     Case: 09-11168     Document: 00511538628         Page: 1     Date Filed: 07/13/2011




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

                                                                            FILED
                                                                           July 13, 2011

                                       No. 09-11168                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

SHON JEFFERSON, also known as Shon Lee Jefferson,
also known as Shawn Jefferson, also known as Shawn
Lee Jefferson, also known as Kevin Deshun Jefferson,


                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CR-199-1


Before JOLLY, ELROD, and HAYNES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
        Shon Jefferson appeals his conviction and the sentence imposed after a
jury found him guilty of unlawful possession of a firearm by a felon, possession
with intent to distribute a controlled substance, and possession of a firearm in
furtherance of a drug-trafficking crime. Jefferson contends that the district
court erred by: (1) denying a jury instruction that the “mere presence” of a

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                       No. 09-11168
firearm was insufficient proof of guilt under 18 U.S.C. § 924(c); (2) permitting
prosecutorial comments about the depiction of forensic evidence on television
shows; (3) allowing the prosecutor to ask potential members of the jury about
their willingness to reach a guilty verdict without DNA evidence; (4) permitting
the prosecutor’s comments during closing; and (5) sentencing Jefferson under
§ 924(c) because he was also subject to a longer mandatory minimum sentence
under a separate statute. Although we hold that police testimony must be
excluded because of the improper remarks of the prosecutor in closing
arguments, we hold that none of the errors alleged require us to reverse the
conviction and therefore AFFIRM the judgment of the district court.
                                               I.
       On November 13, 2008, Dallas police officers patrolling a high-crime
apartment complex observed three people enter and exit Apartment 110 within
five minutes.1 Jefferson exited the apartment as the officers approached. The
officers frisked Jefferson and asked if he lived in the residence. Jefferson
responded, “[Y]es, I’m on the lease.” When the police asked for his identification,
Jefferson entered his apartment and closed the door behind him. Officers heard
keys jingling from inside the apartment. Jefferson exited the apartment with
his girlfriend and produced identification to the police. He signed a form
consenting to a search of his apartment.
       In the apartment, police found a locked bedroom, which they opened with
a key provided by Jefferson’s sister. Jefferson told officers that either his mother
(who was actually deceased) or another person lived in the room. In the



       1
        Many of the facts of this case are contested; the testimony of law enforcement officials
was contravened by the testimony of Sarah Coleman, Jefferson’s girlfriend. Although the jury
found for the government, this opinion later discusses that improper prosecutorial bolstering
requires us to exclude the evidence of police officer. This fact section includes several
contested facts, which are parsed out in greater detail below.

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                                   No. 09-11168
bedroom, the officers observed an open safe containing over 50 grams of crack
cocaine, two electronic scales, several small plastic bags, marijuana, and a
handgun. There were also pictures of Jefferson in the bedroom, the sunglasses
that he wore in pictures, and receipts bearing his name and apartment address,
which were dated within one month of this event. An officer exited the bedroom
and handcuffed Jefferson, who officers testified exclaimed, “How did they get in
my [f-ing] safe?” The police found $1,361 in Jefferson’s pocket. Jefferson fled the
scene and ran approximately 150 yards before being apprehended by the police.
A crowd gathered around the apartment, causing the officers to expedite the
processing of the crime scene. They gathered certain items from the crime scene
and photographed them at a convenience store. Jefferson was charged in a three
count indictment with: (1) unlawful possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1); (2) possession with intent to distribute more
than 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A);
and (3) possession of a firearm in furtherance of a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A)(i).
      At trial, the government presented the testimony from five officers who
were at the scene (as condensed above), along with experts who discussed the
seized drugs and the handgun found in the bedroom. The leasing agent of the
apartment complex testified that Jefferson was on the lease of Apartment 110.
Jefferson’s only witness was his girlfriend, Sarah Coleman, who testified that
she was present throughout Jefferson’s encounter with the police. She testified
that Jefferson did not live in Apartment 110; that they lived together in
Apartment 134 and were merely visiting Apartment 110. Coleman also testified
that Jefferson did not have a key to the apartment or to the bedroom, that no one
besides she and Jefferson entered or exited the apartment before the police
arrival; that Jefferson’s identification was not in the apartment; that the police


