United States v. Kevin Lewis

Case: 10-30570 Document: 00511587735 Page: 1 Date Filed: 08/30/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 30, 2011
No. 10-30570 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KEVIN LEWIS, also known as Kevin Lamont Nicholas
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 09-00184
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Kevin Lewis was convicted by a jury of conspiracy to distribute and aiding
and abetting the distribution of 100 grams or more of heroin. The district court
concluded that Lewis was a career offender based on his previous convictions for
possession of a controlled substance and manslaughter. The court sentenced
Lewis to concurrent terms of 360 months in prison. Lewis appeals both his
convictions and sentences, arguing: (1) the evidence was insufficient to support
his conspiracy conviction; (2) counsel rendered ineffective assistance based on
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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the failure to move for acquittal on the aiding and abetting count; (3) the
prosecutor made improper remarks; and (4) his prior conviction for
manslaughter did not qualify as a crime of violence under the career offender
sentencing guideline. We affirm his convictions and vacate and remand for
resentencing.
I. FACTUAL AND PROCEDURAL HISTORY
A federal grand jury in the Eastern District of Louisiana charged Lewis,
along with his codefendant, James Anderson, with one count of conspiring to
distribute more than 100 grams of heroin and one count of aiding and abetting
the distribution of heroin. 28 U.S.C. §§ 841(a)(1) & (b)(1)(B); 18 U.S.C. § 2. At
trial, the Government offered the testimony of a confidential informant, Bernel
Clements. The Government also presented the testimony of FBI Special Agent
Keith Burriss, Clements’s control agent, and Sergeant Kevin Guillot of the New
Orleans Police Department. At the time of trial, Clements, who had prior state
and federal drug convictions, was serving time in prison for violating his federal
supervised release conditions by incurring new state drug charges. While
Clements was being held pending the revocation charge, Agent Burriss
approached him about cooperating with the Government, and he agreed to do so.
The state charges were dropped and adopted as federal charges, and Clements
eventually received a reduction in his revocation sentence from 60 to 30 months
based on his cooperation.1
On April 20, 2009, Clements met with Anderson in the Iberville Housing
Project. Clements told Agent Burriss that he had contacted Anderson and that
Anderson was dealing heroin out of a store he owned. Agent Burriss instructed
Clements to purchase heroin from Anderson. On April 30, 2009, according to
1
Although Clements had hoped to receive a reduced sentence on the pending charges,
he had not been promised anything. He was paid $5,970 for living expenses during the time
he cooperated.
2
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Clements, he called Anderson, and that same evening, he went to Anderson’s
store and arranged to purchase 4 ½ ounces of heroin for $11,000 the next day.
The following day, May 1, 2009, Agent Burriss provided Clements with the
$11,000, and Clements went to Anderson’s store early that afternoon. According
to Clements, Anderson did not have the heroin and placed a call to someone
Anderson referred to as his “brother-in-law,” telling him that Clements was
there and to “bring the stuff.” While Anderson and Clements waited, Anderson
made several more calls to his brother-in-law. The brother-in-law arrived about
45 minutes later to pick up the money. Clements told the jury that the person
who “show[ed] up” was Kevin Lewis, and he identified Lewis in court.
Anderson went to the back of the store and let Lewis in a side door;
Clements went out the front door and noted the type of car Lewis arrived in and
wrote down the license plate number. When he went back inside, Anderson and
Lewis were still in the back of the store; although he could not see them from the
front of the store, he saw when Lewis left via the side door.2 Anderson told
Clements that his brother-in-law would be “back with the stuff.” Lewis returned
about 45 minutes to an hour later. Anderson called Clements to the back of the
store, where Lewis pulled a brown paper bag out of his waistband and extracted
a plastic bag full of heroin; he handed the heroin to Anderson, who handed it to
Clements. Clements then left and met Agent Burriss. Clements was at the
store a total of nearly three hours.
Agent Burriss asked Clements “what took so long,” and Clements told him
Anderson did not have the heroin and that a “runner” brought it. Clements then
told Agent Burriss that the person who delivered the drugs was in a black
2
Lewis erroneously asserts that although Clements identified Lewis in court, he
acknowledged that he never saw the person Anderson went to “meet in the room behind the
store.” Clements testified only that he could not see the men while they were in the back; he
did not say he never saw Lewis. Indeed, as set forth above, Clements testified he saw Lewis
pull a brown paper bag out of his waistband that contained a plastic bag “full of heroin.”
