### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 as s ault of a correctional officer by striking the officer with his fist in violation of 18 U.S.C. § 111(a). FindU n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 29, 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 09-31137 Document: 00511585574 Page: 1 Date Filed: 08/29/2011No. 09-31137

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. Cr aig 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 pl a c e d a hand on Vicker’s arm to direct him to the lieutenant’s office, which is where the video ends. Craig testified that Vickers gr ab bed him by the throat, and Vickers demanded that Craig get his hands off of him. Craig said that he pushed Vickers away , o n ly to have Vickers come back at him, this time throwing a punch. The video does n o t s h o w 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. Vi c k e rs objected on the ground that the evidence was irrelevant to the crime for which he was charged, adding that even if t h e 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 Case: 09-31137 Document: 00511585574 Page: 2 Date Filed: 08/29/2011No. 09-31137

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 t ri p a n d f a l l 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 Vi c kers “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 tri a l

. S p e c i f ically, 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 b e n di n g over to pick

some t hing up. After highlighting one minor discrepancy in that testimony

SS 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 be n t o v er to pick up a watch

SSthe 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, beca u s e i f 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? H e g av e himself an out. He didn’t want to have to say one w a y o r 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 j ury 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 “ex p l a i n t o 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 t h e qu estion indicated that the jury was “having re a s onable doubt” and that the reasonable-doubt instruction was the only thing the judge should rep e a t t o t h e 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 w e c ould 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: T h e 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 te l l y o u i s th a t the instructions that I’ve read to you and that you have co p i e s o f 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 b a c k a n d 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 tel l 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 j u d g e a t 12:22 p.m (at which point the jury had already been deliberating f o r

over an hour). Vickers unsuccessfully moved for a n e w 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, a s h ere, the defendant objected to the admission of e vi d e n c e i n 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 th a t evidence of Craig’s injuries

SSboth the testimony highlighting the injuries and the photographs of the injuries

SS should have been excluded, because that evidence was irrelevant to proving any o f th e elements of the crime. Vickers also po s i t s t h at , 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 probativ e v alue 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 w h i c h h e w as charged. He was charged under 18 U.S.C. § 111(a), which punishes “w h o e v e r forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title [including federal offic e rs] while engaged in or on account of the performance of official duties.” Section 111(a) creates three separate offenses: (1) simple assaul t , a misdemeanor offense that requires no physical contact; (2) felony assault that involves physical contact

SSthe contact need not result in bodily injury

SSbut 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. Hazelwoo d , 5 2 6 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

T h is wa s par tic ularly im por tant , beca use Vick ers had requ es ted , and rec eived , a n 1 ins tru cti on on the les se r inclu ded off ens e of simp le ass ault—wh ich does not requ ire phys ical cont act

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prove that physical contact occurred: Those injuries could not have been caused by anything other than physical contact. Vickers c l aims 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 evid e n c e of Craig’s injuries may serve as proof that a felony assault resultin g i n 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 act u ally charged with—felony assault involving physical conta c t

. 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 evidence

SSthe existence of the injuries, particularly the photos of said injuries, is being used to corroborate the testimony of Craig and R ab a lais 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, t h e e vidence was of a different type and brought with it a different confidence o f p r o o f: 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 prejudicia l e ffect. As discussed above, the evid e n c e of the injuries was used to prove an element of the crime; its probative

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value was significant. The prejudicial effect w a s accordingly high as well, but Vickers has not shown that any unfair prejudicial effect outwei gh e d it s p rob ative 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 alte r c a t i o n was unlikely to cause the jury to ignore all the evidence presented and co nvict Vickers on an emotional basis. Vickers has not shown how the images of the inju ri e s w e re 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 e qu a l l y free to believe Vickers’s argument that Craig began the altercation. 3 In sum, the evidence of Craig’s injuries was rele v a n t 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. F E D R. C R I M

. P. 33(a). The grant or denial

See Brazo s Riv er Auth. v. GE I oni cs, Inc. , 469 F.3d 416, 427 (5t h Cir. 2006) (“ ‘Un fai r 2 pr ejudi ce’ as use d in rule 403 is not to be equat ed with tes tim ony that is me rely adver se to the opp os ing par ty. Virt ually all evide nce is pr ejudi cial ; othe rw ise it wo uld not be mat eria l. The pr ejudi ce mus t be ‘unf air. ’”) (cit atio n o mi tte d)

