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

                                                 FILED
                                                                         November 5, 2009

                                       No. 09-30070                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

JEFFERSON DANIELS

                                                   Defendant-Appellant




                 Appeals from the United States District Court for
                         the Eastern District of Louisiana
                                No: 2:08-CR-104-1


Before GARWOOD, DAVIS, and DENNIS, Circuit Judges.
PER CURIAM:*
       Appellant Jefferson Daniels appeals his felon in possession of a firearm
conviction in violation of 18 U.S.C. §§922 (g)(1) and 924 (a)(2). For reasons
explained below, we affirm the judgment of the district court.
                                              I.
       On March 28, 2008, Tangipahoa Sheriff’s Deputy Womack stopped
Jefferson Daniels for a traffic violation on Interstate 55. Immediately after
making the stop, Deputy Womack observed that Daniels was exceedingly

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30070

nervous: his hands shook and his voice quivered. During routine questioning,
Deputy Womack asked Daniels if he had any prior arrests, convictions, or
citations.   Daniels told him that he had none. Yet when Deputy Womack
returned to the cruiser to write the citation and to run the criminal histories of
the occupants of the vehicle, he discovered that Daniels was a convicted felon.
Returning to the vehicle, Deputy Womack asked Daniels if he had anything
illegal in his car, any weapons, illegal drugs or large amounts of money. Daniels,
then, told Deputy Womack that he had $2,000 dollars in his car but that he had
nothing illegal.   After Daniels’ response, Deputy Womack concluded that
Daniels’ extreme nervousness and his lie about not having prior felonies were
suspicious. Deputy Womack asked for Daniels’ written consent to search the
vehicle which Daniels gave.
      During the search, Deputy Womack discovered a black duffel bag and two
backpacks inside the trunk. When he unzipped the duffel bag’s side pocket,
Deputy Womack found a Ruger P94. 9mm semi-automatic handgun. Deputy
Womack asked the occupants of the car who owned the duffel bag.            When
Daniels acknowledged that it was his, Deputy Womack arrested Daniels for
being a felon in possession of a firearm.      After arresting Daniels, Deputy
Womack continued to search the duffel bag and found a bag of currency totaling
$15,000. Deputy Womack also discovered marijuana on the person of one of
Daniels’ passengers.
      Daniels was indicted for being a felon in possession of a firearm, in
violation of 18 U.S.C. §§922 (g)(1) and 924 (a)(2).
      On August 18, 2008, Daniels filed a motion in limine to exclude testimony
pertaining to the drugs and the currency seized during the traffic stop. The
district judge granted Daniels’ motion. In its order, the court reasoned that
under Federal R. Evid. 404(b), the probative value of evidence suggesting that
Daniels was involved in drug trafficking and knowingly possessed the firearm

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as a tool of the drug trade was substantially outweighed by the evidence’s
unduly prejudicial effect.
      On August 25, 2008, the morning of trial, the government sought to
introduce the evidence of the currency. In making its proffer the prosecution
argued that the evidence of the money was relevant to Daniels’ credibility and
showed that Daniels had lied to a police officer during the traffic stop. This use
of the money evidence had not been addressed in the district court’s order
granting defendant’s motion in limine. Without objection from the defendant,
the district court permitted the government to introduce Daniels’ statement
about having only $2,000 in his possession along with the officer’s testimony that
he discovered $15,000 in the bag.
      At trial Daniels’ girlfriend testified that the gun was hers and that she had
put it in Daniels’ bag without his knowledge. However, the jury also heard a
recording made after Daniels’ arrest in which Daniels’ girlfriend admitted that
Daniels had put the gun in the bag. The jury also saw photos of the contents of
the bag that included not only the firearm and currency but what appeared to
be Daniels’ clothing and other personal effects.
      The following day, Daniels was found guilty for being a felon in possession
of a firearm, in violation of 18 U.S.C. §§922 (g)(1) and 924 (a)(2).
                                        II.
      Daniels argues first that the district court erred in admitting evidence
related to the money Deputy Womack discovered. While Daniels’ motion in
limine objected to the prosecution’s attempt to offer the money and drug residue
as evidence of Daniels’ participation in drug trafficking, the defendant did not
object when the prosecution sought to offer the money as evidence of Daniels’
credibility. Because the defendant did not object to this offering, we review for
plain error. To show plain error, the appellant must show an error that is clear
or obvious and that affects his substantial rights. United States v. Baker, 538

