     Case: 15-60371       Document: 00513348759         Page: 1     Date Filed: 01/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-60371
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           January 20, 2016
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

ELVIS O’NEAL GRAY,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 1:14-CR-75-1


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       A jury convicted Elvis O’Neal Gray of mail fraud, in violation of 18 U.S.C.
§ 1341, based on his submitting false and fraudulent statements and
representations in connection with a BP oil-spill compensation claim. At trial,
a Government witness, Jarrell, in response to a question about how she knew
Gray had already filed his claim, referred to his ex-wife’s questioning how Gray
had money to make purchases, because she testified Gray “wasn’t helping take


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 15-60371     Document: 00513348759     Page: 2   Date Filed: 01/20/2016


                                  No. 15-60371

care of [his] children or everything else except letting them come over and
stay”. Gray’s counsel immediately moved for a mistrial, contending, inter alia,
that Jarrell’s statement was prejudicial character evidence. The court denied
the motion; Gray challenges that denial.
      Our court reviews the denial of a motion for mistrial, based upon
introduction of improper evidence, for abuse of discretion. E.g., United States
v. Lucas, 516 F.3d 316, 345 (5th Cir. 2008). A new trial is appropriate “only
when . . . it appears that there is a significant possibility that the prejudicial
evidence had a substantial impact on the jury verdict”. United States v. Valles,
484 F.3d 745, 756 (5th Cir. 2007). The court did not abuse its discretion in
denying Gray’s motion.     Based on the record and the context of Jarrell’s
statement, her reference to Gray’s taking care of his children was an “isolated
remark[ ], that w[as] not dwelled upon by the parties”, and was not otherwise
discussed by counsel or any other witness. See, e.g., United States v. Paul, 142
F.3d 836, 844 (5th Cir. 1998); United States v. Zamora, 661 F.3d 200, 212 (5th
Cir. 2011).
      In short, any such error was harmless. Although the court did not give
a specific curative instruction concerning Jarrell’s remark, it instructed the
jury that Gray was not on trial for any other act, conduct, or offense not alleged
in the indictment. See Paul, 142 F.3d at 844. Moreover, there is no significant
possibility that Jarrell’s remark had a substantial impact on the jury verdict,
in the light of other overwhelming evidence of Gray’s guilt presented at trial.
See id.
      AFFIRMED.




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