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

                                                 FILED
                                                                         November 23, 2009

                                       No. 08-60577                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                    Plaintiff - Appellee
v.

JOHN H. DILLARD

                                                    Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 5:07-CV-17


Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant John H. Dillard (“Dillard”) appeals his conviction for
conspiracy to distribute crack cocaine along with two substantive counts for drug
trafficking. Finding no reversible error in his conviction, we affirm.
                                               I.
       Michael Tyler (“Tyler”) was a major crack dealer in Vicksburg, Mississippi.
Dillard was accused of being involved in Tyler’s drug organization and was
indicted, along with eight other defendants, by a federal grand jury on May 23,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

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2007. The indictment charged the various defendants with numerous drug
trafficking offenses, including conspiracy to distribute more than 50 grams of
crack cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and various
individual counts of distributing more than five grams of crack cocaine in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
        Jury selection in Dillard’s trial began on March 4, 2008. Dillard, an
African-American male, exercised eight of his first nine peremptory challenges
on white males. The Government objected under Batson v. Kentucky, 476 U.S.
79 (1986), arguing that Dillard was using his challenges in a discriminatory
manner to systematically exclude white males from the jury. The district court
conducted a Batson hearing and concluded that Dillard was exercising his
peremptory challenges in a purposefully discriminatory fashion. Consequently,
Dillard’s defense counsel was directed to accept two white males back onto the
jury.
        The case against Dillard proceeded to trial.    In its case-in-chief, the
Government offered three audiotapes and their companion transcripts as
evidence that purportedly connected Dillard to Tyler’s drug organization. These
audiotapes were admitted into evidence over Dillard’s objections.
        After the Government rested its case-in-chief, Dillard put on his own
evidence comprised primarily of character witnesses who testified to his
reputation in the community as a law-abiding citizen.         During the cross-
examination of the first character witness, the Government sought to question
the witness about Dillard’s misdemeanor conviction for possession of a crack
pipe. Over Dillard’s objection, the court permitted the Government to proceed
with its cross-examination.
        Following trial, the jury convicted Dillard and he was sentenced to 120
months imprisonment for the conspiracy charge and to concurrent terms of 60
months each for the drug trafficking charges.


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                                        II.
     Dillard argues that the district court committed reversible error in its
handling of the Government’s Batson claim. Specifically, Dillard contends that
the district court committed legal error by imposing on him a burden of
persuasion as to the validity of his peremptory strikes when the United States
Supreme Court has required only that he present a facially valid, race-neutral
explanation for exercising such a strike.        Dillard also complains that by
requiring that his proffered explanation be persuasive, the district court relieved
the Government of its obligation to prove that his exercise of his peremptory
strikes was pretextual.
     A. Standard of Review
     We review a district court’s Batson determination for clear error. United
States v. Bentley-Smith, 2 F.3d 1368, 1372 (5th Cir. 1993).         A trial court’s
findings are clearly erroneous when evidence exists to support them but the
appellate court, after reviewing the entire record, is left with “‘definite and firm
conviction that a mistake has been committed.’” Anderson v. City of Bessemer,
470 U.S. 564, 573-74 (1985) (citation omitted).
     B. Batson Challenges
     The Supreme Court has outlined a three-step process for determining
whether peremptory challenges have been applied in a discriminatory manner.
Once the opponent of a peremptory challenge has made out a prima facie case
of racial discrimination (step 1), the burden of production shifts to the proponent
of the strike to come forward with a race-neutral explanation (step 2). If a race-
neutral explanation is tendered, the trial court must then decide whether the
opponent of the strike has proved purposeful discrimination (step 3). See Batson,
476 U.S. at 93-98; Georgia v. McCollum, 505 U.S. 42 (1992) (extending Batson
framework to criminal defendant’s discriminatory use of peremptory strikes).