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F.3d. 324, 332 (5th Cir. 2008). If the appellant makes such a showing, this court
has the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      The district court explained her reason for admitting the money evidence
as follows:
      My main concern with the money was the drug implications of that.
             If there’s a different issue that [Deputy Womack] asked
      [Daniels] how much money he had and he lied about it, I think that
      evidence can come in that, in fact, an amount of money was
      recovered far in excess of that So to that extent I will admit the
      evidence that the money recovered was in excess of the amount that
      admitted having on him, but we’re not having any drug dogs. We’re
      not having any discussion of drug residue. This simply goes to the
      issue of credibility of the defendant and his response to the law
      enforcement officers . . . The argument is the money goes to the
      credibility of the defendant. We’re not arguing that these are tools
      of the trade and that this makes it more likely for [Daniels] to have
      a gun.

Trial Record, p. 350–351. The government had the burden of establishing that
the defendant knowingly possessed a firearm. Evidence of the defendant’s false
statement about what he possessed could be viewed as designed to persuade the
officer to refrain from searching him or his bags. This is circumstantial evidence
of guilty knowledge of the contents of his bags that he did not want to disclose.


      The district court committed no error, plain or otherwise, in admitting this
evidence.
                                         III.
      Daniels also argues that the prosecutor’s erroneous statement in closing
arguments warrants reversal.        At trial, Deputy Womack testified that he
discovered the gun inside a bag in the trunk. After finding the weapon, Deputy
Womack asked the occupants of the car who owned the bag. When Daniels



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stepped forward and acknowledged that the bag was his, Womack arrested him
for possession of a firearm by a felon. Trial Record, p. 404.        During the
prosecution’s closing argument, the following exchange took place:


     Mr. Cox:
                  What did Deputy Womack tell you? Deputy Womack
                  told you he saw the gun. He said, “Who does the gun
                  belong to?” [Daniels] raised his hand. Before any
                  consultation with [passenger]Ms. Brown, Ms. Cynthia
                  Brown, he raised his hand. “My gun.” He knew about
                  it. That what he’s charged with, being a convicted felon
                  in possession of a firearm.

     Mr. Scillitani:
                  Your Honor, I want to lodge an objection. That is not
                 the testimony that came out here in the trial today.
                 There was no testimony with regard to my client ever
                 possessing that weapon.

     Mr. Cox:
                  Your Honor, it did. In fact, he asked, “Who does the
                  gun belong to,” and the defendant raised his hand on
                  the scene.

     Mr. Scillitani:
                 That’s an incorrect statement.

     Mr. Cox:
                  On the scene. This is during Deputy Womack’s direct
                  examination.

     The Court:
                  I don’t remember that. Ladies and gentlemen, you’re
                  going to have to rely on your memory for the evidence
                  as to what the evidence was.

     Mr. Cox:
                  Ladies and gentleman, again, you–all are the trier –
                  excuse me. You are the finder of fact. You will


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                   determine what exactly was said during the testimony.
                   You can review your notes.        You can consult.
                   Collectively, you must determine whether or not this
                   man, Jefferson Daniels, was in possession of that gun
                   that morning.

Trial Record, 543–544. On appeal, Daniels maintains that the impropriety of the
prosecution’s actions casts doubt on the jury’s verdict.
      Because counsel objected during the prosecutor’s closing argument, the
standard of review is whether the defendant’s substantial rights have been
prejudiced. United States v. Fierro, 38 F.3d 761, 771 (5th Cir. 1994).
      When prosecutorial misconduct is reviewed on direct appeal, this court
looks at the magnitude of the prejudicial effect of the statements, the efficacy of
any cautionary instructions, and the strength of the evidence of defendant’s
guilt. United States v. Mendoza, 522 F.3d 482, 492 (5th Cir. 2008) (citations
omitted). The prosecution obviously erred in recounting the testimony in that
he stated that Daniels admitted the gun belonged to him when, in fact, Daniels
only admitted the bag holding the gun was his. But the defendant’s objection
called this error to the jury’s attention and the court’s instruction focused the
jury on its duty to recall the evidence on this point. Furthermore, the evidence
as outlined above firmly supported a conviction. We see no indication that this
was intentional misconduct or that the defendant suffered prejudice from the
prosecutor’s argument.
      For the reasons stated above, the judgment of conviction is affirmed.


      AFFIRMED




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