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United States v. Harper ( 2010 )


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  •                             REVISED April 13, 2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    F I L E D
    No. 09-40140                    March 9, 2010
    Charles R. Fulbruge III
    UNITED STATES OF AMERICA,                                                 Clerk
    Plaintiff-Appellee,
    v.
    BRIAN KEITH HARPER,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:07-CR-244-4
    Before CLEMENT, PRADO, and ELROD, Circuit Judges.
    PER CURIAM:*
    This appeal arises from the district court’s entry of a judgment of
    conviction and its imposition of sentence on Defendant-Appellant Brian Keith
    Harper for one count of conspiring to possess five or more kilograms of cocaine
    with the intent to distribute in violation of 
    21 U.S.C. § 846
     and 
    18 U.S.C. § 2
    .
    For the following reasons, we affirm.
    *
    Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
    published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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. 09-40140
    I. FACTUAL BACKGROUND
    In November 2007, Drug Enforcement Administration (DEA) agents
    executed a search warrant at an apartment in Lewisville, Texas on suspicion
    that it was being used to store illegal narcotics.1 The search revealed several
    items associated with cocaine trafficking and led to the arrest of Codefendant
    Gerrardo Javier Platas-Rodriguez. When the DEA agents confronted Platas-
    Rodriguez, he agreed to cooperate with the investigation and informed the
    agents about a hidden compartment in the stairwell of the apartment. The
    agents recovered fifty-seven bricks of cocaine, each weighing approximately one
    kilogram; $33,000 in cash; a money counter; freezer bags; and wrapping
    materials from the compartment. Platas-Rodriguez told the agents that he had
    been hired to maintain the apartment as a stash house by Guadalupe Antonio
    Barrera, a friend in Mexico.
    After Platas-Rodriguez informed the agents that another drug transaction
    was planned, the agents decided to conduct a controlled purchase using fake
    cocaine. At the agents’ request, Platas-Rodriguez contacted Barrera, who
    informed him that an individual, later identified as Codefendant Orlando Leal
    Martinez, would come from Mexico to represent Barrera in the sale of a quantity
    of cocaine. On November 30, 2007, Martinez instructed Platas-Rodriguez to
    come to his hotel room early the next morning to await Barrera’s instructions for
    completing the sale.
    The next morning, Platas-Rodriguez and Martinez met at the apartment
    and then drove to an International House of Pancakes (IHOP) to meet the
    purchaser. The agents observed a dual-wheel pickup with Tennessee plates
    towing a trailer enter the parking lot and later identified the driver as
    1
    As Harper appeals the denial of his motion for a judgment of acquittal, we view “‘the
    evidence and the inferences therefrom in the light most favorable to the verdict.’” United
    States v. Fuchs, 
    467 F.3d 889
    , 904 (5th Cir. 2006) (quoting United States v. Anderson, 
    174 F.3d 515
    , 522 (5th Cir. 1999)).
    2
    No. 09-40140
    Codefendant Frank Savage. Savage met briefly with Platas-Rodriguez and
    Martinez inside the IHOP before driving to a nearby hotel and checking in.
    Shortly afterwards, Savage returned to the IHOP and handed Martinez a piece
    of paper with his room number on it. Savage then drove back to the hotel,
    removed a suitcase containing $898,590 in cash from the trailer, and entered his
    room. Martinez also drove to the hotel and went to Savage’s room with a
    suitcase containing the fake cocaine while Platas-Rodriguez remained in the
    parking lot. At this point, the agents arrested all three individuals.
    Soon after his arrest, Savage began cooperating with the investigation. He
    told the agents that the money had belonged to Harper and that he was
    supposed to take the drugs to Harper. After Savage agreed to try to contact
    Harper, the agents retrieved a cellular telephone that Harper had given to
    Savage. Harper soon called and asked Savage what was going on. Harper
    indicated that he had been in contact with the seller and had learned that the
    seller’s representative was not returning phone calls. Agent Don York, the lead
    case agent, recorded four brief conversations between Savage and Harper.
    During these conversations, Harper seemed to be concerned that something was
    amiss.
    On December 13, 2007, Harper was arrested in Memphis, Tennessee.
    During an interview, Agent York asked Harper if he knew why the DEA agents
    were present. Harper responded that Savage was “putting [his] name out there
    about some dope that got hit.” Harper admitted that he had previously sold
    marijuana and cocaine and that his current source of cocaine was a Hispanic
    man named “Red.”
    II. PROCEDURAL BACKGROUND
    A grand jury indicted Harper, Martinez, Platas-Rodriguez, Savage, and
    Savage’s girlfriend, Sharif Ellis, on one count of conspiring to possess five or
    more kilograms of cocaine with the intent to distribute in violation of 21 U.S.C.