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                                  No. 09-11168
told Jefferson that he would go to jail if he did not sign the consent form, and
that Jefferson did not make a remark indicating that the safe was his. On
rebuttal, the government introduced evidence of Jefferson’s past conviction for
possession with the intent to distribute methamphetamine.
      During trial, Jefferson’s counsel submitted a proposed jury instruction
relating to the charge of possession of a firearm in furtherance of a drug
trafficking crime. The court, over Jefferson’s objection, did not adopt the part of
the proposed instruction that would have instructed the jury that the “mere
presence” of a gun was insufficient to find Jefferson guilty of the charge. During
deliberation, the jury submitted a note to the court asking for clarification of the
elements of the charge. Jefferson’s counsel declined to request new instructions
at this juncture, the judge told the jury to decide on the basis of the instructions
they had been given, and the jury returned a guilty verdict on this count.
      The jury found Jefferson guilty on three counts: (1) unlawful possession
of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1); (2) possession with
intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A); and (3) possession of a firearm in furtherance of a drug-
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Jefferson was
sentenced to 120 months of imprisonment as to Count One; 360 months as to
Count Two, concurrent to the sentence imposed in Count One; and 60 months
as to Count Three, consecutive to the sentences imposed in Counts One and Two,
for an aggregate sentence of 420 months.




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                                       No. 09-11168
                                              II.
       Jefferson raises six issues on appeal.2 First, he argues that the district
court erred by denying his request for a jury instruction that the “mere presence”
of a firearm was insufficient to find him guilty of violating Section 924(c).
Second, Jefferson contends that during voir dire his right to a fair trial was
compromised by prosecutorial comments about the depiction of forensic evidence
on television shows. Third, Jefferson contends the district court committed plain
error by allowing the prosecutor during voir dire to ask potential jurors about
their willingness to reach a guilty verdict without DNA evidence. Fourth,
Jefferson contends that the prosecutor’s comments during closing deprived him
of a fair trial. Fifth, Jefferson contends that the district court erred in admitting
the evidence that he had been previously convicted for possession with intent to
distribute methamphetamine. Finally, Jefferson contends that the district court
erred in sentencing him under 18 U.S.C. § 924(c) because he was also subject to
a longer mandatory minimum sentence under a separate statute. We consider
each of these issues below.
                                              A.
       Jefferson contends that the district court abused its discretion when it did
not instruct the jury that the “mere presence” of a firearm is insufficient to find
a defendant guilty under 18 U.S.C. § 924(c). Jefferson proposed that the
following language be included in the jury instruction with regard to the Section
924(c) count:
       To prove the defendant possessed a firearm ‘in furtherance,’ the
       government must prove that the defendant possessed a firearm that

       2
         Jefferson also raises a seventh issue on appeal only to preserve it for further review.
He argues that the district court erred by refusing to instruct the jury that the defendant must
have known that he possessed more than fifty grams of cocaine base. He concedes that this
issue was considered, and his argument rejected, in United States v. Betancourt, 586 F.3d 303
(5th Cir. 2009).

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                                  No. 09-11168
      furthered, advanced, or helped forward the drug trafficking crime.
      This requires more than mere presence of a firearm at the scene.
The district court included the first sentence of Jefferson’s proposed instruction
in the jury instructions, but did not include the second sentence.
      During deliberations, the jury sent a note to the district court judge,
asking “What does the language ‘in furtherance of such a crime’ mean?” The
judge asked the parties to advise him on how they would like him to respond to
the jury note. After the government’s response, the defense objected and had the
following exchange with the district court judge:
Defense Counsel: Your Honor, I would like to leave the instructions as they are.
                 I would tell the jury that they have been instructed.
                 However, I would like to note that I submitted additional
                 language for this proposed instruction. It was one of the
                 instructions that the Court overruled and that the language
                 was this requires more than mere presence of a firearm at the
                 scene, and I gave a case cite for that, and that seems to be
                 directly responsive to the questions posed by the jury.

