### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 10-40906 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus TUNEYSHA MILLER, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas No. 1:08-CR-69-5

Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM: *

Tuneysha Miller was convicted by a jury of one count of conspiracy to disU 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 Decem ber 3 0, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * 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: 10-40906 Document: 00511711213 Page: 1 Date Filed: 12/30/2011No. 10-40906

tribute and to possess with intent to distribute at least 500 grams but less than five kilograms of cocaine HCL and one count of conspiracy to distribute and to
possess with intent to distribute 1000 kilograms or more of marihuana. She argues that the district court erred by denying her motion to sever her trial from that of her codefendant. Under Miller’s view, she suf f ere d s p illover prejudice when the jury learned that her codefendant had a conviction for a similar offense. Miller does not, however, point to anything in the record concretely supporting her allegations of prejudice but merely asserts that she was prejudiced because she was tried with a codefendant whose prior drug conviction was made known t o the jury. That claim does not show an abuse of discretion. See United States v. Whitfield , 590 F. 3d 325, 355 (5th Cir. 2009), cert. denied , 131 S. Ct. 136 (2010); United States v. Solis , 299 F.3d 420, 441 (5th Cir. 200 2). Miller avers that the government improperly vouched for the c redibility of its witnesses and that the court reversibly erred by giving a deliberate ignorance instruction. Additionally, she contends that the cumulative effect of these errors warrants reversal. We disagree. Although Miller preserved her claims to some of the alleged prosecutorial misconduct, she did not object to all of it or to the ch a l l e n ged jury instruction. Insofar as she failed to raise these claims in district court, th e y r e c e ive plain

error review. See United States v. Gracia , 522 F.3d 597, 599-600 (5th Cir. 2008). Miller has failed to show error, plain or otherwise. To the extent Miller argues that the prosecutor improperly bolstered the credibility of wi t nesses by eliciting testimony concerning clauses in their plea agreements binding them to testify tru thfully, she is mistaken. See United States v. Edelman , 873 F.2d 791, 795 (5th Cir. 1989). Additionally, none of the disputed questioning and resulting testim o ny in dic at e s th e p ro s e cutor’ s p er s o n al

o p i n ion of the witnesses’ credibility or implies that she knew information th a t the jurors did not. See United States v. Munoz , 150 F .3d 401, 414 (5th Cir.
2 Case: 10-40906 Document: 00511711213 Page: 2 Date Filed: 12/30/2011No. 10-40906

1998). This showing likewise has not been made with respect to Miller’s arguments that bolstering occurred during voir dire and closing arguments. Accordingly, Miller has not shown that the prosecutor acted improperly by vouching for credibility. The trial transcript shows that the government adduced substantial evidence of Miller’s guilty knowledge. Consequently, even if the disputed instruction should not have been given, any error was harmless and therefore not plain. See United States v. Wofford , 560 F.3d 341, 352 (5th 2009). Miller’s cumulativeerror argument is unavailing, because she has not shown that her trial was rendered fundamentally unfair by these alleged errors. See United States v. Fields , 483 F.3d 313, 362 (5th Cir. 2007). Miller maintains that the district court clearly erred by applying the U.S.S.G. § 2D1.1 firearms enhancement, because her coconspirator’s possession of a firearm was not reasonably foreseeable to h e r . Se e United States v. Ruiz , 621 F.3d 390, 396 (5th Cir. 2010). This argument does not merit relief, because testimony was sufficient to permit the court to fin d that the coconspirator “knowingly possessed the weapon while he and [Miller] committed th e o f f e n s e” and that this possession was reasonably foreseeable to her. See United States v. Aguilera-Zapata , 901 F.2d 1209, 1215 (5th Cir. 1990) (internal quotation marks and citation omitted). AFFIRMED.

3 Case: 10-40906 Document: 00511711213 Page: 3 Date Filed: 12/30/2011