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       The ultimate burden of persuasion in the Batson framework always lies
with the party making the claim of purposeful discrimination. Bentley-Smith,
2 F.3d at 1373. In the instant case, Dillard argues that the district court erred
by improperly shifting the burden of persuasion onto him and requiring him to
prove that the challenges were not racially motivated.
      We cannot agree. Contrary to Dillard’s suggestions, an examination of the
whole transcript reveals that the district court correctly applied the three-step
Batson framework. During the voir dire process, Dillard exercised eight of his
first nine peremptory challenges on white males. At that point, the following
colloquy ensued:
        GOVERNMENT: Your Honor, we would just ask for an explanation.
        I don’t know whether the court wants to address this now or as far
        as some of the defense challenges.

        COURT: There’s a clear pattern of excusing white males, Counsel.
        I’m not going to do it unless you give me a race-neutral reason. You
        have to give me a race-neutral reason . . . .

The court accepted six of Dillard’s challenges as race-neutral but implicitly found
that two of them were pretextual:
        COURT: Mr. B.M.1 the defense says, was not attentive, I found Mr.
        B.M. to be attentive. I’m not going to let that challenge stand.
        Because there’s a clear pattern of excluding white males.

        COURT: Mr. M.D., a hospital pharmacist that the defense said
        would be too preoccupied with his business and was not attentive.
        I do not find this to be so. I find to fit into the pattern of excusing
        white males. I will not let Mr. M.D. be excused for the reasons
        stated, which is a clear pattern here and the reasons given is not a
        race neutral reason.



        1
            In the interest of protecting the privacy of the jurors, we refer to them by their
initials.

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The court then turned to the remedy for the violation:
      COURT: Now, what I’m going to do is I’m not going to let the
      defense excuse Mr. M.D. for the reason that I have already stated
      and the other one that I’m not going to let defense excuse is Mr.
      B.M. For the same reason as to both of these. The defense simply
      said these two jurors were not attentive. I will allow the defense to
      excuse them but for the fact that it clearly [sic] a pattern of excusing
      every white juror, every white male juror that came to the defense.
      And that’s the whole purpose of the Batson rule and McCullom [sic]
      and all other cases. Let’s go back over it. What do you want to do
      about it Mr. Anderson [Defense Counsel]? I’ll let you decide how
      you want to handle it.

      DEFENSE COUNSEL: I’m not sure I understand where that leaves
      us. We have —

      COURT: Where it leaves us is that I will let you review what you’ve
      done and go back and re-do the entire process, revisit the jurors. We
      can start from the very beginning, if you like. And I’m not going
      [sic] make you reinstate Mr. M.D. I’m not going to make you
      reinstate Mr. B.M. But what I am going to do is I’m not going to let
      you excuse every white male when there’s no go good race-neutral
      reason for it just as I wouldn’t allow it if there was a situation where
      the government is excusing every black on this jury, every African-
      American on the jury. I wouldn’t allow it.

      DEFENSE COUNSEL: If I understand, for example, Judge, if I
      accept Mr. M.F.

      COURT: You accept Mr. M.F., if you accept Mr. M.F, you would be
      accepting a white male.

      DEFENSE COUNSEL: And I can at this point still strike Mr. M.D.?
      COURT: If you accept, Mr. M.F., you have accepted a white male.
      In other words, you are going to have to do that to two of them,
      though.

      DEFENSE COUNSEL: I understand.



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      COURT: Yes, sir. You had rather accept Mr. M.F.?
      DEFENSE COUNSEL: We’ll accept Mr. M.F.
      COURT: All right, Mr. M.F. is going to be juror number . . . six . . .
      Which other one are you going to accept, Counselor?