    3
    No. 09-40140
    § 846 and 
    18 U.S.C. § 2
    . After Harper pleaded not guilty, but before trial, the
    government notified Harper of its intent to introduce evidence of three
    extraneous offenses:
    (1)   Harper’s 1989 arrest and guilty plea for the possession of a
    controlled substance, which resulted in three years of
    probation;
    (2)   His 1990 arrest and guilty plea for the unlawful possession of
    a narcotic, which resulted in a $300 fine; and
    (3)   His 1993 arrest for drug distribution and guilty plea for the
    possession of crack cocaine, which resulted in a nine-month
    jail sentence.
    Harper filed a motion in limine, requesting a hearing to determine the
    admissibility of this evidence under United States v. Beechum, 
    582 F.2d 898
    , 911
    (5th Cir. 1978) (en banc), which the district court granted. After the hearing, the
    court determined that the evidence was admissible. On the morning of trial, the
    district court denied Harper’s motion for a continuance. The district court also
    denied Harper’s motion to strike the jury panel or, in the alternative, to grant
    a continuance on the ground that the jury panel was not drawn from a fair cross-
    section of the community, in violation of the Sixth Amendment and Due Process
    Clause of the Fifth Amendment.
    At trial, the prosecution introduced the recorded conversations between
    Savage and Harper through the testimony of Agent York, who identified the
    voice as Harper’s based on his interview with Harper after his arrest in
    Memphis. Agent York also defined several code words used in these
    conversations, which he had learned from his involvement with the
    investigation. At the completion of the trial, the jury found Harper guilty. The
    district court denied Harper’s motion for judgment of acquittal and sentenced
    him to thirty years of imprisonment, followed by ten years of supervised release.
    III. DISCUSSION
    4
    No. 09-40140
    We have jurisdiction under 
    28 U.S.C. § 1291
    .           Harper appeals his
    conviction, arguing that several of the district court’s evidentiary decisions were
    erroneous. Harper also contends that the district court should have granted his
    motions for a continuance and his motion to quash the jury panel. In addition,
    Harper argues that the district court committed several errors during voir dire
    and that it should have granted his motion for a judgment of acquittal.
    A. Admissibility of Harper’s Prior Offenses
    We review a decision to admit evidence of prior offenses under Federal
    Rule of Evidence 404(b) using a heightened abuse of discretion standard. United
    States v. McCall, 
    553 F.3d 821
    , 827 (5th Cir. 2008). Pursuant to this standard,
    the evidence must be “‘strictly relevant to the particular offense charged.”’
    United States v. Jackson, 
    339 F.3d 349
    , 354 (5th Cir. 2003) (quoting United
    States v. Hays, 
    872 F.2d 582
    , 587 (5th Cir. 1989)).
    Rule 404(b) excludes evidence of extrinsic “bad acts” to prove a defendant’s
    bad character. Fed. R. Evid. 404(b). Such evidence may, however, be admissible
    “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
    or absence of mistake or accident.” 
    Id.
     In Beechum, this court set forth a two-
    step test for determining whether extrinsic evidence is admissible. 
    582 F.2d at 911
    . Before a district court may admit extrinsic evidence of a prior offense, “it
    must be determined that the extrinsic offense evidence is relevant to an issue
    other than the defendant’s character.       Second, the evidence must possess
    probative value that is not substantially outweighed by its undue prejudice and
    must meet the other requirements of [Federal Rule of Evidence] 403.” 
    Id.
    The government argues that the admission of the prior offenses satisfies
    the first prong of the Beechum test because Harper placed his intent at issue by
    pleading not guilty. This court permits the introduction of extrinsic evidence to
    prove criminal intent when a defendant enters a plea of not guilty, thereby
    5
    No. 09-40140
    requiring the government to prove the elements of its case.2 McCall, 
    553 F.3d at
    827–28. The crime with which Harper was charged, conspiracy to possess
    cocaine with the intent to distribute, required the government to prove that
    Harper had the intent to join the conspiracy. United States v. Garcia Mendoza,
    
    587 F.3d 682
    , 689 (5th Cir. 2009). Evidence of Harper’s past drug transactions
    is relevant to establish his criminal intent. 
    Id.
     Therefore, the evidence of
    Harper’s prior offenses satisfies the first requirement under Beechum.
