                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
             IN THE UNITED STATES COURT OF APPEALS
                                                   December 27, 2006
                     FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                          No. 05-51469


                   UNITED STATES OF AMERICA,

                      Plaintiff-Appellee,

                              versus

                         ELIAS GONZALES,

                      Defendant-Appellant.

                     --------------------
         Appeal From the United States District Court
               for the Western District of Texas
                         5:04-CR-305-1
                     --------------------

Before JOLLY, HIGGINBOTHAM and DENNIS, Circuit Judges.

PER CURIAM:*

     Appellant,      Elias   Gonzales,     was    convicted         of

possession of a firearm by a convicted felon, 18 U.S.C.

§ 922(g)(1), and sentenced to 51 months of imprisonment

and two years of supervised release. He appealed, and we

affirm.



     *
       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this opinion should not be published and is not precedent except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. 05-51469
                                    -2-

       After    Gonzales      left    the     scene      of   a    domestic

altercation,      his    ex-wife      and    her    friend     called    the

police.    Law enforcement officers intercepted Gonzales in

his car and pulled him over. They searched his vehicle

and discovered a firearm.

       Gonzales argues that he was deprived of a fair trial

by prosecutorial remarks during the closing statement

suggesting that Gonzales’s ex-wife and friend called the

police in fear because Gonzales had threatened to shoot

them. He also asserts that the district court abused its

discretion      in    excluding       the    audio       portion    of   the

videotape of the search of Gonzales’s car. At trial,

Gonzales sought to use the audio portion of the tape to

impeach witnesses who testified against him, particularly

two of his friends, who were in the car during the

search, as well as an officer who participated in the

search and who questioned Gonzales’s friends about the

firearm at that time. Gonzales wanted to use the tape to

show    that:   1)    during    the    search      his    friends    denied

knowing anything about the firearm; and 2) the officer’s

questioning      of     his   friends       was    unduly     forceful   or
                               No. 05-51469
                                    -3-

suggestive. He challenges the district court’s exclusion

of the audio portion of the tape.1

       After reviewing the evidence and the record, we

conclude that each of these arguments is without merit.

Even assuming (without deciding) that the prosecutor’s

remarks       during    his   closing     argument     were   improper,

Gonzales has not shown that the remarks affected his

substantial rights. Similarly, even assuming arguendo

that       the     district   court     abused   its   discretion     in

excluding the audio portion of the tape, such error is

harmless because the record indicates it could have had

no more than a minimal effect on the jury’s verdict. Both

of Gonzales’s friends admitted on the stand that they had

made       prior    inconsistent      statements,    and   the   officer

involved in their questioning likewise acknowledged the

flaws in his interrogative technique. Even without the

audio evidence, the jury had a clear, accurate picture of

what transpired. Accordingly, the defendant’s conviction

and sentence are AFFIRMED.

       1
       Gonzales also challenges the constitutionality of the
statute under which he was convicted, 18 U.S.C. § 922(g)(1). He
acknowledges that the issue is foreclosed by circuit precedent.
See United States v. Rawls, 85 F.3d 240, 242 (5th Cir.
1996)(rejecting arguments identical to those raised by Gonzales).
