     Case: 17-11452   Document: 00515186840        Page: 1   Date Filed: 11/05/2019




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

                                    No. 17-11452                      FILED
                                                               November 5, 2019
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk

             Plaintiff - Appellee

v.

LAROY DAMONT JOHNSON,

             Defendant - Appellant




                Appeals from the United States District Court
                     for the Northern District of Texas


Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
      A jury convicted Laroy Johnson of illegally possessing drugs and guns.
On appeal, Johnson raises several evidentiary issues, including whether
incriminating jail phone recordings were improperly authenticated, whether
two officers wrongly testified about why drug dealers typically use guns to ply
their trade, and whether the prosecutor improperly argued that an officer had
no reason to lie on the stand. We affirm.
                                         I.
                                         A.
      On April 26, 2016, Irving County narcotics officers broke down the door
of Room G1086 at the Budget Suites Hotel to find Laroy Johnson sitting on a
    Case: 17-11452     Document: 00515186840    Page: 2   Date Filed: 11/05/2019



                                 No. 17-11452
couch amidst a cornucopia of drug-dealing paraphernalia. The officers found
20 grams of heroin in the refrigerator (enough for 100-200 street-level “sells”);
a heroin-dusted digital scale, a razor blade, and a baggie of Xanax on the table;
six cell phones; $5,000 cash (mostly in twenties); several gift cards in various
places; and a loaded Glock handgun under the bedroom mattress. They
arrested Johnson and a grand jury later indicted him for one count of
possessing heroin with intent to distribute, one count of being a felon in
possession of a firearm, and one count of possessing a firearm in furtherance
of drug trafficking.
                                       B.
      While awaiting trial at the Irving County Jail, Johnson made several
phone calls to loved ones that the government later introduced at trial. During
those calls, Johnson stated that he had previously planned to take a gun to his
grandmother’s house and that his child’s mother had likely informed the police
that he was selling drugs at the hotel. He also talked to a woman who had
planned to stop by his hotel room on the day he was arrested and told her that
police would not have arrested her because “[e]verything in there is mine.”
      To authenticate the recordings, the government presented two
witnesses—James Ryan, a technician employed by Securus Technologies who
maintained the jail’s phone equipment, and Detective Tim Hilton, a police
officer who identified Johnson on the calls. First, Ryan testified that he
personally installed the jail’s phone system, monitored it, and repaired it when
necessary. Ryan also described the automated recording and storage process.
The jail assigns inmates an individual pin number they must enter to make a
call. When an inmate picks up the phone and enters his pin, the system
automatically records his call and digitally stores the call on a secure data
server in Atlanta. Specifically, Ryan explained:


                                       2
    Case: 17-11452     Document: 00515186840      Page: 3   Date Filed: 11/05/2019



                                  No. 17-11452
      [The call] goes through a series of servers that collects the voice,
      the called party information, and combines that information and
      then it records it at that data center and then the data center
      streams it out to the public switch telephone network like AT&T
      or Southwestern Bell, and then it hits the calling party phone.
Ryan further testified that the system produced accurate recordings because
“the voice recording and data stream all with the call information is all
recorded at the same time.” Second, Detective Hilton searched for Johnson’s
phone recordings by name and date in the Securus database, burned them to
a CD, listened to the calls, and identified Johnson as the speaker. Hilton
testified that he could correctly identify Johnson because he had spoken with
him in person and because in one of the calls Johnson was identified by name.
      At trial, Johnson objected to the admission of the phone recordings,
arguing they had not been properly authenticated because the government had
not shown the recording equipment was in “good working order and capable of
producing an accurate recording” at the precise time the recordings were made.
The judge overruled the objection, stating (outside the jury’s hearing) that
“between [Detective Hilton] and Mr. James Ryan, I think the proper predicate
has been established . . . as to authenticity.”
                                        C.
      Detective Hilton and another law enforcement officer, DEA Special
Agent James Henderson, testified at trial that drug dealers routinely use guns
as part of their operations. When the prosecutor asked Hilton why drug dealers
have firearms, Johnson objected (unsuccessfully) on speculation and relevance
grounds. Hilton then answered:
      Well, the main reason is in the criminal world, drug rip offs are big
      business for them, so drug dealers know people know they have
      drugs and they know they have cash. On the other hand, customers
      need to know that the drug dealers are armed so they don’t try and
      steal from them or try and come back and rob them, so it is
      something that is common. It is very typical.
                                        3
    Case: 17-11452     Document: 00515186840      Page: 4   Date Filed: 11/05/2019



