IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-31137

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MATTHEW VICKERS,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 1:08-CR-344-1

Before SMITH, SOUTHWICK, and GRAVES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Matthew Vickers appeals his conviction of forcible assault of a correctional

officer by striking the officer with his fist in violation of 18 U.S.C. § 111(a). FindUnited States Court of Appeals

Fifth Circuit

F I L E D

August 29, 2011

Lyle W. Cayce

Clerk

 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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ing no error, we affirm.

I.

Patrick Craig, a federal corrections officer, testified that he observed Vickers, a federal prisoner, dressed in the wrong clothes for his work detail. Craig

informed Vickers that he would need to return to his unit to change, but Vickers

responded, “F--k you. I’m not going.”

The prosecution played a silent video depicting snippets of this confrontation; Craig testified that the video was showing him ordering Vickers to follow

him to the lieutenant’s office, only to have Vickers walk away in the opposite direction. Craig then placed a hand on Vicker’s arm to direct him to the lieutenant’s office, which is where the video ends.

Craig testified that Vickers grabbed him by the throat, and Vickers

demanded that Craig get his hands off of him. Craig said that he pushed Vickers away, only to have Vickers come back at him, this time throwing a punch.

The video does not show the beginning of the physical altercation, but only an

altercation that was already underway, when Craig and the other officers were

attempting to subdue Vickers. 

Craig was asked by the prosecutor whether he was injured. Vickers

objected on the ground that the evidence was irrelevant to the crime for which

he was charged, adding that even if the testimony was relevant, its probative

value was outweighed by unfair prejudice. The court overruled the objection and

allowed Craig to testify as to his injuries. The government also introduced five

photographs depicting those injuries.

Also testifying for the government was corrections officer Brian Rabalais,

who stated that he observed the altercation between Vickers and Craig from an

observation tower twenty yards above the scene. He heard Craig tell Vickers to

follow him to the lieutenant’s office, but Vickers walked away in the opposite dir2

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ection. Rabalais saw Craig place his hand on Vickers, only to have Vickers turn

around and hit Craig two or three times. Craig attempted to wrap Vickers in a

bear hug, only to trip and fall to the ground, allowing Vickers to fall on top of

Craig and continue to strike him.

Vickers presented two witnesses. Jose Santos testified that the incident

began when Craig started screaming at Vickers and placed his hands on Vickers’s chest to push him toward the unit. Santos said that he was unable to see

who threw the first punch, because he was bent over, picking up an object.

Andre Dorsey testified that he heard Craig order Vickers back to the unit

and heard Vickers respond “all right.” Dorsey stated that Craig told Vickers

“I said now,” grabbed Vickers by the shoulder, ordered him to the lieutenant’s

office, and pushed him into a fence. Dorsey saw Craig throw the first punch.

During closing arguments, the prosecutor noted that Santos’s testimony

did not match up with the other evidence presented at trial. Specifically, the

prosecutor focused on the fact that Santos testified that he did not see who threw

the first punch, because his head was down while he was bending over to pick

something up. After highlighting one minor discrepancy in that testimonySS

Santos testified that he had bent over to pick up a radio even though he had told

officers immediately following the incident that he had bent over to pick up a

watchSSthe prosecutor focused on a larger issue with Santos’s testimony: The

video of the altercation did show that Santos bent over to pick something up, but

only after the fight had already started. After noting this discrepancy, the prosecutor asked the jury, rhetorically, “So why did he tell you that he didn’t see who

threw the first punch even though he was standing in the direct vicinity of the

area of the assault?”

Answering her own question, the prosecutor stated the following:

Well, I’ll tell you why. You see, Jose Santos can’t tell you the

truth, ladies and gentlemen, because if he tells you that Officer

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Craig was attacked by the defendant, then he will get a reputation

for ratting out a fellow prisoner and he will pay his price in prison

at the hands of the other inmates.

But if he tells you that Matthew Vickers was attacked by Officer Craig, well then, he’s under oath and he knows he’s under oath

on the stand, and he may have to spend a little more time in prison

for telling you something like that. So why did he make up a story?

