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

                                                                            FILED
                                                                            May 2, 2008

                                       No. 07-30574                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

CHARLES SYKES

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:05-CR-46-1


Before REAVLEY, JOLLY, and GARZA, Circuit Judges.
PER CURIAM:*
       Charles Sykes was convicted of (1) possession with the intent to distribute
crack cocaine; (2) possession with the intent to distribute powder cocaine; and
(3) possession of a firearm in furtherance of a drug-trafficking crime. He
received an 11.5 year sentence. He now appeals his conviction and sentence.
For the reasons that follow, we affirm Sykes’s conviction. We remand, however,
so that the district court may determine whether Sykes is entitled to a lower



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-30574

sentence in light of the retroactive amendment to the Sentencing Guidelines that
reduces the offense level for those convicted of crack offenses.
      1.    Sykes contends that he is entitled to a new trial. He argues that the
            district court made a series of errors that, when viewed in the
            context of his whole trial, were not cumulatively harmless and thus
            require the reversal of his conviction.        We have previously
            recognized that “the cumulative effect of a series of errors may
            require reversal, even though a single one of those errors, standing
            alone, would not require such a result.” United States v. Villarreal,
            324 F.3d 319, 328 (5th Cir. 2003).     We now address each of the
            errors Sykes alleges in turn.
                  Sykes first argues that the district court abused its discretion
            when it allowed the government to qualify Officer Foxworth as an
            expert witness on the stand, which permitted the officer to testify
            both as an expert witness and as a fact witness. Sykes points us to
            United States v. Dukagjini, 326 F.3d 45, 53–54 (2d Cir. 2003), where
            the Second Circuit catalogued some of the many concerns about
            allowing a witness to simultaneously wear the expert-witness hat
            and the fact-witness hat. But Sykes never tethers those theoretical
            concerns to the facts of his case. Moreover, while Sykes complains
            that he was not given pre-trial notice of the government’s intent to
            use Officer Foxworth as an expert witness, Sykes has not argued he
            was prejudiced by this lack of pre-trial disclosure. Sykes has not
            shown that the district court abused its discretion.
                  Sykes next contends that the district court abused its
            discretion by not letting him put the government’s fingerprint
            expert on the stand. That individual would have testified that in a
            prior drug arrest at Sykes’s apartment, two people were arrested

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and that fingerprint evidence confirmed that neither was Sykes.
Sykes concedes that he failed to properly disclose pre-trial that he
intended to call the fingerprint expert, in violation of the district
court’s discovery order. But he contends that the sanction imposed
for the discovery violation—exclusion of the witness—was not
warranted and stands in stark contrast to the district court’s
treatment of the government’s failure to disclose that it intended to
call Officer Foxworth as an expert witness.
      That contrasting treatment was justified, however, because
while Sykes (as noted above) was not prejudiced by the
government’s lack of pre-trial disclosure, the government was
prejudiced by Sykes’s lack of pre-trial disclosure. As the district
court concluded, exclusion of the fingerprint expert was proper
because if the government knew that Sykes was going to bring up
this prior arrest at trial via its fingerprint expert, it would have
done a more thorough investigation to identify the two individuals
who were in fact arrested. Those individuals, if found, might have
told the government that Sykes was somehow involved in their drug
dealing. But since Sykes did not give the government notice, the
government did not investigate to determine Sykes’s precise
relationship to this prior arrest.    Given that prejudice to the
government, it was not an abuse of discretion for the district court
to refuse to allow Sykes to call the government’s fingerprint expert
to the stand.
      Sykes next argues that the district court abused its discretion
when it allowed the government to introduce evidence of his prior
arrest on a scooter—evidence that had been suppressed because it
had been gathered in violation of the Fourth Amendment. Sykes


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contends that the unfair prejudice of that evidence substantially
outweighed its probative value.
      Evidence of Sykes’s prior arrest had obvious probative value
as impeachment evidence. Sykes claimed on the stand that he
didn’t distribute drugs. If the jury believed he didn’t deal drugs, it
would acquit him of the two drug-dealing charges. But if the
members of the jury were told about the scooter incident, they could
infer that Sykes did in fact distribute drugs. That would undermine
Sykes’s claim on a material point in the trial.
      On the other hand, there is little doubt that this evidence
could be unfairly prejudicial. As this court noted in United States
v. Beechum, 582 F.2d 898, 914 (5th Cir. 1978) (en banc) (footnote
and internal quotation marks omitted):
      One of the dangers inherent in the admission of
      extrinsic evidence is that the jury may convict the
      defendant not for the offense charged but for the
      extrinsic offense. This danger is particularly great
      where, as here, the extrinsic activity was not the
      subject of a conviction; the jury may feel that the
      defendant should be punished for that activity even if
      he is not guilty of the offense charged. Moreover, even
      if the jury is no more disposed to punish the accused for
      his unpunished past crimes, “over-persuasion” may lead
      them to conclude that, having committed a crime of the
      type charged, he is likely to repeat it.
Those dangers were particularly acute in this case because not only
is the prior bad act uncharged criminal conduct, but uncharged
conduct that the jury might view as the defendant getting away
with on a legal technicality.      Moreover, the potential unfair
prejudice was compounded by the fact that the jury, earlier in the
trial, heard about another prior arrest.



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           Nevertheless, the district court did not abuse its discretion in
     determining that the unfair prejudice from this evidence did not
     substantially outweigh its probative value. Sykes opened the door
     for this sort of evidence by denying he dealt drugs. Moreover, the
     judge did provide a limiting instruction—that the jury was only to
     consider all of this evidence for its impeachment purposes.
           Sykes finally argues that the district court erred in allowing
     the government to make three improper arguments during closing.
     Since, as discussed above, the district court made no other errors,
     Sykes is entitled to a new trial only if the prosecutor’s allegedly
     improper remarks alone entitle him to a new trial. Sykes carries a
     “substantial” burden.   United States v. Mares, 402 F.3d 511, 515
     (5th Cir. 2005). That burden requires Sykes to convince this court
     that “the prosecutor’s remarks cast serious doubt on the correctness
     of the jury’s verdict.” Id. (internal quotation marks omitted). Sykes
     cannot meet that burden.       The arguments were based on the
     evidence and did not deviate to express a personal opinion.
     Accordingly, Sykes’s conviction is affirmed.
2.   In his opening brief, Sykes contended that his sentence was
     substantively unreasonable because the district court had failed to
     apply the then-pending amendment to the Sentencing Guidelines
     that would reduce the offense level for crack offenses. Since Sykes
     filed that brief, the amendment has been made retroactive. A
     defendant may now file a motion under 18 U.S.C. § 3582(c)(2)
     requesting that the district court determine whether he or she is
     entitled to a sentence reduction. Sykes, in his reply brief, dropped
     his substantive reasonableness challenge to his sentence.         He
     instead requests that this court remand this case to the district

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        court so that it may determine whether he is entitled to a lower
        sentence. The government agrees. Accordingly, we remand this
        case to the district court so that it may determine, pursuant to 18
        U.S.C. § 3582(c)(2), whether Sykes is entitled to a lower sentence.
AFFIRMED. Cause REMANDED.




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