Judge:              Okay. So instead of I told you so, what is your proposal that
                    I tell the jury? You want me to tell them that Mr. Nicholson
                    submitted a response that he believes would have cleared this
                    up, but I overruled him? Is that what you're asking?"

Defense Counsel: No, Your Honor. . . . to the extent the Court answers a specific
                 question posed by the jury, I think that this would be the
                 answer. But my preference is for the Court to advise the jury,
                 you have been given your instructions. There is nothing else
                 for me to provide to you, and that's the way that it is.
R. at 779-80.
      The defense counsel’s agreement to the instruction constitutes a waiver.
“A waiver is ordinarily an intentional relinquishment or abandonment of a
known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1939). A waiver
“occurs by an affirmative choice by the defendant to forego any remedy available
to him, presumably for real or perceived benefits resulting from the waiver.”

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                                      No. 09-11168
United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002). By requesting that
the court “leave the instructions as they are” Jefferson’s counsel demonstrated
the requisite intention of forgoing the issue. Accordingly, “the district court
cannot be said to have erred by failing to override the intentions of the
defendant’s counsel by asserting the right sua sponte.” United States v. Reveles,
190 F.3d 678, 683 (5th Cir. 1999). We therefore hold that Jefferson’s counsel
waived the argument that the district court erred by not including the mere
presence instruction in the jury charge.3
                                             B.
       Jefferson contends that the district court abused its discretion by allowing
the following exchange, over his counsel’s objections, during voir dire:
Prosecutor:          How many folks in here watch CSI? How many of you believe
                     everything you see on CSI? No. You know, it is funny. Those
                     folks, they are so good.

Defense Counsel: Objection . . . . This is not a question designed to determine
                 suitability of a juror, but rather than to make an excuse for
                 lack of evidence –

Judge:               Overruled.

Prosecutor:          Folks, on CSI those folks are so good that they can get
                     fingerprints off running water and they can wrap up a whole
                     conviction and everything within an hour, including
                     commercials. We all know that is not the real world.

Defense Counsel: I repeat my objection. It is quasi expert testimony.

Judge:               Overruled.




       3
        We should observe, however, that if a party requests a “mere presence” charge, we see
no reason it should be denied—it only serves to clarify the jury’s understanding of “in
furtherance.”

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                                  No. 09-11168
      The manner in which a district court conducts voir dire is reviewed for
abuse of discretion. United States v. Munoz, 150 F.3d 401, 413 (5th Cir. 1998).
Prosecutorial misconduct, including impermissible statements during jury voir
dire, is analyzed in two steps: (1) whether the prosecutor made an improper
remark; and (2) whether the prosecutor’s remarks prejudiced the defendant’s
substantive rights by casting serious doubt on the correctness of the jury verdict.
United States v. Valencia, 600 F.3d 389, 409 (5th Cir. 2010). As suggested above
in the quoted objection, Jefferson argues that the prosecutorial rhetoric
constituted “quasi expert testimony” from a non-qualified witness. We find that
the prosecutor’s statements were those of a lay person, as evidenced by his
statements “we all know that is not the real world” and “they can wrap up a
whole conviction and everything within an hour.” Accordingly, the prosecutor’s
remarks were not impermissible and the district court did not abuse its
discretion by allowing them.
                                        C.
      Jefferson further contends that the district court erred by allowing the
prosecutor to ask potential jurors whether they would require scientific evidence
to return a guilty verdict.    He suggests that, by doing so, the prosecutor
improperly committed the potential jury members to finding Jefferson guilty
without scientific evidence during this exchange. Because Jefferson did not
preserve the error through timely objection, we review for plain error. Plain
error exists when: (1) there was an error or defect; (2) the legal error was clear
or obvious, rather than subject to reasonable dispute; and (3) the error affected
the defendant's substantial rights. United States v. Juarez, 626 F.3d 246, 254
(5th Cir. 2010).
      It is improper for a prosecutor to “in effect ask[] the jury how it would
weigh evidence it had not heard.” United States v. Fambro, 526 F.3d 836, 848