    The second prong of the Beechum test requires that the evidence meet the
    general requirements of Rule 403 and that its probative value not be
    substantially outweighed by its unduly prejudicial effect.                      This court has
    “consistently . . . held that evidence of a defendant’s prior conviction for a similar
    crime is more probative than prejudicial and that any prejudicial effect may be
    minimized by a proper jury instruction.” United States v. Taylor, 
    210 F.3d 311
    ,
    318 (5th Cir. 2000). The record in this case reveals that the district court took
    great care to mitigate the prejudicial effect of the prior offenses. The district
    court limited the evidence to the judgment from each offense and Harper’s
    stipulation as to the narcotic involved in each case. When the government
    introduced the evidence, the district court provided a detailed instruction to the
    jury as to the limited purposes for which the prior offenses were admitted. In its
    final instructions to the jury, the district court also gave the instruction
    regarding Rule 404(b) evidence found in the pattern jury instructions for the
    Fifth Circuit. See Fifth Circuit Pattern Jury Instructions (Criminal Cases) §
    1.30 (West 2001). In light of our precedent and the district court’s efforts to
    2
    During oral argument, Harper’s counsel argued that the government was on notice
    that Harper was not placing his intent at issue because his defense was “centered around
    identity.” While the opening statement of Harper’s trial counsel did indeed focus primarily on
    the issue of identity, this falls far short of “‘enforceable pre-trial assurances that he intend[ed]
    not to dispute criminal intent.’” McCall, 
    553 F.3d at 828
     (alteration in original) (quoting
    United States v. Webb, 
    625 F.2d 709
    , 710 (5th Cir. 1980)).
    6
    No. 09-40140
    mitigate the prejudicial effect of the prior offenses, the district court did not
    abuse its discretion in admitting the extrinsic evidence. See Garcia Mendoza,
    
    587 F.3d at 689
    .
    Harper also argues, for the first time on appeal, that the government and
    the district court erroneously characterized two of his prior offenses. As these
    issues were not raised before the district court, we review for plain error only.
    United States v. Jasso, 
    587 F.3d 706
    , 709 (5th Cir. 2009). “This court finds plain
    error when: (1) there was an error; (2) the error was clear and obvious; and (3)
    the error affected the defendant’s substantial rights.” 
    Id.
     (internal quotation
    marks and citations omitted).      Harper argues that his 1989 offense was
    improperly characterized as a conviction when in fact it was a deferred
    adjudication. The government concedes the error, but emphasizes that the
    prosecution, district court, and defense counsel all made the same error and that
    the mischaracterization was not intentional. Harper presents no authority for
    the proposition that the use of the term “conviction” for his 1989 offense
    constitutes plain error. We hold that the mischaracterization did not affect
    Harper’s substantial rights and was not plain error.
    Harper maintains that his 1990 offense did not actually involve a
    conviction for a controlled substance. This argument lacks merit. Harper
    stipulated to the narcotic involved in the offense and did not object when the
    judgment of conviction was presented to the jury with his stipulation. Moreover,
    the document admitted regarding Harper’s 1990 offense indicates that he
    pleaded guilty to possession of cocaine. There was no error arising from the
    introduction of Harper’s 1990 conviction.
    B. Harper’s Motion for a Continuance
    Harper argues that the district court abused its discretion when it denied
    his oral motion for a continuance made on the first day of trial. This court
    reviews a district court’s denial of a motion for continuance for an abuse of
    7
    No. 09-40140
    discretion that results in serious prejudice. United States v. German, 
    486 F.3d 849
    , 854 (5th Cir. 2007). “Factors we consider when determining whether a
    continuance was warranted are: the amount of time available for preparation;
    defendant’s role in shortening the time needed; the likelihood of prejudice from
    denial; and the availability of discovery from the prosecution.” United States v.
    Messervey, 
    317 F.3d 457
    , 462 (5th Cir. 2002) (citing United States v. Uptain, 
    531 F.2d 1281
    , 1286–87 (5th Cir. 1976)).                  At trial, Harper asserted three
    justifications for a continuance, each of which he reurges on appeal.
    Harper first argues that a continuance was merited to allow him to
    retrieve potentially exculpatory recorded statements made by Savage.3 On the
    day before trial, Harper’s attorney discovered that Savage had made calls from
    a state jail, which had been recorded by the phone company, that exculpated
    another codefendant. The phone company informed Harper’s counsel that it
    could probably retrieve the recordings, but not without difficulty and some delay.
    On the first day of trial, Harper’s counsel presented the government with those
    recordings he had obtained. In response to the district court’s inquiry, the
    government denied having possession of any other recordings. The district court
    ultimately rejected, without comment, Harper’s argument that the need to
    obtain these other recordings merited a continuance.
    Harper has failed to show that the district court’s decision resulted in
    “serious prejudice.” German, 
    486 F.3d at 854
    . The need to investigate an
    opposing witness’s prior statements can justify a continuance if linked to specific
    evidence, but a “speculative argument” about “the possibility of additional
    inconsistent statements” is insufficient. 
    Id.
     Harper’s counsel had a year to
    3
    Harper attempts to characterize this issue as a violation of the prosecution’s obligation
    to disclose exculpatory information under Brady v. Maryland, 
    373 U.S. 83
     (1963). However,
    he did not raise a Brady claim in the district court, and we do not consider such claims when
    they are raised for the first time on appeal. United States v. Skilling, 
    554 F.3d 529
    , 568 n.63
    (5th Cir.), cert. granted, 
    130 S. Ct. 393
     (2009).