                                  No. 17-11452
Agent Henderson similarly testified:
      In my experience, drug traffickers use firearms primarily for
      protection, protection of their products[,] their drugs or their
      money, the revenue. And they also use it for intimidation in my
      experience, that is why they have the firearm.
Johnson did not object to Henderson’s statement.
                                        D.
      Detective Kyle Fleischer testified at trial that during the hotel room
search Johnson admitted he had drugs in the fridge and a gun under the
mattress. Fleischer stated that Johnson told him something to the effect that,
“[H]ey, man, I am not going to waste your time. I am going to show you where
the dope is. The dope is in the fridge, and the gun is under the bed.” On cross
examination, Johnson questioned Fleischer about why that statement was not
in the original police report. Fleischer responded that he had not written the
report and that a supplemental police report did include the statement.
Johnson pointed out that the supplemental report contained only part of the
statement: it described Johnson’s admission about the heroin but did not
mention the gun. Fleischer replied that this was due to a mistake in
communication and the length of time between the incident and when he was
asked to review the report. Fleischer also testified that police reports are
summaries and not word-for-word transcriptions.
      Later, during closing argument, Johnson’s attorney suggested that
Detective Fleischer had lied about Johnson’s hotel room admission. Johnson’s
attorney stated:
      Isn’t it interesting that a year-and-a-half later, two weeks before
      trial, this statement somehow gets reduced to writing and the only
      thing that is written down is something about drugs. . . . You don’t
      write that down. Isn’t that convenient? If you come in later on, that
      is what he said. Did you write it down. No, I didn’t write a report.
      Well, I just kind of do a summary. Give me a break. If he said he
      killed five people, they would write it down. It is no different. . . .
                                        4
    Case: 17-11452    Document: 00515186840      Page: 5   Date Filed: 11/05/2019



                                 No. 17-11452
      They want to say I didn’t write it down it is just a summary. They
      know that is what he said. Gee, that is pretty convenient. . . . So I
      don’t think you can give that any weight whatsoever that
      [Johnson] made that statement . . . .
The prosecutor retorted during his own closing by pointing to Fleischer’s lack
of motive to lie:
      Ladies and gentlemen, [Johnson’s] case is a serious uphill battle in
      this case. When you come in to court and you have evidence both
      direct and circumstantial that is overwhelming against your client,
      what do you do? You say law enforcement could have done more
      and you call into question their credibility. Think about what he is
      telling you. Officer Fleischer is not the lead agent on this case. You
      think this is a huge big case that he is willing to put his career on
      the line. He is suggesting to you when he came in this court and
      looked you in the eye and took an oath to tell the truth and
      completely fabricated a statement.
Johnson did not object.
      The jury subsequently convicted Johnson on all three counts, and the
district court sentenced him to 96 months imprisonment. Johnson timely
appealed his conviction.
                                       II.
      On appeal, Johnson contests two of the district court’s evidentiary
rulings and, further, claims that prosecutorial misconduct requires reversal.
Specifically, Johnson contends the court erred in admitting the jail phone
recordings, which he claims were not properly authenticated. Johnson also
contends the court erred in admitting the officers’ testimony about why drug
dealers typically carry guns, which Johnson characterizes as prohibited expert
mens rea testimony. Finally, Johnson contends the prosecutor’s closing
argument suggesting that Detective Fleischer had no reason to lie constituted
impermissible witness bolstering. We examine each argument in turn.




