1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________________________

No. 92-1260

 __________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT LYNN CASEL, a/k/a "POLO",

BENNIE JAY JACKSON, 

GLORIA REED, a/k/a LULA MAE REED, 

HERBERT D. JOHNSON, JR., and

SHARON WILLIAMS, 

Defendants-Appellants.

_____________________________________________

Appeals from the United States District Court

for the Northern District of Texas

______________________________________________

(July 13, 1993)

Before GOLDBERG, GARWOOD, and WIENER, Circuit Judges. 

GOLDBERG, Circuit Judge:

This appeal arises in the aftermath of a month-long trial

involving eight defendants charged with twenty-nine counts of

drug-related offenses. Five of the eight defendants appeal their

convictions, raising myriad issues. Although we have considered

all of the contested issues, we find that only five merit

discussion. Finding no error, we affirm the convictions and

sentences of the appealing defendants. We dismiss appellants'

claims of ineffective assistance of counsel, without prejudice to

those claims later being raised in a habeas corpus proceeding.

FACTS 

All five appellants were convicted of possession and
2

distribution of cocaine. Only Reed and Williams were convicted

of conspiracy. Williams allegedly was the supplier of the

cocaine, selling it to Reed who, with the help of the other

appellants, resold it. The government presented documentary

evidence and nine witnesses to support its case against

appellants. The government relied most heavily on the testimony

of a man named Sammy Scott, Jr. ("Scott"), a member of the drug

ring who received a lenient plea agreement in exchange for his

testimony. Scott's testimony was internally inconsistent and, it

now appears, inaccurate in certain respects, though not

necessarily mendacious. Scott's testimony was the sole evidence

used to convict Casel on count twenty-eight (distribution of

cocaine), and Reed on count four (sale of cocaine to a minor). 

We will address the facts pertaining to each individual appellant

in turn, beginning with appellant Williams. 

Scott testified that Williams was one of the primary

suppliers of the drug ring, selling Reed between one-quarter

kilogram and two kilograms of the drug on four occasions. Scott

testified that on one or two occasions, he did not actually see

Williams in possession of the cocaine Reed allegedly obtained

from Williams. However, Scott testified that on other occasions

(including one occasion when two kilograms were obtained by

Reed), Williams made a point of showing Scott the cocaine. 

Scott also testified that Williams was aware of the drug ring's

operations. 

Scott testified that during his involvement with Reed, the
3

leader of the drug ring, he bought cocaine from Reed, saw Reed

cooking and refining cocaine, helped Reed sell cocaine to adults

and to at least one minor, shared the profits from their cocaine

sales, and traveled with Reed to destinations at which Reed

obtained cocaine from suppliers like Williams.

Scott testified that Reed went to California to buy a

kilogram of cocaine for defendant Johnson, and that when she

returned she announced her intention to sell it to Johnson. 

Later she gave Scott $2,000 as his share of the sale. This

transaction formed the basis for count seven. Scott's mother

corroborated Scott's testimony that when Reed arrived back in

Amarillo from her trip to California, Reed stated she had a

kilogram of cocaine in her girdle. The government also

introduced documentary evidence showing that Reed had made a trip

to California on or around the date which Scott and his mother

claimed she had. There was additional evidence that Reed had

participated in a "controlled buy." 

Scott testified that he was present when Reed and Johnson

negotiated the sale of five ounces of cocaine to a minor. Scott

watched Reed, Johnson and the minor go to Johnson's home. When

Reed returned, Reed told Scott she had just taken care of some

business and gave him $2,500, which he presumed was his share of

the sale. This sale formed the basis of count four of the

indictment. 

 The government introduced documentary evidence establishing

that telephone calls were made to Scott's mother and to appellant
 

1 Three witnesses, Gilbert Salinas, Homer Perkins and

Mrs. Scott (Sammy Scott, Jr.'s mother) testified that they had

all bought cocaine from Johnson during the period 1986-90. 

4

Williams from pay phones near the hotel at which Scott claimed

that he and Reed stayed during one of their trips to Houston to

buy drugs from Williams. Scott's mother corroborated his

testimony when she stated that she had personal knowledge of the

fact that her son and Reed were involved in drug dealing. Other

witnesses testified that Reed had sold cocaine to them or to

people they knew. Still others testified that Reed had borrowed

money from them in order to purchase cocaine from her sources. 