    8
    No. 09-40140
    investigate these statements before trial. This weighs against a finding of
    prejudice. See Messervey, 
    317 F.3d at 462
    . In addition, Harper had already
    requested and received four continuances. See United States v. Walters, 
    351 F.3d 159
    , 170 (5th Cir. 2003) (upholding denial of continuance to investigate
    exculpatory information where defendant had previously been granted two
    continuances). Moreover, Harper has failed to uncover exculpatory evidence
    since the denial of his motion. See German, 
    486 F.3d at 854
     (observing that the
    defendants’ inability to point to any newly discovered exculpatory evidence
    undercut their argument that the district court erred by denying their motion
    for a continuance). In light of these circumstances, the district court did not
    abuse its discretion when it denied Harper a continuance on this ground.
    Harper next argues that a continuance was merited to allow him to
    retrieve evidence to rebut Platas-Rodriguez’s testimony. Before trial, Harper
    told his attorney that Platas-Rodriguez could not identify him and therefore
    could not link him to the conspiracy. Two days before trial, Harper’s counsel
    asked the prosecutors whether Platas-Rodriguez could identify Harper; they
    responded with uncertainty and told Harper’s counsel that they would interview
    Platas-Rodriguez and respond at a later date. On the day before the trial, the
    prosecution informed Harper’s counsel that Platas-Rodriguez could identify
    Harper because the two had met on three prior occasions, including once on a
    trip to Mexico. Harper argued that a continuance was necessary in order to
    obtain Harper’s records of travel to Mexico. In response to this argument, the
    district court made the following factual findings:
    I don’t find that there’s any surprise here other than that you were
    never told for sure that [Platas-Rodriguez] would identify your
    client. But you were certainly never told that he wouldn’t identify
    your client. So he’s just like any other witness. And if you had
    wanted to confirm that, you could have done that earlier.
    The district court then denied the motion for a continuance.
    9
    No. 09-40140
    In light of these findings, we cannot say that the district court abused its
    discretion by denying the motion for a continuance on this ground. Harper has
    not demonstrated that he was unfairly surprised when the government revealed
    that Platas-Rodriguez could identify him. Consequently, he has not shown that
    the denial of his motion resulted in serious prejudice. See German, 
    486 F.3d at 854
    ; Messervey, 
    317 F.3d at 462
    .
    Harper also asserts, for the first time on appeal, that the government’s
    filing of a motion in limine on the day of trial merited a continuance. We review
    this issue for plain error. Jasso, 
    587 F.3d at 709
    . Harper claims that the late
    filing left him unable to defend against the motion. At the time of the motion,
    however, Harper failed to indicate that he was unprepared to defend against it
    and did not request a continuance on this basis. When the district court asked
    Harper’s counsel if he “had a chance to look at” the motion, Harper’s counsel
    replied “Yes I have, Your Honor.” Harper’s counsel also stated that the motion
    for a continuance was a “totally separate issue” from the motion in limine. The
    district court did not commit plain error by not granting a continuance on this
    basis.4
    C. Harper’s Fair Cross-Section Claim
    “The Sixth Amendment and the Due Process Clause of the Fifth
    Amendment require that a jury be drawn ‘from a fair cross-section of the
    community.”’ United States v. Williams, 
    264 F.3d 561
    , 567 (5th Cir. 2001)
    4
    In his opening brief, Harper claims that he was prejudiced by the late arrival of the
    government’s “Notice of Sentence Enhancement.” We do not address this claim, as Harper has
    dedicated little more than one sentence to it and makes no specific argument as to why the
    notice caused him prejudice. See Davis v. Maggio, 
    706 F.2d 568
    , 571 (5th Cir. 1983) (“Claims
    not pressed on appeal are deemed abandoned.”) (citation omitted); cf. F.D.I.C. v. Mijalis, 
    15 F.3d 1314
    , 1327 (5th Cir. 1994) (“[I]f a litigant desires to preserve an argument for appeal, the
    litigant must press and not merely intimate the argument during the proceedings before the
    district court.”).
    10
    No. 09-40140
    (quoting Taylor v. Louisiana, 
    419 U.S. 522
    , 527 (1975)). Harper claims that
    these rights were violated because only two of the forty-six prospective jurors
    were African-American. In order to establish a prima facie violation of the fair
    cross-section requirement, Harper must show:
    (1) that the group alleged to be excluded is a “distinctive” group in
    the community; (2) that the representation of this group in venires
    from which juries are selected is not fair and reasonable in relation
    to the number of such persons in the community; and (3) that this
    underrepresentation is due to systematic exclusion of the group in
    the jury-selection process.
    Williams, 
    264 F.3d at 568
     (quoting Duren v. Missouri, 
    439 U.S. 357
    , 364 (1979)).
    If Harper makes out a prima facie case, the burden shifts to the government to
    demonstrate that attainment of a fair cross section is incompatible with a
    significant state interest. Duren, 
    439 U.S. at 368
    .
