   Case: 09-31137       Document: 00511585574         Page: 1     Date Filed: 08/29/2011




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

                                                                            FILED
                                                                          August 29, 2011
                                      No. 09-31137
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

MATTHEW VICKERS,

                                                  Defendant-Appellant.




                   Appeals from the United States District Court
                       for the Western District of Louisiana
                             USDC No. 1:08-CR-344-1




Before SMITH, SOUTHWICK, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Matthew Vickers appeals his conviction of forcible assault of a correctional
officer by striking the officer with his fist in violation of 18 U.S.C. § 111(a). Find-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 09-31137

ing no error, we affirm.


                                        I.
      Patrick Craig, a federal corrections officer, testified that he observed Vick-
ers, a federal prisoner, dressed in the wrong clothes for his work detail. Craig
informed Vickers that he would need to return to his unit to change, but Vickers
responded, “F--k you. I’m not going.”
      The prosecution played a silent video depicting snippets of this confronta-
tion; Craig testified that the video was showing him ordering Vickers to follow
him to the lieutenant’s office, only to have Vickers walk away in the opposite dir-
ection. Craig then placed a hand on Vicker’s arm to direct him to the lieuten-
ant’s office, which is where the video ends.
      Craig testified that Vickers grabbed him by the throat, and Vickers
demanded that Craig get his hands off of him. Craig said that he pushed Vick-
ers away, only to have Vickers come back at him, this time throwing a punch.
The video does not show the beginning of the physical altercation, but only an
altercation that was already underway, when Craig and the other officers were
attempting to subdue Vickers.
      Craig was asked by the prosecutor whether he was injured. Vickers
objected on the ground that the evidence was irrelevant to the crime for which
he was charged, adding that even if the testimony was relevant, its probative
value was outweighed by unfair prejudice. The court overruled the objection and
allowed Craig to testify as to his injuries. The government also introduced five
photographs depicting those injuries.
      Also testifying for the government was corrections officer Brian Rabalais,
who stated that he observed the altercation between Vickers and Craig from an
observation tower twenty yards above the scene. He heard Craig tell Vickers to
follow him to the lieutenant’s office, but Vickers walked away in the opposite dir-

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                                  No. 09-31137

ection. Rabalais saw Craig place his hand on Vickers, only to have Vickers turn
around and hit Craig two or three times. Craig attempted to wrap Vickers in a
bear hug, only to trip and fall to the ground, allowing Vickers to fall on top of
Craig and continue to strike him.
      Vickers presented two witnesses. Jose Santos testified that the incident
began when Craig started screaming at Vickers and placed his hands on Vick-
ers’s chest to push him toward the unit. Santos said that he was unable to see
who threw the first punch, because he was bent over, picking up an object.
      Andre Dorsey testified that he heard Craig order Vickers back to the unit
and heard Vickers respond “all right.” Dorsey stated that Craig told Vickers
“I said now,” grabbed Vickers by the shoulder, ordered him to the lieutenant’s
office, and pushed him into a fence. Dorsey saw Craig throw the first punch.
      During closing arguments, the prosecutor noted that Santos’s testimony
did not match up with the other evidence presented at trial. Specifically, the
prosecutor focused on the fact that Santos testified that he did not see who threw
the first punch, because his head was down while he was bending over to pick
something up. After highlighting one minor discrepancy in that testimonySS
Santos testified that he had bent over to pick up a radio even though he had told
officers immediately following the incident that he had bent over to pick up a
watchSSthe prosecutor focused on a larger issue with Santos’s testimony: The
video of the altercation did show that Santos bent over to pick something up, but
only after the fight had already started. After noting this discrepancy, the prose-
cutor asked the jury, rhetorically, “So why did he tell you that he didn’t see who
threw the first punch even though he was standing in the direct vicinity of the
area of the assault?”
      Answering her own question, the prosecutor stated the following:
            Well, I’ll tell you why. You see, Jose Santos can’t tell you the
      truth, ladies and gentlemen, because if he tells you that Officer


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                                   No. 09-31137

      Craig was attacked by the defendant, then he will get a reputation
      for ratting out a fellow prisoner and he will pay his price in prison
      at the hands of the other inmates.