                                        5
    Case: 17-11452     Document: 00515186840        Page: 6   Date Filed: 11/05/2019



                                     No. 17-11452
                                          A.
      Johnson first challenges admission of the jail phone recordings, arguing
they were not properly authenticated. We review a district court’s evidentiary
rulings for abuse of discretion subject to harmless error analysis. United States
v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007). “For any of the evidentiary
rulings to be reversible error, the admission of the evidence in question must
have substantially prejudiced the defendant’s rights.” Id.
      Johnson claims the district court abused its discretion in admitting the
jail phone recordings because the government failed to show the recording
equipment was in “good working order and capable of producing an accurate
recording” at the precise time the recordings were made. He further maintains
that this error substantially prejudiced him, and that no harmless error exists.
In Johnson’s view, the government did not meet its burden to show the
recordings were properly authenticated because it did not “produce evidence
sufficient to support a finding that the item[s] [are] what the proponent claims
[they are].” Fed. R. Evid. 901(a).
      Generally, “[t]o establish authenticity [of intercepted telephone
recordings], the Government must demonstrate: 1) the operator’s competency,
2) the fidelity of the recording equipment, 3) the absence of material
alterations, and 4) the identification of relevant sounds or voices.” United
States v. Green, 324 F.3d 375, 379 (5th Cir. 2003) (citing United States v.
Biggins, 551 F.2d 64, 66 (5th Cir. 1977)) (the “Biggins factors”). This is not a
rigid formula, however. “The party seeking to establish authenticity need not
meet all the factors set out in Biggins, if upon independent examination, the
district court is convinced that the recording accurately reproduces the
auditory experience.” Id. (cleaned up). Here, the government produced
sufficient evidence to authenticate the recordings and satisfied each Biggins
factor.
                                          6
    Case: 17-11452     Document: 00515186840     Page: 7    Date Filed: 11/05/2019



                                  No. 17-11452
      As to factor one (operator competency), because the Securus recording
system is an automated process, operator competency is not particularly
salient. Nonetheless, Ryan’s testimony clearly showed his knowledge about the
equipment and recording process. Ryan testified that he personally installed
the jail’s phone system, monitored it, and repaired it when necessary. He also
described the automated recording and storage process in detail.
      As to factor two (equipment fidelity), Ryan testified about the
trustworthiness of the equipment and that it worked as intended. He testified
that Securus regularly “maintain[s] the cameras and recording equipment to
make sure they are operating properly,” and that he “monitor[ed] and
repair[ed] those systems” himself. Moreover, Johnson does not dispute that he
made the calls using his pin number and that the calls were recorded and found
on Securus’s server.
      As to factor three (absence of alterations), Johnson does not claim the
recordings were materially altered, but, in any event, testimony from both
Ryan and Detective Hilton shows they were not. Ryan testified that the system
produced accurate recordings because “the voice recording and data stream all
with the call information is all recorded at the same time.” Therefore, because
the process is automated, the very fact that the recordings exist and could be
played pointed strongly to their accuracy. Additionally, Hilton verified the
recordings’ chain of custody from the time he downloaded the calls until he
turned them over to the prosecutor.
      As to the final factor (identification of sounds or voices), Detective Hilton
identified Johnson on the recordings. Hilton testified that he could correctly
identify Johnson because he had spoken with him in person and because, on
one of the calls, Johnson was identified by name. Other calls contained
discussions about relevant aspects of the search—from details about the drugs
to Johnson’s hotel room number.
                                        7
    Case: 17-11452    Document: 00515186840     Page: 8   Date Filed: 11/05/2019