      DEFENSE COUNSEL: Let me look here just a moment.
      COURT: Take your time. Take your time.
      DEFENSE COUNSEL: We’ll accept Mr. B.A., juror number 19.
      COURT: All right.
      Clearly, the district court found that the Government made a prima facie
showing of discrimination so we focus our attention on step 2 and step 3 of the
Batson framework. At the second stage of the Batson framework, where the
party accused of discrimination must articulate a race-neutral explanation for
the peremptory challenges, “the issue is merely the facial validity of the
explanation.” Bentley-Smith, 2 F.3d at 1373. While at the third stage of the
Batson framework, “the decisive question will be whether a proffered race-
neutral explanation should be believed.” Id. at 1374-75. At step 3 of the process,
“there will seldom be any evidence that the claimant can introduce — beyond
arguing that the explanations are not believable or pointing out that similar
claims can be made about non-excluded jurors . . . .” Id.
      In the instant case, a review of the record convinces us that the district
court did not shift the burden of persuasion to the defendant. The district court
listened to the proffered explanations for excusing Jurors B.M. and M.D. and
concluded that defense counsel’s explanations for exercising the peremptory
strikes were pretextual. Dillard assumes that the trial court did not employ the
proper three-step Batson process because the prosecution was not required to
make some explanation or argument after he proffered a race-neutral
explanation for the strike.

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      But such argument is unnecessary if it is obvious from the explanation
that it is pretextual. Dillard incorrectly assumes that the process of analyzing
Batson claims stops at step two: that if the proponent of the strike articulates
any reason whatsoever, the trial court is forbidden from rejecting that reason as
pretextual. Instead, where, as in the instant case, the defendant’s reasons for
challenging a juror are facially race-neutral, step 3 of Batson requires the court
to analyze whether the proffered race-neutral explanation should be believed.
Bentley-Smith, 2 F.3d at 1373. Believability “is a question of fact which turns
heavily on demeanor and other issues not discernable from a cold record, such
that deference to the trial court is highly warranted.” United States v. Williams,
264 F.3d 561, 572 (5th Cir. 2001) (internal citations omitted). Here, it is evident
from a reading of the record that the district court closely observed the demeanor
of the prospective jurors during the voir dire and saw no indication that they
were inattentive. As a result, we can infer that in making its believability
determination as required by step 3 of Batson, the district court did not need any
additional explanation or argument as to why these explanations were
pretextual.
      In sum, Dillard’s argument that “[t]he district court in this case
terminated the Batson analysis at step 2, never requiring the Government to
meet its ultimate burden of persuasion regarding prohibited racial motivation
for the strikes by Dillard” has no merit. The record reveals that the district
court in this case did exactly what Batson requires — it examined the
circumstances surrounding the exercise of the strike, including the defense
counsel’s reasons, and made the ultimate credibility call about whether they
were legitimate or pretextual.




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                                        III.
      A. Standard of Review
      Dillard presents several challenges to evidence admitted during his trial.
We review the district court’s evidentiary ruling for abuse of discretion. United
States v. Ramirez, 174 F.3d 584, 589-90 (5th Cir. 1999). This review, however,
is subject to harmless error analysis. United States v. Morgan, 505 F.3d 332, 339
(5th Cir. 2007).
      B. Admissibility of the Recorded Conversations
      Dillard challenges three audiotapes admitted during his trial which
purportedly connect him to Tyler’s drug operation. Government Exhibit 4 (“G-
4”), the audiotape of an alleged drug transaction on August 14, 2003, and its
companion transcript, Government Exhibit 4a (“G-4a”), originated from a body
wire on a confidential informant who was working with agents involved in
investigating Tyler’s drug operation. These agents had the informant call Tyler
to arrange a drug deal. Shortly after the confidential informant placed the call,
Vicksburg Police Officer DeWayne Smith (“Smith”) saw Dillard drive up to the
informant and heard the informant give Dillard money for drugs. G-4 and G-4a
were introduced and played for the jury. Smith, who was present when the
recordings were made and who was familiar with the parties’ voices, testified
that the tape and transcript accurately reflected the conversation he overheard.
Furthermore, the identity of the confidential informant and Dillard on the
audiotape was established by Keafur Wallace who knew Dillard for five years.
Dillard objected to the introduction of G-4 and G-4a, claiming that there was no
proper authentication of the voices on the audiotape by someone with knowledge
of the conversation. He also claimed that admission of the exhibits violated his
Sixth Amendment right to confront the witnesses against him since the
informant did not testify at trial.