             But if he tells you that Matthew Vickers was attacked by Offi-
      cer Craig, well then, he’s under oath and he knows he’s under oath
      on the stand, and he may have to spend a little more time in prison
      for telling you something like that. So why did he make up a story?
      He gave himself an out. He didn’t want to have to say one way or
      the other. His testimony can’t be truthful, cannot be trusted.
Vickers did not object to this portion of the prosecutor’s closing statement.
      During deliberations, the jury sent a note to the court, asking, “Does a
reasonable doubt between a forcible and simple assault exist because we could
not see the beginning of the altercation. Some jurors feel that it was provoked
and more to it than we saw.” The court gathered counsel and stated that it
would address this issue by bringing the jury back in to “explain to them that
they have all the evidence there is to present in the case, to tell them the instruc-
tions tell them how to evaluate the evidence and what a reasonable doubt is, and
then I intend to read to them, again, [some of the elements].”
      Vickers objected to that course of action, arguing that the question indi-
cated that the jury was “having reasonable doubt” and that the reasonable-doubt
instruction was the only thing the judge should repeat to the jury. The court
responded that it would simplify matters by only telling the jury that it has all
the evidence, the instructions tell it how to evaluate what reasonable doubt is,
and the instructions also outline the elements of proof and which elements apply
to which offense. Vickers reiterated his objection, stating that the court should
just tell the jury that “if they have reasonable doubt, they should vote not
guilty.” The court responded, “I think we’ve already told them that” and over-
ruled the objection.
      When the jury returned to the courtroom, the judge issued the following
oral instruction:

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                                    No. 09-31137

           I received your question. “Does a reasonable doubt between a for-
        cible and simple assault exist because we could not see the begin-
        ning of the altercation. Some jurors feel it was proved and more to
        it than we saw.”

          With regard to your deliberations, all I can tell you is three things:
        The first of those is that you have, at this juncture, all of the evi-
        dence there is to present in this case, so you have to do your evalua-
        tion based on the evidence that you have.

           The second thing I need to tell you is that the instructions that
        I’ve read to you and that you have copies of tell you how you go
        about evaluating that evidence and then also defines clearly what
        a reasonable doubt is.

           And the third thing is that the instructions on elements of proof
        for each of the offenses, forcible and simple, are laid out step-by-step
        in those instructions, and you need to go back and look at those
        instructions again carefully on those three areas, and I suspect that
        will answer your question.

           And that is, unfortunately, all I can tell you. So with that, I’m
        going to send you back to deliberate based on what I’ve told you in
        the instructions that you already have. Okay? So you’ll be excused.

        The jury exited the courtroom at 12:36 p.m. The court received the guilty
verdict form at 12:42 p.m., and the original jury note had been received by the
judge at 12:22 p.m (at which point the jury had already been deliberating for
over an hour). Vickers unsuccessfully moved for a new trial, arguing that the
supplemental jury instructions were inadequate and the jury had failed to follow
them.


                                          II.
        Vickers argues that the district court erred in admitting any evidence of
the injuries suffered by Craig. Where, as here, the defendant objected to the
admission of evidence in the district court, we review the admission of that

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                                      No. 09-31137

evidence for abuse of discretion. United States v. Sanchez-Hernandez, 507 F.3d
826, 831 (5th Cir. 2007). If the evidence was erroneously admitted, we consider
whether the error was harmless. Id.
       Vickers contends that evidence of Craig’s injuriesSSboth the testimony
highlighting the injuries and the photographs of the injuriesSSshould have been
excluded, because that evidence was irrelevant to proving any of the elements
of the crime. Vickers also posits that, even if the evidence was relevant, (1) it
was cumulative in light of the officers’ testimony that Vickers struck Craig with
his fist; and (2) any probative value was substantially outweighed by its
potential prejudice. None of these arguments has merit.
       Vickers is incorrect to say that the evidence of the injuries was irrelevant
to proving the offense for which he was charged. He was charged under 18
U.S.C. § 111(a), which punishes “whoever forcibly assaults, resists, opposes,
impedes, intimidates, or interferes with any person designated in section 1114
of this title [including federal officers] while engaged in or on account of the
performance of official duties.” Section 111(a) creates three separate offenses:
(1) simple assault, a misdemeanor offense that requires no physical contact;
(2) felony assault that involves physical contactSSthe contact need not result in
bodily injurySSbut does not involve the use of dangerous weapons; and (3) felony
assault that involves the use of a dangerous weapon or results in bodily injury.
United States v. Hazelwood, 526 F.3d 862, 865 (5th Cir. 2008). Vickers was
charged with (2): felony assault that resulted in physical contact. The govern-
ment was required to prove that Vickers actually made contact with Craig;
specifically, it sought to prove that Vickers punched Craig.1
       For that element, the evidence of the injuries is relevant, because it helps


       1
         This was particularly important, because Vickers had requested, and received, an
instruction on the lesser included offense of simple assault—which does not require physical
contact.

