     Case: 17-50220      Document: 00514550975         Page: 1    Date Filed: 07/11/2018




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

                                    No. 17-50220                            FILED
                                  Summary Calendar                      July 11, 2018
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSEPH KRIST, also known as Joseph C. Krist, also known as Jose Krist, also
known as Joseph Lee Krist, also known as Joseph L. Krist, also known as
Joseph Cyclematha Krist, III, also known as Joseph Cyro Krist, also known as
Joe C. M. Krist, III, also known as Joseph Cyralmathard Krist, III, also known
as Joseph Cyralmath Krist, III, also known as Joseph C. M. Krist,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-418-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Joseph Krist was convicted following a jury trial of
one count of bank robbery, one count of armed robbery, and aiding and abetting




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50220

those offenses. The jury did not reach a verdict on an additional count of bank
robbery. He appeals his conviction.
      Krist contends that the district court erred by allowing the Government,
under Federal Rule of Evidence 404(b), to present evidence of uncharged bank
robberies. He maintains that the evidence, which was extrinsic to the charged
offenses, exclusively implicated his character and lacked probative value that
substantially outweighed its prejudicial impact. The Government counters
that the challenged evidence was admissible because it was either intrinsic to
the charged offenses or extrinsic but satisfied the requirements of Rule 404(b).
We review evidentiary rulings for abuse of discretion, subject to harmless error
examination. See United States v. Hawley, 516 F.3d 264, 268 (5th Cir. 2008).
      It is unnecessary for us to determine if the challenged evidence was
extrinsic, implicating Rule 404(b), because any error in admitting that
evidence was harmless.      See id. at 267-68.    In the context of the entire
proceeding, the record does not support a reasonable probability that evidence
of the uncharged robberies contributed to the verdict. See id. at 268. The
Government presented substantial evidence that Krist was guilty of the
offenses of conviction, including, inter alia, his post-arrest statement in which
he confessed to one of the robberies; testimony from the other individuals who
participated in the robberies alongside Krist; surveillance videos from the
banks that were robbed; and testimony from bank employees who experienced
the robberies. Further, the risk that the jury might have improperly relied on
the contested evidence was lessened by the district court’s jury instructions
concerning the evidence of other acts. See United States v. Gordon, 780 F.2d
1165, 1174 (5th Cir. 1986).       And, the fact that the jury rendered a
particularized verdict, convicting Krist on less than all counts, suggests that
the jury did not allow evidence of the uncharged bank robberies to affect or



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                                 No. 17-50220

prejudice its decision whether Krist committed the offenses alleged in the
indictment. As the record does not support a conclusion that any error in
admitting the challenged evidence had a substantial influence on the outcome
of the trial, any error was harmless. See Hawley, 516 F.3d at 268.
      Krist also argues that he was denied a fair trial because the prosecutor
made improper comments during closing arguments. He specifically identifies
two sets of remarks. First, he disputes the prosecutor’s characterization of his
defense strategy as seeking to muddy the waters (the prosecutor noted that,
during visits to a lake, her daughter would try to see how much mud she could
stir up “[a]nd so she’d start kicking her feet around, and it would turn into a
great big mud puddle). That’s exactly what the defense has just done.” Second,
Krist notes that the prosecutor played the surveillance video of one of the bank
robberies for the jury and stopped the video when the robber’s face was visible,
stating, “Now I don’t know about you. I think that looks an awful lot like
Joseph Krist.”
      In closing arguments, a prosecutor may only discuss “properly admitted
evidence and any reasonable inferences or conclusions that can be drawn from
that evidence,” United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010)
(quotation marks and citation omitted). A prosecutor’s closing remarks only
rise to the level of reversible error when they “cast serious doubt on the
correctness of the jury’s verdict.” United States v. Mares, 402 F.3d 511, 515
(5th Cir. 2005) (quotation marks and citation omitted). In deciding the effect
of a prosecutor’s comments, we review (1) the magnitude of the prejudicial
effect of the remarks, (2) the efficacy of any cautionary instruction issued by
the judge, and (3) the strength of the evidence supporting the conviction. Id.
      Even if we assume that both sets of the prosecutor’s remarks were
improper, Krist has not shown that those comments cast serious doubt on the



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                                 No. 17-50220

correctness of the jury’s verdict. See id. The remarks were not momentous,
and their significance was minimized by the context in which they were offered,
i.e., the rebuttal portion of closing argument. The record does not indicate that
the comments affected the jury’s ability to evaluate the evidence or compelled
jurors to disregard their duties. Any prejudicial effect of the remarks was
mitigated by the trial court’s instructions to the jury that the attorneys’
comments were not evidence and that the verdict should be based solely on the
evidence presented. See id. There was also substantial evidence of Krist’s
guilt. See id. We conclude that no reversible error occurred. See id.; United
States v. Mendoza, 522 F.3d 482, 494, 496 (5th Cir. 2008).
      AFFIRMED.




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