     Case: 16-41439      Document: 00514095602         Page: 1    Date Filed: 07/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fif h Circuit
                                    No. 16-41439                                    FILED
                                  Summary Calendar                              July 31, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES RAY HUNT, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:15-CR-26-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       A jury found James Ray Hunt, Jr., guilty of two counts of possession with
the intent to distribute a controlled substance in violation of 21 U.S.C.
§ 841(a)(1) (Counts 1 and 3) and two counts of possession or sale of a stolen
firearm in violation of 18 U.S.C. § 922(j) (Counts 2 and 5). The jury acquitted
Hunt of one count of possessing a firearm in furtherance of a drug trafficking
crime under 18 U.S.C. § 924(c) (Count 4). Hunt advances two primary claims


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41439

on appeal. First, Hunt claims that the district court abused its discretion by
denying his motion to sever the controlled-substance charges from the firearm
charges. Second, Hunt claims that the district court abused its discretion by
admitting into evidence (i) testimony and an audiotape concerning a December
1, 2015 telephone call between Hunt and Nekeba Lee (a confidential
informant) and (ii) the testimony of David Lovett, which confirmed that the
firearm subject to the § 924(c) charge had been stolen.
I.     Denial of Hunt’s Motion to Sever the Controlled-Substance Charges from
       the Firearm Charges
       Even assuming arguendo that the joinder of the controlled-substance
charges with the firearm charges 1 was improper, Hunt’s general and
conclusory statements that the jury “could not reasonably be expected to”
analyze the evidence for each charge independently fails to establish “clear,
specific, and compelling prejudice that resulted in an unfair trial.” United
States v. Simmons, 374 F.3d 313, 317 (5th Cir. 2004). Moreover, any possible
prejudice was cured by the jury instructions given by the district court. See
United States v. Bullock, 71 F.3d 171, 175 (5th Cir. 1995).
II.    Admission of Evidence
       A.    Evidence Concerning the December 1, 2015 Telephone Call
       Even if the district court abused its discretion in admitting a telephone
call between Hunt and Lee discussing the sale of cocaine, any theoretical error
was harmless. See United States v. Stephens, 571 F.3d 401, 409 (5th Cir. 2009).
Other evidence discussing the sale was admitted without objection from Hunt,
and the evidence of the telephone call was merely reiterative of and
corroborated this other evidence. Finally, to minimize any prejudicial effect of

       1 Hunt sought to sever Counts 2 and 5 from Counts 1, 3, and 4, contending that he
sought a distinction between drug charges and weapons charges. Count 4, however, was a
weapons charge stemming from the sale that was the subject of Count 3–the two allegedly
occurred on the same date and involved the same buyer.


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                                      No. 16-41439

the subject evidence, the district court gave a limiting instruction. This court
has deemed such instructions “significant” in allaying undue prejudice. United
States v. Beechum, 582 F.2d 898, 917 (5th Cir. 1978) (en banc).
       B.     Testimony of David Lovett
       Lovett’s testimony concerning the stolen nature of the firearm was
relevant to whether Hunt possessed the firearm in furtherance of a drug
trafficking crime, as alleged in Count 4 (of which Hunt was acquitted). See
United States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000). Moreover,
Hunt’s argument that the district court should have excluded Lovett’s
testimony under Rule 404(b) of the Federal Rules of Evidence finds no support
in the record. Rule 404(b) pertains to the admission of evidence related to a
defendant’s crimes, wrongs, or other acts for which he was not charged. Lovett
testified that he did not know Hunt, and he did not testify that Lovett stole the
subject firearm from his truck. As such, Lovett’s testimony did not implicate
a separate act attributable to Hunt that would have been governed by Rule
404(b).
       Furthermore, even if the district court abused its discretion in admitting
Lovett’s testimony, any such error was harmless because an officer separately
testified—without objection from Hunt—that the firearm was stolen.                      See
Stephens, 571 F.3d at 409.          Finally, to minimize any prejudicial effect of
Lovett’s testimony, the district court gave a limiting instruction. See Beechum,
582 F.2d at 917. 2 Based on the foregoing, Hunt has failed to establish that the
district court abused its discretion in admitting the subject evidence. See
Stephens, 571 F.3d at 409.
       The district court’s judgment is AFFIRMED.



       2 Belying any claim that the jury was rendered incapable of being fair by admission of
this evidence, it acquitted Hunt of Count 4.


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