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                                   No. 09-31137

prove that physical contact occurred: Those injuries could not have been caused
by anything other than physical contact.
      Vickers claims that the evidence of Craig’s injuries was not necessary,
because the government did not need to prove that his assault resulted in bodily
injury. That is correct, but it mistakes the purpose for which the evidence was
offered. The evidence of Craig’s injuries proves that bodily injury occurred, but
it also establishes that physical contact took place. Correspondingly, the evi-
dence of Craig’s injuries may serve as proof that a felony assault resulting in
bodily injury took place, for which Vickers was not charged, but the evidence of
the injuries also proves that Vickers committed the offense he was actually
charged with—felony assault involving physical contact. The evidence was
therefore relevant.
      Next, Vickers argues that the evidence of Craig’s injuries was unnecessar-
ily cumulative to the testimony of the officers, both of whom testified that Vick-
ers struck Craig with his fist. Vickers contends that the evidence of the injuries
themselves adds nothing to the existing evidence that physical contact occurred.
That is not accurate. The evidence of the injuries is not cumulative evidence, but
corroborative evidenceSSthe existence of the injuries, particularly the photos of
said injuries, is being used to corroborate the testimony of Craig and Rabalais
that Craig was physically struck by Vickers. Such corroboration was beneficial,
if not necessary, in a case that was largely decided on the credibility of the prose-
cution’s witnesses versus that of the defendant’s witnesses. Furthermore, in
regard to the photos specifically, the evidence was of a different type and
brought with it a different confidence of proof: A picture carries with it credi-
bility that is significantly greater than that of witness testimony.
      Finally, Vickers urges that the probative value of the evidence is substan-
tially outweighed by its unfair prejudicial effect. As discussed above, the evi-
dence of the injuries was used to prove an element of the crime; its probative

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                                        No. 09-31137

value was significant. The prejudicial effect was accordingly high as well, but
Vickers has not shown that any unfair prejudicial effect outweighed its probative
value.2
       Although the evidence had significant probative value, the risk of undue
prejudice was low. The fact that Craig sustained some injuries as a result of an
altercation was unlikely to cause the jury to ignore all the evidence presented
and convict Vickers on an emotional basis. Vickers has not shown how the
images of the injuries were inflammatory, let alone how their inflammatory
nature affected the verdict or prejudiced his primary defense (that he did not
begin the altercation that led to the injuries). Though the jury may have had a
negative reaction to the existence of Craig’s injuries, it was equally free to
believe Vickers’s argument that Craig began the altercation.3
       In sum, the evidence of Craig’s injuries was relevant to the offense and
was not cumulative, and its probative value was not outweighed by its prejudi-
cial effect. We need not ask whether admission of the evidence was an abuse of
discretion or whether any error was harmless, because there was no error at all.


                                              III.
       Vickers contends that the district court erred in denying his motion for a
new trial based on the inadequate supplemental jury instructions and the jury’s
failure to follow them. A court “may vacate any judgment and grant a new trial
if the interest of justice so requires. FED R. CRIM. P. 33(a). The grant or denial

       2
        See Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir. 2006) (“‘Unfair
prejudice’ as used in rule 403 is not to be equated with testimony that is merely adverse to the
opposing party. Virtually all evidence is prejudicial; otherwise it would not be material. The
prejudice must be ‘unfair.’”) (citation omitted).
       3
         Additionally, the district court emphasized that it would limit the evidence to only
what was necessary to explain the nature of the injuries and thus merely to establish that they
had occurred, stating that “if it goes too far, I’m going to sustain an objection. You’re going to
have to limit that evidence to the minimum necessary to explain the nature of the injuries.”

