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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-31084

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

TYRUS MIGUEL COOPER

Defendant-Appellant

Appeals from the United States District Court

for the Middle District of Louisiana

USDC No. 3:04-CR-138-1

USDC No. 3:05-CR-227-1

Before KING, GARWOOD and BARKSDALE, Circuit Judges.

PER CURIAM:*

Tyrus Miguel Cooper appeals his jury-conviction of distribution of 50 or

more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 2. His sole contention on appeal is that admission of an informant’s testimony

that assertedly implies that Cooper threatened to kill him and his family was

both irrelevant and extremely prejudicial, resulting in plain error. 

United States Court of Appeals

Fifth Circuit

F I L E D

March 16, 2009

Charles R. Fulbruge III

Clerk
No. 07-31084

2

Although Cooper (represented by counsel here and below) now challenges

the admission of the threat testimony, Cooper did not at any time object to the

testimony during the trial or move to strike it and he did not otherwise present

to the district court any complaints or concerns about it. Therefore, as Cooper

concedes, this issue is subject to plain error review. To show plain error, Cooper

must show an error that is clear or obvious and that affects his substantial

rights. See United States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006). If he

makes such a showing, this court has the discretion to correct the error but only

if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

Evidence that a party threatened a witness is generally admissible.

United States v. Rocha, 916 F.2d 219, 241 (5th Cir. 1990). When it is not known

who made or caused that threat, at least absent some special circumstance not

present here, evidence that a witness has been threatened would generally be

inadmissible. As with evidence of other crimes, wrongs or acts under FED. R.

EVID. 404(b), the evidence is generally admissible “only if the jury can

reasonably conclude that the act occurred and that the defendant was the actor.”

Huddleston v. United States, 108 S.Ct. 1496, 1501 (1988), citing United States

v. Beechum, 582 F.2d 898, 912-13 (5th Cir. 1978) (en banc). However, there is

no requirement that the trial court make a preliminary finding that the party

committed the act – here, made the threat – before initially admitting evidence

of the act or threat. Huddleston, at 1500-01. 

“Often the trial court may decide to allow the proponent to introduce

evidence concerning a similar act, and at a later point in the trial

assess whether sufficient evidence has been offered to permit the

jury to make the requisite finding. If the proponent has failed to

meet the minimal standard of proof, the trial court must instruct

the jury to disregard the evidence.” Id. at 1501-02 (footnote

omitted).
No. 07-31084

Rule 404(b) provides that “upon request by the accused” the prosecution 1

shall give pretrial notice of evidence of other crimes, wrongs or acts intended to

be introduced at trial; the record does not reflect either that any such request

was made by the defense or that no such notice was given, and no complaint of

noncompliance with this provision was made at trial and none such has been

made on appeal.

3

However, “‘[i]t is, of course, not the responsibility of the judge sua sponte to

insure that the foundation evidence is offered; the objector must move to strike

the evidence if at the close of the trial the offerror had failed to satisfy the

condition.’ 21 C. Wright & K. Graham, FEDERAL PRACTICE AND PROCEDURE §

5054, pp. 269-70 (1977) (footnote omitted).” Huddleston, at 1501-02, n.7. 

Here, the informant prosecution witness testified on direct examination

that, at some unstated time, calls had been made to his house and his

girlfriend’s house threatening killing him and his family, but his testimony gave

no indication as to who made, or was responsible for, the threatening calls or

why they were made. No objection (or motion to exclude) whatever was ever

made below as to this testimony, nor was any instruction to disregard, or any

other instruction regarding this testimony, ever requested (or given) below. The 1

witness also testified that the defendant called him at his house a week before

the trial and “told me he was subpoenaing me to come to court” and “I told him

alright,” and that was all that was said (except that defendant said he would call

back, but never did). This call from the defendant surprised the witness, but did

not make him “a little nervous” or “scared.” This informant witness also testified

he had likewise helped “bust” – in stings with the DEA – some six to 10 other

area individuals, all of whom had been arrested and indicted – and was unable

to say whether any of them made threats to his family and stated “I don’t really

know who it was making threats to my family.” Another witness also testified

that the threatened informant witness had helped “bust” others in other DEA

stings and did not know of any of those people making threats against that

informant and had not “heard anything about someone threatening to hurt
No. 07-31084

Indeed, there is no mention whatever of threats in any of the closing 2

arguments. The threat evidence was never an important or significant part of

the government’s case. 

4

anybody that helped set up these deals.” The defendant testified that he had not

threatened the informant witness nor did he “send anybody to threaten him.”

There was no evidence that the defendant made the threats mentioned by

the informant witness. Consequently, the evidence of such threats should have

been stricken and the jury instructed to disregard it. However, since objection

was never made to the threat evidence and no instruction to disregard that

evidence ( or other instruction in regard thereto) was ever requested, and no

motion for mistrial or other relief in respect thereto was ever made below,

review, as above noted, is only for plain error. 

We hold there was error in this respect and, arguendo, even that the error

was clear or obvious. However, we conclude that reversal is not called for under

the plain error rule. Such improper anonymous threat testimony certainly does

not call for per se reversal even where timely and proper objection has been

made. See, e.g., United States v. Thomas, 86 F.3d 647, 655 (7th Cir. 1996).

Given that Cooper denied making or causing the threats, that the

threatened witness never intimated that Cooper made the threats, that several

others were shown to have a motive to threaten the witness, that there is no

evidence Cooper was responsible for the threats, and that the prosecution never

argued that he was, we cannot conclude that there is any substantial likelihood 2

that the jury found or assumed that Cooper made or was responsible for the

threats. Moreover, Cooper essentially admitted his guilt of the charged offense

and his own testimony – showing strong predisposition to both sell and use

cocaine (albeit at least usually in smaller quantities) and ready participation in

the offense, as well as nothing on the government’s part materially greater than

its affording the opportunity for the offense, overwhelmingly supports the verdict
No. 07-31084

See, e.g., United States v. Ogle, 328 F.3d 182, 185, 186 (5th Cir. 2003); 3

United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001); United States v. Wise,

221 F.3d 140, 154-55 (5th Cir. 2000).

5

of guilty and its (implicit) rejection of Cooper’s entrapment defense . We

3

conclude that the error in question did not create substantial improper or unfair

prejudice and did not seriously affect the fairness, integrity, or public reputation

of judicial proceedings. Accordingly, the judgment of the district court is 

AFFIRMED.