3
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Camry and gave him the license number. Agent Burriss had other agents
establish surveillance on the Camry–which was still at the store–and then
requested that New Orleans police officers conduct an investigatory stop, which
occurred about 90 minutes later.
Sergeant Kevin Guillot, who conducted the stop, testified that Lewis was
the driver of the black Camry; however, Lewis produced a driver’s license in the
name of Kevin Nicholas. Lewis had a large wad of cash in his front pocket,
which Guillot estimated to be about two inches thick and too large to fit in a
wallet. A woman named Tracy or Stacey arrived on the scene as well and
demanded to know the reason for the stop.
According to Clements, Anderson contacted him later that day and told
him that his brother-in-law had been stopped by the police and that Anderson’s
sister went out there and was “carrying on” asking the police what they were
doing with her boyfriend. Agent Burriss later testified that Anderson’s sister,
Stacey Anderson, was Lewis’s girlfriend. Anderson said his brother-in-law
wanted to meet with Clements at an IHOP restaurant to ask him if he knew
anything about the stop. Clements testified that he went to the IHOP, where he
called Anderson. That call was recorded and took place at 10:17 p.m., and the
recording was played for the jury.3 The recording stopped, however, and only the
first part of the conversation can be heard. According to Clements, Lewis was
on the call. Agent Burriss also identified Lewis’s voice on the recording, stating
that he recognized all three voices.
Clements testified that the next day he met with Anderson and Lewis at
Anderson’s store. Clements stated that Lewis asked him if he knew anything
about the stop, and Clements told him he did not. Agent Burriss testified
3
Although Clements testified that he received a call from Anderson, he is evidently
referring to the earlier call; phone records show that Clements made the IHOP call from his
number, 453-xxxx, to Anderson’s phone, 338-xxxx.
4
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regarding call records for two telephones attributed to Anderson with the
numbers 504-338-xxxx (the 338 number) and 504-253-xxxx (the 253 number), as
well as a telephone in Lewis’s possession at the time of his arrest, with number
504-272-xxxx (the 272 number). He also testified that according to Clements,
Anderson had at least three phones. Records showed 19 telephone calls between
the phones associated with Anderson and the phone associated with Lewis on
May 1, and 14 calls on May 2. After May 2, when the alleged meeting with
Clements took place, telephone records showed only two telephone calls between
those numbers through the end of June. In addition, after the recording of
Clements’s IHOP call had stopped, the call between Anderson’s 338 number and
Lewis’s 272 number continued for four minutes.
At the close of the Government’s case, Lewis moved for acquittal on the
conspiracy count. The district court denied the motion, and the defense did not
call any witnesses to testify. After deliberations, the jury found Lewis guilty as
charged. The district court ruled that Lewis’s 1992 Louisiana manslaughter
conviction constituted a crime of violence, qualifying him for a § 4B1.1
enhancement. The enhancement elevated his offense level to 37 and his
Criminal History Category to VI, resulting in a guidelines range of 360 months
to life. U.S.S.G. § 4B1.1(b); Sentencing Table. Absent the career offender
enhancement, Lewis would have had a total offense level of 26 and would have
been in Criminal History Category IV, yielding a range of 92 to 115 months. The
district court sentenced Lewis to concurrent 360-month terms of imprisonment.
Lewis now appeals.
II. ANALYSIS
A. Crime of Violence
Lewis’s principal challenge on appeal is to the district court’s ruling that
his prior conviction for manslaughter constituted a “crime of violence” under
U.S.S.G. § 4B1.1, which rendered him a career offender under the sentencing
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guidelines.4 As this is the primary argument addressed in his brief, we address
it first. More specifically, he contends that the Government failed to prove
through proper court records that this prior conviction constituted a crime of
violence. This case turns upon whether the Government has proven to a legal
certainty that Lewis’s prior manslaughter conviction qualified as a crime of
violence. We conclude that the Government failed to make such a showing.