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                                   No. 09-31137

of a Rule 33 motion for a new trial is reviewed for abuse of discretion. United
States v. Laury, 985 F.2d 1293, 1300 (5th Cir. 1993). A new trial should not be
granted “unless there would be a miscarriage of justice or the weight of evidence
preponderates against the verdict.” United States v. Wall, 389 F.3d 457, 466 (5th
Cir. 2004) (citation omitted). “A new trial is granted only upon demonstration
of adverse effects on substantial rights of a defendant.” Id. (citation omitted).
      Vickers advances two grounds for why a new trial should have been
granted. First, he argues that the supplemental jury instruction was inade-
quate. We “review a jury instruction for abuse of discretion, affording substan-
tial latitude to the district court in describing the law to the jury.” United States
v. Williams, 610 F.3d 271, 285 (5th Cir. 2010). A court “enjoys wide latitude in
deciding how to respond to questions from a jury.” United States v. Cantu, 185
F.3d 298, 305 (5th Cir. 1999). Our inquiry is to determine whether “the court's
answer was reasonably responsive to the jury’s questions and whether the orig-
inal and supplemental instructions as a whole allowed the jury to understand
the issue presented to it.” Id. at 306.
      There was nothing wrong with the supplemental instruction. The question
asked by the jury conceivably implicated three issues: reasonable doubt, the dis-
tinction between simple and forcible assault, and the availability of evidence.
The supplemental instruction told the jury, amongst other things, to review the
prior reasonable doubt instruction, to review the elements of the crimes, and
that they were to consider only the evidence presented to them. The first of
those supplemental instructions reaffirms to the jury that the court’s original
instruction on reasonable doubt was accurate. The other two inform the jury
that it was to only consider the evidence presented to it and to determine
whether that evidence satisfied all the elements of the crime charged. Those
instructions constituted an accurate statement of the law and served to address
all of the issues raised by the jury question.

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                                       No. 09-31137

       Vickers requested that the court read to the jury the reasonable doubt
instruction and inform it that “if they have reasonable doubt, they should vote
not guilty.” That is exactly what the court did: It instructed the jury to review
the (accurate and complete) reasonable doubt instruction given earlier, which
included the basic statement that reasonable doubt should lead to a verdict of
not guilty.4 The fact that the court also instructed the jury to review the ele-
ments of the offense and to consider only the evidence before it makes the sup-
plemental instruction better, not erroneous.
       Next, Vickers claims that the motion for a new trial should have been
granted because the jury failed to follow the supplemental instructions, which
Vickers states required the jury “to review the evidence presented in the trial,
to review the elements of the crime with which the defendant was charged, and
to review the court’s prior instructions on the definition of reasonable doubt.”
Vickers argues that the length of the jury’s deliberations show that it did not
follow those instructions, so a new trial is warranted. The amount of time that
a jury deliberates is not, however, the principal concern of a court when deciding
a motion for a new trial; rather, “if the evidence is sufficient to support the ver-
dict, the length of time the jury deliberates is immaterial.” Guaranty Serv. Corp.
v. Am. Employers’ Ins. Co., 893 F.2d 725, 729 (5th Cir. 1990) (internal quotations
and citation omitted).
       There was more than sufficient evidence to support the verdict. The victim
testified that he was punched by the defendant. That testimony was corrobo-
rated by another witness. Although Vickers presented two witnesses, one of
them did not see who threw the other punch, and the other was a convicted felon
who admitted to being friends with Vickers. It would not be unreasonable to
credit the testimony of the officers over that of the defendant’s witness. The

       4
        It is notable that Vickers does not challenge the court’s reasonable-doubt instruction
from the original jury instruction—or any portion of the original instruction.

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                                       No. 09-31137

video tape of the incident, though not showing who threw the first punch, is
nonetheless fully consistent with the testimony of the officerSSand inconsistent
with the testimony of one of Vickers’s witnesses. There is more than sufficient
evidence to prove every element of felony assault with physical contact; thus, the
district court properly denied a new trial.5