Scott agreed to cooperate with the government prior to the

time at which Reed was indicted. During this period, some of

Scott's conversations with Reed were audiotaped, including some

in which Reed discussed the drug ring's operations and her

ability to recognize cocaine of various qualities. These

audiotapes were later played for the jury. 

Scott also testified against Johnson. As noted above, Scott

testified that Johnson assisted Reed in the sale of cocaine to a

minor, and on at least one occasion delivered cocaine to Scott's

mother's store. The government introduced evidence of many

purchases and sales of cocaine by Johnson during the period 1986-

90,1 evidence of Johnson's state court conviction for possession

of cocaine in 1987, and cocaine seized from Johnson's home with a

search warrant. 

Several witnesses testified to Jackson's role in buying and
5

selling drugs for the drug ring. Evidence was produced to show

that Jackson had sold cocaine to an undercover government agent. 

A witness named Teresa Watts testified that she sold cocaine for

Jackson. Watts claimed that Jackson tried to cajole (if not

coerce) her into testifying that she did not sell drugs for him. 

While she admitted Jackson did not harm her or explicitly

threaten her physically, she testified that he doggedly pursued

her to various places she frequented in order to encourage her to

lie to the police. 

Scott claimed that Casel sold cocaine to a group of five

people in January, 1991. Then he changed his story and said the

date of the sale was January, 1990. Scott named the five alleged

buyers; when two of the alleged buyers were called as defense

witnesses, they denied purchasing cocaine from Casel. The other

three alleged buyers were not called as witnesses by either the

government or the defense. It was later discovered that one of

these alleged buyers had been incarcerated at the time of the

alleged sale. Additional testimony regarding Casel's involvement

in the drug ring included two witnesses' testimony that they had

purchased cocaine from Casel on numerous occasions, and Mrs.

Scott's testimony that one of the cocaine orders she placed with

Johnson was actually filled by Casel, who brought the cocaine to

the liquor store operated by Mrs. Scott. 

After a month-long jury trial, Casel was acquitted of one

count of conspiracy, but was found guilty of one count of

distribution of cocaine. Johnson was acquitted on one count of
6

conspiracy, and found guilty on two counts of possession of

cocaine with intent to distribute, two counts of distribution of

cocaine (including one count for distribution of cocaine to a

minor), one count of continuing criminal enterprise (drug

trafficking), and five counts of money laundering. Jackson was

acquitted on one count of conspiracy and one count of using a

firearm during a drug trafficking crime, but was found guilty of

three counts involving distribution of cocaine, one count of

continuing criminal enterprise (drug trafficking), and one count

involving obstruction of justice. Reed was acquitted on one

count of distribution of cocaine and another count of possession

of cocaine with intent to distribute, but was found guilty of one

count of conspiracy to distribute and conspiracy to possess

cocaine with intent to distribute, one count of distribution of

cocaine to a minor, one count of distribution of cocaine (to an

adult), and four counts of distribution and possession of cocaine

with intent to distribute. Williams was convicted on one count

of conspiracy and two counts of distribution and possession with

intent to distribute cocaine. 

ANALYSIS

1. Whether the evidence was sufficient to support the

convictions of Casel, Reed, Williams and Jackson? 

An appellate court reviews the evidence if possible in a

manner consistent with the verdict. Glasser v. United States, 315

U.S. 60, 80 (1942) ("The verdict of the jury must be sustained if

there is substantial evidence, taking the view most favorable to

the Government, to support it") (citations omitted); United
 

2 Defendant Johnson does not contend that the evidence

was insufficient to support his conviction. 