He gave himself an out. He didn’t want to have to say one way or

the other. His testimony can’t be truthful, cannot be trusted.

Vickers did not object to this portion of the prosecutor’s closing statement.

During deliberations, the jury sent a note to the court, asking, “Does a

reasonable doubt between a forcible and simple assault exist because we could

not see the beginning of the altercation. Some jurors feel that it was provoked

and more to it than we saw.” The court gathered counsel and stated that it

would address this issue by bringing the jury back in to “explain to them that

they have all the evidence there is to present in the case, to tell them the instructions tell them how to evaluate the evidence and what a reasonable doubt is, and

then I intend to read to them, again, [some of the elements].”

Vickers objected to that course of action, arguing that the question indicated that the jury was “having reasonable doubt” and that the reasonable-doubt

instruction was the only thing the judge should repeat to the jury. The court

responded that it would simplify matters by only telling the jury that it has all

the evidence, the instructions tell it how to evaluate what reasonable doubt is,

and the instructions also outline the elements of proof and which elements apply

to which offense. Vickers reiterated his objection, stating that the court should

just tell the jury that “if they have reasonable doubt, they should vote not

guilty.” The court responded, “I think we’ve already told them that” and overruled the objection.

When the jury returned to the courtroom, the judge issued the following

oral instruction:

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I received your question. “Does a reasonable doubt between a forcible and simple assault exist because we could not see the beginning of the altercation. Some jurors feel it was proved and more to

it than we saw.”

With regard to your deliberations, all I can tell you is three things:

The first of those is that you have, at this juncture, all of the evidence there is to present in this case, so you have to do your evaluation based on the evidence that you have. 

The second thing I need to tell you is that the instructions that

I’ve read to you and that you have copies of tell you how you go

about evaluating that evidence and then also defines clearly what

a reasonable doubt is.

 And the third thing is that the instructions on elements of proof

for each of the offenses, forcible and simple, are laid out step-by-step

in those instructions, and you need to go back and look at those

instructions again carefully on those three areas, and I suspect that

will answer your question.

And that is, unfortunately, all I can tell you. So with that, I’m

going to send you back to deliberate based on what I’ve told you in

the instructions that you already have. Okay? So you’ll be excused.

The jury exited the courtroom at 12:36 p.m. The court received the guilty

verdict form at 12:42 p.m., and the original jury note had been received by the

judge at 12:22 p.m (at which point the jury had already been deliberating for

over an hour). Vickers unsuccessfully moved for a new trial, arguing that the

supplemental jury instructions were inadequate and the jury had failed to follow

them.

II.

Vickers argues that the district court erred in admitting any evidence of

the injuries suffered by Craig. Where, as here, the defendant objected to the

admission of evidence in the district court, we review the admission of that

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evidence for abuse of discretion. United States v. Sanchez-Hernandez, 507 F.3d

826, 831 (5th Cir. 2007). If the evidence was erroneously admitted, we consider

whether the error was harmless. Id.

Vickers contends that evidence of Craig’s injuriesSSboth the testimony

highlighting the injuries and the photographs of the injuriesSSshould have been

excluded, because that evidence was irrelevant to proving any of the elements

of the crime. Vickers also posits that, even if the evidence was relevant, (1) it

was cumulative in light of the officers’ testimony that Vickers struck Craig with

his fist; and (2) any probative value was substantially outweighed by its

potential prejudice. None of these arguments has merit.

Vickers is incorrect to say that the evidence of the injuries was irrelevant

to proving the offense for which he was charged. He was charged under 18

U.S.C. § 111(a), which punishes “whoever forcibly assaults, resists, opposes,

impedes, intimidates, or interferes with any person designated in section 1114

of this title [including federal officers] while engaged in or on account of the

performance of official duties.” Section 111(a) creates three separate offenses:

(1) simple assault, a misdemeanor offense that requires no physical contact;

(2) felony assault that involves physical contactSSthe contact need not result in

bodily injurySSbut does not involve the use of dangerous weapons; and (3) felony

assault that involves the use of a dangerous weapon or results in bodily injury.