                                 No. 17-11452
      Even if the government had not satisfied each Biggins factor, the calls
would still be admissible “if upon independent examination, the district court
[wa]s convinced that the recording[s] accurately reproduce[ ] the auditory
experience.” Green, 324 F.3d at 379 (cleaned up and brackets added). The
district court was rightly convinced here. When overruling Johnson’s objection,
the court stated that “between [Detective Hilton] and Mr. James Ryan, I think
the proper predicate has been established . . . as to authenticity.” Our
precedent supports that conclusion. In Green, the defendant challenged the
admission of intercepted jail calls because the government “did not adequately
demonstrate how the recording equipment worked, who worked it, what kind
of training the operator had, whether the equipment was reliable, and when
the recordings were made.” Id. at 380. We held the district court did not abuse
its discretion in determining the calls were authenticated because,
      [a]fter reviewing the record, we [we]re persuaded that the
      intercepted telephone recordings accurately reproduce the
      auditory experience. As one of the case agents overseeing the
      wiretap operation, [the witness] possessed knowledge of the
      reliability of the intercepted telephone recordings. Having met [the
      defendant], [the witness] was also able to identify his voice.
Id. (brackets added). Additionally, agents had listened to the calls and
“corroborated [the defendant’s] conversations with his actions on numerous
occasions.” Id. Detective Hilton similarly identified Johnson here, based on his
previous interactions with Johnson and the content of the calls.
      In sum, the district court did not abuse its discretion by admitting the
recordings.
                                      B.
      Johnson next challenges the admission of Detective Hilton’s and Agent
Henderson’s trial testimony regarding why drug dealers routinely use guns in
their crimes. Johnson asserts that the statements were improper expert
opinion on whether he had the mental state to commit the crime. See Fed. R.
                                   8
     Case: 17-11452       Document: 00515186840         Page: 9     Date Filed: 11/05/2019



                                       No. 17-11452
Evid. 704(b); see also, e.g., United States v. Gutierrez-Farias, 294 F.3d 657,
661–63 (5th Cir. 2002) (discussing Rule 704(b)).
       Although evidentiary rulings are usually reviewed for abuse of
discretion, a defendant must preserve error. Morgan, 505 F.3d at 339. Johnson
argues he did so by objecting to Detective Hilton’s statements. But Johnson did
not object on Rule 704(b) grounds. When the prosecutor asked Hilton why drug
dealers have firearms, Johnson objected only on the grounds of speculation and
relevance. That objection did not preserve the error Johnson now urges because
it was not “sufficiently specific to alert the district court to the nature of the
alleged error and to provide an opportunity for correction.” United States v.
Neal, 578 F.3d 270, 272 (5th Cir. 2009). A defendant’s objection must be “on
the specific grounds he . . . raises” on appeal. United States v. Warren, 720 F.3d
321, 332 (5th Cir. 2013). Johnson’s was not. 1
       We therefore review for plain error, which requires the four-fold showing
that “(1) the district court committed an error, (2) the error is plain, (3) the
error affects [appellant’s] substantial rights, and (4) failure to correct the error
would seriously affect the fairness, integrity, or public reputation of judicial
proceedings.” United States v. del Carpio Frescas, 932 F.3d 324, 332 (5th Cir.
2019) (citing United States v. Sanchez-Hernandez, 931 F.3d 408, 410–11 (5th
Cir. 2019)) (brackets added).
       “In a criminal case, an expert witness must not state an opinion about
whether the defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense.” Fed. R. Evid.
704(b). Johnson contends that both Hilton’s and Henderson’s testimony




       1Johnson further argues that his failure to object to Henderson’s statement should be
excused because the district court had already overruled a similar objection. But, again, this
argument fails because the district court did not entertain an objection based on Rule 704(b).
                                              9
   Case: 17-11452     Document: 00515186840     Page: 10   Date Filed: 11/05/2019



