* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 8 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DENNIS RAY JONES, Defendant-Appellant. No. 96-2061 (D.C. No. CR-94-747-LH) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, MCWILLIAMS , Senior Circuit Judge, and MURPHY , Circuit Judge. Dennis Ray Jones appeals his conviction for possess ion with intent to distribute methamphetamine in violation of 21 U.S.C . §§ 841(a)(1) and 841(b)(1)(A). He argues that the district court ab used its discretion by improperly limiting cross-examination of a government witness, and that remarks contained in the prosecutor’s closing argument deprived him o f a fair trial. We affirm. Police officers executed a state search warrant at Mr. Jones’ residence,-2-

where they located several guns, drug ledgers, two scales, a radio scanner, money wrappers, and approximately $6,921.00 in cash. In addition, officers found five “balls” -- two wrapped in duct tape and three in fo il -- and a separate small plastic bag. Both the balls and the bag contained white po wder. Officers conducted a field test in which samples of the white powder ind icated methamphetamine. Detective Brian Sallee placed the balls in one evid ence container and the small plastic bag in another and took them to the police station for storage. On December 12, Detective Greg Hagel checked out the two evidence containers, observed them to be maintained as described by Dete ctive Sallee, and proceeded to analyze them for fingerprints. On December 13, DEA Agent Stephen Lillard checked out the two evidence containers, which now contained a “yellowish” powdery substance, and sent them to the DEA laborat ory for forensic testing. When the DEA chemist received the evidence containe rs, he opened them and observed several small plastic bags containing whatwas now a rock-like substance. An analysis indicated the presence of 8 0% pure D-methamphetamine. Mr. Jones contends the district court impermissiblyrestricted his crossexamination of Detective Sallee pursuant to Rule 60 8(b) regarding a police department investigation which cleared him of alleg ed mishandling of money seized during the execution of a search warrant. T he district court held under Rule 403 that the proffered evidence was substantia lly more prejudicial than-3-

probative and could lead to confusion of the issues , a decision we review for abuse of discretion. See United States v. Olivo , 80 F.3d 1466, 1470 (10th Cir. 1996); United States v. Morales-Quinones , 812 F.2d 604, 613 (10th Cir. 1987). We cannot conclude the district court abused its di scretion in determining the evidence was prejudicial and potentially confus ing. See United States v. Ramirez , 63 F.3d 937, 943 (10th Cir. 1995) (trial court af forded broad discretion in making determination under Rule 403). Since Det ective Sallee was cleared of prior wrongdoing, any connection between the invest igation and his propensity for truthfulness is tenuous at best. See United States v. Phibbs , 999 F.2d 1053, 1070 (6th Cir. 1993). Moreover, although the core of Mr. Jones’ defense was his assertion that the substance seized from his apartm ent was not the same substance later analyzed at the DEA laboratory, the evidence proffered by the government did not change from powder to solid until well afte r the last time it was in Detective Sallee’s custody and several others handl ed the evidence in the meantime. The record contains nothing to demonstrate that Detective Sallee altered the evidence or its packaging subsequent to bagging it at the scene. See United States v. Hamell , 3 F.3d 1187, 1189 (8th Cir. 1993) (cross-examinat ion concerning past misconduct disallowed where conductwas unrelated to the events involved in defendants’ trial); cf. United States v. Ellzey , 936 F.2d 492, 496 (10th Cir. 1991) (limitation on cross-examination survive s Confrontation Clause where-4-

no evidence proffered to establish a link between w itness’ past conduct and issues in defendant’s case). Since the proffered evidence is of questionable relevance, the district court did not abuse its discretion in limiting the cross-examination of Detective Sallee. Mr. Jones next contends the district court erred indenying his motion for mistrial based on the prosecutor’s remarks during c losing argument, in which the prosecutor characterized Mr. Jones’ defense based o n mishandling of evidence as “an O.J. Simpson spin-off.” Where, as here, the de fendant lodges a contemporaneous objection to prosecutorial miscondu ct and subsequently moves for mistrial, we review the district court’s denial of the motion for mistrial for abuse of discretion. See United States v. Gabaldon , 91 F.3d 91, 93 (10th Cir. 1996). We agree with Mr. Jones that the prosecutor ’s reference to the O.J. Simpson case in his closing argument was a gratuito us and inappropriate attempt to impugn the credibility of Mr. Jones’ counsel andchallenge the legitimacy of his defense. “When a prosecutor places the credibi lity of counsel at issue, the advantage lies solidly with the government, and thu s, prosecutors are prohibited from doing so.” United States v. Rosales , 19 F.3d 763, 767 (1st Cir. 1994). Although we do not condone the prosecutor’s misconduct, we nevertheless cannot conclude the district court had no alternati ve other than to declare a mistrial. For the district court’s decision to con stitute an abuse of its discretion-5-

warranting reversal, the prosecutor’s misconduct “must have been ‘flagrant enough to influence the jury to convict on grounds other than the evidence presented.’” United States v. Ivy , 83 F.3d 1266, 1288 (10th Cir. 1996) (quoting United States v. Ramirez , 63 F.3d 937, 944 (10th Cir. 1995)). “In assessin g whether the misconduct had such an impact, we consi der the trial as a whole, including the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within the case.” Id. Here, although the prosecutor made his improper remarks in closing argument and the court did not sustain defense counsel’s contemporaneous objection, the co mment was isolated and the court specifically instructed the jury that counsel ’s arguments are not evidence. United States v. Pena , 930 F.2d 1486, 1490-91 (10th Cir. 1991). Moreove r, we find any lingering effects of the prosecutor’s misc onduct to be harmless; the jury acquitted Mr. Jones on two counts in spite of the i nappropriate statements and had ample evidence to support its verdict. Id. Mr. Jones’ conviction is AFFIRMED

. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge