United States v. Cook

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-50304
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN LEE COOK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:04-CR-157-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
John Lee Cook appeals his jury-trial conviction on one count
of distribution of cocaine base (crack) in violation of 21 U.S.C.
§ 841(a)(1). Finding no error, we affirm.
Cook first argues that the district court abused its
discretion in admitting evidence of his 1993 cocaine possession
conviction pursuant to FED. R. EVID. 404(b). Even if we were to
find error, which is unlikely, any such error would be harmless.
See United States v. Buck, 324 F.3d 786, 790 (5th Cir. 2003)
(stating that errors in the admission of evidence may be excused
*
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this opinion should not be published and is not precedent except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. 05-50304
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if harmless). The evidence against Cook was strong, consisting
of testimony by a confidential informant who purchased crack from
Cook; corroborating testimony by police officers; including one
who observed Cook and the informant exchange items; and videotape
and audiotape surveillance. In addition, the district court gave
a proper limiting instruction regarding the evidence. See United
States v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003) (stating that
any prejudicial effect of Rule 404(b) evidence may be minimized
by instructing the jury to use the evidence for a limited
purpose). Accordingly, any error was harmless. See United States
v. Farias-Farias, 925 F.2d 805, 811-12 (5th Cir. 1991) (any error
in admission of extrinsic evidence of prior arrests was harmless
in light of limiting instruction and strong evidence of guilt).
Cook also contends that the district court erred in
admitting certain impeachment evidence regarding his prior
cocaine use and conviction. Cook did not raise this objection at
trial, and therefore, we review for plain error. United States
v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998). Again, given the
strength of the independent evidence against Cook, any error was
harmless and does not, therefore, meet the more strenuous plain
error standard.
Cook challenges the district court’s jury instruction
regarding impeachment for the first time on appeal, and, as a
result, we review for plain error. See United States v. Rubio,
321 F.3d 517, 523 (5th Cir. 2003). The instruction was a correct
No. 05-50304
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statement of the law and is identical to one of this court’s
pattern jury instructions, No. 1.10. Further, the instruction
generally applied to the jury’s determination of the credibility
of all witnesses. There was no error, plain or otherwise.
Finally, Cook complains of certain instances of alleged
ineffective assistance of counsel relating primarily to the
substantive issues raised above. We do not review these claims
on direct appeal because the record is not sufficiently developed
to allow a fair evaluation of their merits. United States v.
Lampazianie, 251 F.3d 519, 527 (5th Cir. 2001). The preferred
method for raising such claims is by filing a 28 U.S.C. § 2255
motion so that a record can be developed. See Massaro v. United
States, 538 U.S. 500, 505 (2003).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.