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(5th Cir. 2008) (internal quotation marks and citation omitted). A prosecutor
may, however, use voir dire to “discern[] bias or prejudice in prospective jurors.”
Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 258 (5th Cir. 1985). “The
principle distinguishing proper from improper inquiry on voir dire is that
examination cannot search the result of a case in advance.” Id. Although
hypothetical scenarios mirroring the facts of the case are “highly suspect,”
Fambro, 526 F.3d at 848, questioning prospective jurors about weighing of a
particular type of evidence—like the issue of forensic evidence, as is at issue
here—seems to be a closer call. See Sandidge, 764 F.2d at 258.
      Regardless of whether the prosecutor erred by asking about the scientific
and DNA evidence, the error was not clear. We have previously noted that we
were “unaware of any decision by the Supreme Court or any federal appellate
court that has reversed a district court because it allowed commitment questions
on voir dire.” Fambro, 526 F.3d at 848. Accordingly, any error was not clear or
obvious in the light of the precedent of our circuit. We therefore affirm the
district court on this point.
                                        D.
      Jefferson contends that the prosecutors made improper arguments during
closing arguments. There are four sets of comments about which Jefferson
complains: (1) comments discussing the testifying law enforcement officers’ jobs,
military experience, and unimpeached credibility; (2) additional comments
during rebuttal about the officers’ police and military experience; (3) an
assertion that the defendant wanted the jury to believe that evidence had been
planted, an argument which had not been raised by the defendant; and (4) a
statement that Jefferson had reached “the all time new low for criminal defense
101” by blaming his dead mother.




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                                  No. 09-11168
      Because Jefferson did not object to these comments at trial, we review for
plain error. United States v. Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 2006).
                                        1.
      We begin by noting that the district court committed plain error by
permitting the prosecutor’s repeated comments regarding the witnesses and
their military experience, which served to bolster the credibility of law
enforcement officials who testified against Jefferson. During closing argument,
the prosecutor drew specific attention to the fact that “[e]ach of the officers who
testified served in the military. All of them served in the Marines or in the
Army, and three out of five of them have done tours in Iraq.” In the context of
his argument, there would seem to be little reason to single out this fact except
to bolster the credibility of the prosecutor’s witnesses. During rebuttal, however,
the prosecutor left no doubt but that bolstering his witnesses was the purpose
of this theme; saying:
      [E]very one of those officers is a seasoned veteran with the Dallas
      Police Department who takes an oath to uphold the law and protect
      the citizens of this city.

            And in fact, every single one of them, every single one of them,
      has served honorably in the military, and in fact, three out of the
      five have served in Iraq. Do those people strike you as being the
      kind of person who are of character to lie? Deceive? Cheat? No.
      No. Absolutely not.

We have made clear that prosecutors may not bolster the credibility of law
enforcement officials by saying that they should be believed because they are
doing their job. United States v. Gracia, 522 F.3d 597, 601 (5th Cir. 2008). “[I]t
is particularly improper, indeed, pernicious, for a prosecutor to seek to invoke
. . . the sanction of the government itself as a basis for convicting a criminal
defendant.” United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999)
(internal citations omitted).