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      Government Exhibit 5 (“G-5”) and its accompanying transcript,
Government Exhibit (“G-5a”) was an audiotape of a conversation between the
confidential informant and Tyler, which was made shortly after Dillard
delivered the crack cocaine to the informant in the August 14, 2003 drug sale.
      After the August 14, 2003 drug sale, the agents had the informant
telephone Tyler to complain about being “shorted” on the deal. Vicksburg Police
Officer Bobbie Stewart (“Stewart”) along with other agents listened to the
informant’s side of the conversation and recorded it. Stewart, who had known
Tyler for over ten years, verified that Tyler’s voice was the one talking to the
informant. At trial, Stewart testified that the tape and transcript accurately
reflected the conversation he overheard. Dillard asserted that G-5 and G-5a
should not have been admitted because they were not authenticated and violated
his Sixth Amendment right to confront the witnesses against him since the
informant did not testify at trial.
      When seeking to introduce a sound recording in a criminal prosecution,
the Government bears the burden of going forward with foundation evidence
demonstrating that the recording as played is an accurate representation of the
conversation or other sounds at issue. United States v. Stone, 960F.2d 426, 436
(5th Cir. 1992). Under Federal Rule of Evidence (“Rule”) 901, “the requirement
of authentication is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” F ED. R. E VID. 901(a); United
States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988). To illustrate acceptable
means of authenticating evidence, Rule 901(b) lists testimony of a witness with
knowledge and, for identifying a voice, an “opinion based on hearing the voice
at any time under circumstances connecting it with the alleged speaker.” F ED.
R. E VID. 901(b)(1), (5); Lance, 853 F.2d at 1181.



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      Here, the district court did not abuse its discretion when it concluded that
G-4/G-4a and G-5/G-5a were properly authenticated.           The voices on the
audiotapes and the accompanying transcripts were properly authenticated by
law enforcement agents who monitored the conversations as they were occurring
and who were familiar with the voices of the participants in the conversations.
      Dillard also argues that the admission of G-4/G-4a and G-5/G-5a violated
the Confrontation Clause of the Sixth Amendment. We review a Confrontation
Clause challenge de novo. United States v. Alvarado-Valdez, 521 F.3d 337, 341
(5th Cir. 2008). Such claims, however, are subject to harmless error review. Id.
      In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court
explained that out-of-court statements of a witness which are testimonial in
nature are barred under the Confrontation Clause of the Sixth Amendment,
unless the declarant is shown to be unavailable to testify and the defendant had
a prior opportunity to cross-examine the witness. Id. at 54-59. In Crawford, the
Court declined to define “testimonial,” but noted that a testimonial statement
includes, at a minimum, prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and . . . police interrogations.” Crawford, 541
U.S. at 68-69.
      Recently, in Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S. Ct. 2527,
1949, 174 L. Ed. 2d 314 (2009), the Supreme Court opined that for a statement
to be “testimonial” within the meaning of Crawford, it must have been made
“under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.” Id. at
2532. In Melendez-Diaz, the Supreme Court held that certificates of laboratory
analysis asserting that material seized by police and connected to the defendant
was cocaine of a certain quantity was testimonial in nature because they were
prepared specifically for use at petitioner’s trial. Id. at 2540 (“Whether or not