    Harper challenges the district court’s denial of his motion to strike the jury
    panel, arguing that he had presented a sufficient prima facie cross-section claim.
    When a district court denies a defendant’s motion to strike a jury panel, we
    review the district court’s factual findings for clear error and its conclusions of
    law de novo. United States v. Alix, 
    86 F.3d 429
    , 434 (5th Cir. 1996). In this
    instance, the district court rejected Harper’s claim after finding that he had
    failed to present “any evidence that this jury was selected by some method other
    than the jury plan that has been approved by [the United States District Court
    for the Eastern District of Texas] and the Fifth Circuit Judicial Council.” The
    district court ruled that “[a]bsent some evidence that this panel was improperly
    chosen, the court is going to deny your motion to quash this panel and dismiss
    the panel.”
    We find no error in this holding. The district court correctly ruled that
    Harper had failed to establish a prima facie cross-section claim because he
    provided no evidence of the relationship between the representation of African-
    Americans on the venire and the number of African-Americans in the relevant
    11
    No. 09-40140
    community. “[A] defendant cannot establish a prima facie violation of the fair-
    cross-section requirement by relying solely on the composition of the jury panel
    at his own trial.” Alix, 
    86 F.3d at
    434 n.3 (citing Timmel v. Phillips, 
    799 F.2d 1083
    , 1086 (5th Cir. 1986)); accord United States v. Olaniyi-Oke, 
    199 F.3d 767
    ,
    773 (5th Cir. 1999). Instead, Harper must demonstrate that the percentage of
    African-Americans in the community differs from the composition of the venires
    drawn from the judicial district. See Williams, 
    264 F.3d at
    568–69 (“Absent
    evidence of the percentage of African-Americans in the community, we have no
    baseline against which to compare the composition of Defendant’s venire.”). On
    appeal, Harper again relies solely on the composition of his own panel to make
    his prima facie case. This is legally insufficient to meet the requirements of the
    Duren test.5 Alix, 
    86 F.3d at
    434 n.3.
    Harper also contends that even if he had failed to make a prima facie case,
    the district court should have granted him a continuance to allow him to
    research and brief the issue. We review this issue for abuse of discretion
    resulting in serious prejudice. German, 
    486 F.3d at 854
    . The district court does
    not appear to have addressed the request for a continuance apart from ruling on
    the merits, and the government does not address it in its brief. However, our
    prior decision in Alix, 
    86 F.3d at 435
    , is instructive. There, the defendant
    became suspicious of the venire’s racial profile during jury selection and sought
    a continuance to investigate the racial makeup of the jurisdiction. 
    Id.
     at 433–34.
    The district court denied the motion, and we affirmed, concluding that “[i]n light
    of the district court’s findings, and especially in light of [the defendant’s] failure
    5
    The same failure also defeats Harper’s parallel Equal Protection claim alluded to in
    the briefing of his Sixth Amendment claim. See United States v. McKinney, 
    53 F.3d 664
    , 671
    (5th Cir. 1995) (“The disparity between 2.28% eligible African-American population, and no
    African Americans on the venire panel does not raise the inference that racial discrimination
    rather than chance produced the result.” (citing Alexander v. Louisiana, 
    405 U.S. 625
    , 630
    (1972))).
    12
    No. 09-40140
    to present any evidence to the contrary, we hold that the district court did not
    abuse its discretion when it denied [the defendant’s] motion for a continuance.”
    Id. at 435. The district court in Alix made the following findings:
    I do not feel it’s in the best interest of justice to grant the motion to
    have that type of delay in this trial. Again, while you may conduct
    those studies, surveys, or whatever, I am not convinced that they
    would indicate or prove that any of the irregularities that you are
    concerned with have actually happened or taken place. I am not
    convinced that, at least from my knowledge of the racial makeup of
    the Victoria Division that the Jury would be any different if we
    struck this panel and summoned a new panel. I think that we have
    selected these potential jurors in manner that has been used
    throughout the Southern District. I am not aware of any
    irregularities involved in that process.
    Id. at 435 n.4. The district court in this case likewise made specific findings that
    Harper had failed to present any evidence that the jury was selected in a
    manner other than that which had been approved by the district court and the
    Fifth Circuit Judicial Council. And like the defendant in Alix, Harper has not
    identified any evidence that he might have been able to discover had the
    continuance been granted. Therefore, we hold that the district court did not
    abuse its discretion when it denied Harper’s motion for a continuance.
    D. Adequacy of the Voir Dire
    We review challenges to the scope of voir dire proceedings under an abuse
    of discretion standard. United States v. Munoz, 
    150 F.3d 401
    , 412 (5th Cir.
    1998). “The district court has broad discretion in determining how best to
    conduct voir dire and in deciding whether to excuse a juror,” and “[a] court
    abuses its discretion when the scope of voir dire is inadequate to discover bias
    and deprives the defendant of an opportunity to make reasonable use of
    peremptory challenges.” United States v. Greer, 
    968 F.2d 433
    , 435 (5th Cir.
