          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                March 16, 2009
                                No. 07-31084
                              Summary Calendar              Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

TYRUS MIGUEL COOPER

                                           Defendant-Appellant


                 Appeals from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:04-CR-138-1
                           USDC No. 3:05-CR-227-1


Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Tyrus Miguel Cooper appeals his jury-conviction of distribution of 50 or
more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2. His sole contention on appeal is that admission of an informant’s testimony
that assertedly implies that Cooper threatened to kill him and his family was
both irrelevant and extremely prejudicial, resulting in plain error.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 07-31084

      Although Cooper (represented by counsel here and below) now challenges
the admission of the threat testimony, Cooper did not at any time object to the
testimony during the trial or move to strike it and he did not otherwise present
to the district court any complaints or concerns about it. Therefore, as Cooper
concedes, this issue is subject to plain error review. To show plain error, Cooper
must show an error that is clear or obvious and that affects his substantial
rights. See United States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006). If he
makes such a showing, this court has the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Evidence that a party threatened a witness is generally admissible.
United States v. Rocha, 916 F.2d 219, 241 (5th Cir. 1990). When it is not known
who made or caused that threat, at least absent some special circumstance not
present here, evidence that a witness has been threatened would generally be
inadmissible. As with evidence of other crimes, wrongs or acts under F ED. R.
E VID. 404(b), the evidence is generally admissible “only if the jury can
reasonably conclude that the act occurred and that the defendant was the actor.”
Huddleston v. United States, 108 S.Ct. 1496, 1501 (1988), citing United States
v. Beechum, 582 F.2d 898, 912-13 (5th Cir. 1978) (en banc). However, there is
no requirement that the trial court make a preliminary finding that the party
committed the act – here, made the threat – before initially admitting evidence
of the act or threat. Huddleston, at 1500-01.
      “Often the trial court may decide to allow the proponent to introduce
      evidence concerning a similar act, and at a later point in the trial
      assess whether sufficient evidence has been offered to permit the
      jury to make the requisite finding. If the proponent has failed to
      meet the minimal standard of proof, the trial court must instruct
      the jury to disregard the evidence.” Id. at 1501-02 (footnote
      omitted).




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                                  No. 07-31084

However, “‘[i]t is, of course, not the responsibility of the judge sua sponte to
insure that the foundation evidence is offered; the objector must move to strike
the evidence if at the close of the trial the offerror had failed to satisfy the
condition.’ 21 C. Wright & K. Graham, F EDERAL P RACTICE AND P ROCEDURE §
5054, pp. 269-70 (1977) (footnote omitted).” Huddleston, at 1501-02, n.7.
      Here, the informant prosecution witness testified on direct examination
that, at some unstated time, calls had been made to his house and his
girlfriend’s house threatening killing him and his family, but his testimony gave
no indication as to who made, or was responsible for, the threatening calls or
why they were made. No objection (or motion to exclude) whatever was ever
made below as to this testimony, nor was any instruction to disregard, or any
other instruction regarding this testimony, ever requested (or given) below.1 The
witness also testified that the defendant called him at his house a week before
the trial and “told me he was subpoenaing me to come to court” and “I told him
alright,” and that was all that was said (except that defendant said he would call
back, but never did). This call from the defendant surprised the witness, but did
not make him “a little nervous” or “scared.” This informant witness also testified
he had likewise helped “bust” – in stings with the DEA – some six to 10 other
area individuals, all of whom had been arrested and indicted – and was unable
to say whether any of them made threats to his family and stated “I don’t really
know who it was making threats to my family.” Another witness also testified
that the threatened informant witness had helped “bust” others in other DEA
stings and did not know of any of those people making threats against that
informant and had not “heard anything about someone threatening to hurt


      1
       Rule 404(b) provides that “upon request by the accused” the prosecution
shall give pretrial notice of evidence of other crimes, wrongs or acts intended to
be introduced at trial; the record does not reflect either that any such request
was made by the defense or that no such notice was given, and no complaint of
noncompliance with this provision was made at trial and none such has been
made on appeal.

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                                  No. 07-31084

anybody that helped set up these deals.” The defendant testified that he had not
threatened the informant witness nor did he “send anybody to threaten him.”
      There was no evidence that the defendant made the threats mentioned by
the informant witness. Consequently, the evidence of such threats should have
been stricken and the jury instructed to disregard it. However, since objection
was never made to the threat evidence and no instruction to disregard that
evidence ( or other instruction in regard thereto) was ever requested, and no
motion for mistrial or other relief in respect thereto was ever made below,
review, as above noted, is only for plain error.
      We hold there was error in this respect and, arguendo, even that the error
was clear or obvious. However, we conclude that reversal is not called for under
the plain error rule. Such improper anonymous threat testimony certainly does
not call for per se reversal even where timely and proper objection has been
made. See, e.g., United States v. Thomas, 86 F.3d 647, 655 (7th Cir. 1996).
      Given that Cooper denied making or causing the threats, that the
threatened witness never intimated that Cooper made the threats, that several
others were shown to have a motive to threaten the witness, that there is no
evidence Cooper was responsible for the threats, and that the prosecution never
argued that he was,2 we cannot conclude that there is any substantial likelihood
that the jury found or assumed that Cooper made or was responsible for the
threats. Moreover, Cooper essentially admitted his guilt of the charged offense
and his own testimony – showing strong predisposition to both sell and use
cocaine (albeit at least usually in smaller quantities) and ready participation in
the offense, as well as nothing on the government’s part materially greater than
its affording the opportunity for the offense, overwhelmingly supports the verdict



      2
       Indeed, there is no mention whatever of threats in any of the closing
arguments. The threat evidence was never an important or significant part of
the government’s case.

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of guilty and its (implicit) rejection of Cooper’s entrapment defense .3        We
conclude that the error in question did not create substantial improper or unfair
prejudice and did not seriously affect the fairness, integrity, or public reputation
of judicial proceedings. Accordingly, the judgment of the district court is
                                   AFFIRMED.




      3
      See, e.g., United States v. Ogle, 328 F.3d 182, 185, 186 (5th Cir. 2003);
United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001); United States v. Wise,
221 F.3d 140, 154-55 (5th Cir. 2000).

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