                      IN THE UNITED STATES COURT OF APPEALS

                                  FOR THE FIFTH CIRCUIT

                                 __________________________

                                        No. 94-11023
                                 __________________________


UNITED STATES OF AMERICA

                                                                     Plaintiff-Appellee,

                                               versus

GERMON M. SMITH-BOWMAN

                                                                     Defendant-Appellant.

                   _______________________________________________

                        Appeal from the United States District Court
                             for the Northern District of Texas
                   _______________________________________________

                               February 14, 1996
Before JONES, STEWART, and PARKER, Circuit Judges.

CARL E. STEWART, Circuit Judge:

       Smith-Bowman was convicted of five counts of mail fraud for misusing the credit card

that she had received in connection with her position as Executive Director of the San Angelo,

Texas, chapter of the American Red Cross. She appeals, contending that the prosecution
committed reversible error in asking improper questions of one of her character witnesses, and

that the district court erred in denying her motion to transfer venue due to excessive and

prejudicial pretrial publicity. Finding no error, we AFFIRM.

                                        BACKGROUND

       Germon Smith-Bowman was charged with using her Red Cross Visa card for making

purely personal purchases, and then causing Red Cross funds to be used to pay off those balances.

In her motion to transfer venue, Smith-Bowman alleged that her case had received extensive

publicity since its inception. She alleged that both a local TV station and the local newspaper in
San Angelo ran numerous stories giving the impression that her guilt had already been

affirmatively established. Her motion asked for the opportunity to present the news stories to the

Court, along with testimony of people from the community who had been exposed to that

publicity, in order to establish its prejudicial nature. The district court denied this Fed. R. Cr. P.

21(a) venue-transfer motion without conducting an evidentiary hearing.

        Subsequent to this denial, Smith-Bowman put on a defense consisting primarily of the

testimony of three character witnesses who testified to her reputation for honesty in the San

Angelo community. On cross-examination of one of those witnesses, the Government, over the

objections of Smith-Bowman’s attorney, asked:

                Have you heard that this defendant took an American Red Cross
                credit card and went to the La Quinta Inn and rented a room in the
                name of Judy Walker so she could have a rendezvous with her
                boyfriend?
                Have you heard that this defendant took an American Red Cross
                credit card and bought jewelry for herself?

        The district court overruled Smith-Bowman’s objections to the questions at trial. The use

of the credit card to rent a room at the hotel was not specifically listed as one of the charges,

though the use of it to buy jewelry was. At closing, the prosecution further underscored these

specific allegations in several paragraphs:

                If you want to talk about the defendant’s character, you need to be
                with the defendant in the La Quinta Inn when she is checking in
                using the Red Cross money so she can rendezvous with her
                boyfriend and uses her secretary’s name on the sign-in sheet. That is
                character. And it is the Character of a thief.

        The jury found Smith-Bowman guilty on all but the charge of fraud in connection with an

access device, and the district court sentenced her to 15 months imprisonment, three years

supervised release, and ordered her to pay restitution in the amount of $19,844.83. She timely

perfected her appeal.



                                              DISCUSSION

Error on Cross Examination

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       Smith-Bowman contends that the Government’s questions to her character witness were

improper because the questions rested upon an assumption of guilt, and that this improper

questioning was reversible error.

       This court reviews a district court’s decision to permit a certain line of cross-examination

for abuse of discretion. United States v. Candelaria-Gonzalez, 547 F.2d 291, 294 (5th Cir. 1977).

In accordance with 28 U.S.C. 2111, first it must be determined whether the Government’s

questions were improper, and if so, then whether the error was harmful because it affected Smith-

Bowman’s substantial rights.

         The last sentence of Federal Rules of Evidence 405(a) authorizes “inquiry during cross-

examination” into “specific instances of conduct.” The cross-examination questions at issue here

brings forth such specific instances; nevertheless, in Candelaria-Gonzalez, this court found it

improper for the Government to ask a character witness if the defendant’s reputation would be

affected if the defendant were convicted of the alleged crime. Candelaria-Gonzalez, 547 F.2d at

294. This court held that control of the cross-examination of character witness is largely within a

trial court’s discretion, and that once a defendant places his reputation at issue, the prosecution

has wide latitude to pursue the reputation of the accused on cross-examination. Id. at 294.

Nevertheless, this court found that the questions at issue were improper because they were based

upon an assumption of guilt and therefore struck at the very heart of the presumption of

innocence. Id. at 294.

