     Case: 17-40532      Document: 00514485012         Page: 1    Date Filed: 05/23/2018




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

                                    No. 17-40532                                FILED
                                  Summary Calendar                          May 23, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BRIAN THOMAS, also known as O’Brian A. Thomas, also known as Thomas
A. O’Brian,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-153-2


Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       Brian Thomas appeals his conviction for conspiring to transport persons
illegally in the United States. He contends that the trial was rendered unfair
when the prosecutor said in rebuttal argument that defense counsel’s “claim
that the government excluded favorable testimony or cherry-picked its
testimony . . . is not evidence in this case, and your duty is to deliberate only



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40532    Document: 00514485012     Page: 2   Date Filed: 05/23/2018


                                 No. 17-40532

on the evidence presented.” Thomas objected “to the government arguing that
the jury can’t consider the fact that there may have been other evidence.” The
district court sustained the objection, there were no further objections, and the
prosecutor immediately moved on to other things.
      Typically, we decide first whether a prosecutor made a remark that was
improper in the context in which it was made. United States v. Insaulgarat,
378 F.3d 456, 461 (5th Cir. 2004). We then ask whether the remark prejudiced
the defendant by casting serious doubt on the correctness of the verdict. Id.
The prejudice determination involves considering the initial magnitude of the
statement’s prejudice, the effect of any cautionary instructions, and the overall
strength of the evidence of guilt. See id. However, here we review for plain
error because Thomas neither asked the district court to instruct the jury to
disregard the prosecutor’s remark nor asked for any other curative instruction.
See United States v. Anderson, 755 F.3d 782, 796-97 (5th Cir. 2014). To show
plain error, Thomas must show a forfeited error that is “clear or obvious, rather
than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129,
135 (2009). He must also show that the error affected his substantial rights by
affecting the outcome of the proceedings. Id. If he makes those showings, we
have the discretion to correct the error, but only if it “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks, citations, and brackets omitted).
      Because the district court sustained Thomas’s objection to the remark,
we assume without deciding that there was a clear or obvious error.
Nonetheless, we find no prejudice under either the typical standard of review
or review for plain error. First, the remark was brief and abbreviated due to
Thomas’s successful objection, and the prosecutor immediately moved on to
other arguments. This weighs against a finding of prejudice. See United States



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                                  No. 17-40532

v. Murra, 879 F.3d 669, 684 (5th Cir. 2018). Second, although no curative
instruction was asked for or given, the court’s sustaining of defense counsel’s
clear and concise objection in the presence of the jury sufficiently advised the
jury that it could consider that there may have been other evidence or that
there were holes in the Government’s case. The court’s general instructions
render implausible any contention that the jury believed it could not consider
the defense’s theory that the evidence was incomplete or insufficient. Finally,
the overall evidence of guilt was more than sufficient to sustain the verdict.
      The prosecutor’s brief and isolated remark, immediately interrupted by
a successful objection, does not cast doubt on the correctness of the verdict. See
Insaulgarat, 378 F.3d at 461. The judgment is AFFIRMED.




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