Pursuant to 5TH CIR. R. 47.5, the court has determined this opinion should not be *

published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-51318

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LORENZO SANCHEZ SALCIDO, also known as Lorenzo Salcido,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:08-CR-114-1

Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

Lorenzo Sanchez Salcido challenges the denial of his new-trial motion,

based on prosecutorial misconduct, following his jury-trial conviction of

possession of a firearm by an individual previously convicted of a felony, in

violation of 18 U.S.C. § 922(g)(1).

United States Court of Appeals

Fifth Circuit

F I L E D

August 28, 2009

Charles R. Fulbruge III

Clerk
No. 08-51318

2

During closing arguments, defense counsel discussed in detail witnesses

not called by the Government and urged they were critical to the Government’s

case. The Government responded that it chose not to call all of its potential

witnesses because such testimony “wouldn’t have added any more evidence”.

The Government then stated: “If [defense counsel] had really wanted to answer

some of the questions --”. The court interrupted, stated the Government’s

comments were improper, and instructed the jury to disregard them.

Salcido maintains the district court abused its discretion when, following

a hearing on his new-trial motion, it denied the motion by written order. Salcido

maintains the Government’s comments suggested the uncalled witnesses’

testimony would have bolstered the Government’s evidence and improperly

shifted the burden of proof to him. In addition, he contends that the district

court’s instruction failed to cure these defects because it addressed the burden

shifting but not the bolstered evidence of possession of a firearm.

A district court’s grant or denial of a defendant’s new-trial motion is

reviewed for abuse of discretion. United States v. O’Keefe, 128 F.3d 885, 893 (5th

Cir. 1997). The motion should not be granted “unless there would be a

miscarriage of justice or the weight of the evidence preponderates against the

verdict”. United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004) (citing O’Keefe,

128 F.3d at 898). 

Where a defendant claims a miscarriage of justice occurred due to

prosecutorial misconduct, our analysis consists of two steps. “First, we assess

whether ‘the prosecutor made an improper remark.’ If so, . . . we ask whether

the defendant was prejudiced.” United States v. Stephens, 571 F.3d 401, 408 (5th

Cir. 2009) (quoting United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007)).

If we conclude the prosecutor made an improper remark, our court

considers three factors in determining whether the misconduct constitutes

reversible error: “(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
No. 08-51318

3

strength of the evidence supporting the conviction”. United States v.

Hernandez-Guevara, 162 F.3d 863, 874 (5th Cir. 1998). 

The Government’s remarks were not improper. In Stephens, we examined

an exchange similar to that between Salcido’s defense counsel and the

Government. 571 F.3d at 407-08. There, our court held the Government’s

comments were a response to defense counsel’s statements and not an attempt

to shift the burden of proof. Id. at 408. Here, the comments were likewise a

response to defense counsel’s statements and did not constitute misconduct. See

id. 

 Assuming, arguendo,the Government’s comments were improper, Salcido

fails to show the requisite prejudice. For obvious reasons, our court affords

considerable weight to the district court’s “on-the-scene assessment of the

prejudicial effect”. United States v. Fields, 72 F.3d 1200, 1207 (5th Cir. 1996).

Here, in denying the new-trial motion, the district court concluded: the

magnitude of the prejudicial effect was small; the immediate objection and

curative instruction were effective; and there was adequate other evidence to

support the jury’s verdict. United States v. Salcido, No. MO-08-CR-114, slip op.

at 3 (W.D. Tex. 19 Nov. 2008). And, as in Stephens, the district court gave a

curative instruction, in addition to its general burden-of-proof instruction. See

Stephens, 571 F.3d at 408 n.9. Moreover, evidence of Salcido’s guilt was more

than sufficient to support the verdict. See id. at 408.

AFFIRMED.