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                                 No. 09-11168
      The district court also plainly erred by permitting the prosecutor to
contend that the defendant wanted the jury to believe that the police framed
him. The prosecutor said:
      Folks, those officers, do you think that they went in there and just
      planted all this dope? Apparently that’s a seed that he wants you to
      somehow think is going to sprout. Folks, we know that’s not the
      case.
Jefferson correctly contends that it is improper for a prosecutor to suggest that
the jury would have to believe in a conspiracy to frame him when he did not
present such a conspiracy defense. In United States v. Dorr, the court noted that
the prosecutor’s closing argument could question the reasonableness of a
conspiracy only to the extent that such a conspiracy was presented by defense
counsel. 636 F.2d 117, 119-21 (5th Cir. 1981). Accordingly, this statement was
improper.
      The prosecutor also engaged in an improper argument when he said that
Jefferson had reached “the all time new low for criminal defense 101” by blaming
his dead mother for the crime. A prosecutor should not use closing argument to
demean the character of the defendant for reasons other than the crime for
which he is on trial. Although the prosecutor could have properly referred to
Jefferson’s dishonesty, relating to his mother’s present occupancy of the
apartment, as evidence of knowledge and guilt, he crossed the boundary of
propriety by claiming Jefferson fouled the memory of his deceased mother. See
United States v. Mendoza, 522 F.3d 482, 495 (5th Cir. 2008) (“efforts to inflame
jurors through argument that characterizes a defendant in the most despicable
manner will be seen as creating a high risk of prejudice.”).
                                       2.
      Our precedent clearly indicates that comments like those made by this
prosecutor constitute error that is clear and obvious. In the recent case of


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                                       No. 09-11168

United States v. Raney, we “state[d] clearly and unequivocally that these types
of remarks and arguments are improper.” United States v. Raney, 633 F.3d 385,
396 (5th Cir. 2011).4 We further noted that “the government has been cautioned
repeatedly by this court against making such arguments, yet we continue to face
them on appeal,” id. at 395, and “[d]espite our precedent clearly condemning
such remarks, the government continues to disregard our admonishments.” Id.
at 396.
                                             3.
      Our focus thus becomes whether the prosecutor’s improper comments
affected Jefferson’s substantial rights. To determine this question, we assess
“(1) the magnitude of the statement's prejudice, (2) the effect of any cautionary
instructions given, and (3) the strength of the evidence of the defendant's guilt.”
United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995) (internal quotation
marks and citations omitted). “The determinative question is whether the
prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.”
United States v. Holmes, 406 F.3d 337, 356 (5th Cir. 2005) (internal quotation
marks and citation omitted). The crucial inquiry is the strength of the evidence
of guilt, minus the officer’s testimony. If “absent the jury’s crediting of the


      4
          The Raney court described the improper statements and related objections, saying:

      First, in reference to the firearm found on Raney, the prosecutor stated that
      “[t]he gun was loaded, a round in the chamber, ready to be fired. Bang, bang,
      bang.” Raney did not object. Next, the prosecutor told the jury that “Jasmine
      Raney's testimony . . . directly accus[ed] the officers of lying to you [and]
      planting evidence.” Raney objected. The district court sustained the objection
      and issued a curative instruction. Finally, the prosecutor asked the jurors to
      decide whether the police officers had a motive to “tell something other than
      truth,” and indicated that they did not by asking “[w]ere the officers going to
      put their careers on the line?” Raney objected. The district court sustained the
      objection and issued a curative instruction.

Raney, 633 F.3d at 394.