Lewis’s challenge to the application of the sentencing guidelines is a claim
of procedural error. See Gall v. United States, 552 U.S. 38, 51 (2007). Review
of the application of the Guidelines, including a crime of violence determination,
is de novo. United States v. Bonilla, 524 F.3d 647, 651 (5th Cir. 2008). An
offense is a crime of violence under § 4B1.1 if it is punishable by more than one
year in prison and (1) has as an element the use, attempted use, or threatened
use of physical force against another, or (2) “is burglary of a dwelling, arson, or
extortion”; involves the use of explosives; or “otherwise involves conduct that
presents a serious potential risk of physical injury to another.” § 4B1.2. In
addition, it may be one of certain enumerated offenses, including manslaughter.
§ 4B1.2, comment. (n.1); see United States v. Rayo-Valdez, 302 F.3d 314, 317 and
n.3 (5th Cir. 2002); United States v. Fry, 51 F.3d 543, 546 (5th Cir. 1995).
When classifying a prior offense for enhancement purposes, courts employ
the categorical approach set out in Taylor v. United States, 495 U.S. 575, 600-02
(1990), looking to the elements of the offense as defined by the statute rather
than to the facts of the defendant’s conduct. United States v. Carbajal-Diaz, 508
F.3d 804, 807-08 (5th Cir. 2007). In Shepard v. United States, the Supreme
Court held that “a later court determining the character of [a prior conviction]
is generally limited to examining the statutory definition, charging document,
4
To be deemed a career offender, a defendant, among other things, must have “two
prior felony convictions of either a crime of violence or a controlled substance offense.”
§ 4B1.1(a). Lewis does not challenge the use of his prior controlled substance conviction.
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written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” 544 U.S. 13, 16
(2005). Interpreting Shepard, this Court has held that a “district court may not
apply a particular offense level based solely on the PSR’s conclusory
characterization of a prior conviction as having been for a ‘crime of violence.’”
United States v. McCann, 613 F.3d 486, 502 (5th Cir. 2010) (emphasis in
opinion) (citation omitted).
The Louisiana statute at issue defines manslaughter in two ways. First,
it includes a homicide that would constitute either first-degree or second-degree
murder but is committed in “sudden passion or heat of blood.” La. Rev. Stat.
Ann. § 14:31(A)(1). Second, it includes homicide committed without intent to
cause death or great bodily harm when the offender (a) is committing or
attempting to commit a felony other than first or second-degree murder, or of
any intentional misdemeanor directly affecting the person; or (b) is resisting
arrest in a way that is not inherently dangerous and the killing would not be
murder. La. Rev. Stat. Ann. § 14:31(A)(2).
This Court has expressly held that the definition set forth in § 14:31(A)(2)
of the Louisiana manslaughter statute is not a crime of violence because, under
Louisiana law, a person may be convicted of manslaughter if death occurred
during a non-violent offense. McCann, 613 F.3d at 503. Lewis relies on
McCann, arguing that it is dispositive and that none of the Government’s
documents narrow the conviction to come within § 14:31(A)(1).
To ascertain whether Lewis’s manslaughter conviction was a crime of
violence, we must identify with “legal certainty” under which section of the
Louisiana manslaughter statute Lewis was convicted. United States v. Garcia,
470 F.3d 1143, 1148 (5th Cir. 2006). As Lewis correctly argues, the court records
that the Government provided to the district court show only that Lewis was
convicted of manslaughter under § 14:31. No subsection of the statute is listed.
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Although the indictment shows that he was originally charged with
second-degree murder, that is of no moment, because the analysis turns on the
offense of which the defendant was actually convicted. See United States v.
Turner, 349 F.3d 833, 836 (5th Cir. 2003).
The Government concedes this point but nevertheless contends that Lewis
made admissions to the probation officer and the court that, coupled with the
records of his conviction, support a finding that he acted intentionally and thus
committed manslaughter under § 14:31(A)(1). We turn to the statements in the
PSR. The probation officer wrote that Lewis reported that the victim “used to
bully him,” that he “killed the victim because he was afraid of [the victim],” and
that “he should have just walked away from the situation.” The Government
contends that Lewis’s statements in the PSR adequately demonstrate that he
acted intentionally and thus committed manslaughter under § 14:31(A)(1), which
qualifies as a crime of violence. Even assuming arguendo that the admissions
in the PSR demonstrate that Lewis acted intentionally, the question remains
whether Shepard allows the district court to consider these statements.
