                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                          July 17, 2007
                                   For the Fifth Circuit
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                           No. 05-51590


                                UNITED STATES OF AMERICA,
                                                                                 Plaintiff - Appellee.

                                             VERSUS

                                       RUBEN SUMMERS,
                                                                              Defendant -Appellant.



                           Appeal from the United States District Court
                               For the Western District of Texas
                                         5:03-CR-241-2


Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

       Defendant Ruben Summers appeals two aspects of his conviction on drug and firearm

offenses. He asserts that the district court erred in denying his motion to suppress and argues that

his conviction should be reversed because of improper statements by the government during

closing arguments. Based on our review of the record and consideration of the briefs of the

parties and for the reasons set forth below, we affirm.

                                                  I.

       Texas Department of Public Safety Narcotics Service Sergeant Trefger testified that

working undercover he had purchased cocaine powder from Charles Benging on March 14, 2003,


   *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
and again on April 30, 2003. Around May 14, 2003, Trefger negotiated with Benging to buy four

ounces of crack cocaine for $2200. Trefger knew that Benging would be taking him to his source

to obtain the crack. Trefger arranged for an unmarked police unit to follow them to the source’s

unknown location, a transmitting device and a pre-arranged verbal arrest signal. Two teams of

officers were to monitor Trefger’s conversations with Benging and follow them to the source’s

location.

       On May 15th, 2003, Trefger picked up Benging at his residence. Benging directed him to

the source’s residence. On the way, Benging warned Trefger that the source wanted Trefger to

go inside the residence to be checked for wires and weapons. Benging also told Trefger that the

source had weapons inside, including maybe an automatic weapon. Trefger refused to go into the

house. Instead he parked at the curb and sent Benging inside with half the purchase price so

Benging could purchase half of the crack cocaine. Benging entered the residence and returned

two minutes later, hiding a package under his shirt. Benging re-entered Trefger’s car and handed

him what appeared to be two crack cocaine cookies. Trefger asked if “the guy inside the

residence had the rest of the crack cocaine, the other two ounces.” Benging responded that he

did and asked Trefger if he had scales to weigh the drugs. Trefger remarked that “it looks good”

which was the pre-arranged arrest signal.

       Officers immediately arrested Benging as he was sitting in Trefger’s vehicle parked in

front of the source’s house. Concerned that the source would see the arrest and destroy the

remaining drugs, officers entered the residence. They saw a loaded .9 millimeter Beretta pistol on

the living room sofa and a digital scale on the kitchen table. Sweeping through the living room

and kitchen, the officers ran out the back door to the yard and arrested Summers near the side of


                                                2
the house.

        Summers was brought back to the residence and read his rights. Summers indicated that

he wanted to talk and was taken into the master bedroom. Summers gave consent to search the

house, first verbally and later executing a written consent. Summers confessed that he had given

the two ounces of crack cocaine to Benging. During the search, officers discovered the buy

money in the back yard, two ounces of cocaine in an adjoining yard and a loaded .9 millimeter

magazine in another adjoining yard.

        While transporting Summers to the courthouse, Trefger asked Summers if he had thrown

the cocaine and the magazine over the fence because he was scared. Summers nodded his head

yes and said “What would you have done if you’d been in my shoes?” Summers later admitted

that he had seen the officers arrest Benging.

        At trial, Summers denied selling drugs to Benging. He testified that two weeks prior to

his arrest he had talked to Benging about selling him his dog. The day of his arrest, Benging

showed up at his house with four $100 bills to buy the dog. Summers asked Benging to get

smaller bills, because none of the merchants where Summers would use the money would be

willing to accept a $100 bill. While Benging went to fetch the smaller bills, Summers walked to

the back yard to retrieve the dog’s bone and dish. Within minutes he was confronted by officers

and arrested. He denied giving consent to search the house or confessing to Trefger.

        Summers’ mother testified that the house was her residence that she shared with the

defendant. On May 15th she was at work. The gun was hers, which she said she kept unloaded

on a closet shelf.

        Defendant Ruben Summers was charged, with others, in three counts with conspiracy to


                                                3
distribute cocaine base, in violation of 21 U.S.C. § 846, 21 U.S.C. § § 841(a)(1) and

841(b)(1)(A)(iii), possession with intent to distribute cocaine base and aiding and abetting that

offense, in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2, and possession

of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924 (c)(1)(A).

Prior to trial, Summers filed motions to suppress evidence and his statements, which were denied

after a hearing. Summers proceeded to a jury trial and was convicted on all counts. The district

court sentenced him to 188 months in prison on the drug charges, and a consecutive 60 month

term of imprisonment for the firearm offense. Summers appeals.

