United States v. Elvis Gray , 631 F. App'x 229 ( 2016 )

Case: 15-60371 Document: 00513348759 Page: 1 Date Filed: 01/20/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60371
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 20, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
ELVIS O’NEAL GRAY,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 1:14-CR-75-1
Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
A jury convicted Elvis O’Neal Gray of mail fraud, in violation of 18 U.S.C.
§ 1341, based on his submitting false and fraudulent statements and
representations in connection with a BP oil-spill compensation claim. At trial,
a Government witness, Jarrell, in response to a question about how she knew
Gray had already filed his claim, referred to his ex-wife’s questioning how Gray
had money to make purchases, because she testified Gray “wasn’t helping take
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 15-60371 Document: 00513348759 Page: 2 Date Filed: 01/20/2016
No. 15-60371
care of [his] children or everything else except letting them come over and
stay”. Gray’s counsel immediately moved for a mistrial, contending, inter alia,
that Jarrell’s statement was prejudicial character evidence. The court denied
the motion; Gray challenges that denial.
Our court reviews the denial of a motion for mistrial, based upon
introduction of improper evidence, for abuse of discretion. E.g., United States
v. Lucas, 516 F.3d 316, 345 (5th Cir. 2008). A new trial is appropriate “only
when . . . it appears that there is a significant possibility that the prejudicial
evidence had a substantial impact on the jury verdict”. United States v. Valles,
484 F.3d 745, 756 (5th Cir. 2007). The court did not abuse its discretion in
denying Gray’s motion. Based on the record and the context of Jarrell’s
statement, her reference to Gray’s taking care of his children was an “isolated
remark[ ], that w[as] not dwelled upon by the parties”, and was not otherwise
discussed by counsel or any other witness. See, e.g., United States v. Paul, 142
F.3d 836, 844 (5th Cir. 1998); United States v. Zamora, 661 F.3d 200, 212 (5th
Cir. 2011).
In short, any such error was harmless. Although the court did not give
a specific curative instruction concerning Jarrell’s remark, it instructed the
jury that Gray was not on trial for any other act, conduct, or offense not alleged
in the indictment. See Paul, 142 F.3d at 844. Moreover, there is no significant
possibility that Jarrell’s remark had a substantial impact on the jury verdict,
in the light of other overwhelming evidence of Gray’s guilt presented at trial.
See id.
AFFIRMED.
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