’s case does not diminish its curative
effect. See United States v. Robins, 978 F.2d 881, 888 (5th Cir.
1992).
AFFIRMED.
2