United States v. Cummings

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 6, 1998
• Docket: 96-31285
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-31285 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARRYL CUMMINGS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 96-CR-39-B - - - - - - - - - - August 3, 1998 Before EMILIO M. GARZA, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

A jury convicted Darryl Cummings of conspiracy to possess

cocaine with intent to distribute. Cummings argues on appeal

that the district court abused its discretion by denying his

motion for a mistrial based on a prosecutorial comment on

Cummings’s failure to take the stand. The Government suggests

that this court should review Cummings’s argument for plain error

on the ground that he failed to lodge a contemporaneous objection

to the comment.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 96-31285 -2-

Under the circumstances of this case, because the defense

did not object to the prosecutor’s comment during closing

argument on the defendant’s failure to testify until after the

argument was concluded, we will review for plain error only.

United States v. Ward, 481 F.2d 185, 187 (5th Cir. 1973). Having

reviewed the record and the briefs of the parties, we hold that

the district court did not plainly err in denying Cummings’s

motion for a mistrial. See United States v. Robinson, 485 U.S.

25, 31-34 (1988); United States v. Rodriguez, 43 F.3d 117, 124

(5th Cir. 1995).

AFFIRMED.