     Case: 11-30932     Document: 00511980550         Page: 1     Date Filed: 09/10/2012




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

                                                                            FILED
                                                                        September 10, 2012
                                     No. 11-30932
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICKIE BRADLEY,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:09-CR-167-1


Before CLEMENT, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        A jury convicted Rickie Bradley of conspiring to possess with the intent to
distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. §§
846, 841(a)(1), (b)(1)(B), and engaging in interstate communications with the
intent to extort money, in violation of 18 U.S.C. §§ 875(b), 2. The district court
sentenced Bradley to concurrent terms of 60 months in prison.
        Bradley argues that the prosecutor engaged in misconduct when he told
the jury that Bradley collected drug debts owed to Bernard Tusa, the leader of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30932    Document: 00511980550      Page: 2    Date Filed: 09/10/2012

                                  No. 11-30932

the conspiracy, before Tusa’s arrest in 2007. We review Bradley’s claim of
prosecutorial misconduct for plain error. United States v. Aguilar, 645 F.3d 319,
323 (5th Cir. 2011). To demonstrate reversible plain error, Bradley must show
that: (1) there was a forfeited error, i.e., the prosecutor’s remarks were improper,
(2) the error was plain and obvious, and (3) the error affected his substantial
rights. See id. The determinative question is “whether the prosecutor’s remarks
cast serious doubt on the correctness of the jury’s verdict.” Id. at 325 (internal
quotation and citation omitted).      To determine whether the outcome was
affected, we consider (1) the magnitude of the remark’s prejudice, (2) the effect
of any cautionary instructions given by the judge, and (3) the strength of the
evidence supporting the conviction. See id.
      There was testimony at trial that Bradley collected drug debts for Tusa
before 2007.    Thus, the prosecutor’s remarks did not go beyond properly
admitted evidence, and Bradley has not shown that the prosecutor’s remarks
constituted a clear or obvious error. Even if we assume that the prosecutor’s
remarks constituted a clear or obvious error, we nevertheless conclude that
Bradley cannot demonstrate that the remarks affected his substantial rights.
First, the magnitude of the remarks’ prejudice was minimal. The remarks,
which the prosecutor made only once, were brief and embedded in the
prosecutor’s closing argument. Second, the district court issued the requisite
cautionary instructions, telling the jury more than once that the lawyers’
comments and arguments were not evidence. Finally, the evidence against
Bradley was substantial. The Government presented testimony from Tusa;
Dawn Naquin, Tusa’s girlfriend; Joseph Ruhl, one of Tusa’s customers and the
extortion victim; Norman Rush, a co-conspirator; and three agents employed by
the Drug Enforcement Administration (DEA). All of the Government’s witnesses
detailed Bradley’s role in the offenses of conviction, including his extortion of
Ruhl in May 2009. In light of the foregoing, the prosecutor’s remarks cast no



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                                  No. 11-30932

doubt on the correctness of the jury’s verdict. See Aguilar, 645 F.3d at 325.
Thus, Bradley is not entitled to relief on this claim.
      Bradley also argues that the district court erred in denying his motion for
a new trial. We review the district court’s denial of a motion for a new trial for
abuse of discretion. See United States v. Piazza, 647 F.3d 559, 565 & n.3 (5th
Cir. 2011) (noting it is unsettled whether review is for a clear abuse of discretion
or a mere abuse of discretion). To obtain a new trial based on newly discovered
evidence, Bradley must show that (1) the evidence is newly discovered and was
unknown to him at the time of trial, (2) the failure to detect the evidence was not
due to his lack of diligence, (3) the evidence is not merely cumulative or
impeaching, (4) the evidence is material, and (5) the evidence if introduced at a
new trial would probably produce an acquittal. Id.
      Bradley argues that his new evidence—casino records that place him in
Gary, Indiana, after Hurricane Katrina through August 2008—discredit Tusa
because they contradict Tusa’s testimony that he was working for Tusa during
that period. As the district court found, evidence offered merely to impeach the
testimony of a witness, even if contradictory, does not justify a new trial. See
United States v. Wall, 389 F.3d 457, 470 (5th Cir. 2004). As the district court
also found, evidence which is not material and which is not likely to produce a
new result, does not justify a new trial. See Piazza, 647 F.3d at 569-70. While
the casino records might establish that some witnesses were mistaken about the
dates of certain events after Hurricane Katrina through August 2008, they do
not address Bradley’s marijuana trafficking activities from June 2008 through
May 2009, as alleged in the indictment and about which the Government’s
witnesses testified. In light of the foregoing, Bradley has not shown that the
district court abused its discretion in denying his new trial motion. See Piazza,
647 F.3d at 565-70.
      AFFIRMED.



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