    1992) (en banc) (per curiam) (citations omitted). Harper challenges the district
    court’s voir dire on two grounds. First, he argues that the district court abused
    13
    No. 09-40140
    its discretion by refusing his request to ask the veniremembers general
    questions about their education and their children. Second, Harper contends
    that the district court allowed the prosecutor to mislead the jury during voir
    dire.
    Harper submitted a proposed written voir dire questionnaire with several
    questions, including one that sought information regarding the veniremembers’
    level of education, and one that sought information regarding the sex, age, and
    occupation of the veniremembers’ children. During a pretrial hearing, the
    district court voiced concern that the questions were “too personal” and
    “encouraged comparing jurors with each other.” The district court stated that
    it “didn’t want anybody to feel embarrassed who comes here for jury service.”
    The district court later entered an order denying Harper’s request to submit the
    questionnaire, noting that many of the questions in the questionnaire were
    customarily asked by the district court.
    During voir dire, the district court permitted the parties to question
    individual members regarding personal matters, some of which involved the
    veniremembers’ children. The district court began by asking the members of
    the venire a set of nine basic questions. Afterwards, the parties were allowed to
    pose questions to the group, with follow-up questions for individual members of
    the venire. The examination explored the venire for bias, and elicited a free and
    open exchange between the venire, the district court, and counsel. The district
    court and the parties asked the members of the venire whether they knew
    anyone who had prior involvement with drugs or who worked in law
    enforcement. The district court and the parties also asked the veniremembers
    whether they knew anyone associated with the case and whether their personal
    beliefs would interfere with their impartiality.      Harper challenged three
    prospective jurors for cause, all of which the district court granted. Harper did
    not object to the jury that was empaneled.
    14
    No. 09-40140
    Under these facts, the district court did not abuse its discretion by denying
    Harper the opportunity to submit his proposed questionnaire. A district court’s
    failure to ask a proposed question does not constitute an abuse of discretion if
    the overall voir dire examination and the instructions given at trial adequately
    protect a party’s interests. United States v. Harper, 
    527 F.3d 396
    , 409–10 (5th
    Cir. 2008); United States v. Williams, 
    573 F.2d 284
    , 287 (5th Cir. 1978). The
    proper test is whether the district court’s “inquiry reasonably assured that any
    bias or prejudice against [Harper] would have been discovered if present.”
    United States v. Quiroz-Hernandez, 
    48 F.3d 858
    , 869 (5th Cir. 1995). Having
    reviewed the record in this case, we are satisfied that this standard was met.
    Harper next argues that the district court permitted the prosecutor to
    mislead the jury during voir dire. To the extent that Harper objected to the
    conduct of the voir dire, our review is for abuse of discretion. Munoz, 
    150 F.3d at 412
    . Alleged errors that were not preserved for review by a timely objection
    are reviewed for plain error. United States v. Fambro, 
    526 F.3d 836
    , 847 (5th
    Cir.), cert. denied, 
    129 S. Ct. 625
     (2008). Harper’s first objection came after the
    government described the crime of conspiracy as follows:
    A conspiracy is an illegal agreement. It’s not violating the law, it’s
    an agreement to violate the law. It’s the defendant and one other
    person on one occasion entering into an agreement to break the law
    . . . . The defendant has to enter into it voluntarily, willfully, with
    the intent to further the agreement.
    Harper objected to this characterization, arguing that there must be “an [overt]
    act in furtherance of [the conspiracy].”      This argument is without merit;
    conspiracy under 
    21 U.S.C. § 846
     requires no overt act. United States v.
    Shabani, 
    513 U.S. 10
    , 11 (1994) (“This case asks us to consider whether 
    21 U.S.C. § 846
    , the drug conspiracy statute, requires the Government to prove that
    a conspirator committed an overt act in furtherance of the conspiracy. We
    conclude that it does not.”).
    15
    No. 09-40140
    Harper’s second objection came when the prosecutor examined the
    members of the venire regarding testifying codefendants. Harper objected that
    the prosecutor’s inquiry was “getting into the internal operating procedures of
    the United States Attorney’s Office, committee meetings and things.” The
    district court sustained that objection and limited the government’s discussion
    of that topic. On appeal, Harper argues that this line of questioning also
    confused the venire to the point that the potential jurors were unable to
    understand that the government was referring to cooperating witnesses. This
    objection was never raised before the district court, however, and the district
    court did not commit plain error by allowing the inquiry after limiting its scope.
    Other than these two objections, Harper presents only a running
    description of the proceedings without specific argument.          By failing to
    adequately brief these issues, Harper has waived them. United States v.
    Skilling, 
    554 F.3d 529
    , 568 n.63 (5th Cir.), cert. granted, 
    130 S. Ct. 393
     (2009).
