United States v. Duncan

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 18, 2002
• Docket: 01-30637
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30637 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRIAN DUNCAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CR-39-ALL-B -------------------- July 18, 2002

Before JOLLY, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Brian Duncan appeals his jury-trial conviction for

carjacking and using and carrying a firearm during a crime of

violence, in violation of 18 U.S.C. §§ 2119, 924(c). Duncan

avers that the Government failed to prove an essential element of

the offense of carjacking, namely, that he intended to cause

death or serious bodily injury during the carjacking.

The victim testified that Duncan opened the door to her car,

ordered her to get out of the car, and held a handgun to her face

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-30637 -2-

when doing so. Moreover, there was testimony that immediately

preceding the carjacking, Duncan had brandished the gun and fired

several shots. Finally, there was evidence that immediately

before happening upon the victim, Duncan was being pursued by the

police.

The jury could have inferred from this evidence that Duncan

would have attempted to seriously harm or kill the victim if that

had been necessary to complete the taking of the car in order to

elude the police. See Holloway v. United States, 526 U.S. 1, 11-

12 (1999). Taking the evidence in the light most favorable to

the Government, the evidence was sufficient to support Duncan’s

carjacking conviction. United States v. Maseratti, 1 F.3d 330,

337 (5th Cir. 1993).

In his “Statement of the Issues,” Duncan lists as an issue

that the evidence was insufficient to support his firearm

conviction. However, in the body of his brief, he argues only

that the evidence was insufficient to support his carjacking

conviction. Accordingly, Duncan is deemed to have abandoned any

challenge to his firearm conviction on appeal. Yohey v. Collins,

985 F.2d 222, 224-25 (5th Cir. 1993).

Duncan avers that the court erred in failing to grant a

mistrial on the basis that the jury heard references to an

uncharged murder. He contends these references before the jury

constituted a violation of FED. R. EVID. 404(b), which provides in No. 01-30637 -3-

pertinent part that evidence of other crimes, wrongs, or acts is

not admissible to show action in conformity therewith.

“This court will reverse a district court’s refusal to grant

a mistrial only for an abuse of discretion.” United States v.

Limones, 8 F.3d 1004, 1007 (5th Cir. 1993). The district court

did not abuse its discretion in denying Duncan’s motion for

mistrial. As found by the court, the remarks were innocuous.

Moreover, both witnesses immediately proceeded to testify as to

other matters and were never questioned again regarding the

references they made. Finally, even if it is assumed that the

two brief remarks were prejudicial, the court’s curative measures

and explicit instructions, which the jury is presumed to have

followed, effectively cured any taint created by the testimony.

United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998).

Duncan avers that jury was subject to extrinsic influence

that tainted the jury panel and served to deny him a fair trial.

He contends that the trial court should have held an evidentiary

hearing to determine what if anything was heard by the jury.

Duncan has failed to make a colorable showing that an

extrinsic influence was actually made on the jury. See United

States v. Kelley, 140 F.3d 596, 608 (5th Cir. 1998).

At trial, counsel only made vague references to the alleged

“histrionics” and did not state with precision what was allegedly

overheard. Moreover, the trial judge, who was also present in

the same courtroom as the jury at the time of the alleged No. 01-30637 -4-

conversation, stated on the record that he did not overhear any

discernable conversation. Given the foregoing, the judgment of

the district court is affirmed.

AFFIRMED.