7

States v. Fortna, 796 F.2d 724, 740 (5th Cir.) ("[W]e must

examine all the evidence and reasonable inferences in the light

most favorable to the government and determine whether a

reasonable trier of fact could find that the evidence establishes

guilt beyond a reasonable doubt") (citations omitted), cert.

denied, 479 U.S. 950 (1986); United States v. Bell, 678 F.2d 547,

549 (5th Cir.) ("It is not necessary that the evidence exclude

every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except guilt....A jury is free

to choose among reasonable constructions of the evidence"),

aff'd, 462 U.S. 356 (1983). The appellate court's role does not

extend to weighing the evidence or assessing the credibility of

witnesses. Bell, 678 F.2d at 549; United States v. Martin, 790

F.2d 1215, 1219 (5th Cir.), cert. denied, 479 U.S. 868 (1986);

United States v. Varca, 896 F.2d 900, 905 (5th Cir.), cert.

denied, 498 U.S. 878 (1990); United States v. Espinoza-Franco,

668 F.2d 848, 851 (5th Cir. 1982). If a rational trier of fact

could have found the defendant guilty beyond a reasonable doubt

of the essential elements of the offense, then the conviction

must be upheld. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas

review of state court conviction); United States v. Straach, 987

F.2d 232, 237 (5th Cir. 1993). A review of the evidence against

Casel, Reed, Williams and Jackson reveals that it was sufficient

to support their convictions.2
 

3 In addition to Scott's clearly having been wrong about

the presence of the incarcerated buyer during the drug deal,

there is also the fact that Scott originally stated that the

transaction took place in January, 1991 (not January 1990), and

that Scott initially stated that Casel had sold cocaine to a

group of two people, not a group of five people. 

8

CASEL:

Casel was convicted of selling cocaine (and of no other

offense) solely on the basis of Scott's testimony. A conviction

may be based solely on the uncorroborated testimony of an

accomplice, as long as the testimony is not insubstantial on its

face. See, e.g., United States v. Carrasco, 830 F.2d 41, 44 (5th

Cir. 1987). However, Casel argues (along with his co-defendants)

that Scott's testimony was not credible because he changed his

story at least three times during the trial.3 Although it

appears that Scott's testimony was indeed inaccurate in certain

respects, it was not so inaccurate or inconsistent as to make it

incredible as a matter of law. 

Scott testified that on January 3, 1990, he witnessed Casel

selling cocaine to a group of five people, including one person

who was incarcerated on that date. Casel's trial attorney did

not object to the testimony or attempt to present evidence that

the buyer was incarcerated on January 3, 1990, because he did not

learn about that fact until after the trial was concluded (but

before sentencing had taken place). 

The indictment's language ("on or about January 3, 1990")

saves the indictment from having to be perfectly specific about
 

4 The alleged buyer was incarcerated from December 28,

1989 until sometime in March, 1990. 

9

the date in question. See United States v. Hernandez, 962 F.2d

1152, 1157 (5th Cir. 1992). Furthermore, Scott's testimony is

not "incredible" merely because he misremembered the exact date

of the transaction, or the number and identity of the buyers. 

The jury could have found that Scott inaccurately remembered the

identity of one of the five buyers, while believing Scott's

testimony that the sale of cocaine to a group of people by Casel

occurred. Alternatively, it is possible that the jury decided

that Scott misremembered the exact date of the transaction

(because he expressed some uncertainty about it), but correctly

remembered the identity of all five purchasers. (The alleged

buyer who was incarcerated on January 3, 1990, was a free man

only a week before that date.4) The jury could have chosen to

disbelieve the testimony of two of the alleged purchasers, who

when called as witnesses for the defense claimed they had never

purchased cocaine from Casel. 

The test for "incredibility" of a witness is an extremely

stringent one, because an appellate court does not weigh the

credibility of witnesses. To be found "incredible" as a matter

of law, the witness' testimony must be factually impossible. See

United States v. Lindell, 881 F.2d 1313, 1322 (5th Cir. 1989)

(Because the jury is "the ultimate arbiter of the credibility of

a witness....Only when testimony is so unbelievable on its face

that it defies physical laws should the court intervene and
10

declare it incredible as a matter of law"), cert. denied, 496

U.S. 926 (1990); United States v. Silva, 748 F.2d 262, 266 (5th

Cir. 1984) ("[A] conviction may be based solely upon the

uncorroborated testimony of an accomplice if the testimony is not

incredible or otherwise insubstantial on its face") (citation

omitted). The mere fact that the witness' memory is later shown

to be somewhat flawed will not suffice to demonstrate that the

witness' entire testimony is "incredible." 

