                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                March 14, 2007
                        FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                             No. 06-10204



     UNITED STATES OF AMERICA,


                                             Plaintiff–Appellee,
            versus


     MICHAEL McDADE,

                                             Defendant–Appellant.




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



Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.

GARWOOD:1

     Michael   McDade   (McDade)   appeals   his   conviction   for   bank

robbery and for “use and carry of a firearm,” violations of 18

U.S.C. §§ 2113(a) and 924(c).      His sole contention on appeal is

that the trial court reversibly erred by allowing the government to

cross-examine his wife about his alleged, uncharged drug use.            We

assume, arguendo, that the district court erred but, finding the


     1
      Per 5th Cir. R. 47.5, the court has decided that this
opinion should not be published and is not precedent except under
those limited circumstances set forth by 5th Cir. R. 47.5.4.
claimed error clearly harmless, we affirm.

                       FACTS AND PROCEEDINGS BELOW

      Around 12:30 p.m. on January 8, 2005, a man wearing dark

clothes, a dark hat, and eyeglasses walked into the Wachovia Bank

at   6000    Harris   Parkway,      Fort       Worth,    Texas   (Wachovia).     He

approached Wachovia teller James Todd Mayo (Mayo) and gave Mayo a

note reading: “Attention teller, put 100s, 20s, 50s, 10s in bag.

No ink or funny money.       This is not a joke.            You have two minutes.

Quiet.     Push no buttons.”     After Mayo handed him a bag filled with

cash, the robber displayed a gun and told Mayo, “I just want to let

you know this is for real.”           The robber left Wachovia with over

$2,000.00.

      On    January   11,   2005,    the       robber’s    photograph,   taken   by

Wachovia’s surveillance camera, was published in a Crime Stoppers

bulletin in the Fort Worth Star Telegram newspaper.                  Evidence was

received without objection that the Fort Worth Police Department

subsequently received two phone calls (from unidentified persons)

identifying McDade as the person shown in the photograph.

      On April 18, 2005, Fort Worth Police Officer Don Owings

(Officer Owings) reviewed the case file.                 Officer Owings testified

that, after seeing the Crime Stoppers tip, he compared the robber’s

physical description given in the bank teller’s offense report with

information known about McDade and found similarities.                    Officer

Owings next obtained McDade’s photo.                    Noting a likeness to the



                                           2
individual in the bank surveillance photos, Officer Owings placed

McDade’s       photo   and   five     other    photographs          in    a    six-person

photospread to show to Wachovia teller Mayo.                          Mayo picked out

McDade’s photo as the robber.             Officer Owings next showed three

bank surveillance photos of the robber to Marcie Hearn, who knew

McDade and who identified him as the individual in the bank

surveillance pictures.            Hearn was McDade’s state parole officer,

but that particular information was not before the jury.

       Officer Owings arrested McDade on May 2, 2005.                      A subsequent

search of McDade’s home failed to uncover any item connected to the

robbery.       Samples of McDade’s handwriting were submitted to the

FBI’s   Questioned      Documents      Unit,       but    the   FBI      was   unable    to

determine whether McDade wrote the bank robber’s demand note.

       On June 15, 2005, a federal grand jury returned a two-count

indictment against McDade: Count One charged him with bank robbery,

a violation of 18 U.S.C. § 2113(a), and Count Two charged him with

“Use    and    Carry   of    a    Firearm,”    a    violation        of   18    U.S.C.    §

924(c)(1)(A)(ii).        McDade pleaded not guilty.                A trial occurred on

September 12 and 13, 2005, but ended in jury deadlock.                          The case

was tried again on October 11, 2005.

       At     the   second   trial,    McDade’s          defense    included     several

witnesses’ testimony:            Glenview Baptist Church Pastor Roger Hollar

(Pastor Hollar) testified that on Friday, January 7, 2005, he met

with McDade at the church office, where he arranged to help McDade



                                          3
with his car payment.      Pastor Hollar further testified that, also

on January 7, 2005, McDade received groceries from his church and

that, on January 17, 2005, the church helped McDade pay his

utilities bill.   McDade’s aunt and mother both testified that they

had never seen McDade wear the type of clothes worn by the bank

robber in the surveillance photos, and McDade’s wife testified that

McDade did not own such clothes.           McDade’s aunt Edna Chiles

(Chiles) testified that McDade met her and his mother at Chiles’s

house around 12:00 noon on January 8, 2005, stayed anywhere from 10

to 20 minutes, and then went with Chiles and McDade’s mother to

McDade’s mother’s house to pick up food.        Chiles testified that,

after McDade left, she and McDade’s mother sat around and talked

before going to church, arriving at church by 2:00 p.m.        McDade’s

mother similarly testified.     Chiles testified further that McDade

did not look like the person in the bank surveillance photo because

of different facial features and differently shaped eyeglasses.

     Also   during   the   defense’s    case-in-chief,   McDade’s   wife,

Gwendolyn McDade, stated that she and McDade were experiencing

financial difficulties at the time of the robbery. She answered in

the negative when, on direct, defense counsel asked whether McDade

had any unexplained money around the time of the robbery or whether

their financial situation had improved at all:

            “Q. Did you notice a change in your finances
            after January the 8th?
            A. No, sir.
            Q. Did Michael show up with any money he


                                    4
           couldn’t explain where he got it?
           A. No, sir.
           Q. Did he show up with any money at all?
           A. No, sir.
           Q. Did he buy anything that you knew about
           that he couldn’t explain how he bought it?
           A. No, sir.
           Q. Were your finances still just as tight as
           they were after January 8th as they were
           before?
           A. Yes, sir.”

