United States v. Goosby

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 6, 2002
• Docket: 01-50327
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50327

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KERRY TYRONE GOOSBY,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas

(MO-00-CR-134-1) May 3, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Kerry Tyrone Goosby appeals his conviction, after a jury

trial, of being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1). He argues that certain comments of the

prosecutor impermissibly shifted the burden of proof to the

defense. Finding no error, plain or otherwise, we affirm.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. After an audio tape of Goosby’s admission that he had given a

firearm to Jackie Lennard was admitted into evidence, along with

statements Goosby made to police that he had obtained the gun for

Lennard, Goosby took the stand and testified that the gun to which

he was referring on the tape was in fact a homemade “tattoo gun”

and he had lied to the police when he gave his statement. The

prosecution, on cross-examination, asked Goosby whether or not

there were any witnesses who could testify that they had seen him

with a tattoo gun or saw him give a tattoo gun to Jackie Lennard.

Goosby did not object to portions of the cross-examination at

issue here, and therefore our review is for plain error only. We

will reverse only if there is (1) error, which is (2) plain, (3)

the error affects substantial rights, and (4) also seriously

affects the fairness, integrity, or public reputation of the

proceedings.1

The prosecutor cannot shift the burden of proof to the

defendant in a criminal trial.2 However, the prosecutor is free,

without fear of reversal, “to comment on the defendant’s failure to

produce evidence on a phase of the defense upon which he seeks to

rely.”3 The questioning of the prosecution in this case amounted

to nothing more than an inquiry into the lack of evidence

1 United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000).

2 United States v. Bermea, 30 F.3d 1539, 1563 (5th Cir. 1994). 3 United States v. Mackay, 33 F.3d 489, 496 (5th Cir. 1994) (quoting United States v. Dula, 989 F.2d 772, 777 (5th Cir. 1993)).

2 supporting Goosby’s “tattoo gun” defense. We find no error here.4

Furthermore, even assuming the existence of error, it does not meet

the high threshold necessary for reversal on plain error review.

AFFIRMED.

4 See United States v. Robles-Vertiz, 155 F.3d 725, 730-31 (5th Cir. 1998) (finding no error where prosecutor, in closing argument, commented on defense’s lack of evidence supporting honest mistake theory by imploring the jury to “[a]sk ... where the evidence is.”); Mackay, 33 F.3d at 496 (finding no error where prosecutor commented on defendant’s lack of evidence of lawful purchase of backhoe where defense had referred to legitimate sale in opening argument).