In Lindell, this court was confronted with a claim that

defendant's conviction for possession with intent to distribute

marijuana was reversible because it was based upon the testimony

of a witness who initially failed to mention the defendant's role

in the crime and only did so after further questioning by the

prosecutor. The witness' implication of the defendant only after

continued questioning by the prosecutor did not make the witness'

testimony "unbelievable," 881 F.2d at 1322, for "[o]nly when

testimony is so unbelievable on its face that it defies physical

laws should the court intervene and declare it incredible as a

matter of law." Id. (citing United States v. Carrasco, 830 F.2d

41, 44 (5th Cir. 1987); United States v. Palacios, 612 F.2d 972,

973 (5th Cir. 1980)). See also United States v. Espinoza-Franco,

668 F.2d 848, 851 (5th Cir. 1982). Under this standard, we are

forced to conclude that Scott's testimony was sufficiently

credible that a jury could choose to rely upon it. 

REED: 

Reed was convicted on one count of conspiracy, one count of
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distribution of cocaine to a minor, and three counts of

distribution and possession of cocaine with intent to distribute. 

The government's case against Reed for distributing cocaine to a

minor was supported solely by Scott's testimony. Scott testified

that he saw Johnson and Reed negotiate a sale to a minor, and

that he saw all of them go to Johnson's house. When Reed

returned, she allegedly said she had just taken care of some

business and gave Scott $2,500, which Scott said he presumed was

his share of the sale that had just occurred. As a co-defendant,

Johnson could not be called to testify. The minor testified that

he had never met Reed. Reed claims that Scott changed his

testimony repeatedly and therefore was not a credible witness on

whose testimony a reasonable jury could convict her. However, we

conclude that a reasonable jury could have disbelieved the minor

and credited Scott's testimony, which was not "so unbelievable on

its face that it def[ied] physical laws." Lindell, 881 F.2d at

1322. 

The evidence supporting Reed's convictions for possession

with intent to distribute one kilogram of cocaine, and sale of

one kilogram of cocaine, is also sufficient. Scott testified that

Reed went to California to purchase a kilogram of cocaine for

resale in Amarillo. When Reed returned, she came to the liquor

store operated by Mrs. Scott (Sammy Scott's mother). Mrs. Scott

testified that Reed said she had just returned from California

with a kilogram of cocaine in her girdle. The government also

introduced documentary evidence and testimony of additional
12

witnesses to support its contention that Reed was the leader of a

drug ring, purchased cocaine and processed it for resale, and

sold cocaine on many occasions. 

WILLIAMS: 

Williams was convicted of one count of conspiracy and two

counts of distribution and possession with intent to distribute

cocaine. We find that there was sufficient evidence on which the

jury could have based convictions on all three counts. 

The evidence supporting Williams' conviction for

distribution of cocaine includes Scott's testimony that he and

Reed travelled to Houston on four separate occasions to purchase

(from Williams) between one-quarter kilogram and two kilograms of

cocaine. Scott claims that Williams showed him the cocaine on

two of these occasions; the other two times, Reed showed him the

cocaine after meeting with Williams. The government also

introduced certain documentary evidence of the connection between

Reed and Williams: telephone records indicating calls from Reed

to Williams on the dates, and from the locations, that Scott

claimed the calls were made. 

Williams claims that the evidence supporting the conviction

for conspiracy is insufficient, because even if the evidence

reveals that she sold cocaine to Reed, it does not show that she

knew about or assisted in the business of the drug ring led by

Reed. The evidence presented by the government indicates

otherwise. Williams was Reed's primary supplier, repeatedly

selling Reed quantities of cocaine so large that they could not
13

possibly have been intended for personal use. While the amount

of drugs bought or sold does not by itself suffice to establish

participation in a conspiracy, see United States v. Baker, 905

F.2d 1100, 1106 (7th Cir.), cert. denied, 498 U.S. 876 (1990),

evidence "that the defendant knew of the existence and scope of

the conspiracy and sought to promote its success," is sufficient.

Id. Scott testified that Williams sold Reed large amounts of

powder cocaine on four occasions (at least once on partial

credit), and was aware of Reed's intention to process and sell

it. 