                                 No. 17-11452
violated that rule because their testimony that drug dealers usually carry guns
in order to protect themselves, their drugs, and their revenue goes to the
mental state or condition required by 18 U.S.C. § 924(c)(1)(A).
      That statute, however, “does not answer the question of the requisite
mental state,” United States v. Smith, 878 F.3d 498, 501 (5th Cir. 2017), cert.
denied, 139 S. Ct. 787 (2019), and so we have had to tease it out in our cases.
In doing so, we have explained that the “‘mere presence’ of a firearm at a crime
scene” is insufficient, meaning that the statutory “mens rea is more than strict
liability.” Id. at 501, 502 (quoting United States v. Ceballos-Torres, 218 F.3d
409, 414, as amended on denial of reh’g and reh’g en banc, 226 F.3d 651 (5th
Cir. 2000)). At the opposite extreme, however, the statute does not require
evidence of “a defendant’s intent regarding the weapon.” Smith, 878 F.3d at
502. What the statute demands, instead, is evidence “specific to the particular
defendant, showing that his or her possession actually furthered the [crime].”
Id. at 501–02 (quoting Ceballos-Torres, 218 F.3d at 414). To identify such
evidence, Ceballos-Torres offered a non-exclusive list of circumstantial factors:
“the type of drug activity that is being conducted, accessibility of the firearm,
the type of the weapon, whether the weapon is stolen, the status of the
possession (legitimate or illegal), whether the gun is loaded, proximity to drugs
or drug profits, and the time and circumstances under which the gun is found.”
Ceballos-Torres, 218 F.3d at 414–15; see also Smith, 878 F.3d at 502 (observing
that Ceballos-Torres “laid out several factors that it deemed helpful, but not
exclusive, to distinguish innocent from criminal possession”). In sum, under
our precedent—as recently “reaffirm[ed]” by Smith—the mental state
“requirement” in § 924(c)(1)(A) is “knowing possession with a nexus linking the
defendant and firearm to the offense.” Smith, 878 F.3d at 502.
      In light of that standard, Johnson contends that the challenged
testimony crosses the Rule 704(b) line prohibiting expert mens rea testimony.
                                       10
    Case: 17-11452    Document: 00515186840     Page: 11   Date Filed: 11/05/2019



                                 No. 17-11452
He argues that, by stating drug dealers typically keep guns to protect
themselves, their drugs, and their revenue, Hilton and Henderson provided
testimony that was “functionally equivalent” to an opinion about why Johnson
was possessing the gun. Gutierrez-Farias, 294 F.3d at 663. On this view,
admission of the Hilton/Henderson testimony violated Rule 704(b) because it
opined on the mental state necessary to violate § 924(c)(1)(A). See, e.g., United
States v. Palmer, 456 F.3d 484, 490-92 (5th Cir. 2006) (reversing conviction
under § 924(c)(1)(A) because defendant’s plea colloquy statements that he
possessed the gun only for self-protection rather than drug trafficking
“necessarily precluded his conviction”).
      In response, the government contends that the challenged testimony
could not have violated Rule 704(b), pointing to Smith’s statement that
§ 924(c)(1)(A) mens rea does not require proof of “a defendant’s intent regarding
the weapon.” Smith, 878 F.3d at 502; see also id. (observing that “[a]t no point
did the [Ceballos-Torres] court examine the defendant’s intended use for the
weapon”). On this view, the Hilton/Henderson testimony simply did not speak
to the mental state required by § 924(c)(1)(A) and so did not run afoul of Rule
704(b). In addition, the government cites cases in which we have held that “a
qualified narcotics agent typically may testify about the significance of certain
conduct or methods of operation unique to the drug business,’” as long as the
testimony is relevant. United States v. Medeles-Cab, 754 F.3d 316, 321 (5th
Cir. 2014) (quoting United States v. Gonzalez-Rodriguez, 621 F.3d 354, 321 (5th
Cir. 2010)).
      We need not resolve this issue, however. Even assuming that the district
court violated Rule 704(b) by admitting Hilton’s and Henderson’s testimony—
and even assuming that error was “plain” under our precedents—we
nonetheless find no effect on Johnson’s substantial rights. “We may not correct
an error that a defendant failed to raise in the district court unless the error
                                       11
    Case: 17-11452    Document: 00515186840      Page: 12   Date Filed: 11/05/2019