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agents’ testimony [Jefferson] could not have been found guilty beyond a
reasonable doubt on the paucity of other evidence” then we are compelled to
reverse. Gracia, 522 F.3d at 604. If, however, there “is substantial evidence
pointing to his guilt,” that weighs against reversal. United States v. Ramirez-
Velasquez, 322 F.3d 868, 875 (5th Cir. 2001).
      The government’s case was in part presented as credibility choices
between law enforcement witnesses and Jefferson’s only witness, Coleman. We
have earlier noted the truth of the police testimony was contested in several
respects by the testimony of Jefferson’s girlfriend Sarah Coleman, who testified
that she had been present during all relevant events. Coleman refuted that: (1)
three people entered and exited Apartment 110 in a short period of time; (2)
Jefferson retrieved his identification from the apartment; (3) Jefferson had keys
either to the apartment or to the locked bedroom in which the contraband was
found; (4) police could have heard keys jingle when Jefferson reentered the
apartment; (5) Jefferson gave his sister the keys that she gave police officers to
open the locked bedroom; (6) Jefferson consented to signing the search form; and
(7) Jefferson made a remark indicating that the safe in the room where the
drugs were found was his. See R. at 702; 705; 703; 707; 694; 706; 695. These
facts are all related, directly or indirectly, to the disputed element of the
crime—that Jefferson exercised dominion over the apartment and bedroom and
hence the contraband.
      Because credibility choices between police testimony and Jefferson’s
witness were highly relevant to Jefferson’s guilt, the procedural due process
underlying a fair trial requires that, in determining Jefferson’s guilt, the
testimony of the police obligating the jury to make credibility choices must be
excluded because the credibility of that testimony was improperly bolstered by
prosecutorial remarks. See United States v. Aguilar, __ F.3d __ , 2011 WL


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                                        No. 09-11168

2481592, *3-*6 (5th Cir. 2011); Raney, 633 F.3d at 394-95; Gracia, 522 F.3d at
601; Gallardo-Trapero, 185 F.3d at 320.5
       After the police officer’s contested testimony is excluded from the record,
the next and crucial question is whether there is substantial remaining evidence
allowing a reasonable jury to return a guilty verdict. Ramirez-Velasquez, 322
F.3d at 875. To aid this analysis, we recount the evidence of Jefferson’s guilt
that does not require the jury to make credibility choices between police
witnesses and Coleman: (1) cocaine and a firearm were found in the apartment;
(2) Jefferson and Coleman were alone in the apartment with the contraband; (2)
Jefferson’s name was on the lease of the apartment; (3) when questioned by the
police, Jefferson lied about his mother being the occupant of the apartment and
being at work at a hospital when she had been dead for four months;6 (4)


       5
         We can appreciate the frustration of the law enforcement officers who work hard to
prove a case only to have their testimony excluded because of a prosecutor’s improper remarks,
especially when our case law makes clear that such remarks are improper.

       We believe that Berger v. United States is instructive here:

       The United States Attorney is the representative not of an ordinary party to a
       controversy, but of a sovereignty whose obligation to govern impartially is as
       compelling as its obligation to govern at all; and whose interest, therefore, in a
       criminal prosecution is not that it shall win a case, but that justice shall be
       done. As such, he is in a peculiar and very definite sense the servant of the law,
       the twofold aim of which is that guilt shall not escape or innocence suffer. He
       may prosecute with earnestness and vigor—indeed, he should do so. But, while
       he may strike hard blows, he is not at liberty to strike foul ones. It is as much
       his duty to refrain from improper methods calculated to produce a wrongful
       conviction as it is to use every legitimate means to bring about a just one.

295 U.S. 78, 88 (1935) overruled on other grounds, Stirone v. United States, 361 U.S. 212
(1960).
       6
           The transcript reflects the following exchange between the prosecutor and Coleman:

Prosecutor:     And in fact, the police officers came outside and told him -- asked him about
                who did that bedroom belong to, didn't they?
Coleman:        Yes.

