United States v. Lee

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-21004 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD WAYNE LEE,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-149-1 - - - - - - - - - - September 24, 2001

Before DUHÉ, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:1

Richard Wayne Lee appeals his conviction following a jury

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

18 U.S.C. § 922(g). Lee argues that the district court abused its

discretion when it (1) denied his request for a missing witness

instruction, (2) prevented him from cross-examining a witness about

an indictment and deferred adjudication from a state-court

proceeding, and (3) admitted photographic, gang-related evidence at

trial.

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Lee has not demonstrated that it was within the Government’s

power to produce the missing witness. See United States v. Black,

497 F.2d 1039, 1042 n.3 (5th Cir. 1974); United States v. Davis,

487 F.2d 112, 126 (5th Cir. 1973); Ford v. United States, 210 F.2d

313, 316-17 (5th Cir. 1954). Nor has he demonstrated that the

missing witness’ testimony would have been favorable. See id.

Thus, the district court did not abuse its discretion when it

denied his request for a missing witness instruction. See United

States v. Pettigrew, 77 F.3d 1500, 1510 (5th Cir. 1996).

Lee has failed to provide any authority for his assertion that

Government witness Karen Bezet was prohibited from possessing a

firearm while she was under a state court indictment. Accordingly,

he has failed to demonstrate that she would have been motivated to

falsify her testimony based on the state court indictment and

deferred adjudication. Moreover, Bezet’s testimony regarding Lee’s

ownership of the firearms was corroborated by other witnesses. See

United States v. Gray, 105 F.3d 956, 965 (5th Cir. 1997). The

district court did not abuse its discretion when it limited Lee’s

cross-examination of Bezet. United States v. Freeman, 164 F.3d

243, 249 (5th Cir. 1999).

Lee’s assertion that the district court admitted impermissible

gang-related evidence is without merit. The parties and witnesses

were under instructions from the court not to make reference to

gangs or gang-related activities. No such testimony or argument

was presented to the jury. Lee makes only the speculative

assertion that the “SS” tattoo on his leg (which was displayed in

2 one of the photographs) is “widely recognized” as denoting

membership in a white supremacist prison gang. The district court

did not abuse its discretion when it admitted photographs of Lee’s

tattoos. See United States v. Parsee, 178 F.3d 374, 379 (5th Cir.

1999).

Lee’s conviction is AFFIRMED.