United States v. Bynum

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 2, 2002
• Docket: 01-31249
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31249 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JASON BYNUM,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana (01-CR-50010-ALL) -------------------- May 1, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jason Bynum appeals his conviction for

retaliating against a witness, in violation of 18 U.S.C. §

1513(b)(1). He asserts that the evidence was insufficient to

support his conviction and that the district court erred in

excluding the testimony of FBI Agent Freddie Watkins.

Bynum’s insufficiency argument is unavailing. To obtain a

conviction for retaliating against a witness, the government must

establish that: (1) the defendant knowingly (2) either caused or

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. threatened to cause (3) bodily injury to another person (4) with

the intent to retaliate for the attendance or testimony of a

witness at an official proceeding. 18 U.S.C. § 1513(b)(1); see

United States v. Cofield, 11 F.3d 413, 419 (4th Cir. 1993); see

also United States v. Galvan, 949 F.2d 777, 782 (5th Cir. 1991).

Viewed in the light most favorable to the jury’s verdict, the

evidence was sufficient for a reasonable jury to conclude that

Bynum threatened to cause bodily harm to Gabriella Rupert in

retaliation for her having testified against him at his supervised-

release hearing. See United States v. Loe, 262 F.3d 427, 432 (5th

Cir. 2001), cert. denied, 122 S. Ct. 1078 (2002); see also Jackson

v. Virginia, 443 U.S. 307, 319 (1979).

Bynum complained to Rupert’s co-workers, Nicole Cox and

Patricia Finley, that Rupert had ruined his life and caused him to

spend a year in jail. Finley testified that Bynum threatened to

kill Rupert because her testimony at the supervised-release hearing

had destroyed his life. Although Bynum contends that his statement

was merely idle talk, a conclusion that the comment was meant as a

threat and would be perceived as one by Rupert is supported by the

fact that he had previously threatened to kill her. The government

was not required to prove Bynum’s intent to carry out the threat,

only that Bynum intended to retaliate against Rupert for testifying

against him. United States v. Maggitt, 784 F.2d 590, 593-94 (5th

Cir. 1986). The fact that the threat was made to a third party is

of no moment because the statute does not require, and the

2 government need not prove, that the threat be made directly to the

witness herself. See § 1513(b)(1).

Bynum’s contention that the district court erred in excluding

FBI Agent Watkins’s testimony under the residual hearsay rule, FED.

R. EVID. 807, is similarly unavailing. We review the admission or

exclusion of evidence for abuse of discretion. United States v.

Perez, 217 F.3d 323, 329-30 (5th Cir.), cert. denied, 531 U.S. 973

(2000). We will “not disturb the trial court’s ruling on the

admissibility of evidence under the residual exception to the

hearsay rule ‘absent a definite and firm conviction that the court

made a clear error of judgment in the conclusion it reached based

upon a weighing of the relevant factors.’” Id. (quoting Page v.

Barko Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982)).

Agent Watkins’s testimony was properly excluded under the

residual hearsay rule because it was not relevant to any material

fact. Bynum contends that Agent Watkins’s testimony was relevant

to show that Bynum was not “stalking” Rupert and to show that

Rupert had not been truthful with the agent, thereby destroying her

credibility. Whether various witnesses who were interviewed by

Agent Watkins had denied seeing or speaking to Bynum in the

vicinity of the Creswell Hotel during the time in question ——

contrary to Rupert’s statement to the agent —— was immaterial to

the question whether Bynum made threats against Rupert with the

intent to retaliate against her. Bynum conveyed his threat and

3 intent to Finley and Cox; whether other witnesses saw or spoke to

Bynum at the same time was immaterial.

In addition, that testimony was not relevant for impeachment

purposes because Rupert’s credibility was not central to the

government’s case, so any impingement upon her credibility was only

a minor point. Rupert did not testify that she saw Bynum after his

release from prison or that Bynum directly threatened her.

Instead, the critical testimony supporting the government’s case

was Finley’s. Agent Watkins’s proffered testimony had no bearing

on Finley’s credibility and was thus not relevant to a material

fact. Bynum has failed to establish that the district court abused

its discretion in excluding the testimony, so we shall not disturb

the district court’s evidentiary ruling. See United States v.

Phillips, 219 F.3d 404, 419 n.23 (5th Cir. 2000); Perez, 217 F.3d

at 329-30.

Bynum also states conclusionally that the exclusion of Agent

Watkins’s testimony violated Bynum’s due process rights and his

Sixth Amendment right to confrontation and compulsory process. He

briefs no argument and cites no legal authority in support of these

conclusional claims, so they are waived. See Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1993); FED. R. APP. P. 28(a).

Bynum has not demonstrated any error in the district court’s

judgment. Accordingly, the judgment is

AFFIRMED.

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