The district court’s consideration of Lewis’s statements in the PSR is
problematic because, as previously set forth, a “district court may not apply a
particular offense level based solely on the PSR’s conclusory characterization of
a prior conviction as having been for a ‘crime of violence.’” McCann, 613 F.3d at
502 (emphasis in original). On the other hand, this Court has repeatedly held
that “reliance on a defendant’s admission of facts that are contained in the PSR
is permissible.” See, e.g., United States v. Ramirez, 557 F.3d 200, 204 (5th Cir.
2009) (citing United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006)).
However, unlike the instant case, it appears that the cases citing this
proposition have all been reviewed for plain error. Even assuming that a court
may rely on a defendant’s admission of facts contained in the PSR where, as
here, the error has been preserved, Lewis has not admitted that he made those
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statements. We have recognized that Shepard requires that a defendant legally
admit the facts relied upon by the district court. United States v. Flores-
Vasquez, 641 F.3d 667, 672-73 (5th Cir. 2011).5 Because Lewis has not done so,
the district court’s reliance on the statements in the PSR was error.
We now turn to the following statements that Lewis made to the district
court during his sentencing hearing:
I just want to say it wasn’t like I went out to kill anyone, like I went
looking for someone to kill. It was like right by my home and this
individual who had just came home off a murder charge was like a
bully in the neighborhood and I was one of the guys that he was
bullying and things happened that day and so fast where I felt my
life was in danger. But I just want to let the Court know that I am
not, you know, contesting saying it wasn’t a violent crime, I am
contesting saying that it wasn’t –
At this point the court interjected: “The circumstances.” Lewis responded: “Yes,
Your Honor.”6 Because this Court has held that a district court may consider
any admissions made by the defendant in its determination of whether the prior
conviction constitutes a crime of violence, it was not error for the district court
to consider the statements Lewis made at the sentencing hearing. United States
v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir. 2006); see also Shepard, 544
5
But see United States v. Aviles-Solarzano, 623 F.3d 470, 473-77 (7th Cir. 2010)
(holding that it was not error, plain or otherwise, for a judge to rely on an unsubstantiated
summary of a state indictment contained in the PSR to determine that the prior offense was
a crime of violence even though the defendant had not admitted that the summary of the
indictment was correct).
6
Notwithstanding Lewis’s express statement to the court that he was not contesting
whether his prior conviction was a “violent crime,” the district court interpreted the statement
as an objection to the manslaughter conviction qualifying as a crime of violence under the
guidelines. Indeed, the court stated that the “objection is overruled and preserved for appeal.”
The prosecutor responded by (1) referring to the controlling Supreme Court precedent; and
(2) arguing that Lewis’s statements constituted an admission that his manslaughter conviction
was based on an intentional act. Under these circumstances, we conclude the issue was
sufficiently raised before the district court. We further note that the Government does not
argue plain error review on appeal.
9
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U.S. at 26 (explaining that among other things, a court may look to a “transcript
of colloquy between judge and defendant in which the factual basis for the plea
was confirmed by the defendant”).
Nonetheless, Lewis’s statements at sentencing do not establish to a legal
certainty under which portion of the Louisiana manslaughter statute Lewis was
convicted. These statements do not describe how the offense was committed.
Nor do they indicate that the offense was committed intentionally. Accordingly,
we agree with Lewis that the statements he made at sentencing are compatible
with the scenario that Lewis committed manslaughter during the criminally
negligent discharge of a firearm.7 See State of Louisiana v. Brown, 513 So. 2d
425, 428 (La. Ct. App. 1987) (holding that illegal use of a weapon is one of the
predicate offenses for manslaughter where there is no intent to cause death or
great bodily harm). Because we cannot identify with legal certainty under which
portion of the Louisiana manslaughter statute Lewis was convicted, the district
court erred in applying the career offender enhancement to Lewis’s sentence.
In the alternative, the Government argues that any error was harmless
because the range without the enhancement was undisputed, the district court
considered all the statutory factors for sentencing under 18 U.S.C. § 3553(a), and
the court was aware that the Guidelines were not binding. A “sentencing error
may not be found harmless unless the proponent of the sentence proffer[s]
sufficient evidence to convince the appellate court that the district court would
have imposed the same sentence, absent the error.” United States v.