United States v. Hazelwood, 526 F.3d 862, 865 (5th Cir. 2008). Vickers was

charged with (2): felony assault that resulted in physical contact. The government was required to prove that Vickers actually made contact with Craig;

specifically, it sought to prove that Vickers punched Craig.1

For that element, the evidence of the injuries is relevant, because it helps

This was particularly important, because Vickers had requested, and received, an

1

instruction on the lesser included offense of simple assault—which does not require physical

contact.

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prove that physical contact occurred: Those injuries could not have been caused

by anything other than physical contact.

Vickers claims that the evidence of Craig’s injuries was not necessary,

because the government did not need to prove that his assault resulted in bodily

injury. That is correct, but it mistakes the purpose for which the evidence was

offered. The evidence of Craig’s injuries proves that bodily injury occurred, but

it also establishes that physical contact took place. Correspondingly, the evidence of Craig’s injuries may serve as proof that a felony assault resulting in

bodily injury took place, for which Vickers was not charged, but the evidence of

the injuries also proves that Vickers committed the offense he was actually

charged with—felony assault involving physical contact. The evidence was

therefore relevant.

Next, Vickers argues that the evidence of Craig’s injuries was unnecessarily cumulative to the testimony of the officers, both of whom testified that Vickers struck Craig with his fist. Vickers contends that the evidence of the injuries

themselves adds nothing to the existing evidence that physical contact occurred.

That is not accurate. The evidence of the injuries is not cumulative evidence, but 

corroborative evidenceSSthe existence of the injuries, particularly the photos of

said injuries, is being used to corroborate the testimony of Craig and Rabalais

that Craig was physically struck by Vickers. Such corroboration was beneficial,

if not necessary, in a case that was largely decided on the credibility of the prosecution’s witnesses versus that of the defendant’s witnesses. Furthermore, in

regard to the photos specifically, the evidence was of a different type and

brought with it a different confidence of proof: A picture carries with it credibility that is significantly greater than that of witness testimony.

Finally, Vickers urges that the probative value of the evidence is substantially outweighed by its unfair prejudicial effect. As discussed above, the evidence of the injuries was used to prove an element of the crime; its probative

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value was significant. The prejudicial effect was accordingly high as well, but

Vickers has not shown that any unfair prejudicial effect outweighed its probative

value.2

Although the evidence had significant probative value, the risk of undue

prejudice was low. The fact that Craig sustained some injuries as a result of an

altercation was unlikely to cause the jury to ignore all the evidence presented

and convict Vickers on an emotional basis. Vickers has not shown how the

images of the injuries were inflammatory, let alone how their inflammatory

nature affected the verdict or prejudiced his primary defense (that he did not

begin the altercation that led to the injuries). Though the jury may have had a

negative reaction to the existence of Craig’s injuries, it was equally free to

believe Vickers’s argument that Craig began the altercation.3

In sum, the evidence of Craig’s injuries was relevant to the offense and

was not cumulative, and its probative value was not outweighed by its prejudicial effect. We need not ask whether admission of the evidence was an abuse of

discretion or whether any error was harmless, because there was no error at all.

III.

Vickers contends that the district court erred in denying his motion for a

new trial based on the inadequate supplemental jury instructions and the jury’s

failure to follow them. A court “may vacate any judgment and grant a new trial

if the interest of justice so requires. FED R. CRIM. P. 33(a). The grant or denial

See Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir. 2006) (“‘Unfair

2

prejudice’ as used in rule 403 is not to be equated with testimony that is merely adverse to the

opposing party. Virtually all evidence is prejudicial; otherwise it would not be material. The

prejudice must be ‘unfair.’”) (citation omitted).

Additionally, the district court emphasized that it would limit the evidence to only 3

what was necessary to explain the nature of the injuries and thus merely to establish that they

had occurred, stating that “if it goes too far, I’m going to sustain an objection. You’re going to

have to limit that evidence to the minimum necessary to explain the nature of the injuries.”

