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United States v. Lindsey, 01-20935 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 01-20935 Visitors: 23
Filed: Oct. 22, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-20935 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY W. LINDSEY, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-277-ALL - October 21, 2002 Before GARWOOD, JOLLY and SMITH, Circuit Judges. PER CURIAM:* Anthony W. Lindsey appeals his conviction and sentence for possession of a firearm by a felon. Lindsay argues that his convictio
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-20935
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ANTHONY W. LINDSEY,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-01-CR-277-ALL
                      --------------------
                        October 21, 2002

Before GARWOOD, JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

     Anthony W. Lindsey appeals his conviction and sentence for

possession of a firearm by a felon.   Lindsay argues that his

conviction should be reversed because the district court

erroneously excluded evidence and imposed improper limits on

questioning during voir dire; because the prosecutor improperly

bolstered the testimony of Government witnesses; and because the




     *
        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that this opinion should not be published and is not precedent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.
                            No. 01-20935
                                 -2-

evidence is insufficient to establish that the firearm supporting

his conviction had a nexus with interstate commerce.

       Lindsay was charged as a felon in possession of a firearm

after he allegedly discarded a firearm in a grassy field while

fleeing from officers who sought to question him.     The trial

court granted the Government’s motion in limine to exclude from

evidence a photograph of a rusty shotgun that a defense

investigator found underneath a house adjacent to the field

approximately three months after Lindsay’s arrest.

       This court reviews the admission or exclusion of evidence

for abuse of discretion.    United States v. George, 
201 F.3d 370
,

372 (5th Cir. 2000).    Relevant evidence is generally admissible;

irrelevant evidence is not.    United States v. Hays, 
872 F.2d 582
,

586 (5th Cir. 1989); FED. R. EVID. 402.    Even if the court finds

“an abuse of discretion in the admission or exclusion of

evidence,” the error is reviewed under the harmless error

doctrine.    United States v. Skipper, 
74 F.3d 608
, 612 (5th Cir.

1996); United States v. Haese, 
162 F.3d 359
, 364 (5th Cir. 1998).

Evidentiary rulings will be affirmed unless they “affect a

substantial right of the complaining party.”     
Skipper, 74 F.3d at 612
.    The exclusion of the photograph was within the discretion

of the trial court because the photograph has no direct relevance

to whether the “chrome object” that Lindsay allegedly discarded

in the field was the firearm recovered by the arresting officer.

George, 201 F.3d at 372
.
                            No. 01-20935
                                 -3-

     We reject Lindsay’s argument that he is entitled to a new

trial because the trial court refused to allow his attorney to

ask prospective jurors whether they believed that police officers

are capable of lying.   See United States v. Armendariz-Mata, 
949 F.2d 151
, 156 (5th Cir. 1991).

     We also reject Lindsay’s argument that his conviction should

be reversed because the prosecutor bolstered the testimony of

Government witnesses by asking leading questions and presenting

an improper closing argument.    The prosecutor’s questions and

argument directly responded to the aspersions cast on the

witnesses by the defense.   There is no reversible error.     United

States v. Thomas, 
12 F.3d 1350
, 1367 (5th Cir. 1994).

     Lindsay’s argument that the evidence fails to establish that

the firearm found in the field was “in or affecting commerce” as

required by 18 U.S.C. § 922(g)(1) is foreclosed by circuit

precedent.   United States v. Cavazos, 
288 F.3d 706
, 712 (5th Cir.

2002)(citations omitted); United States v. Short, 
181 F.3d 620
,

624 (5th Cir. 1999).

     Finally, we conclude that Lindsay has failed to show that

cumulative error deprived him of a fair trial.    United States v.

Munoz, 
150 F.3d 401
, 418 (5th Cir. 1998); see FED. R. CRIM.

P. 52(a).

     AFFIRMED.

Source:  CourtListener

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