    E. Agent York’s Testimony
    Harper argues that the district court improperly admitted audio tapes of
    conversations between himself and Savage based on the testimony of Agent
    York, who recorded them. Harper also argues that the district court erred in
    permitting Agent York to testify about his understanding of the contents of the
    conversations. We review a district court’s determination of the admissibility of
    evidence under a heightened abuse of discretion standard. United States v.
    Yanez Sosa, 
    513 F.3d 194
    , 199–200 (5th Cir. 2008).
    The admissibility of opinions by lay witnesses is governed by Federal Rule
    of Evidence 701, which provides:
    If the witness is not testifying as an expert, the witness’ testimony
    in the form of opinions or inferences is limited to those opinions or
    inferences which are (a) rationally based on the perception of the
    witness, (b) helpful to a clear understanding of the witness’
    testimony or the determination of a fact in issue, and (c) not based
    16
    No. 09-40140
    on scientific, technical, or other specialized knowledge within the
    scope of Rule 702.
    “Testimony by a witness that he recognized the accused by his voice is
    admissible, provided that the witness has some basis for comparison of the
    accused’s voice with the voice which he has identified as that of the accused.”
    United States v. Ladd, 
    527 F.2d 1341
    , 1343 (5th Cir. 1976) (citation omitted); see
    also United States v. Lampton, 
    158 F.3d 251
    , 259 (5th Cir. 1998) (holding that
    it was not an abuse of discretion for the district court to permit an FBI agent to
    identify the voice of the defendant based on prior personal contact with him).
    Once the basis for voice identification is established, it is up to the jury to decide
    whether the testimony is credible and how much weight to give it. United States
    v. Mendoza, 
    522 F.3d 482
    , 489 (5th Cir.), cert. denied, 
    129 S. Ct. 269
     (2008).
    Similarly, an agent may offer lay testimony of his opinions concerning the
    meaning of terms used by drug dealers if those opinions are based on his
    personal perceptions from the investigation. See United States v. Miranda, 
    248 F.3d 434
    , 441 (5th Cir. 2001) (“[The agent’s] extensive participation in the
    investigation of this conspiracy . . . allowed him to form opinions concerning the
    meaning of certain code words used in this drug ring based on his personal
    perceptions.”); see also United States v. Rollins, 
    544 F.3d 820
    , 831–32 (7th Cir.
    2008) (“We find that the trial judge did not err in concluding that [the agent’s]
    ‘impressions’ testimony was rationally based on his first-hand perception of the
    intercepted phone calls about which he testified as well as his personal,
    extensive experience with this particular drug investigation.”).
    The district court did not abuse its discretion by admitting the tapes of
    Harper’s conversations with Savage through Agent York’s testimony. Agent
    York’s interview with Harper in Memphis provided him with a “basis for
    comparison of [Harper’s] voice with the voice . . . he . . . identified as that of
    [Harper].” Ladd, 
    527 F.2d at 1343
     (citation omitted). Agent York’s impressions
    17
    No. 09-40140
    of the meanings of some of the terms in the recorded conversation were likewise
    properly admitted. Having served as the lead agent in the investigation, Agent
    York became familiar with the drug ring. He participated in the search at the
    apartment, interviewed Platas-Rodriguez, helped to set up the sting operation,
    and was interviewing Savage when the conversations with Harper were
    recorded. This experience is sufficient to render his testimony admissible under
    Rule 701. See Miranda, 
    248 F.3d at 441
    .6
    F. Prosecutor’s Closing Argument
    Harper’s last argument focuses on allegedly improper comments made by
    the prosecutor during her closing argument. As Harper did not raise the issue
    of the prosecution’s closing argument before the district court, our review of that
    issue is for plain error only. United States v. Munoz, 
    150 F.3d 401
    , 415 (5th Cir.
    1998). We take a two-step approach in reviewing a charge of prosecutorial
    misconduct during closing argument. 
    Id. at 414
    . We first decide whether the
    prosecutor made an improper remark. 
    Id.
     (citation omitted). If a statement
    was improper, we then consider whether it prejudiced the defendant’s
    substantive rights. 
    Id. at 415
     (citation omitted). In making this determination,
    we assess “‘(1) the magnitude of the statement’s prejudice, (2) the effect of any
    cautionary instructions given, and (3) the strength of the evidence of the
    defendant’s guilt.”’ 
    Id. at 415
     (quoting United States v. Tomblin, 
    46 F.3d 1369
    ,
    1389 (5th Cir.1995)).
    Harper claims that the prosecutor improperly commented on his post-
    arrest silence during closing argument. It is the general rule that a prosecutor
    may not argue that a jury should infer a defendant’s guilt from his post-arrest
    6
    Harper also argues that the district court permitted Agent York to render legal
    conclusions regarding two assets that were seized. Harper did not raise this objection at trial
    and Agent York’s testimony conveyed facts rather than legal conclusions. The district court
    did not plainly err in admitting this testimony.