. Additio nally, the dis tri ct cour t em phas ized that it wo uld lim it the evide nce to only 3 wh at wa s nece ss ary to expla in the natur e of the injurie s and thus me rely to es tabl ish that they had occ urr ed, st ating that “if it goes too far , I’m going to sus tain an objec tio n. Yo u’re going to have to lim it thatevi denc e t o t he mi nim um nece ss ary to expla in the natur e o f the injurie s. ” 8 Case: 09-31137 Document: 00511585574 Page: 8 Date Filed: 08/29/2011No. 09-31137

of a Rule 33 motion for a new trial is reviewed f o r 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 t h a t 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 suppleme n t a l instructions as a whole allowed the jury to understand the issue presented to it.” Id . at 306. Th ere was nothing wrong with the supplement al in s tructio n . Th e qu e s tio n asked by the jury conceivably implicated three issues: reasonable doubt, the disti n c t ion 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 e lements 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 t o d e t e r mine whether that evi d e n c e s a tisfied 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 d o ubt 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 giv e n e arlier, which included the basic statement that reasonable doubt should lead to a verdi ct of not guilty. The fact th at 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 t ri al 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 d e f i n i t i o n of reasonable doubt.” Vickers argues that the length of the jury’s delibe rations 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 suffici e nt evidence to support the verdict. The victim t e stified that he was punched by the defendant. That testimony was corrob o rated by another witness. Although Vi c k e r s 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. I t w o u l d not be unreasonable to credit t h e t e s timony of the officers over that of the defendant’s witness. The

It is notable that Vick ers doe s not chall enge the cour t’s reas onable -d oubt ins tru cti on 4 fr omt he origi nal jury i nst ruc tio n—o r any p ort ion of the origi nal ins tru cti on. 10 Case: 09-31137 Document: 00511585574 Page: 10 Date Filed: 08/29/2011No. 09-31137

video tape of the incident, though n o t s howing who threw the first punch, is nonetheless fully consistent with the testimony of the officer

SSand 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 prosecut i on’s closing

a r gument, we review for plain error. United States v. Gracia , 522 F.3 d 5 9 7 , 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 disp u t e ; a n d (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 c h a r ges” or “induce the j u ry t o trust the Government’s judgment rather than its own view of the eviFurt herm ore , the sho rt tim e of del iber atio n doe s not me an that the jury dis regar ded 5 the sup ple me ntal ins tru cti ons . The cour t did not tel l the jury me chani call y to re- engage in its del iber atio n pr oce ss fr om sc rat ch, revie wi ng every asp ect of the ins tru cti ons and evide nce de nov o . Rather , the cour t ins tru cte d the jury to review the original jury ins tru cti ons to reso lv e any ques tionsi t m ay hav e . It is pos sib le thatt he jury’s c onf usi on wa s clea redup af ter it reread the sho rt por tio n of the ins tru cti ons t h a t d e a l t wi th reas onable doub t, in wh ich cas e a quick det erm inati on of guilt wo uld be unde rs tand able in light of the tim e the jury had alre ady sp ent mak ing e viden tiary d ete rm inati ons . 11 Case: 09-31137 Document: 00511585574 Page: 11 Date Filed: 08/29/2011No. 09-31137

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 evidenc e s upporting 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 prose c u t o r a n d 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 o w n prior statements, explained a possible 7

See, e. g., Uni ted States v. Case l , 995 F.2d 1299, 1308 (5t h Cir. 1993) , va ca ted on other 6 groundsas to o ne def

enda nt sub nom . Ree d v

. Uni ted Sta tes , 510 U. S. 118 8 ( 1994)

. The pr os ecut or highlight ed the fac t that Sant os tes tif ied that he did not se e the begin- 7 ning of thealter cation bec aus e he had bentover to pic k upan item , but tha t the vide o of th e incid ent s how ed tha t Sant os had bent overto pickup the item only aft er the alte rca tio n had begun. Thus, his tes tim ony conf lict ed with the video evide nce, and ther e wa s no reas on wh y he coul d not say wh o thr ew the fir st punc h. A d d i t i onally, Sant os tes tif ied that he had bent over topickup a radio; im me diat ely fol low ing the inci dent , how ever, he had toldpris on off i- (c onti nued

.. .) 12 Case: 09-31137 Document: 00511585574 Page: 12 Date Filed: 08/29/2011No. 09-31137

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 j u ry 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 p r o ng of the plain error analysis: that there was

error. AFFIRMED.

(

.. .c onti nued) 7 cial s thathehadbe nt over to pic k up a w atc h. The pr os ecut or’ s theo ry wa s that Sant os wa s fac ed with tw o im pos sib le outc om es : He 8 coul d not tel l the tru th that Vick ers st art ed the fight , beca use to do so wo uld lead to negative cons equenc es in priso n; but he als o coul d not st ate that Craig att ack ed Vick ers fir st , beca use that coul d lead to per

jury char ges. The pr os ecut or argued that to avoid both of thos e unde sir able res ults , Sant os t es tif iedt hat he didno t se e t he beginnin g of t he alte rca tio n. 13 Case: 09-31137 Document: 00511585574 Page: 13 Date Filed: 08/29/2011