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of a Rule 33 motion for a new trial is reviewed for abuse of discretion. United

States v. Laury, 985 F.2d 1293, 1300 (5th Cir. 1993). A new trial should not be

granted “unless there would be a miscarriage of justice or the weight of evidence

preponderates against the verdict.” United States v. Wall, 389 F.3d 457, 466 (5th

Cir. 2004) (citation omitted). “A new trial is granted only upon demonstration

of adverse effects on substantial rights of a defendant.” Id. (citation omitted). 

Vickers advances two grounds for why a new trial should have been

granted. First, he argues that the supplemental jury instruction was inadequate. We “review a jury instruction for abuse of discretion, affording substantial latitude to the district court in describing the law to the jury.” United States

v. Williams, 610 F.3d 271, 285 (5th Cir. 2010). A court “enjoys wide latitude in

deciding how to respond to questions from a jury.” United States v. Cantu, 185

F.3d 298, 305 (5th Cir. 1999). Our inquiry is to determine whether “the court's

answer was reasonably responsive to the jury’s questions and whether the original and supplemental instructions as a whole allowed the jury to understand

the issue presented to it.” Id. at 306.

There was nothing wrong with the supplementalinstruction. The question

asked by the jury conceivably implicated three issues: reasonable doubt, the distinction between simple and forcible assault, and the availability of evidence.

The supplemental instruction told the jury, amongst other things, to review the

prior reasonable doubt instruction, to review the elements of the crimes, and

that they were to consider only the evidence presented to them. The first of

those supplemental instructions reaffirms to the jury that the court’s original

instruction on reasonable doubt was accurate. The other two inform the jury

that it was to only consider the evidence presented to it and to determine

whether that evidence satisfied all the elements of the crime charged. Those

instructions constituted an accurate statement of the law and served to address

all of the issues raised by the jury question.

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Vickers requested that the court read to the jury the reasonable doubt

instruction and inform it that “if they have reasonable doubt, they should vote

not guilty.” That is exactly what the court did: It instructed the jury to review

the (accurate and complete) reasonable doubt instruction given earlier, which

included the basic statement that reasonable doubt should lead to a verdict of

not guilty. The fact that the court also instructed the jury to review the ele- 4

ments of the offense and to consider only the evidence before it makes the supplemental instruction better, not erroneous.

Next, Vickers claims that the motion for a new trial should have been

granted because the jury failed to follow the supplemental instructions, which

Vickers states required the jury “to review the evidence presented in the trial,

to review the elements of the crime with which the defendant was charged, and

to review the court’s prior instructions on the definition of reasonable doubt.”

Vickers argues that the length of the jury’s deliberations show that it did not

follow those instructions, so a new trial is warranted. The amount of time that

a jury deliberates is not, however, the principal concern of a court when deciding

a motion for a new trial; rather, “if the evidence is sufficient to support the verdict, the length of time the jury deliberates is immaterial.” Guaranty Serv. Corp.

v. Am. Employers’ Ins. Co., 893 F.2d 725, 729 (5th Cir. 1990) (internal quotations

and citation omitted).

There was more than sufficient evidence to support the verdict. The victim

testified that he was punched by the defendant. That testimony was corroborated by another witness. Although Vickers presented two witnesses, one of

them did not see who threw the other punch, and the other was a convicted felon

who admitted to being friends with Vickers. It would not be unreasonable to

credit the testimony of the officers over that of the defendant’s witness. The

It is notable that Vickers does not challenge the court’s reasonable-doubt instruction 4

from the original jury instruction—or any portion of the original instruction.

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video tape of the incident, though not showing who threw the first punch, is

nonetheless fully consistent with the testimony of the officerSSand inconsistent

with the testimony of one of Vickers’s witnesses. There is more than sufficient

evidence to prove every element of felony assault with physical contact; thus, the

district court properly denied a new trial.5

IV.