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they qualify as business or official records the analysts’ statements here
—prepared specifically for the use at petitioner’s trial—were testimony against
petitioner and the analysts were subject to confrontation under the Sixth
Amendment.”). Specifically, the Court found that the certificates of analysis
were more appropriately described as affidavits and fell within the “core class
of testimonial statements” covered by the Confrontation Clause. Id. at 2532.
(internal citation omitted). Therefore, the Court concluded that unless the
analysts were unavailable to testify at trial and the defendant had been afforded
a prior opportunity to cross-examine them, the Confrontation Clause required
that the prosecution call the analysts to testify. Id.
      Unlike Melendez-Diaz, the present case does not involve laboratory
certificates, nor does it involve hearsay admitted through affidavits.
Nevertheless, G-4 and G-4a do pose Confrontation Clause issues. In G-4 and G-
4a the informant, on more than one occasion, called out Dillard’s name,
testifying in effect “This is John Dillard I am speaking with here.” While the
admission of G-4 and G-4a may have violated Dillard’s Sixth Amendment rights,
given the overwhelming nature of the evidence against Dillard any error in
admitting G-4 and G-4a was harmless. Dillard was observed conducting the
drug transaction, which is the subject of G-4 and G-4a, by a law enforcement
officer who was familiar with his voice and able to identify it on the audiotape.
Under Melendez-Diaz, G-5 and G-5a may pose a Confrontation Clause issue
because they were prepared “specifically for use at the petitioners trial,” but
because of the overwhelming evidence against Dillard, described above, any
error in their admission was harmless.
      Lastly, the Government offered another audio recording, Government
Exhibit 23 (“G-23”) and its companion transcript, Government Exhibit 23a (“G-
23a”), into evidence. The conversation in this exhibit is between Tyler and

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Marinita Bernard (“Bernard”), concerning the arrest of Bernard’s boyfriend Jeff
Brown (“Brown”), one of Tyler’s drug associates. The conversation contained
comments made by Tyler to Bernard that “we all know what we are doing” (the
“we” comment) and that it comes with the danger of arrest. Tyler advised
Bernard that anyone arrested should simply do their prison time without
cooperating with officials. Dillard asserts that the “we” comment made by Tyler
is irrelevant and unfairly prejudicial since there is an absence of proof of a
connection between him and the conspiracy which the Government says the tape
helps to establish. Dillard also asserts that G-23/G-23a should not have been
admitted because it did not record co-conspirators’ statements since Bernard was
not a named co-conspirator of Tyler or Dillard.
      Rule 402 provides that “[a]ll relevant evidence is admissible,” except as
otherwise excluded by the Constitution, law, or other rule of evidence. F ED. R.
E VID. 402. Rule 401 defines “relevant evidence” as “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” F ED. R. E VID. 401. Rule 403 limits the admissibility of
relevant evidence, explaining that “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice . . . .” F ED. R. E VID. 403.
      Rule 801(d)(2)(E) allows admission of co-conspirator’s statements made
“during the course of and in furtherance of the conspiracy.” See Bourjaily v.
United States, 483 U.S. 171, 178-79 (1987). “Efforts to conceal an ongoing
conspiracy obviously can further the conspiracy by assuring that the
conspirators will not be revealed and the conspiracy brought to an end.” United
States v. Phillips, 219 F.3d 404, 419 (5th Cir. 2000). Though Rule 801(d)(2)(E)
requires that both the declarant (Tyler) and the party against whom the

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statement (Brown and Dillard) is offered be members of the conspiracy, there is
no requirement that the person to whom the statement is made also be a
member (Bernard). See United States v. Means, 695 F.2d 811, 818 (5th Cir.
1983).
      In this case, the evidence adduced at trial established that Brown and
Dillard were members of Tyler’s ongoing drug organization.          A reasonable
interpretation of the conversation between Tyler and Bernard was that it was
in furtherance of the conspiracy involving Tyler, Brown, and Dillard to persuade
Brown, through his girlfriend Bernard, to keep his mouth shut and do his time.
Therefore, we conclude that the requirements of Rule of 801(d)(2)(E) were met.
Similarly, as the district court recognized, the “we” comment by Tyler could
reasonably be inferred to refer to the participants in the conspiracy, and based
on the time frame of the recorded conversations, that would include Dillard.
Therefore, G-23/G-23a was relevant and probative to establish Dillard’s
participation in Tyler’s ongoing drug organization and not unfairly prejudicial.
      In sum, the trial court did not abuse its discretion by permitting the
audiotapes into evidence.
                                      IV.
      A. Standard of Review
      Lastly, Dillard argues that on cross-examination the prosecution should
not have been allowed to question Yolande Robbins (“Robbins”), his character
witness, about specific bad acts and to ask speculative questions. This court
reviews a trial court’s decision to permit a certain line of cross-examination for
abuse of discretion. United States v. Smith-Bowman, 76 F.3d 634, 636 (5th Cir.
1996).




