UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
___________________________
No. 99-50093 ___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAIME ESTRADA-FERNANDEZ,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court for the Northern District of Texas (1:97-CR-4-1-C) ___________________________________________________
December 14, 1999
Before POLITZ, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
A jury convicted Jaime Estrada-Fernandez of assault with a
dangerous weapon with intent to cause bodily harm, 18 U.S.C. §
113(a)(3), and aiding and abetting, 18 U.S.C. § 2. The district
court sentenced Estrada-Fernandez to 120 months incarceration,
three years supervised release, and a $100 fine. He now appeals
both his conviction and sentence. For the reasons that follow, we
affirm.
I.A.
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Estrada-Fernandez first argues that the district court
committed reversible error when it permitted the prosecutor to
improperly vouch for and bolster the testimony of the Government’s
key witness, Lieutenant Travis Gilbreath. Estrada-Fernandez avers
that during the Government’s rebuttal, the prosecutor not only
personally vouched for the credibility of the witnesses but also
made comments that were beyond the scope of the evidence presented
at trial and that were designed to cloak the witness with the
mantle of governmental authority. Specifically, Estrada-Fernandez
challenges the following statement:
It all boils down basically whether you believe Lieutenant Gilbreath. . . I will take a 12-year veteran of the Bureau of Prisons, somebody with twelve years, evidently has dedicated his life to public service doing a job that I don’t know that many people would want to do, and that is all we have is him. That is all we can bring you is a 12-year veteran. He has absolutely no reason to lie about whether this man had a weapon or not. It makes no sense. No reason to lie. No reason to put a 12-year career on the line. Think about it and use your common sense. No reason to put his reputation, his Bureau of Prisons service on the line. Why would he do that? It makes absolutely no sense; none at all.
Estrada-Fernandez also challenges the prosecutor’s later statement:
“how much sense does it make that he is going to put his 12-year
career on the line just so you will find that this dangerous weapon
was used? It makes no sense.”
Assuming arguendo that these remarks referred to facts not in
evidence and “improperly invoked the aegis of a governmental
imprimatur,” we must nevertheless consider whether the remarks
affected the substantial rights of the defendant. United States v.
Gallardo-Trapero, 185 F.3d 307,320 (5th Cir. 1999). In determining
whether the prosecutor’s comments prejudiced Estrada-Fernandez’s substantial rights, we must consider “(1) the magnitude of the
statement’s prejudice, (2) the effect of any cautionary
instructions given, and (3) the strength of the evidence of
defendant’s guilt.” United States v. Hernandez-Guevara, 162 F.3d
863, 874 (5th Cir. 1998). As we explained in United States v.
Wallace, 32 F.3d 921 (5th Cir. 1990), “[f]or prosecutorial
misconduct to warrant a new trial, it must be so pronounced and
persistent that it permeates the entire atmosphere of the trial ...
and casts serious doubt upon the correctness of the jury’s
verdict.” Id. at 926.
We conclude that the prosecutor’s remarks did not prejudice
Estrada-Fernandez’s substantial rights. Given the photographic
evidence and corroborating testimony, as well as the prosecutor’s
repeated remarks that the jury had to determine on its own whether
to believe the testimony of the witnesses, we cannot say that the
prosecutor’s statements regarding the credibility of Lieutenant
Gilbreath “overshadowed what had come before and unduly influenced”
the jury’s decision. Id. at 320-321.
The district court further mitigated any prejudicial effect by
instructing the jury to base their decision solely upon the
evidence presented, rather than upon the arguments made by lawyers.
The court explained:
You must consider only the evidence presented during the trial, including the sworn testimony of witnesses and the exhibits. Remember that any statements, objections, or arguments made by the lawyers are not evidence. . . . In the final, analysis, . . . it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you.
Similarly, the court instructed the jury that they had the sole responsibility for determining the credibility of all
witnesses:
You are the sole judges of the credibility or believability of each witness and the weight to be given to each witnesses. An important part of your job will be making judgments about the testimony of the witnesses who testified in this case. You should decide whether you believe any part or all of what each person had to say, and how important that testimony was.
“We presume that the jury follows the instructions of a trial
court unless there is an overwhelming probability that the jury
will be unable to follow the instruction and there is a strong
probability that the effect [of the prosecutorial misconduct] is
devastating.” United States v. Tomblin, 1369, 1390 (5th Cir. 1995).
In this case, the district court issued these instructions twice:
orally, prior to closing arguments, and in writing, after the
arguments. Estrada-Fernandez presents no convincing argument that
the jury did not follow these instructions. Furthermore, we have
previously held such instructions to be sufficient to remedy
similar allegations of prosecutorial misconduct. See United States
v. Wyly, __ F.3d ___, 1999 WL 816508, *8 (5th Cir. 1999); Gallardo-
Trapero, 185 F.3d at 321; Tomblin, 46 F.3d at 1390; United States
v. Andrews, 22 F.3d 1328, 1343 & n.16 (5th Cir. 1994). Viewing the
prosecutor’s statements in the context of the entire case, we
conclude that the prosecutor’s rebuttal argument did not prejudice
Estrada-Fernandez’s substantial rights.