Ibarra-Luna, 628 F.3d 712, 718 (5th Cir. 2010) (internal quotation marks and
7
We recognize that the statements Lewis made at the sentencing hearing corroborate
his reported statements in the PSR. Assuming arguendo that such corroboration would
constitute an admission that he made the statements in the PSR, we conclude that the
statements in the PSR do not establish that the offense was committed intentionally. Thus,
even considering both the statements in the PSR and the statements made at the sentencing
hearing, we are unable to identify with legal certainty whether his prior manslaughter
conviction was a crime of violence.
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citation omitted). Here, there is no statement by the court or other evidence
convincingly showing that the court would have imposed a sentence of 360
months regardless whether it had erred by including the career offender
enhancement. Therefore, this argument is without merit.
B. Sufficiency of the Evidence
Lewis next argues that the evidence was insufficient to establish that he
was the person who delivered the heroin to Anderson, and thus the conspiracy
conviction should be reversed. Because Lewis moved for acquittal at the close
of the Government’s case on the conspiracy count and did not present any
evidence, he preserved his sufficiency argument. See United States v. Jaras, 86
F.3d 383, 388 n.5 (5th Cir. 1996). We therefore review this issue under the
rational jury standard, “viewing the evidence and the inferences that may be
drawn from it in the light most favorable to the verdict and determining whether
a rational jury could have found the essential elements of the offense[] beyond
a reasonable doubt.” United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006)
(internal quotation marks and citation omitted). The jury is solely responsible
for “weighing the evidence and making credibility determinations.” Id. The
evidence need not “exclude every rational hypothesis of innocence or be wholly
inconsistent with every conclusion except guilt,” so long as “a reasonable trier
of fact could find the evidence establishes guilt beyond a reasonable doubt.” Id.Lewis argues that the sole issue was the identity of the person who
delivered the drugs, and that this turned exclusively on the testimony of
Clements, who was of doubtful credibility and had strong motivation to lie in
order to curry favor with the Government. With respect to Clements’s
motivation and purported eagerness to identify Lewis at trial, it is exclusively
the job of the jury to weigh the evidence and determine a witness’s credibility.
See United States v. Garcia, 567 F.3d 721, 731 (5th Cir. 2009). This is true even
in the case of a witness who is compensated or cooperating under a plea bargain
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or promise of leniency, unless the witness’s testimony “is so incredible or
insubstantial that, as a matter of law, we may discredit it.” Id.; United States
v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). “Testimony is incredible as a
matter of law only if it relates to facts that the witness could not possibly have
observed or to events which could not have occurred under the laws of nature.”
Bermea, 30 F.3d at 1552.
Clements admitted to the jury that the court had reduced his revocation
sentence for his assistance, that he had received money from the Government,
and that he hoped to receive a reduced sentence on his pending charges in
exchange for his assistance; he denied having been promised anything. Lewis’s
counsel fully cross-examined Clements about his criminal history and the
consideration he had received and hoped to receive for his cooperation.
Clements’s self-interest and desire to please the Government are insufficient
standing alone to show that his testimony identifying Lewis as the person who
brought the heroin was so incredible or insubstantial that we may discredit it as
a matter of law.
Lewis next claims that there are critical inconsistencies between
Clements’s testimony and other evidence, showing that he fabricated testimony
about events he could not have witnessed, making his identification of Lewis
“incredible to any rational jury.” We need not tarry long with this argument.
Lewis makes much of the fact that the prosecution did not have a record of two
phone calls. With respect to the first “missing” record of a phone call, Lewis’s
assertion that Anderson would have called the drug runner at the 272 number
“promptly” after Clements delivered the money rests purely on speculation and
assumption. With respect to the second call, Lewis contends that there is no
telephone call from Anderson to Clements during the time that Anderson
allegedly called Clements to set up the meeting at IHOP. The absence of a single
phone record does not prove Clements was lying about the meeting. To the
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contrary, it is undisputed that a call took place on May 1 at 10:17 p.m. between
Clements and Anderson. In the recording, Clements and Anderson can be heard
clearly discussing a conversation between Anderson and a third person. The
content of the call supports Clements’s testimony that Lewis told Anderson he
wanted to set up a meeting at IHOP to discuss the stop. Further, Burriss
identified the third person on the call as Lewis, stating that he recognized the
voice.8
Moreover, much of Clements’s testimony about the heroin deal that day
was corroborated. Clements provided Burriss the license number and make of
the car that the drug runner drove, and Lewis was stopped driving that same
car, a black Camry, 90 minutes later. Burriss recalled that the Camry arrived
at the store twice that day, consistent with Clements’s testimony that Lewis
made two trips to the store. When the police stopped Lewis, he had a two-inch
stack of cash on him, supporting Clements’s testimony that Lewis had picked up
the $11,000 earlier during the heroin deal. Lewis also gave a false identity to
the officer, a fact from which a rational jury could have inferred consciousness
of guilt. See United States v. Stowell, 947 F.2d 1251, 1255 (5th Cir. 1991). Given
all the evidence, Lewis has failed to show that Clements’s testimony was
fabricated or that the jury’s verdict was not rational.