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     B. Cross Examination of Defendant’s Character Witness
     If the defendant in a criminal trial puts on proof of his own good character,
the prosecution may rebut this evidence by cross-examining the defendant’s
character witness. F ED. R. E VID. 405(a). The prosecutor may do this by asking
the witness about specific instances of bad conduct by the defendant. See, e.g.,
United States v. Wells, 525 F.2d 974, 976 (5th Cir. 1968) (“Once a witness has
testified concerning a defendant’s good character, it is permissible during cross
examination to attempt to undermine his credibility by asking him whether he
has heard of prior misconduct of the defendant which is inconsistent with the
witnesses’ direct testimony.”). There are two limitations to this type of cross-
examination. First, the prosecution must have a good faith factual basis to
believe that the defendant committed the bad act and second, the incidents must
be relevant to the defendant’s character traits that are testified to by the
character witness. See Michelson v. United States, 335 U.S. 469, 481 n.18
(1948), United States v. Nixon, 777 F.2d 958, 970 (5th Cir. 1985).
    Under Rule 405(a), the district court did not abuse its discretion when it
allowed cross-examination of Dillard’s character witness on specific acts of
conduct. The Government had a good faith factual basis to believe that Dillard
committed the prior misconduct since he pled guilty to possession of the crack
pipe. Second, the incidents that the Government questioned Robbins about were
relevant to the character traits that she testified to. On direct examination,
Robbins was asked, “Have you had the occasion to become familiar with John
Dillard’s reputation in the community for being a law-abiding citizen?” Robbins
testified, “I don’t know of any incident in which John has not been law abiding
or has been accused of any action that was not law abiding.” Robbins made a
broad pronouncement that Dillard was law-abiding, and as a result the
Government had the right to question her concerning that statement.

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      To bolster his argument that the Government asked questions of his
character witness that sought speculative responses resting upon an assumption
of guilt Dillard relies upon United States v. Candelaria-Gonzalez, 547 F.2d 291
(5th Cir. 1977). In Candelaria-Gonzalez, a defendant on trial for drug trafficking
called a character witness to testify as to his reputation for truthfulness. Id. at
293. On cross-examination, the prosecutor asked the witness if the defendant’s
reputation “would be affected if he were convicted of trafficking in narcotics.” Id.
In reversing the conviction, this court held that the question was improper
because it “sought speculative responses resting upon an assumption of guilt” to
the very charges for which the defendant was on trial. Id. at 294.
      In contrast, in United States v. Smith-Bowman, 76 F.3d 634, 635 (5th Cir.
1996), the defendant was on trial for mail fraud charges related to her use of a
Red Cross credit card for personal charges. Over objection, the trial court
permitted the prosecutor to ask the defendant’s character witnessess: “Have you
heard that this defendant took an American Express credit card and went to the
La Quinta Inn and rented a room in the name of Judy Walker so she could have
a rendevous with her boyfriend?” and “Have you heard that this defendant took
an American Express credit card and bought jewelry for herself?” Id. at 636.
This court noted that the questions in Smith-Bowman were distinguishable from
those in Candelaria-Gonzalez because they did not assume Smith-Bowman’s
guilt. Id. at 636.
      In the instant case, on cross-examination, the Government asked the
witness if her opinion about Dillard would change if she knew he had pled guilty
to being in possession of a crack cocaine pipe in February 2004. Unlike in
Candelaria-Gonzales, the Government’s questions did not involve the very
charges for which Dillard was on trial. Therefore, the district court did not



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abuse its discretion by permitting the Government to question Dillard’s
character witness as it did.
                                     V.
      For the reasons stated above, Dillard’s conviction is affirmed.




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