B.
Estrada-Fernandez next argues that the district court erred in
permitting Gilbreath to testify as to whether a broken mop or broom
handle constituted a “dangerous weapon” for the purposes of 18 U.S.C. § 113(a)(3). He contends that whether a given instrument is
a “dangerous weapon” within the meaning of section 113(a)(3) is a
legal conclusion that must be left to the jury.
Because Estrada-Fernandez did not object to this testimony at
trial, we review for plain error. See United States v. Olano, 507
U.S. 725, 734 (1993); 113 S.Ct. 1770, 1777 (1993). The defendant
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
___________________________
No. 99-50093 ___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAIME ESTRADA-FERNANDEZ,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court for the Northern District of Texas (1:97-CR-4-1-C) ___________________________________________________
December 14, 1999
Before POLITZ, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
A jury convicted Jaime Estrada-Fernandez of assault with a
dangerous weapon with intent to cause bodily harm, 18 U.S.C. §
113(a)(3), and aiding and abetting, 18 U.S.C. § 2. The district
court sentenced Estrada-Fernandez to 120 months incarceration,
three years supervised release, and a $100 fine. He now appeals
both his conviction and sentence. For the reasons that follow, we
affirm.
I.A.
* 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. Estrada-Fernandez first argues that the district court
committed reversible error when it permitted the prosecutor to
improperly vouch for and bolster the testimony of the Government’s
key witness, Lieutenant Travis Gilbreath. Estrada-Fernandez avers
that during the Government’s rebuttal, the prosecutor not only
personally vouched for the credibility of the witnesses but also
made comments that were beyond the scope of the evidence presented
at trial and that were designed to cloak the witness with the
mantle of governmental authority. Specifically, Estrada-Fernandez
challenges the following statement:
It all boils down basically whether you believe Lieutenant Gilbreath. . . I will take a 12-year veteran of the Bureau of Prisons, somebody with twelve years, evidently has dedicated his life to public service doing a job that I don’t know that many people would want to do, and that is all we have is him. That is all we can bring you is a 12-year veteran. He has absolutely no reason to lie about whether this man had a weapon or not. It makes no sense. No reason to lie. No reason to put a 12-year career on the line. Think about it and use your common sense. No reason to put his reputation, his Bureau of Prisons service on the line. Why would he do that? It makes absolutely no sense; none at all.
Estrada-Fernandez also challenges the prosecutor’s later statement:
“how much sense does it make that he is going to put his 12-year
career on the line just so you will find that this dangerous weapon
was used? It makes no sense.”
Assuming arguendo that these remarks referred to facts not in
evidence and “improperly invoked the aegis of a governmental
imprimatur,” we must nevertheless consider whether the remarks
affected the substantial rights of the defendant. United States v.
Gallardo-Trapero, 185 F.3d 307,320 (5th Cir. 1999). In determining
whether the prosecutor’s comments prejudiced Estrada-Fernandez’s substantial rights, we must consider “(1) the magnitude of the
statement’s prejudice, (2) the effect of any cautionary
instructions given, and (3) the strength of the evidence of
defendant’s guilt.” United States v. Hernandez-Guevara, 162 F.3d
863, 874 (5th Cir. 1998). As we explained in United States v.
Wallace, 32 F.3d 921 (5th Cir. 1990), “[f]or prosecutorial
misconduct to warrant a new trial, it must be so pronounced and
persistent that it permeates the entire atmosphere of the trial ...
and casts serious doubt upon the correctness of the jury’s
verdict.” Id. at 926.
We conclude that the prosecutor’s remarks did not prejudice
Estrada-Fernandez’s substantial rights. Given the photographic
evidence and corroborating testimony, as well as the prosecutor’s
repeated remarks that the jury had to determine on its own whether
to believe the testimony of the witnesses, we cannot say that the
prosecutor’s statements regarding the credibility of Lieutenant
Gilbreath “overshadowed what had come before and unduly influenced”
the jury’s decision. Id. at 320-321.
The district court further mitigated any prejudicial effect by
instructing the jury to base their decision solely upon the
evidence presented, rather than upon the arguments made by lawyers.
The court explained:
You must consider only the evidence presented during the trial, including the sworn testimony of witnesses and the exhibits. Remember that any statements, objections, or arguments made by the lawyers are not evidence. . . . In the final, analysis, . . . it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you.