C. Ineffective Assistance of Counsel
Lewis next contends that his trial counsel rendered ineffective assistance
by failing to move for acquittal on the aiding and abetting count. He argues that
this has subjected him to the more stringent “devoid of evidence” standard,
which he concedes he cannot meet. United States v. Reff, 479 F.3d 396, 400 (5th
8
During Clements’s initial debriefing with Agent Burriss, Clements referred to Lewis
as a drug “runner.” Lewis claims that referring to Lewis as a “runner” contradicts Clements’s
claim that Anderson said he was calling his “brother-in-law.” There is nothing facially
implausible about Clements initially stating that a “runner” brought the drugs, and later
telling Burriss that he knew only that the person was Anderson’s brother-in-law.
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Cir. 2007). He further argues that there is a reasonable probability that he
could succeed under the ordinary standard of review for the same reasons he set
forth with respect to the conspiracy count.
Ordinarily, the record on direct appeal is not sufficient to allow this Court
to consider claims of ineffective assistance, which requires a showing both that
counsel performed deficiently and that the deficient performance prejudiced the
defense. United States v. Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir. 1993).
However, in the interest of efficiency, this Court has considered claims of failure
to move for acquittal on direct appeal, reasoning that the record contains the
evidence needed to examine prejudice, i.e., whether there is a reasonable
probability that, if counsel had “moved for a judgment of acquittal, the motion
would have been granted on the basis of insufficiency of evidence.” Id. In the
instant case, we conclude that the record is sufficiently developed on this point
and will therefore address the claim.
The prejudice determination entails a review of the sufficiency of the
evidence of aiding and abetting under the ordinary standard instead of the
devoid of evidence standard. See Rosalez-Orozco, 8 F.3d at 200. As with the
conspiracy count, there was ample evidence under the usual standard of review
to support a jury finding that Lewis was the third person involved in the heroin
deal. See United States v. Rodriguez, 553 F.3d 380, 391 & n.5 (5th Cir. 2008)
(setting out aiding and abetting elements and noting that the same evidence
generally will support both a conspiracy and an aiding and abetting conviction).
Accordingly, Lewis’s claim of ineffective assistance of counsel fails.
D. Improper Prosecutorial Remarks
Finally, Lewis argues that the prosecutor improperly bolstered Clements’s
credibility and made other improper remarks during closing arguments. As
Lewis concedes, he failed to object and review is for plain error. To demonstrate
reversible plain error, Lewis must show that (1) there is error; (2) the error is
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clear or obvious; and (3) the error affected his substantial rights. See Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009); see also United States v. Gracia, 522
F.3d 597, 600-01 (5th Cir. 2008) (prosecutorial misconduct context). The
substantial rights prong ordinarily requires a defendant to show that the error
affected the outcome. United States v. Mondragon-Santiago, 564 F.3d 357, 364
(5th Cir. 2009). In the context of improper prosecutorial remarks, this Court has
held that the “determinative question is whether the prosecutor’s remarks cast
serious doubt on the correctness of the jury’s verdict.” Gracia, 522 F.3d at 603(internal quotation marks and citation omitted). To resolve this question, this
Court considers “(1) the magnitude of the prejudicial effect of the prosecutor’s
remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the
strength of the evidence supporting the conviction.” United States v. Thompson,
482 F.3d 781, 785 (5th Cir. 2007). Even if Lewis meets his burden on the first
three prongs of plain error, this court will not exercise its discretion to reverse
unless the error “seriously affected the fairness, integrity, or public reputation
of the judicial proceeding.” Gracia, 522 F.3d at 600.