                                  No. 17-11452
. . . also affects the defendant’s substantial rights.” Gonzalez-Rodriguez, 621
F.3d at 363. “As a general rule, an error affects a defendant’s substantial rights
only if the error was prejudicial.” Id. (citing United States v. Olano, 507 U.S.
725, 734 (1993)). “Error is prejudicial if there is a reasonable probability that
the result of the proceedings would have been different but for the error.” Id.
The probability of a different result must be sufficient to undermine confidence
in the outcome of the proceedings. United States v. Holmes, 406 F.3d 337, 365
(5th Cir. 2005) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81
(2004)).
      Here, even if the district court had excluded the challenged testimony,
the probability of a different result is insufficient to undermine confidence in
the outcome of the proceedings. As noted above, the government did not need
to show Johnson’s subjective intent for possessing the gun; it needed only to
establish “knowing possession” and—through the Ceballos-Torres factors, on
which the jury was instructed—a “nexus linking the defendant and the firearm
to the offense.” Smith, 878 F.3d at 502. Evidence of both was overwhelming.
Both the Glock and the drugs were in the same hotel room, under Johnson’s
control. Since Johnson was a convicted felon, he had no legal right to possess a
gun. In the room, Johnson also had enough heroin for 100–200 street-level
sells, along with drug dealing paraphernalia and $5,000 cash. Although the
gun was under the mattress in the bedroom, it remained unlocked, accessible,
and loaded. Moreover, when the police burst into the hotel room, Johnson
disclosed the location of the “dope” and the gun in the same breath. Later, in
his phone calls from jail, Johnson lamented that he had not removed the gun
and deposited it at his grandmother’s house. Taken together, this evidence
clearly establishes that Johnson knowingly possessed the gun in furtherance
of drug trafficking—a far cry from the “unloaded antique[ ] mounted on the


                                       12
    Case: 17-11452       Document: 00515186840          Page: 13     Date Filed: 11/05/2019



                                       No. 17-11452
wall” or the “locked and unloaded” lawfully-possessed hunting rifle
contemplated in Ceballos-Torres. 218 F.3d at 415.
       Because Johnson’s substantial rights were not affected, any error the
district court may have made in admitting Hilton’s and Henderson’s testimony
does not constitute reversible error on plain error review.
                                             C.
       Lastly, Johnson challenges the prosecutor’s statement during closing
argument that Detective Fleischer had no reason to lie about Johnson’s
admitting there was heroin in the fridge and a gun under the mattress. 2
Johnson contends the district court erred in failing to intervene during the
argument, depriving him of a fair trial. Because Johnson did not object to the
prosecutor’s statement, we again review for plain error. Puckett v. United
States, 556 U.S. 129, 134–35 (2009); del Carpio Frescas, 932 F.3d at 332. 3
       Generally, a prosecutor cannot bolster a police officer’s credibility by
appealing to his authority as a police officer. See, e.g., United States v. Kiekow,
872 F.3d 236, 254 (5th Cir. 2017), cert. denied sub nom. Pierre v. United States,
138 S. Ct. 1301 (2018) (recognizing that “it is impermissible for a prosecutor to
make ‘a largely emotional appeal to the jury to credit the arresting officers’
testimony because they [are] police officers’”) (quoting United States v.


