                        IN THE UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT
                                _________________________

                                          No. 00-20877
                                    USDC No. H-00-CR-152-3
                                   _________________________

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

versus

DEVAN LEE DAVIS,

                                                       Defendant-Appellant.
                           ______________________________________

                            Appeal from the United States District Court
                                 for the Southern District of Texas
                           ______________________________________
                                        November 19, 2001

Before SMITH and EMILIO M. GARZA, Circuit Judges, and CUMMINGS, District Judge1.

PER CURIAM:2

         Devan Lee Davis appeals his criminal conviction for aiding and abetting one in the

possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C.

841(a)(1), (b)(1)(A)(iii), 18 U.S.C. 2, and for conspiracy to possess with intent to distribute 50

grams or more of crack cocaine in violation of 21 U.S.C. 841(a)(1), (b)(1)(A)(iii), and 846.

         Davis argues three points on appeal: that two prior convictions were not relevant and

should have been excluded; that the district court abused its discretion by denying Davis’s request


         1
          District Judge of the Northern District of Texas, sitting by designation.
         2
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
to recall a witness for impeachment purposes; and that the evidence presented at trial was

insufficient to support a conviction for conspiracy and aiding and abetting.

       Before the trial began, the United States filed its notice of intent to offer evidence under

Federal Rule of Evidence 404(b), putting Davis on notice of its intent to introduce evidence of his

prior convictions in Harris County, Texas, for possession of marijuana. Davis objected to the

admissibility of the prior convictions before and during trial; the district court ruled that two of

the prior convictions could be admitted into evidence. At the conclusion of the United States’

evidence, Davis verbally moved for a Rule 29 judgment of acquittal based on insufficiency of the

evidence; the trial court denied this motion. During the presentation of Davis’s case, Davis

requested to recall a witness for the purpose of impeachment. The trial court denied this request.

At the conclusion of all the evidence, Davis renewed his request to recall the witness, which the

trial court denied. The jury found Davis guilty on both counts in the indictment; subsequently, the

district court sentenced Davis to 168 months in the custody of the Bureau of Prisons.

       A decision by the district court to admit evidence of an extrinsic offense under Federal

Rule of Evidence 404(b) will not be disturbed on appeal absent a clear showing of an abuse of

discretion. United States v. Bruno, 809 F.2d 1097, 1106 (5th Cir. 1987). The admission or

exclusion of evidence at trial is a matter within the sole discretion of the district court. United

States v. Moody, 903 F.2d 321, 326 (5th Cir. 1990). After reviewing the record, this Court finds

that there was no abuse of discretion by the district court in admitting the extrinsic offense

evidence.

       While it is well established that a witness may be impeached, the trial court is given “wide

latitude” in imposing reasonable restraints upon a defendant’s right to cross-examination, and


                                                   2
there is no right to impeach a witness regarding collateral or irrelevant matters. United States v.

Sisto, 534 F.2d 616, 617, 622, 627 (5th Cir. 1976); Sims v. ANR Freight Sys., Inc., 77 F.3d 846,

849 (5th Cir. 1996); United States v. Hawkins, 661 F.2d 436, 444 (5th Cir. 1981). This Court

reviews the district court’s decision for an abuse of discretion. Bruno, 809 F.2d at 1106. The

district court did not abuse its discretion when it denied Davis’s request to recall a witness solely

for impeachment purposes on a collateral matter; Davis was allowed to cross-examine the witness

and had the opportunity to impeach the witness at that time.

       This Court reviews the sufficiency of the evidence by determining whether a reasonable

trier of fact could conclude from the evidence that the elements of the offense were established

beyond a reasonable doubt. United States v. Meyers, 104 F.3d 76, 78 (5th Cir. 1997). In

assessing the sufficiency of the evidence, this Court will not evaluate the weight of the evidence or

the credibility of the witnesses but will view the evidence in the light most favorable to the jury

verdict, drawing all reasonable inferences to support the verdict. Id. at 78-79. There is sufficient

evidence to support Davis’s conviction for conspiracy and aiding and abetting.

       We have carefully considered Devan Lee Davis’s claims on appeal in light of the entire

record, the parties’ respective briefing on the issues in this appeal, the oral arguments presented

before this Court, and the required standard of review. We are persuaded that there was

sufficient evidence to support Davis’s conviction for conspiracy and aiding and abetting and that

there was no abuse of discretion by the trial court in admitting the extrinsic offense evidence or by

denying Davis’s request to recall a witness for the sole purpose of impeachment on a collateral

matter. We therefore AFFIRM the trial court.




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