United States v. Higginbotham

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 18, 2004
Charles R. Fulbruge III
Clerk
No. 04-50018
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID HIGGINBOTHAM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CR-144-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
David Higginbotham, a former prison guard at the Wackenhut
federal prison in San Antonio, Texas, appeals his jury-verdict
conviction for attempted possession with intent to distribute
heroin. He argues that the evidence was insufficient to support
his conviction and that the district court erred in allowing
certain out-of-court statements into evidence.
A thorough review of the evidence produced at trial
indicates that a rational jury could have found that the
*
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this opinion should not be published and is not precedent except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. 04-50018
-2-
requisite elements for the charged offense had been proven beyond
a reasonable doubt. See United States v. Price, 869 F.2d 801,
804 (5th Cir. 1989); United States v. August, 835 F.2d 76, 77-79
(5th Cir. 1987). The uncontroverted evidence established that
Higginbotham initiated contact with undercover Officer Robert
Perez on several occasions to try and set up their second
meeting; that despite his initial unwillingness to distribute
heroin, he changed his mind, accepted the heroin, and accepted
the payment for distributing it; and that he told the undercover
officer that he was going to call the inmate in question to see
how he wanted to “handle” the heroin. Accordingly, there was
ample evidence to show that Higginbotham intended to possess
heroin with the intent to distribute it and that he took
substantial steps to achieve that objective. See August, 835
F.2d at 78-79; United States v. Mandujano, 499 F.2d 370, 379 (5th
Cir. 1974).
Higginbotham also argues that the district court erred in
allowing into evidence certain out-of-court statements that he
had previously trafficked drugs into the prison because their
admission violated the Confrontation Clause and because the
statements were inadmissable hearsay, irrelevant, or overly
prejudicial. We review the Confrontation Clause claim for plain
error and the remaining evidentiary claims under the harmless
error standard of review. See United States v. Partida, ___
F.3d (5th Cir. Sept. 10, 2004, No. 03-40781) 2004 WL 2021559No. 04-50018
-3-
at *4; United States v. Insaulgarat, 378 F.3d 456, 464 (5th Cir.
2004).
Even assuming the admission of the out-of court statements
was error, the error was not plain and/or was harmless as the
statements were cumulative to Higginbotham’s own admission in his
written statement that he had previously trafficked drugs into
the prison and because, given the strength of the prosecution’s
case, the admission of the statements did not affect the outcome
of the case. See Partida, 2004 WL 2021559 at *4; Insaulgarat,
378 F.3d at 464; Cozzo v. Tangipahoa Parish Council, 279 F.3d
273, 291 (5th Cir. 2002). Higginbotham’s conviction is AFFIRMED.