       The questions posed to Eddie Nelson in the case at bar are distinguishable from those at

issue in Candelaria-Gonzalez because they do not clearly assume Smith-Bowman’s guilt. Asking

a character witness whether he has heard of some of the defendant’s alleged misbehavior is

arguably appropriate because if the witness has not heard of that behavior, then he may be

perceived by the jury as not attuned to the community and the defendant’s reputation, and his

effectiveness as a character witness is undermined. Moreover, Smith-Bowman did not contest the

allegations that she had committed these acts, instead she contended that the Executive


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Committee had full knowledge of her use of the account, and it was understood that if she had

used the Visa account as a card of convenience then she would reimburse personal expenditures.

        Nevertheless, even assuming arguendo that the prosecutor’s line of questioning was

improper because it incorporated acts that were part of the indictment, that does not mean that

the error was harmful. 28 U.S.C. § 2111. The Government argues that this line of questioning

did not in and of itself amount to reversible error even in Candelaria-Gonzalez because the

reversal in that case was based on the judge’s misconduct as well as on the Government’s

improper cross-examination of the defendant’s character witnesses. While the judge’s misconduct

was at issue in Candelaria-Gonzalez, the Government’s argument that the reversal was not

primarily based on the improper questioning of the defense witnesses is inaccurate. This court

stated that “[t]he convictions . . . are due to be reversed for the court’s repeated allowance of

inherently prejudicial cross-examination by the prosecutor,” Candelaria-Gonzalez, 547 F.2d at

295. Thus, in Candelaria-Gonzalez, the repeated improper questioning was enough in and of

itself to justify reversal.

        In Candelaria-Gonzalez, the defense was based wholly on the credibility of the character

witnesses, and the majority of those witnesses had been improperly questioned. Similarly, the

Tenth Circuit has found that where character witnesses are very important to the defense, and all

three are improperly questioned, the error was not harmless. United States v. Polsinelli, 649 F.2d

793, 798 (10th Cir. 1981). In contrast, where only two out of fourteen character witnesses have

been improperly questioned, the error is harmless. United States v. Siers, 873 F.2d 747, 750 (4th

Cir. 1989), cert. denied 113 S.Ct. 1064, 112 L. Ed. 2d 369 (1993). In the case before us, while

the only witnesses called by the defense were character witnesses, these witnesses did not

constitute the whole of Smith-Bowman’s defense. Indeed, her strategy that her use of the

American Red Cross credit card was entirely compatible with its issuance as a card of

convenience for employees was developed through cross-examination of the prosecution’s

witnesses. Moreover, the evidence as a whole before the jury was sufficiently convincing of guilt


                                                 4
as to overcome any error committed by the government during its cross-examination of this one

defense witness. Taking all the factors into consideration, we are not persuaded that any

improper questioning of one character witness coupled with the complained of comments of the

prosecutor made during closing argument amount to reversible error.

Denial of motion to transfer venue

        Smith-Bowman also contends that the district court erred in denying her motion to

transfer venue on the basis of prejudicial pretrial publicity, and erred in denying her motion

without holding an evidentiary hearing. Reviewed for abuse of discretion, a defendant’s motion

alleges sufficient facts to warrant an evidentiary hearing when it is “sufficiently definite, specific,

detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented.”

United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). Moreover, “[g]eneral or

conclusory assertions, founded upon mere suspicion or conjecture, will not suffice.” Harrelson,

705 F.2d at 737. In order for a defendant to justify a motion to transfer on the basis of

prejudicial publicity, he must establish that prejudicial, inflammatory publicity “so saturated the

community jury pool as to render it virtually impossible to obtain an impartial jury.” United

States v. Parker, 877 F.2d 327 (5th Cir.), cert. denied 493 U.S. 871, 110 S. Ct. 199, 107 L.Ed.

153 (1989).

        Smith-Bowman did not allege with specificity that the San Angelo community had been

saturated with negative media coverage of the charges against her. She did not include with her

motion any copies of, or excerpts from, specific newspaper stories or television reports that

focused on her, the charges against her, or the pending trial.     Moreover, the district court

questioned the prospective jurors during voir dire about their pretrial knowledge of the case, and

of the ten members of the panel who had heard about the case, each said that they could base a

verdict solely on the evidence presented in court, and none of them indicated that he had already

formed an opinion concerning Smith-Bowman’s guilt or innocence. Therefore, Smith-Bowman

had not demonstrated that prejudicial publicity about her case rendered it virtually impossible to


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obtain an impartial jury, and the district court did not abuse its discretion in denying the motion to

transfer venue. Finding no error with regard to either the venue transfer motion or the

questioning on cross-examination, we AFFIRM the lower court’s decisions.




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