Williams contends that the only member of the drug ring with

whom she was acquainted was Reed, and that therefore she simply

had a buyer-seller relationship to Reed. While "it takes two to

conspire...the government doesn't have to prove with whom a

defendant conspired; it need only prove that the defendant joined

the agreement alleged; not the group." United States v.

Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991). See also United

States v. Michelena-Orovio, 719 F.2d 738, 746 (5th Cir. 1983) (en

banc) ("Conspiracies to distribute narcotics have generally been

considered to be prime examples of chain, or interconnected,

conspiracies, in which a participant in a segment of the

conspiracy may be convicted of participating in the whole"),

cert. denied, 465 U.S. 1104 (1984); United States v. Martino,

664 F.2d 860, 876 (2d Cir. 1981), ("[I]n many narcotics

distribution networks the ultimate retailers may not know the

identities of those who supply their wholesaler, and the
14

retailers' identities may be unknown to those suppliers; but all

are well aware that they are participating in a collective

venture"), cert. denied, Miller v. United States, 458 U.S. 1110

(1982). 

While it is true that "evidence of a buyer-seller

relationship, standing alone, is insufficient to support a

conspiracy conviction," Townsend, 924 F.2d at 1394, evidence

indicating that both parties knew that the drug purchases were

meant for resale is "sufficient to establish a distribution

conspiracy between them," id. at 1415, especially when each party

has a stake in the success of the other's business, suggesting "a

substantial degree of cooperation and partnership rather than a

series of isolated and sporadic transactions," id. at 1406. It

is especially significant that not only did each party know that

"the other had a network of drug associates, but also...each was

committed to maintaining their successful business relationship."

Id. at 1406. Williams was Reed's primary supplier. On at least

one occasion, Williams sold Reed cocaine on partial credit, with

the understanding that Reed would make up the amount owing at a

later date, possibly at the time of the next purchase. 

Presumably, therefore, Williams considered it to be in her own

long-term interests to cooperate with Reed and to help Reed

succeed in reselling the cocaine Williams supplied her. 

There was evidence that Reed's distribution of powder and

crack cocaine was reasonably foreseeable to Williams, that

Williams agreed to further Reed's criminal enterprise, and in
 

5 See United States v. Brown, 688 F.2d 596 (9th Cir.

1982); United States v. Wood, 958 F.2d 963 (10th Cir. 1992). 

15

fact assisted it. See United States v. Elam, 678 F.2d 1234 (5th

Cir. 1982); United States v. Devine, 934 F.2d 1325 (5th Cir.

1991), cert. denied, Barker v. United States, 112 S.Ct. 349

(1991). The jury was entitled to credit Scott's testimony and

the government's documentary evidence in convicting Williams on

all three counts charged in the indictment. 

JACKSON:

Defendant Jackson was convicted of obstructing justice in

violation of 18 U.S.C. § 1503, based upon his having attempted to

influence a witness using intimidation, threats and deception. 

He contends that his conviction under § 1503 was not supported by

the evidence because no judicial proceeding had yet taken place

at the time he attempted to influence the witness. While it is

true that § 1503 can only support a conviction for interference

with a pending judicial proceeding, as opposed to a police or

agency investigation,5 at the time Jackson approached the witness

and endeavored to intimidate her into lying for him, the

superseding indictment had already been returned. Since this

clearly indicates that a judicial proceeding was "pending,"

Jackson's conviction under § 1503 was not legally or factually

insufficient. 

2. Whether it was an abuse of discretion for the court to deny

Casel's motion for a new trial based on newly discovered

evidence?
16

An appellate court reviews the denial of a new trial based

on the alleged existence of new evidence for abuse of discretion.

United States v. Miliet, 804 F.2d 853, 859 (5th Cir. 1986). In

Miliet, this court laid out five elements, each of which must be

present to justify a finding that the trial court's ruling was

"so clearly erroneous as to amount to an abuse of discretion": 

(1) the evidence must be discovered following trial,

(2) the movant must show due diligence to discover the

evidence, (3) the evidence must not be merely

cumulative or impeaching, (4) the evidence must be

material to the issues before the court, and (5) the

evidence must be of such a nature that a new trial

would probably produce a new result.