Vickers argues that the prosecutor’s statements at closing argument concerning the testimony of Santos constituted reversible error. Where, as here, the

defendant does not object to statements made during the prosecution’s closing

argument, we review for plain error. United States v. Gracia, 522 F.3d 597,

599-600 (5th Cir. 2008). “We find plain error 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). Once those three elements

have been satisfied, we may exercise our discretion to correct the error, id., but

we generally do not consider the error unless it “seriously affected the fairness,

integrity, or public reputation of the judicial proceeding.” Gracia, 522 F.3d at

600.

A prosecutor cannot “convey the impression that evidence not presented

to the jury, but known to the prosecutor, supports the charges” or “induce the

jury to trust the Government’s judgment rather than its own view of the eviFurthermore, the short time of deliberation does not mean that the jury disregarded 5

the supplemental instructions. The court did not tell the jury mechanically to re-engage in its

deliberation process from scratch, reviewing every aspect of the instructions and evidence de

novo. Rather, the court instructed the jury to review the original jury instructions to resolve

any questions it may have. It is possible that the jury’s confusion was cleared up after it reread the short portion of the instructions that dealt with reasonable doubt, in which case a

quick determination of guilt would be understandable in light of the time the jury had already

spent making evidentiary determinations. 

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dence.” United States v. Young, 470 U.S. 1, 18-19 (1985). A prosecutor also cannot suggest that he has personal knowledge that a witness is being untruthful. 

Berger v. United States, 295 U.S. 78, 86-88 (1935). 

Nonetheless, we do not “lightly make the decision to overturn a criminal

conviction on the basis of a prosecutor’s remarks alone.” United States v. VirgenMoreno, 265 F.3d 276, 290 (5th Cir. 2001). The question is whether, “taken as

a whole in the context of the entire case,” the statement “prejudicially affect[ed

the] substantial rights of the defendant.” United States v. Risi, 603 F.2d 1193,

1196 (5th Cir. 1979) (quotations and citation omitted). We consider three factors

in making that decision: “(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.” United States v.

Wyly, 193 F.3d 289, 299 (5th Cir. 1999) (quotations and citation omitted). “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.” The test properly places a “substantial burden” on defendants. 6

Virgen-Moreno, 265 F.3d at 290. 

Although Vickers argues that a prosecutor is not allowed to express a personal belief that a particular witness is lying, that is not what happened here.

The prosecutor highlighted a situation in which a witness’s testimony conflicted

with videotape evidence and his own prior statements, explained a possible 7

See, e.g., United States v. Casel, 995 F.2d 1299, 1308 (5th Cir. 1993), vacated on other 6

grounds as to one defendant sub nom. Reed v. United States, 510 U.S. 1188 (1994).

The prosecutor highlighted the fact that Santos testified that he did not see the begin- 7

ning of the altercation because he had bent over to pick up an item, but that the video of the

incident showed that Santos had bent over to pick up the item only after the altercation had

begun. Thus, his testimony conflicted with the video evidence, and there was no reason why

he could not say who threw the first punch. Additionally, Santos testified that he had bent

over to pick up a radio; immediately following the incident, however, he had told prison offi-

(continued...)

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theory for why there was a discrepancy in the witness's testimony, and then 8

argued that the existence of this discrepancy and the explanatory theory should

lead the jury to conclude that the witness was not credible. At no point did the

prosecutor express any personal knowledge that the witness was being untruthful, give the impression that there was evidence not presented to the jury that

indicated the witness was being untruthful, or persuade the jury to trust the

government’s judgment rather than its own. The prosecutor merely highlighted

some evidence and put forward a reasonable interpretation of it. Thus, Vickers

cannot satisfy even the first prong of the plain error analysis: that there was

error.

AFFIRMED.

 (...continued)

7

cials that he had bent over to pick up a watch. 

The prosecutor’s theory was that Santos was faced with two impossible outcomes: He 8

could not tell the truth that Vickers started the fight, because to do so would lead to negative

consequences in prison; but he also could not state that Craig attacked Vickers first, because

that could lead to perjury charges. The prosecutor argued thatto avoid both of those undesirable results, Santos testified that he did not see the beginning of the altercation.

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