     Case: 09-50674     Document: 00511252148          Page: 1    Date Filed: 10/04/2010




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

                                                 FILED
                                                                           October 4, 2010
                                     No. 09-50674
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROBERT HANSMAN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:08-CR-1908-1


Before GARWOOD, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        After Border Patrol agents found marijuana secreted in a truck driven by
Robert Hansman, a jury convicted him of importing and possessing with intent
to distribute marijuana. Hansman was sentenced to a 60-month prison term to
be followed by four years of supervised release. On appeal, Hansman challenges
only his conviction.
        Hansman first argues that the district court erred in declining to grant a
mistrial after one of the Government’s witnesses remarked that Hansman had

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50674    Document: 00511252148 Page: 2          Date Filed: 10/04/2010
                                 No. 09-50674

been detained in jail since he was arrested. In Hansman’s view, a mistrial was
warranted because the investigator’s comment undermined the presumption of
innocence. We review for abuse of discretion the district court’s denial of a
motion for a mistrial. United States v. McCall, 553 F.3d 821, 826-27 (5th Cir.
2008), cert. denied, 129 S. Ct. 2018 (2009). The court will not reverse as long as
any error was harmless, meaning that there was not a significant possibility that
the evidence had a substantial impact on the verdict. United States v. Lucas,
516 F.3d 316, 345 (5th Cir. 2008).
      To the extent that the comment was improper because it inappropriately
insinuated Hansman’s guilt, see United States v. Dawson, 563 F.2d 149, 151 (5th
Cir. 1977), any error was harmless.        The statement was a single, isolated
remark, unprompted by the Government, during the course of a two-day trial.
See United States v. Valles, 484 F.3d 745, 756 (5th Cir. 2007). Moreover, the
district court immediately provided a curative instruction, explaining to the jury
that the comment was not responsive to the question posed and should be
disregarded. No further instruction was requested. We presume that juries
follow the court’s instructions. Zafiro v. United States, 506 U.S. 534, 540 (1993).
In addition, there was significant evidence of Hansman’s guilt, including that
the truck he was driving and claimed to own contained over 50 kilograms of
marijuana in a concealed compartment built into the back seat, testimony that
he engaged in what was apparently a dry run with the identical truck the week
before, testimony that he exhibited nervous behavior both times that he
attempted to cross the border, and testimony describing his inconsistent stories.
In the context of the proceedings as a whole it is highly unlikely that the
witness’s brief, isolated remark caused the jury to reach a verdict it otherwise
would not have reached.1



      1
        We note that no defense evidence (apart from cross-examination) or witness was
presented to the jury.

                                          2
   Case: 09-50674       Document: 00511252148 Page: 3             Date Filed: 10/04/2010
                                    No. 09-50674

       Hansman next argues that the district court improperly limited defense
counsel’s cross-examination of one of the Government’s witnesses regarding the
Government’s investigation of a man identified as Omar, who, according to
Hansman’s pretrial statements, employed him, sold him the truck, and set him
up. Hansman does not argue that his Sixth Amendment right to confront
witnesses against him was violated; thus, we review for abuse of discretion the
district court’s decision to limit the cross-examination of the investigator. See
United States v. Ramos, 537 F.3d 439, 448 (5th Cir. 2008). Hansman must also
establish that the district court’s limitation clearly prejudiced him. See United
States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008). Here, the district court
limited the witness’s testimony only to the extent that it constituted
inadmissible hearsay. Hansman was not limited in eliciting testimony about
what the investigator personally knew. Indeed, the witness was permitted to
testify that another agent was investigating a man named Omar; however, the
witness did not have enough information to know whether it was the same Omar
that Hansman identified. Hansman has failed to demonstrate an abuse of
discretion or clear prejudice.
       Finally, Hansman contends that the district court should have allowed his
sole potential witness, the director of nursing at the detention facility where
Hansman was held, to testify as to Hansman’s medical condition and the
medications he was taking at the time he was booked at the detention facility
after his arrest.2 At trial, Hansman’s counsel admitted that he did not know
whether the nurse participated in Hansman’s medical screening when he was
booked and that the witness would be testifying solely based on the information
on Hansman’s intake chart. According to defense counsel, this testimony could




       2
         Because the court ruled that this potential witness could not so testify, the defense
did not call her.

                                              3
   Case: 09-50674   Document: 00511252148 Page: 4          Date Filed: 10/04/2010
                                No. 09-50674

provide a “possible explanation” for the nervous behavior Border Patrol agents
testified that Hansman exhibited at the border checkpoint.
      We review for abuse of discretion the district court’s decision to exclude
evidence. United States v. Arledge, 553 F.3d 881, 892 (5th Cir. 2008), cert.
denied, 129 S. Ct. 2028 (2009). A district court may exclude even relevant
evidence if its probative value is substantially outweighed by the danger of,
among other things, misleading or confusing the jury. F ED. R. E VID. 403; United
States v. Saldana, 427 F.3d 298, 307 (5th Cir. 2005).
      Assuming that Hansman’s medical condition at the time he was taken into
custody was relevant, we find that there was no abuse of discretion. There was
no indication that the nurse in question either examined Hansman or would be
able to explain the significance of the unspecified medical conditions or
medications, given that she was not a physician (and was not otherwise shown
to be able to do so). The testimony would have had slight probative value and
there would have been a high probability of jury confusion. Accordingly, there
was no error in the district court’s exclusion of this testimony.
      Accordingly, the judgment of the district court is
                                  AFFIRMED.




                                        4