804 F.2d at 859 (citing United States v. Fowler, 735 F.2d 823,

830 (5th Cir. 1984)). Casel has not met this test.

Prior to sentencing, Casel's attorney submitted an affidavit

to the court containing the "newly discovered evidence" that one

of the five alleged buyers of cocaine had been incarcerated on

the date Scott alleged the sale took place. Not only has Casel

failed to establish "due diligence" in attempting to locate this

"new" evidence, but he failed to show that a new trial would

probably produce a new result. Moreover, because Casel had

introduced the testimony of two of the five alleged buyers, and

these two persons had denied purchasing cocaine from him, the new

evidence would be "merely cumulative or impeaching" under Miliet. 

3. Whether Casel and Jackson were denied effective assistance

of counsel?

Casel claims that his trial attorney gave him ineffective

assistance by failing to investigate the whereabouts of the man

who was incarcerated at the time that Casel is alleged to have
17

sold him cocaine, and as a result of being the law partner of the

spouse of one of the prosecutors in this case. Jackson claims his

counsel gave him ineffective assistance by failing to challenge

the jury venire prior to voir dire (for alleged 

underrepresentation of Hispanics), and by failing to introduce

the testimony of certain witnesses who allegedly might have

impeached Scott. Jackson also claims he received ineffective

assistance of counsel because his attorney failed to introduce

character evidence at the sentencing phase. 

None of these claimed deficiencies were brought to the

attention of the district court prior to being argued on appeal. 

Generally, "a claim of ineffective assistance of counsel cannot

be resolved on direct appeal unless it has been first raised

before the district court." United States v. Bounds, 943 F.2d

541, 544 (5th Cir. 1991). Exceptions to this general rule are

made "only when the record has provided substantial details about

the attorney's conduct." Id. See also United States v.

Blankenship, 923 F.2d 1110, 1118 (5th Cir. 1991), cert. denied,

111 S.Ct. 2262 (1991). We decline to consider the issue of

ineffective assistance of counsel because we consider the record

insufficient. We dismiss this portion of the appellants' appeals

without prejudice to appellants' right to raise the issue of

ineffective assistance of counsel in a habeas corpus proceeding. 

See Bounds, 943 F.2d at 543; United States v. Ugalde, 861 F.2d

802, 804 (5th Cir. 1988), cert. denied, 490 U.S. 1097 (1989); 28

U.S.C. § 2255 (1988).
 

6 Even if a prosecutor's statement constitutes error, the

error is harmless if examination of the entire record suggests

that the defendant was not substantially prejudiced by the

prosecutor's statement. United States v. Morris, 568 F.2d 396,

402 (5th Cir. 1978).

18

4. Whether the court erred in conducting a James hearing in the

presence of the jury?

A James hearing is held to determine whether an out-of-court

statement of an alleged co-conspirator should be admitted into

evidence. To admit an out-of-court statement of an alleged coconspirator requires a showing of a conspiracy and of the

connection of the declarant and the defendant with the

conspiracy, as well as a showing that the statement was made

during the course of the conspiracy and in furtherance of the

conspiracy. United States v. James, 590 F.2d 575 (5th Cir.

1979), cert. denied, 442 U.S. 917 (1979). The government is

correct in stating that there is no authority for appellant

Casel's argument that such a hearing must be held outside the

presence of the jury. See United States v. Fragoso, 978 F.2d

896, 899 (5th Cir. 1992), cert. denied, 113 S.Ct. 1664 (1993).

5. Whether various statements by the prosecutor were improper

and so infected the proceedings that the appellants should

be given a new trial?

Appellants argue that several comments by the prosecutor

were improper and so infected the proceedings as to deprive the

appellants of a fair trial. Appellants objected to all but one

of these comments when made. Although at least one of

prosecutor's comments was improper, we find that the error was

harmless.6 Reversal based on improper argument by the prosecutor
19

is not called for when there has not been a strong showing of a

deleterious effect upon the right to a fair trial. See, e.g.,

United States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989), cert.

denied, 492 U.S. 921 (1989); United States v. Lowenberg, 853 F.2d

295, 301 (5th Cir. 1988), cert. denied, 489 U.S. 1032 (1989);

United States v. Diaz-Carreon, 915 F.2d 951, 956 (5th Cir. 1990);

United States v. Young, 470 U.S. 1, 11 (1985). 

