* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

November 18, 2004

Charles R. Fulbruge III

Clerk

 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-50018

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID HIGGINBOTHAM,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-02-CR-144-ALL

--------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

David Higginbotham, a former prison guard at the Wackenhut

federal prison in San Antonio, Texas, appeals his jury-verdict

conviction for attempted possession with intent to distribute

heroin. He argues that the evidence was insufficient to support

his conviction and that the district court erred in allowing

certain out-of-court statements into evidence.

 A thorough review of the evidence produced at trial

indicates that a rational jury could have found that the
No. 04-50018

-2-

requisite elements for the charged offense had been proven beyond

a reasonable doubt. See United States v. Price, 869 F.2d 801,

804 (5th Cir. 1989); United States v. August, 835 F.2d 76, 77-79

(5th Cir. 1987). The uncontroverted evidence established that

Higginbotham initiated contact with undercover Officer Robert

Perez on several occasions to try and set up their second

meeting; that despite his initial unwillingness to distribute

heroin, he changed his mind, accepted the heroin, and accepted

the payment for distributing it; and that he told the undercover

officer that he was going to call the inmate in question to see

how he wanted to “handle” the heroin. Accordingly, there was

ample evidence to show that Higginbotham intended to possess

heroin with the intent to distribute it and that he took

substantial steps to achieve that objective. See August, 835

F.2d at 78-79; United States v. Mandujano, 499 F.2d 370, 379 (5th

Cir. 1974). 

Higginbotham also argues that the district court erred in

allowing into evidence certain out-of-court statements that he

had previously trafficked drugs into the prison because their

admission violated the Confrontation Clause and because the

statements were inadmissable hearsay, irrelevant, or overly

prejudicial. We review the Confrontation Clause claim for plain

error and the remaining evidentiary claims under the harmless

error standard of review. See United States v. Partida, ___

F.3d (5th Cir. Sept. 10, 2004, No. 03-40781) 2004 WL 2021559
No. 04-50018

-3-

at *4; United States v. Insaulgarat, 378 F.3d 456, 464 (5th Cir.

2004).

Even assuming the admission of the out-of court statements

was error, the error was not plain and/or was harmless as the

statements were cumulative to Higginbotham’s own admission in his

written statement that he had previously trafficked drugs into

the prison and because, given the strength of the prosecution’s

case, the admission of the statements did not affect the outcome

of the case. See Partida, 2004 WL 2021559 at *4; Insaulgarat,

378 F.3d at 464; Cozzo v. Tangipahoa Parish Council, 279 F.3d

273, 291 (5th Cir. 2002). Higginbotham’s conviction is AFFIRMED.