                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JAN 8 1998

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 96-2061
 v.                                              (D.C. No. CR-94-747-LH)
                                                       (New Mexico)
 DENNIS RAY JONES,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, MCWILLIAMS, Senior Circuit Judge, and
MURPHY, Circuit Judge.


      Dennis Ray Jones appeals his conviction for possession with intent to

distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A). He argues that the district court abused its discretion by improperly

limiting cross-examination of a government witness, and that remarks contained

in the prosecutor’s closing argument deprived him of a fair trial. We affirm.

      Police officers executed a state search warrant at Mr. Jones’ residence,


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
where they located several guns, drug ledgers, two scales, a radio scanner, money

wrappers, and approximately $6,921.00 in cash. In addition, officers found five

“balls” -- two wrapped in duct tape and three in foil -- and a separate small plastic

bag. Both the balls and the bag contained white powder. Officers conducted a

field test in which samples of the white powder indicated methamphetamine.

Detective Brian Sallee placed the balls in one evidence container and the small

plastic bag in another and took them to the police station for storage. On

December 12, Detective Greg Hagel checked out the two evidence containers,

observed them to be maintained as described by Detective Sallee, and proceeded

to analyze them for fingerprints. On December 13, DEA Agent Stephen Lillard

checked out the two evidence containers, which now contained a “yellowish”

powdery substance, and sent them to the DEA laboratory for forensic testing.

When the DEA chemist received the evidence containers, he opened them and

observed several small plastic bags containing what was now a rock-like

substance. An analysis indicated the presence of 80% pure D-methamphetamine.

      Mr. Jones contends the district court impermissibly restricted his cross-

examination of Detective Sallee pursuant to Rule 608(b) regarding a police

department investigation which cleared him of alleged mishandling of money

seized during the execution of a search warrant. The district court held under

Rule 403 that the proffered evidence was substantially more prejudicial than


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probative and could lead to confusion of the issues, a decision we review for

abuse of discretion. See United States v. Olivo, 80 F.3d 1466, 1470 (10th Cir.

1996); United States v. Morales-Quinones, 812 F.2d 604, 613 (10th Cir. 1987).

      We cannot conclude the district court abused its discretion in determining

the evidence was prejudicial and potentially confusing. See United States v.

Ramirez, 63 F.3d 937, 943 (10th Cir. 1995) (trial court afforded broad discretion

in making determination under Rule 403). Since Detective Sallee was cleared of

prior wrongdoing, any connection between the investigation and his propensity

for truthfulness is tenuous at best. See United States v. Phibbs, 999 F.2d 1053,

1070 (6th Cir. 1993). Moreover, although the core of Mr. Jones’ defense was his

assertion that the substance seized from his apartment was not the same substance

later analyzed at the DEA laboratory, the evidence proffered by the government

did not change from powder to solid until well after the last time it was in

Detective Sallee’s custody and several others handled the evidence in the

meantime. The record contains nothing to demonstrate that Detective Sallee

altered the evidence or its packaging subsequent to bagging it at the scene. See

United States v. Hamell, 3 F.3d 1187, 1189 (8th Cir. 1993) (cross-examination

concerning past misconduct disallowed where conduct was unrelated to the events

involved in defendants’ trial); cf. United States v. Ellzey, 936 F.2d 492, 496 (10th

Cir. 1991) (limitation on cross-examination survives Confrontation Clause where


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no evidence proffered to establish a link between witness’ past conduct and issues

in defendant’s case). Since the proffered evidence is of questionable relevance,

the district court did not abuse its discretion in limiting the cross-examination of

Detective Sallee.

      Mr. Jones next contends the district court erred in denying his motion for

mistrial based on the prosecutor’s remarks during closing argument, in which the

prosecutor characterized Mr. Jones’ defense based on mishandling of evidence as

“an O.J. Simpson spin-off.” Where, as here, the defendant lodges a

contemporaneous objection to prosecutorial misconduct and subsequently moves

for mistrial, we review the district court’s denial of the motion for mistrial for

abuse of discretion. See United States v. Gabaldon, 91 F.3d 91, 93 (10th Cir.

1996). We agree with Mr. Jones that the prosecutor’s reference to the O.J.

Simpson case in his closing argument was a gratuitous and inappropriate attempt

to impugn the credibility of Mr. Jones’ counsel and challenge the legitimacy of

his defense. “When a prosecutor places the credibility of counsel at issue, the

advantage lies solidly with the government, and thus, prosecutors are prohibited

from doing so.” United States v. Rosales, 19 F.3d 763, 767 (1st Cir. 1994).

      Although we do not condone the prosecutor’s misconduct, we nevertheless

cannot conclude the district court had no alternative other than to declare a

mistrial. For the district court’s decision to constitute an abuse of its discretion


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warranting reversal, the prosecutor’s misconduct “must have been ‘flagrant

enough to influence the jury to convict on grounds other than the evidence

presented.’” United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996) (quoting

United States v. Ramirez, 63 F.3d 937, 944 (10th Cir. 1995)). “In assessing

whether the misconduct had such an impact, we consider the trial as a whole,

including the curative acts of the district court, the extent of the misconduct, and

the role of the misconduct within the case.” Id. Here, although the prosecutor

made his improper remarks in closing argument and the court did not sustain

defense counsel’s contemporaneous objection, the comment was isolated and the

court specifically instructed the jury that counsel’s arguments are not evidence.

United States v. Pena, 930 F.2d 1486, 1490-91 (10th Cir. 1991). Moreover, we

find any lingering effects of the prosecutor’s misconduct to be harmless; the jury

acquitted Mr. Jones on two counts in spite of the inappropriate statements and had

ample evidence to support its verdict. Id.

      Mr. Jones’ conviction is AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephanie K. Seymour
                                                Chief Judge




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