Similarly, the court instructed the jury that they had the sole responsibility for determining the credibility of all
witnesses:
You are the sole judges of the credibility or believability of each witness and the weight to be given to each witnesses. An important part of your job will be making judgments about the testimony of the witnesses who testified in this case. You should decide whether you believe any part or all of what each person had to say, and how important that testimony was.
“We presume that the jury follows the instructions of a trial
court unless there is an overwhelming probability that the jury
will be unable to follow the instruction and there is a strong
probability that the effect [of the prosecutorial misconduct] is
devastating.” United States v. Tomblin, 1369, 1390 (5th Cir. 1995).
In this case, the district court issued these instructions twice:
orally, prior to closing arguments, and in writing, after the
arguments. Estrada-Fernandez presents no convincing argument that
the jury did not follow these instructions. Furthermore, we have
previously held such instructions to be sufficient to remedy
similar allegations of prosecutorial misconduct. See United States
v. Wyly, __ F.3d ___, 1999 WL 816508, *8 (5th Cir. 1999); Gallardo-
Trapero, 185 F.3d at 321; Tomblin, 46 F.3d at 1390; United States
v. Andrews, 22 F.3d 1328, 1343 & n.16 (5th Cir. 1994). Viewing the
prosecutor’s statements in the context of the entire case, we
conclude that the prosecutor’s rebuttal argument did not prejudice
Estrada-Fernandez’s substantial rights.
B.
Estrada-Fernandez next argues that the district court erred in
permitting Gilbreath to testify as to whether a broken mop or broom
handle constituted a “dangerous weapon” for the purposes of 18 U.S.C. § 113(a)(3). He contends that whether a given instrument is
a “dangerous weapon” within the meaning of section 113(a)(3) is a
legal conclusion that must be left to the jury.
Because Estrada-Fernandez did not object to this testimony at
trial, we review for plain error. See United States v. Olano, 507
U.S. 725, 734 (1993); 113 S.Ct. 1770, 1777 (1993). The defendant
therefore bears the burden of demonstrating that the district court
committed an error that was “clear” or “obvious” and that such an
error affected his substantial rights. Id.
Estrada-Fernandez has failed to demonstrate that the district
court committed such an error. Gilbreath testified as an expert
witness regarding the dangerousness of instruments and Estrad-
Fernandez does not challenge his qualifications. The Federal Rules
of Evidence explain that “testimony in the form of an opinion or
inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.”
Fed. R. Ev. 704(a). Estrada-Fernandez points to no authority that
would direct a contrary result. Thus, we cannot conclude that the
district court committed plain error.
C.
Finally, Estrada-Fernandez argues that the district court
erred in enhancing Estradada-Fernandez’s sentence for causing
“bodily injury” pursuant to U.S.S.G. § 2A2.2(b)(3)(A). Estrada-
Fernandez contends that he caused Lieutenant Gilbreath only minor
injuries, not rising to the level of bodily injury for the purposes
of the enhancement. Because Estrada-Fernandez failed to raise this
argument prior to this appeal, we review for plain error. United States v. Olano, 507 U.S. at 734; 113 S.Ct. at 1777.
The Guidelines provides a two-level enhancement if the victim
sustained bodily injury, a four level enhancement if the victim
sustained a serious bodily injury, and a six level enhancement if
the victim sustained permanent or life-threatening injury.
U.S.S.G. § 2A2(b)(b)(A)-(C). The commentary explains that
“‘[b]odily injury’ means any significant injury, e.g., an injury
that is painful and obvious, or is the type for which medical
attention ordinarily would be sought.” U.S.S.G. § 1B1.1 commentary
at n.1(a).
The evidence at trial showed that as a result of the assault,
Lieutenant Gilbreath suffered red streaks and “tiny” abrasions to
his left arm as well as redness, tenderness, and swelling in his
upper and lower back. The evidence also demonstrates that
Lieutenant Gilbreath sought immediate medical attention for these
wounds. And although Estrada-Fernandez contends that he personally
inflicted only the arm wounds, the district court properly held him
accountable for all the wounds inflicted on Lieutenant Gilbreath,
which he aided and abetted or that were reasonably foreseeable and
jointly undertaken in furtherance of their criminal activity. See
U.S.S.G. § 1B1.3(a)(1)(A).
Courts have found similar injuries to constitute bodily
injury. See United States v. Green, 964 F.2d 911, 911-12 (9th Cir.
1992)(finding bodily injury where a slap in the face caused
swelling and pain); United States v.Perkins, 132 F.3d 1324, 1325
(10th Cir. 1997)(finding bodily injury where defendant caused small
laceration and bruising). Cf. United States v. Guerrero, 169 F.3d 933, 947 (5th Cir. 1999)(refusing to find bodily injury where
defendant struck victim but did not cause “any bruising, swelling,
or other type of injury”). The district court did not commit
error, plain or otherwise, in enhancing Appellant’s sentence.
II.
For the reasons stated above, we affirm the judgment of the
district court.