If the defendant did not object to the prosecutor's comment

when made, we review for plain error, that is, error which is

"obvious, substantial, and so basic and prejudicial that the

resulting trial lacks the fundamental elements of justice." 

United States v. Valdiosera-Godinez, 932 F.2d 1093, 1097 (5th

Cir. 1991) (quoting United States v. Birdsell, 775 F.2d 645, 653

(5th Cir. 1985), cert. denied, 476 U.S. 1119 (1986)). However,

if the defendant did object to the prosecutor's comments when

made, there are three factors for the appeals court to consider

in deciding whether to reverse the defendant's conviction due to

improper prosecutorial argument. These factors are: (1) "the

magnitude of the prejudicial effect" of the prosecutor's remarks,

(2) the efficacy of any cautionary instruction by the judge, and

(3) the strength of the evidence supporting the conviction. 

Diaz-Carreon, 915 F.2d at 956. If the evidence to support a

conviction is strong, then it is unlikely that the defendant was

prejudiced by improper arguments of the prosecutor and reversal

is not required. Id. The magnitude of the prejudicial effect is

tested in part by looking at the prosecutor's remarks in context,
 

7 Ms. Mathis said she had traveled to Houston with Reed,

and that no drugs were bought or sold on that trip. She also

claimed that her car had required repair in Houston.

20

and attempting to elucidate their intended effect. See, e.g.,

United States v. Bright, 630 F.2d 804, 825 (5th Cir. 1980);

United States v. Forrest, 620 F.2d 446, 455 (5th Cir. 1980). 

Having laid out the applicable legal standard, we now review the

allegedly improper prosecutorial arguments in turn. 

First, appellant Johnson objected at trial that the

prosecutor implied that appellant Johnson had failed to introduce

evidence of his innocence; specifically, that the prosecutor

asked rhetorically "why credit card receipts had not been

produced, why was the method of payment for car repairs not

produced, and why testimony has not been given to support the

defendant's claim of innocence." In fact, the prosecutor was only

asking questions of a defense witness whose testimony was offered

to support a particular defense asserted by defendant. The

prosecutor asked the witness, "Why can't we see the cancelled

check that [you] paid for [your] car repair with? How about the

receipts, some credit card receipts?"7 The record clearly shows

that the prosecutor was merely commenting on the paucity of

evidence for a particular defense that defendant Johnson sought

to advance. Since the prosecutor's comments were intended as a

statement that the defense had failed to produce any evidence of

a defense he was advancing, rather than as a statement about the

silence of the defendant himself, then the comments cannot form
21

the basis for a reversal. See Bright, 630 F.2d at 825; United

States v. Ramirez, 963 F.2d 693, 700 (5th Cir.), cert. denied,

Garcia v. United States, 113 S.Ct. 388 (1992); United States v.

Jones, 648 F.2d 215, 218 (5th Cir. Unit B 1981). In any case,

Johnson did not show that he was prejudiced by the comments, and

the evidence to support his conviction was strong. 

Second, the appellants collectively object to the

prosecutor's opening argument, in which she stated that

conviction of the defendants was required to protect the jurors'

community from drug dealers. Because appellants did not object

to this portion of the prosecutor's argument at trial, appellants

now must establish that the court's allowance of the prosecutor's

comments was plain error. Valdiosera-Godinez, 932 F.2d at 1097;

Diaz-Carreon, 915 F.2d at 957. The prosecutor introduced her

statements about the drug problems in Amarillo with prefatory

phrases such as "You will see...."; "The evidence will show....";

"You will hear"; and "You will learn." The prosecutor's statement

that illicit drug sales were common in certain sections of

Amarillo was later corroborated by witnesses for both the

prosecution and the defense. The government now argues that the

prosecutor's opening remarks were nothing more than a "road map"

to what she believed the evidence would show, while appellants

contend the prosecutor's comments were calculated to prejudice

the jury and "inflame their passions." In United States v.