                                             IV.
       Vickers argues that the prosecutor’s statements at closing argument con-
cerning the testimony of Santos constituted reversible error. Where, as here, the
defendant does not object to statements made during the prosecution’s closing
argument, we review for plain error. United States v. Gracia, 522 F.3d 597,
599-600 (5th Cir. 2008). “We find plain error when (1) there was an error or
defect; (2) the legal error was clear or obvious, rather than subject to reasonable
dispute; and (3) the error affected the defendant’s substantial rights.” United
States v. Juarez, 626 F.3d 246, 254 (5th Cir. 2010). Once those three elements
have been satisfied, we may exercise our discretion to correct the error, id., but
we generally do not consider the error unless it “seriously affected the fairness,
integrity, or public reputation of the judicial proceeding.” Gracia, 522 F.3d at
600.
       A prosecutor cannot “convey the impression that evidence not presented
to the jury, but known to the prosecutor, supports the charges” or “induce the
jury to trust the Government’s judgment rather than its own view of the evi-


       5
        Furthermore, the short time of deliberation does not mean that the jury disregarded
the supplemental instructions. The court did not tell the jury mechanically to re-engage in its
deliberation process from scratch, reviewing every aspect of the instructions and evidence de
novo. Rather, the court instructed the jury to review the original jury instructions to resolve
any questions it may have. It is possible that the jury’s confusion was cleared up after it re-
read the short portion of the instructions that dealt with reasonable doubt, in which case a
quick determination of guilt would be understandable in light of the time the jury had already
spent making evidentiary determinations.

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                                        No. 09-31137

dence.” United States v. Young, 470 U.S. 1, 18-19 (1985). A prosecutor also can-
not suggest that he has personal knowledge that a witness is being untruthful.
Berger v. United States, 295 U.S. 78, 86-88 (1935).
       Nonetheless, we do not “lightly make the decision to overturn a criminal
conviction on the basis of a prosecutor’s remarks alone.” United States v. Virgen-
Moreno, 265 F.3d 276, 290 (5th Cir. 2001). The question is whether, “taken as
a whole in the context of the entire case,” the statement “prejudicially affect[ed
the] substantial rights of the defendant.” United States v. Risi, 603 F.2d 1193,
1196 (5th Cir. 1979) (quotations and citation omitted). We consider three factors
in making that decision: “(1) the magnitude of the prejudicial effect of the pro-
secutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, and
(3) the strength of the evidence supporting the conviction.” United States v.
Wyly, 193 F.3d 289, 299 (5th Cir. 1999) (quotations and citation omitted). “If the
evidence to support a conviction is strong, then it is unlikely that the defendant
was prejudiced by improper arguments of the prosecutor and reversal is not
required.”6 The test properly places a “substantial burden” on defendants.
Virgen-Moreno, 265 F.3d at 290.
       Although Vickers argues that a prosecutor is not allowed to express a per-
sonal belief that a particular witness is lying, that is not what happened here.
The prosecutor highlighted a situation in which a witness’s testimony conflicted
with videotape evidence and his own prior statements,7 explained a possible


       6
       See, e.g., United States v. Casel, 995 F.2d 1299, 1308 (5th Cir. 1993), vacated on other
grounds as to one defendant sub nom. Reed v. United States, 510 U.S. 1188 (1994).
       7
         The prosecutor highlighted the fact that Santos testified that he did not see the begin-
ning of the altercation because he had bent over to pick up an item, but that the video of the
incident showed that Santos had bent over to pick up the item only after the altercation had
begun. Thus, his testimony conflicted with the video evidence, and there was no reason why
he could not say who threw the first punch. Additionally, Santos testified that he had bent
over to pick up a radio; immediately following the incident, however, he had told prison offi-
                                                                                   (continued...)

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                                       No. 09-31137

theory for why there was a discrepancy in the witness's testimony,8 and then
argued that the existence of this discrepancy and the explanatory theory should
lead the jury to conclude that the witness was not credible. At no point did the
prosecutor express any personal knowledge that the witness was being untruth-
ful, give the impression that there was evidence not presented to the jury that
indicated the witness was being untruthful, or persuade the jury to trust the
government’s judgment rather than its own. The prosecutor merely highlighted
some evidence and put forward a reasonable interpretation of it. Thus, Vickers
cannot satisfy even the first prong of the plain error analysis: that there was
error.
         AFFIRMED.




         7
         (...continued)
cials that he had bent over to pick up a watch.
         8
        The prosecutor’s theory was that Santos was faced with two impossible outcomes: He
could not tell the truth that Vickers started the fight, because to do so would lead to negative
consequences in prison; but he also could not state that Craig attacked Vickers first, because
that could lead to perjury charges. The prosecutor argued that to avoid both of those undesira-
ble results, Santos testified that he did not see the beginning of the altercation.

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