    18
    No. 09-40140
    silence. United States v. Rodriguez, 
    260 F.3d 416
    , 420–21 (5th Cir. 2001)
    (citation omitted). In this instance, the prosecutor made the following statement
    regarding Harper’s interview with Agent York:
    Again it’s important what Brian Harper doesn’t say at this point.
    “What do you mean? What load got knocked off? Why wouldn’t he
    work with me? What load got knocked off.” Never says that.
    Doesn’t say anything. He says, “Maybe. He might keep working
    with me.” An admission? Oh you bet. What you don’t say is just as
    important as what you do say.
    In United States v. Laury, we found that the prosecution had improperly used
    the defendant’s post-arrest silence to impeach him. 
    985 F.2d 1293
    , 1303 (5th
    Cir. 1993). In that case, the defendant had made statements to the FBI, but did
    not mention his whereabouts at the time of the alleged robbery. 
    Id.
     We held
    that the prosecution impermissibly used the defendant’s statements on those
    unrelated issues to discredit his alibi. 
    Id.
     We noted that although the defendant
    “did not remain completely silent following his arrest” the prosecutor did not
    have “unbridled freedom to impeach [him] by commenting on what he did not say
    following his arrest.” 
    Id.
     at 1304 n.10.
    Harper also contends that the prosecutor improperly vouched for the
    credibility of certain trial witnesses. “[A] personal assertion by a prosecutor of
    a government witness’s credibility is impermissible.” United States v. Gracia,
    
    522 F.3d 597
    , 601 (5th Cir. 2008) (citation omitted). Harper points to seven
    statements made by the prosecution that he alleges improperly bolstered the
    credibility of certain witnesses for the government. The first two statements
    occurred while the prosecutor argued to the jury that Savage had been truthful.
    The prosecutor asked the jury to “imagine the fear and panic” experienced by
    Savage at the moment of his arrest and then infer that Savage was “going to the
    tell the truth.”   The prosecutor then argued that it would be “quite a
    sophisticated lie on Frank Savage’s part” to falsely implicate Harper “within an
    19
    No. 09-40140
    hour of his very stressful arrest” and asserted that the jury should infer that
    Savage was “telling the truth.” The third statement was made while the
    prosecutor was explaining that Savage had honestly told the agents that a
    particular photograph did not depict Harper. The prosecutor observed: “Frank
    Savage, just like he has all along, told the truth and he said, ‘[n]o that is not
    [Harper].’” These statements give us some pause, as they could be read as
    “personal assertion[s]” of Savage’s credibility. Gracia, 522 F.3d at 601.
    The fourth, fifth, and sixth statements make up a large part of the
    prosecution’s argument that the testimony of Platas-Rodriguez was consistent
    with Savage’s testimony and we do not recite them in their entirety. Having
    reviewed the entire exchange, however, we conclude that the prosecutor’s
    arguments highlighted the consistencies between Platas-Rodriguez’s and
    Savage’s testimony, and urged the jury to infer that both men were being
    truthful. “[A] prosecutor may recite to the jury those inferences and conclusions
    [she] wishes them to draw from the evidence so long as those inferences are
    grounded upon the evidence.” United States v. Loney, 
    959 F.2d 1332
    , 1343 (5th
    Cir. 1992).
    The seventh comment was made as part of the prosecution’s rebuttal
    argument.     Harper’s counsel had previously argued to the jury that the
    government had been dilatory in interviewing Savage and playing the recorded
    conversations for him. The prosecution responded:
    [i]n terms of when to interview the witnesses and when to
    investigate the case, if we talked to the witnesses five or six times,
    imagine what the flip-side of that argument would be . . . . The flip-
    side of the argument would be that we were over there coaching
    him. We weren’t. We asked them to tell us the truth, and that is
    what they told us.
    We are somewhat troubled by the prosecutor’s use of the first-person pronoun.
    This statement arguably suggests that the prosecutor had additional knowledge
    20
    No. 09-40140
    that Savage was telling the truth based on her out-of-court interactions with
    him.
    Even if we conclude that some of the prosecutor’s comments “fell beyond
    the bounds of permissible behavior,” they did not prejudice Harper’s substantive
    rights.   Munoz, 
    150 F.3d at 415
    .      The district court instructed the jury
    immediately before closing argument that “any statements, objections, or
    arguments made by the lawyers are not evidence.” This cautionary instruction
    mitigated any prejudicial effect of the prosecutor’s comments. See 
    id.
     (citing
    United States v. Lokey, 
    945 F.2d 825
    , 837 (5th Cir. 1991)). As Harper has failed
    to demonstrate prejudice to his substantial rights, he cannot obtain relief under
    the plain error standard. United States v. Pillado-Chaparro, 
    543 F.3d 202
    , 205
    (5th Cir. 2008).
    For the foregoing reasons, the judgment of the district court is hereby
    AFFIRMED.
    21