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                                       No. 09-11168

Jefferson’s photograph, the sunglasses in which he was photographed, and a
fresh-looking plate of spaghetti were found in the bedroom with the contraband;
(5) a carbon-copy receipt of a money order dated November 6, 2008 made out to
the Texas Department of Corrections, bearing Jefferson’s name and reflecting
his address as Apartment 110 were found in the room with the contraband; (6)
the police officers found $1,361 on Jefferson’s person; (7) Jefferson attempted to
flee from the police;7 and (8) Jefferson was previously convicted of drug charges.8
           In the light of this substantial evidence, “pointing to his guilt,” see
Ramirez-Velasquez, 322 F.3d at 875, which need not be excluded from the jury’s
consideration, we hold that a reasonable jury could have concluded beyond a
reasonable doubt that Jefferson was guilty as charged. A jury would have had
before it that (1) Jefferson’s name was on the lease for that apartment; (2)



Prosecutor:    And in fact, he told them that that bedroom belonged to his mother, didn't he?
Coleman:       Yes.
Prosecutor:    Even though that his mother had been dead for almost four months?
Coleman:       Uh-huh.
The Court:     Is that a yes?
Coleman:        Yes.
Prosecutor:    Okay. Now, in fact, he told the police that his mother worked at Parkland
               Hospital? Yes?
Coleman:       Yes.
       7
         “While flight alone is insufficient to support a guilty verdict, it is relevant and
admissible, and the jury could take into account [the defendant's] flight.” United States v.
Lopez, 979 F.2d 1024, 1030 (5th Cir.1992).
       8
         Although the facts are uncontested, Coleman offered explanations for why Jefferson
has his name on the lease (because his mother had difficulty traversing the stairs necessary
to pay rent); the photographs of Jefferson in the bedroom (they belonged to Jefferson’s mother);
and the reason Jefferson had money (his sister gave it to him to purchase a car). Despite these
explanations, the fact that Jefferson’s name was in fact on the lease, his photographs were in
fact in the bedroom, and that he was in fact carrying $1,361 on his person are uncontested.
The jury was free to disregard Coleman’s explanations. Even though we have eliminated
testimony presenting credibility choices between Coleman and the police concerning their
respective conflicting testimony, we, of course, have not held that the jury must necessarily
have found Coleman’s testimony, itself, credible.

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                                  No. 09-11168

Jefferson and his girlfriend were alone in the apartment where substantial and
valuable drugs were found; (3) a plate of spaghetti that appeared fresh was in
the room where the drugs were found, indicating that the room had been
occupied shortly before the search; (4) Jefferson’s sunglasses, his pictures, and
recent receipts bearing his name were in the room where the drugs were found;
(5) in denying that it was his room, Jefferson lied, saying that it was his mother’s
room, which, because she had been dead for four months, meant that there was
little explanation for his personal items to be in the room, which included a
receipt bearing a date of a week earlier; (6) Jefferson had a large amount of cash
on him; (7) Jefferson attempted to flee the scene; (8) and finally the jury could
have considered his previous drug conviction as evidence of intent with respect
to the drugs that were found. Accordingly, we hold that Jefferson’s substantial
rights were not affected by the improper comments made by the prosecutor
during closing arguments under the plain error standard.
                                        E.
      As we have just noted above, Jefferson had a previous drug conviction.
Jefferson, however, contends that the district court erred in admitting the
evidence that he had been previously convicted for possession with intent to
distribute methamphetamine.        We review a district court’s admission of
evidence for abuse of discretion, which is heightened when the alleged error
involves Rule 404(b). See United States v. McCall, 553 F.3d 821, 827 (5th Cir.
2008). Federal Rule of Evidence 404(b) specifies that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith,” but specifies that prior convictions are
admissible “for other purposes, such as a proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” FED.
R. EVID. 404(b). To determine whether evidence is admissible under Rule 404(b),