A prosecutor may not make a personal assertion regarding a government
witness’s credibility, cloaking the witness in the Government’s “protective
mantle.” Id. at 601 (internal quotation marks and citation omitted). “A
prosecutor may argue fair inferences from the evidence that a witness has no
motive to lie, but cannot express a personal opinion on the credibility of
witnesses.” Id. In addition, although a prosecutor may argue inferences from
the evidence, “[a] prosecutor may not directly refer to or even allude to evidence
that was not adduced at trial.” United States v. Mendoza, 522 F.3d 482, 491 (5th
Cir. 2008).
Lewis first challenges the following statement by the prosecutor:
“[Clements], who has been making buys successfully for the FBI over a period
of six months and was never ever shown to have been untruthful.” As Lewis
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argues, the only testimony about Clements’s past assistance was the fact that
he worked for the Government on numerous cases for six months; there was no
evidence regarding whether he was found to be successful or truthful in those
cases.
Viewed in context, however, the statement could be read as a comment on
Clements’s in-court testimony and the lack of evidence that he had been
untruthful. On the other hand, the statement could be read as implying that the
prosecutor had special knowledge of Clements’s prior assistance, which would
be improper. See Gracia, 522 F.3d at 601 n.6; Mendoza, 522 F.3d at 491.
Nevertheless, the remark does not warrant reversal. First, the magnitude
of the prejudicial effect–which is measured by looking at the remark in context
and attempting to determine its intended effect–appears slight. See United
States v. Ramirez-Velasquez, 322 F.3d 868, 875 (5th Cir. 2003). The remark
immediately followed a statement by the prosecutor regarding Clements’s
unimpeached testimony in court. Further, it came after a lengthy summary of
all the evidence, including the telephone records and recordings. Thus, even
assuming the remark crossed the line, it was not “so pronounced and persistent”
that it “permeate[d] the entire atmosphere of the trial.” Ramirez-Velasquez, 322
F.3d at 875 (internal quotation marks and citations omitted).
Additionally, the district court on three occasions gave the jury detailed
instructions that they were to decide the case based on the evidence rather than
the statements of the lawyers. The court’s repeated and careful admonishments,
which the jurors are presumed to have followed, served to reduce any prejudicial
effect. See Gracia, 522 F.3d at 604.
As previously discussed with respect to the sufficiency, the evidence of
Lewis’s guilt was significant. There was independent evidence that corroborated
several aspects of Clements’s testimony, including the surveillance of Lewis’s
car, the investigatory stop, and the telephone records. In short, the prosecutor’s
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isolated comment on Clements’s credibility does not cast serious doubt on the
verdict. See Gracia, 522 F.3d at 603.
Lewis next challenges statements on rebuttal by the prosecutor regarding
the content of the dropped telephone call between Clements and Anderson that
was not recorded. As Lewis argues, the content of the call was not in evidence,
and the prosecutor did not preface the remark by suggesting that she was simply
drawing inferences rather than making assertions of fact. However, the
prosecutor did preface it by asking, rhetorically, why Lewis would want to know
where Clements was. Further, after the statement, the prosecutor continued,
stating, “And, ladies and gentlemen, that is why after 19 phone calls between
Anderson and Lewis that day there’s no more. Their plan was to stop. We’re not
going to do it. After talking to Bernel Clements, we’re too linked up, we’re not
going to talk again.” The Government contends that the prosecutor was simply
drawing a permissible inference that the call likely pertained to Lewis’s concern
that Clements was an informant and that this explained why there was a
sudden decrease in the calls between those telephone numbers.
These comments do not warrant reversal. There was no dispute that there
was a four-minute telephone call between Anderson and a number associated
with Lewis while Clements was at the IHOP to discuss Lewis’s concerns about
the stop. Further, the jury heard the recording and knew that the call was
dropped and that there was no further conversation on the recording. In
addition, some of the information the prosecutor conveyed, namely that Lewis
had been stopped by the police with a large amount of cash and that Lewis gave
them a fake name, was not disputed. The jury was thus unlikely to have been
misled by the prosecutor’s statement, rendering any prejudicial effect minimal.
See Thompson, 482 F.3d at 785-86. In addition, as previously discussed, there
was significant evidence that Lewis was guilty, and the district court gave
repeated limiting instructions that statements by the lawyers were not evidence.
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Thus, any error there may have been does not cast doubt on the correctness of
the verdict; there was no reversible plain error. See Puckett, 129 S. Ct. at 1429.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Lewis’s convictions, VACATE his
sentence, and REMAND for re-sentencing.
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