United States v. Lee ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21004
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD WAYNE LEE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-149-1
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September 24, 2001
Before DUHÉ, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Richard Wayne Lee appeals his conviction following a jury
trial for being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g). Lee argues that the district court abused its
discretion when it (1) denied his request for a missing witness
instruction, (2) prevented him from cross-examining a witness about
an indictment and deferred adjudication from a state-court
proceeding, and (3) admitted photographic, gang-related evidence at
trial.
1
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that this opinion should not be published and is not precedent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.
Lee has not demonstrated that it was within the Government’s
power to produce the missing witness. See United States v. Black,
497 F.2d 1039, 1042 n.3 (5th Cir. 1974); United States v. Davis,
487 F.2d 112, 126 (5th Cir. 1973); Ford v. United States, 210 F.2d
313, 316-17 (5th Cir. 1954). Nor has he demonstrated that the
missing witness’ testimony would have been favorable. See id.Thus, the district court did not abuse its discretion when it
denied his request for a missing witness instruction. See United
States v. Pettigrew, 77 F.3d 1500, 1510 (5th Cir. 1996).
Lee has failed to provide any authority for his assertion that
Government witness Karen Bezet was prohibited from possessing a
firearm while she was under a state court indictment. Accordingly,
he has failed to demonstrate that she would have been motivated to
falsify her testimony based on the state court indictment and
deferred adjudication. Moreover, Bezet’s testimony regarding Lee’s
ownership of the firearms was corroborated by other witnesses. See
United States v. Gray, 105 F.3d 956, 965 (5th Cir. 1997). The
district court did not abuse its discretion when it limited Lee’s
cross-examination of Bezet. United States v. Freeman, 164 F.3d
243, 249 (5th Cir. 1999).
Lee’s assertion that the district court admitted impermissible
gang-related evidence is without merit. The parties and witnesses
were under instructions from the court not to make reference to
gangs or gang-related activities. No such testimony or argument
was presented to the jury. Lee makes only the speculative
assertion that the “SS” tattoo on his leg (which was displayed in
2
one of the photographs) is “widely recognized” as denoting
membership in a white supremacist prison gang. The district court
did not abuse its discretion when it admitted photographs of Lee’s
tattoos. See United States v. Parsee, 178 F.3d 374, 379 (5th Cir.
1999).
Lee’s conviction is AFFIRMED.
3