After defense counsel finished direct examination of Mrs. McDade,

the   prosecutor   asked   to   approach   the   bench.     The   following

discussion occurred out of the jurors’ hearing:

           “[Prosecutor]: Judge, I believe he’s opened
           the door to his drug use. I have a good faith
           belief that he was using cocaine, and that’s
           where the money very well could have gone. He
           asked her if there was any extra money or
           anything like that laying around.      I have
           information from the parole officer that he
           was using cocaine when --
           THE COURT: Well, he’s opened the door to it so
           you can have at it.
           [Defense Counsel]: I object to that, Your
           Honor.”

      The prosecutor then asked McDade’s wife, “Ms. McDade, were you

aware that your husband was using cocaine during this time period?”

McDade’s wife replied, “No ma’am.”          The prosecutor next asked,

“Were you aware that he was -- had tested dirty on urinalysis?,” to

which the witness again responded, “No ma’am.”            Neither McDade’s

wife nor any other witness called by him testified as to his

character or character for truthfulness.          McDade himself did not

testify.   McDade’s purported drug use was never again mentioned.

No evidence was presented that McDade ever used or dealt in drugs.


                                     5
No limiting instruction, or instruction to disregard, was given,

nor did McDade ever request one.

     On October 11, 2005, the jury returned a guilty verdict on

both counts of the indictment. The trial court sentenced McDade to

consecutive terms of 96 months’ imprisonment for the bank robbery

charge, and 84 months’ imprisonment for the use and carry of a

firearm.   McDade timely appealed.

                               DISCUSSION

     We assume, arguendo only, that the two drug use questions

asked of    McDade’s   wife   were   improper   under   United   States   v.

Beechum, 582 F.2d 898 (5th Cir. 1978), and its progeny, or that, to

the extent potentially properly relevant (in respect to motive or

explaining the evidence of McDade not exhibiting post-robbery

cash), they were nevertheless improper because they were never

connected up by any evidence showing any drug use (or dealing) by

McDade.    See, e.g., United States v. Ridlehuber, 11 F.3d 516, 522

(5th Cir. 1993).2   We likewise assume, arguendo only, that McDade’s

generic objection was sufficient (but see United States v. Polasek,


     2
       McDade does not assert on appeal, and did not assert
below, that the prosecutor did not “have a good faith belief that
he was using cocaine” and “information from the parole officer
that he was using cocaine.” There is no evidence (apart from
McDade’s wife’s negative answer to the two questions about her
knowledge of this) he was not then using cocaine. The PSR states
(in a portion not objected to by McDade) that “In December 2004,
he tested positive for cocaine, according to the defendant” and
he “stated he was associating with the wrong people which led to
his drug use.”

                                     6
162 F.3d 878, 883 (5th Cir. 1998)), and that the failure to ever

move to strike the questions or request a limiting instruction (or

instruction to disregard) was not fatal to adequate preservation of

the objection (see Huddleston v. United States, 108 S.Ct. 1496,

1501-02 & n.7 (1988)) because the trial court simply overruled the

objection   rather   than   allowing   the   question   conditionally   or

subject to a proper showing of McDade’s drug use or dealing.            See

United States v. Anderson, 933 F.2d 1261, 1273 (5th Cir. 1991).

     Nevertheless, it is clear that from the record as a whole that

any properly preserved error respecting allowance of the two drug

use questions was harmless error under FED. R. CRIM. P. 52(a). See,

e.g., United States v. Williams, 957 F.2d 1238, 1244 (5th Cir.

1997).

     McDade’s wife answered the two brief drug-related questions in

the negative, and there was no other mention by any witness or

attorney, during testimony or in argument to or within hearing of

the jury, concerning drugs.     Conversely, there was strong evidence

identifying McDade as the bank robber.         Wachovia teller Mayo was

unequivocal in his in-court identification of McDade and had ample

opportunity to observe him at close range during the robbery.

Prior to the robbery, Mayo had been trained “to look at people in

the event that there is something that happens to identify them”

including “making special note of facial characteristics.”          Mayo

likewise testified as to picking McDade’s picture out of the


                                   7
photographic line up, the separate picture being introduced in

evidence    as   well   as   the    entire   photographic     spread.      Hearn

testified that she had worked with McDade, helping him get a job

and seeing how he was doing at any job he got, and had met with him

about ten times.         She identified McDade in court.                She also

identified McDade as the person shown in the bank surveillance

photographs and testified that she previously had done so when

shown those photographs by Officer Owings.            There was no doubt in

her   mind.      The    surveillance    photographs    were    introduced     in

evidence.     Officer Owings corroborated Hearn’s testimony as to her

earlier having identified McDade from the surveillance photographs.

Hearn further testified that McDade wore glasses and, though he

“was always between jobs,” he “dressed real sharp, real sharp.”3

Hearn also testified that          she did not see McDade in January 2005,

and he missed his January 12, 2005, appointment with her.

      McDade points out that the two drug use questions were not

asked in his first trial that ended in a hung jury and contends

that this fact demonstrates reversible error.               However, the two

trials’ disparate outcomes could as likely have been due to other

factors.4     For example, the record indicates that in the second


      3
      Including “nice pants, nice shoes, silk shirts . . .
really nice shoes . . . alligator, ostrich . . .,” and often
wearing a “couple of gold necklaces, gold rings.”
      4
      The testimony at the two trials was much the same except
that Hollar did not testify at the first trial. However, his
testimony at the second trial was impeached by confusion as to

                                        8
trial, but not the first, jurors were given individual copies of

the bank surveillance photos.

                           CONCLUSION

     For the foregoing reasons, the judgment of the district court

is

                            AFFIRMED.




dates.

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