United States v. Pineda-Diaz , 203 F. App'x 573 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40935
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN PINEDA-DIAZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(2:04-CR-708-4)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jonathan Pineda-Diaz appeals his jury
trial conviction for possession with intent to distribute marijuana
and conspiracy to possess marijuana thusly. He contends that
reversible error resulted when the government, while cross-
examining him, referred to out-of-court statements of a co-
conspirator who was not present to testify. Pineda objected to the
line of questioning, and the district court sustained his
objection.
*
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this opinion should not be published and is not precedent except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.
Assuming without deciding that the questioning was improper,
we conclude that “the evidence as a whole before the jury was
sufficiently convincing of guilt as to overcome any error committed
by the government during its cross-examination.” See United States
v. Smith-Bowman, 76 F.3d 634, 636-37 (5th Cir. 1996); United States
v. Pepper, 51 F.3d 469, 472 (5th Cir. 1995). Accordingly, any
error resulting from the prosecutor’s cross-examination was
harmless. Pineda’s conviction and sentence are
AFFIRMED.
2