Morris, 568 F.2d 396, 401 (5th Cir. 1978), this court made it

clear that a prosecutor may state her own opinion or knowledge of
22

the case as long as she makes it clear that her conclusions are

"the conclusions to be drawn from the evidence." In the instant

case, the prosecutor presented evidence in support of her opening

statements. In light of that crucial fact, we cannot say that

the statements constitute plain error. 

Third, in her closing argument, the prosecutor stated that

she would not ask the jury to convict the defendants based solely

on one witness' testimony, but that since she had presented nine

witnesses against the defendants, she felt the jury "could feel

pretty comfortable" about convicting the defendants. Appellants

objected to this statement when made. The appellants claim that

the prosecutor was suggesting to the jury that there was

something legally crucial about the fact that the government had

produced nine witnesses, and that the prosecutor herself found

these witnesses credible. We have often said that a prosecutor

"may not express his personal opinion as to the credibility of

witnesses, or his own belief regarding a defendant's guilt."

United States v. Walker, 613 F.2d 1349, 1355 (5th Cir.), cert.

denied, 446 U.S. 944 (1980) Here, however, it is clear from the

context in which the statement was made that the prosecutor was

not expressing her personal opinion about the defendants' guilt,

the credibility of individual witnesses or of the witnesses as a

group. Instead, she was offering a generalized comment on the

weight of the government's case against the defendants. In other

words, she was simply saying that the case against the defendants

was not thin. A prosecutor's assessment that the evidence for
23

her case is strong is similar to her vouching for her witnesses

by noting the absence of any evidence suggesting they have any

reason to lie. Each is permissible to the extent that it draws a

conclusion based solely on the evidence presented. See United

States v. Enstam, 622 F.2d 857, 869 (5th Cir. 1980), cert.

denied, 450 U.S. 912 (1981) (it is acceptable to draw reasonable

inferences from the evidence when arguing to the jury; provided

prosecutor does only this, she is not injecting "personal

opinions" into her argument); Bright, 630 F.2d at 824 (a

prosecutor may respond to character assassination visited upon

the government's witnesses, and may point to the lack of any

reason to think a witness is lying; "[t]he prosecutor is not

obliged to sit quietly while character assaults are made on his

witnesses; he is entitled to argue fairly their credibility");

United States v. Binker, 795 F.2d 1218, 1223 (5th Cir. 1986)

(prosecutor may respond to attacks on credibility of her

witnesses), cert. denied, 479 U.S. 1085 (1987). 

 Fourth, in her closing argument, one of the prosecutors

stated that while the government's star witnesses plea-bargained,

they did not get sweet deals. She continued:

I want you [the jury] to think about what these guys'

lives are going to be like the rest of their

life....Did you see James Dawkins [government witness]

shaking up there when Seldon Hale [defense attorney]

asked him, "What unit are you in, Mr. Dawkins?" Did

you see him? He is scared....From now on, every

Government witness in this case is going to have to

watch his back....Do you remember Gilbert Salinas

[government witness] telling us that Joe Cofer

[defendant who is not appealing] told him, "It is not

smart to be talking on people if you are going to the

pen." And he told Gilbert Salinas that he could get
24

him hit in the pen. He can get him from here, clear

down to the pen. And folks, it can be done. You

notice when one of the defense lawyers was questioning,

I don't know who they were questioning, but they wanted

to know, "What bay is Johnny Miller [government

witness] in? What bay is Gilbert Salinas in? What bay

is Homer Perkins in?" Well, why do they want to know,

folks? They want to get to them. (emphasis added)

Appellants objected to the statement when it was made. They

contend that the prosecutor's statement was prejudicial insofar

as it implied that the defendants and their attorneys were

threatening (or would threaten) physical harm to the government's

witnesses. This does appear to be the clear import of the

diatribe, and for that reason, we believe it was improper. 

However, we find that in light of the strong evidence against the

appellants, there was no substantial prejudicial effect. 

CONCLUSION

The appellants' convictions and sentences are AFFIRMED. 

Appellants' claims of ineffective assistance of counsel are

dismissed without prejudice to their being raised in a habeas

corpus proceeding.