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                                  No. 09-11168

extrinsic evidence must: (1) be relevant to an issue other than the defendant’s
character; and (2) have probative value that is not substantially outweighed by
undue prejudice and meet the other requirements of Rule 403. United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).
      The district court admitted into evidence Jefferson’s prior conviction to
show knowledge and intent to possess contraband.           The court held that
Jefferson’s knowledge and intent were called into question by his not guilty plea
and by the testimony of Sarah Coleman, to the effect that the drugs did not
belong to Jefferson. Courts can admit evidence that speaks to the element of
intent to commit a crime, which may include evidence of prior felony convictions,
see FED. R. EVID. 404(B); such evidence may “lessen[] the likelihood that [the
defendant] committed the charged offense with innocent intent or lack of
knowledge.” United States v. Charles, 366 F. App’x 532, 538 (5th Cir. 2010)
(unpublished).
      The court, however, must also consider whether the probative value of his
previous conviction in proving intent substantially outweighs undue prejudice
to the defendant, and meets the other requirements of Rule 403. This factor is
judged by “[comparing t] he overall similarity of the extrinsic and charged
offenses, and the amount of time that separates the extrinsic and charged
offenses as well as any limiting instructions. United States v. Cockrell, 587 F.3d
674, 678 (5th Cir. 2009) (internal quotation marks and citation omitted).
      Jefferson argues that the conviction had diluted probative value because
it occurred eight years before the instant offense.      That argument is not
persuasive, however, when the previous crime is of the nature of the crime that
is charged. See, e.g., United States v. Chavez, 119 F.3d 342, 346-47 (5th Cir.
1997) (allowing the introduction into evidence of a fifteen-year-old conviction of



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                                  No. 09-11168

the same type of crime to show intent). Furthermore, the district court gave a
limiting jury instruction that:
      You must not consider any of this evidence in deciding if the
      defendant committed the acts charged in the indictment . . . . If you
      find beyond a reasonable doubt from other evidence in this case that
      the defendant did commit the acts charged in the indictment, then
      you may consider evidence of the similar acts allegedly committed
      on other occasions to determine whether the defendant had the
      state of mind, intent, or knowledge necessary to commit the crimes
      charged in the indictment.
Based upon the similarity of the offenses and the limiting instructions, we hold
that the district court did not err by admitting into evidence Jefferson’s previous
conviction for possession with intent to distribute methamphetamine.
                                        F.
      Finally, Jefferson contends that the district court erred in sentencing him
under 18 U.S.C. § 924(c) because he was also subject to a longer mandatory
minimum sentence under a separate statute. After Jefferson’s brief was filed,
the Supreme Court decided this issue in Abbott v. United States, 131 S. Ct. 18
(2010). In Abbott, the Court unanimously held that “a defendant is subject to a
mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from
that sentence by virtue of receiving a higher mandatory minimum on a different
count of conviction.”   Id. at 23.    We apply the Supreme Court precedent
established in Abbott, and hold that the district court did not err in imposing a
sentence for Jefferson’s violation of § 924(c) in addition to the longer sentence
imposed under § 841.




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                                      No. 09-11168

                                          III.
      We recapitulate the holdings in this opinion, that: (1) Jefferson waived
his argument that the district court erred by denying a “mere presence” jury
instruction; (2) the prosecutor’s comments about the depiction of forensic
evidence on television shows were not in error; (3) the district court did not
plainly err by allowing the prosecutor to ask potential jurors about their
willingness to reach a guilty verdict without DNA evidence; (4) although the
prosecutor made improper remarks bolstering police testimony during closing
arguments, there was sufficient evidence for the jury to reasonably find
Jefferson guilty based upon the testimony remaining after contested police
testimony was excluded; (5) the district court did not err by admitting into
evidence Jefferson’s previous conviction for possession with intent to distribute
methamphetamine; and (6) the recent Supreme Court decision in Abbott
forecloses Jefferson’s argument that the district court erred in sentencing him
under 18 U.S.C. 924(c) because he was also subject to a longer mandatory
minimum sentence under a separate statute.
      None of the six errors alleged by Jefferson reaches the standard of
reversible error. Therefore, for the reasons set forth above, the judgment of the
district court, in all respects, is
                                                                       AFFIRMED.




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