       2 As an initial matter, the government urges that the prosecutorial misconduct
arguments in Johnson’s reply brief are so different from those in his opening brief that they
are waived. See Dixon v. Toyota Motor Credit Corp., 794 F.3d 507, 508 (5th Cir. 2015)
(“Arguments raised for the first time in a reply brief are waived”). While the arguments in
Johnson’s reply brief are revised and expanded, we do not find them to be entirely new. In
any event, we exercise our discretion to consider the arguments. United States v. Davis, 602
F.3d 643, 648 n.7 (5th Cir. 2010).
       3 Johnson argues that the rigor of plain error review should be loosened here because
objecting would only have drawn attention to the allegedly improper statements. This
argument is without merit. Our cases addressing improper prosecutor statements in closing
arguments have consistently applied one-hundred-proof plain error review, not a diluted
version. See, e.g., United States v. Aguilar, 645 F.3d 319, 323 (5th Cir. 2011); United States
v. Gracia, 522 F.3d 597, 603 (5th Cir. 2008).
                                             13
    Case: 17-11452    Document: 00515186840      Page: 14    Date Filed: 11/05/2019



                                  No. 17-11452
McCann, 613 F.3d 486, 496 (5th Cir. 2010)); United States v. Gallardo-Trapero,
185 F.3d 307, 319–20 (5th Cir. 1999) (disapproving a prosecutor’s repeated
rhetorical questions to the jury asking whether “agents for the federal
government . . . would get on the witness stand and commit perjury and risk
their career”). On the other hand, a prosecutor may speak to a law enforcement
witness’s credibility at closing if the statement is supported by prior evidence.
See United States v. Bermea, 30 F.3d 1539, 1564–65 (5th Cir. 1994) (finding no
error where a prosecutor merely restated prior testimony that government
informants are fired if found to have lied to law enforcement). And even if
statements of that nature extend past the evidence, we have sometimes
allowed them where they amount merely to proportionate, common-sense
observations about a witness’s lack of motive to lie. See United States v. Robles-
Pantoja, 887 F.2d 1250, 1255–56 (5th Cir. 1989) (holding proper prosecutor’s
statements about career implications for testifying agents because based on
“the kind of common sense and knowledge of the natural tendencies and
inclinations of human beings that juries are properly allowed to consider”);
United States v. Cotton, 631 F.2d 63, 65–66 (5th Cir. 1980) (treating as proper
a prosecutor’s closing that defended testifying secret service agents by stating
“they were men who protected the President” and would not “risk their careers”
by lying for the sake of one conviction); United States v. Hayes, 118 F. App’x
856, 858 (5th Cir. 2004) (recognizing that “[a] prosecutor may ‘present what
amounts to be a bolstering argument if it is specifically in rebuttal to assertions
made by defense counsel in order to remove any stigma cast upon [the
prosecutor] or his witness.’”) (quoting United States v. Thomas, 12 F.3d 1350,
1367 (5th Cir. 1994)).
      Admittedly, the prosecutor’s suggestion that Detective Fleischer had no
motive to lie was not simply a restatement of any prior evidence. At the same
time, however, the prosecutor made the statement to rehabilitate Fleischer
                                        14
   Case: 17-11452     Document: 00515186840     Page: 15    Date Filed: 11/05/2019



                                 No. 17-11452
after defense counsel suggested repeatedly that Fleischer fabricated his
account of Johnson’s confession on the eve of trial. Ultimately, however, we
need not decide whether it was actual error for the district court to allow the
prosecutor’s statement, because any error was not “clear and obvious.” See, e.g.,
United States v. De Jesus-Ojeda, 515 F.3d 434, 445 (5th Cir. 2008) (plain error
review requires “clear and obvious” error). Where parties can “reasonably
dispute” whether an error even occurred, the error is neither clear nor obvious.
United States v. Segura, 747 F.3d 323, 330 (5th Cir. 2014). Although the
general rule barring emotional appeals to a witness’s authority as a police
officer is clear, the challenged statement here falls on the spectrum between
such bolstering and a permissible common-sense rebuttal of attacks on an
officer’s credibility. Because parties could reasonably dispute whether the
statement constituted impermissible bolstering, we cannot say that the error—
if any—was clear and obvious. Therefore, Johnson has not satisfied the second
prong of the plain error standard. We stop there, without proceeding to the
third or fourth prongs.
      In sum, the district court did not plainly err by allowing the prosecutor
to suggest that Detective Fleischer had no reason to lie.
      AFFIRMED




                                       15