                                                 II.

       Summers argues first that the district court’s denial of his motions to suppress violated his

Fourth Amendment rights because the exigent circumstances relied upon to execute the

warrantless search of his home were created by government agents. Summers filed three

suppression motions in the district court. None of the motions mention this argument. Nor was

this argument raised orally at the suppression hearing. The district court’s Order Denying the

Motion to Suppress does not mention this argument. Summers argued to the district court that

the officers’ search of his person and premises were illegal because the search and arrest were

without probable cause and without a valid warrant. He also contended that consent to search

was not voluntarily given. The government thus argues that Summers’ government-created

exigent circumstances argument is waived.

       In United States v. Pope, 467 F.3d 912, 918-19 (5th Cir. 2006), this court explained that

the failure to raise specific issues or arguments in a pre-trial suppression motion waives those

issues or arguments on appeal. In Pope, the defendant argued on appeal that the good faith

                                                 4
exception did not apply because the warrant was issued in reliance on a deliberately false affidavit

and the warrant was bare bones. Before the district court, the defendant raised only the bare

bones argument. Based on Pope, because the government-created exigent circumstances

argument was not raised before the district court, Summers has waived this argument on appeal.

Summers raises no other issues in relation to the denial of his motion to suppress.

                                                 III.

       Summers argues next that the prosecutor made improper remarks in his closing argument.

Referring to Summers’ testimony that Benging was at his house to purchase a dog, not crack

cocaine, the prosecutor remarked during his rebuttal closing argument,

       Finally, and most telling [defense counsel] stood there for 25 minutes and talked to
       you. How many times did he mention the defendant’s own theory of the case, the
       dog? Not once. Could it be because he didn’t want to suborn perjury?

Defense counsel objected, stating that his comments were improper argument. The district court

immediately sustained the objection and defense counsel requested a mistrial. The district court

denied the motion and instructed the jury to disregard the last statement. Summers argues that

the prosecutor implied that he had personal knowledge about why defense counsel did not

mention Summers’ testimony about the dog and suggested that even defense counsel did not

believe his own client. Summers argues that such argument was improper and requires reversal.

       Review of a claim of prosecutorial misconduct entails two steps. United States v. Fields,

72 F.3d 1200, 1207 (5th Cir. 1996). First, the court must determine whether the prosecutor made

an improper remark. Id. If the comment is inappropriate, the second determination is whether it

caused prejudice to the defendant’s substantial rights. Id.

       [W]e consider whether the prosecutor’s comments deprived defendants of a fair
       trial in light of factors that have guided us in the past: the magnitude of the

                                                  5
       prejudicial effect of the statements, the efficacy of any cautionary instructions, and
       the strength of the evidence of defendant’s guilt.

United States v. Jones, 839 F.2d 1041, 1050 (5th Cir. 1988). Applying these standards, the

improper comments in this case do not require reversal.

       In Jones, the prosecutor directly accused the defense of sponsoring perjury. The trial

judge denied the defense’s immediate motion for a mistrial and instructed the jury to disregard the

remark. Although this court recognized that the comment was “reprehensible,” it did not reverse

the defendant’s conviction. Looking at the magnitude of the prejudicial effect, the court noted

that the jury had ample reason to disbelieve the witness whose credibility was attacked even in the

absence of the prosecutor’s accusatory comments. It also noted that the prosecutor’s comments

struck at an aspect of the case that had little bearing on guilt. These aspects, coupled with the

trial judge’s immediate curative instruction and other adequate proof linking the defendant to the

crime, provided sufficient basis to find that the error was harmless.

       In United States v. Hitt, 473 F.3d 146, 161 (5th Cir. 2006), the government argued that a

defendant had perjured himself and then improperly bolstered that argument by stating that, if the

defendant had not perjured himself, his counsel and the court would have corrected him. This use

of personal knowledge to bolster an argument is clearly improper. Under plain error review, this

court found no need for reversal because it was an isolated statement in a lengthy closing, the

district court had cautioned the jury before opening statements that arguments of counsel were

not evidence and gave a written instruction of the same type.

       In this case, the prosecutor’s comments stopped short of accusing the defense of

suborning perjury, but arguably implied personal knowledge to bolster his argument. Even if the

statement was improper, it was an isolated comment in the rebuttal portion of closing arguments

                                                  6
and a cautionary instruction to disregard it was immediately given to the jury. In addition, the

prosecution’s case against Summers was overwhelming. Any error associated with the

prosecutor’s remarks in this case was harmless.

                                                IV.

       For the foregoing reasons, Summers’ conviction is AFFIRMED.




                                                  7
