                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                    December 22, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-11335
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                     ZAVARN CORNELIUS HAYES,

                                                Defendant-Appellant.


          Appeal from the United States District Court
               for the Northern District of Texas
                        (3:03-CR-109-ALL)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Zavarn Cornelius Hayes appeals his conviction for being a

previously convicted felon in possession of a firearm, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).    Hayes contends that the

officers who arrested him testified improperly at trial that it was

their opinion and belief that the weapon found at the scene came

from his person. (Hayes had been apprehended after a pursuit; when

he was lifted to his feet, the officers had observed a holstered

pistol under Hayes’ body.)   Because Hayes did not object to the



     *
       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this opinion should not be published and is not precedent except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.
prosecutor’s questions on the basis that they were intended to

induce improper opinion testimony, we review only for plain error.

See, e.g., United States v. Green, 324 F.3d 375, 381 (5th Cir.),

cert. denied, 124 S. Ct. 152 (2003).

     “Under the plain error analysis, the court may reverse a

criminal conviction only if (1) there was error, and (2) the error

was clear and obvious, and (3) the error affected a substantial

right.”   United States v. Jimenez, 256 F.3d 330, 340 (5th Cir.

2001).    Further,      the        court    retains        discretion        to   reverse   a

conviction on the basis of plain error; generally, we will reverse

only if the error seriously affected the fairness, integrity, or

public reputation of the proceedings.                      Id.

     Under FED. R. EVID. 701, if a witness is not testifying as an

expert,   the   witness       may    testify          in   the     form   of   opinions     or

inferences only if the testimony (1) is rationally based on the

witness’ perceptions, (2) is helpful to a clear understanding of

the testimony or the determination of a fact issue, and (3) is not

based on scientific, technical, or other specialized knowledge.

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

1999).    Although      a    witness       may       not   offer     legal     conclusions,

“testimony   in   the       form    of     an       opinion   or    inference     otherwise

admissible is not objectionable because it embraces an ultimate

issue to be decided by the trier of fact”.                         FED. R. EVID. 704(a);

see United States v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999)


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(applying Rule 704(a) to lay testimony).           The officers’ testimony

was limited to opinions that were rationally based on the officers’

observations,    and     the    testimony    was   helpful    to    a   clear

determination of a fact issue.            There was no error.       But even

assuming arguendo the admission of the officers’ testimony was

error, it was not the “clear” or “obvious” error required by our

plain error review.      See Parsee, 178 F.3d at 379.

     Hayes also challenges remarks made by the prosecutor during

closing argument.       He contends that the prosecutor improperly

vouched   for   the    officers’   credibility     on   several    occasions;

however, he objected to only two of the four remarks he challenges

on appeal.   Plain error review is applied to the comments for which

there was no objection.        The objected-to comments are reviewed to

determine whether they were improper and, if so, affected Hayes’

substantial rights.      E.g., United States v. Gallardo-Trapero, 185

F.3d 307, 320 (5th Cir. 1999).

     Although Hayes stopped short of testifying that the arresting

officers were lying, his testimony about the discovery of the

firearm conflicted substantially with the officers’.          A prosecutor

may “present what amounts to be a bolstering argument if it is

specifically in rebuttal to assertions made by defense counsel in

order to remove any stigma cast upon [the prosecutor] or his

witness”.    United States v. Thomas, 12 F.3d 1350, 1367 (5th Cir.)

(internal quotation and citation omitted), cert. denied, 511 U.S.


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1095, and cert. denied, 511 U.S. 1114 (1994).      The other comments

challenged by Hayes were permissible requests that the jury draw

reasonable inferences from the evidence and a permissible argument

that, under the evidence presented, the officers had no reason to

lie.    See United States v. Washington, 44 F.3d 1271, 1278 (5th

Cir.), cert. denied, 514 U.S. 1132 (1995).        There was no error,

plain or otherwise.

       Hayes also claims for the first time on appeal that the

prosecutor also made an improper plea for law enforcement.      “This

circuit has held that appeals to the jury to act as the conscience

of the community are permissible, so long as they are not intended

to inflame.”    United States v. Fields, 72 F.3d 1200, 1208 (5th

Cir.), cert. denied, 519 U.S. 807 (1996).      The prosecutor’s remark

was not clear or obvious error.       See Jimenez, 256 F.3d at 340.

       Finally, Hayes urges reversal based on cumulative error.

Obviously, in the light of the foregoing, that claim fails also.

                                                           AFFIRMED




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