United States v. Crawford ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30809
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LYNN T. CRAWFORD,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 96-CR-50023-1
--------------------
December 20, 1999
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Convicted for assault on a federal officer with a deadly
weapon and of using a firearm during a crime of violence Lynn T.
Crawford contends, pro se, that the evidence is insufficient to
support his convictions, that the district court abused its
discretion by failing to give his proposed self-defense jury
instruction, that the jury instructions concerning reasonable
doubt, deliberate ignorance, assault, and intent were erroneous,
that he was subjected to prosecutorial misconduct, and that the
district court failed to adequately preserve the record.
*
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that this opinion should not be published and is not precedent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.
No. 97-30809
-2-
Crawford’s argument that the evidence is insufficient to support
his convictions is without merit. The evidence was sufficient
for a jury to find beyond a reasonable doubt that Crawford was
guilty of both assault on a federal officer and of using a
firearm during a crime of violence.
Crawford has not shown that the district court abused its
discretion by failing to give his proposed self-defense jury
instruction. The self-defense charge substantially covered the
instruction that Crawford requested. See United States v. Neal,
951 F.2d 630, 633 (5th Cir. 1992).
Crawford has not shown that the district court plainly erred
by giving its jury instruction on reasonable doubt. The
reasonable doubt instruction used in Crawford’s case has been
approved by this court. See United States v. Alonzo, 681 F.2d
997, 1002 (5th Cir. 1982).
Crawford’s argument that the district court plainly erred by
omitting any instruction regarding mens rea is without merit.
Examination of the jury instructions reveals that intent was
listed as an essential element of the first count and that
“knowingly” was defined due to its use in many of the other
instructions. The court used the 1990 Fifth Circuit Pattern Jury
Instructions for the definitions of “forcible assault,”
“knowingly,” and “willfully.” See Fifth Circuit Pattern Jury
Instructions (Criminal), 1.35, 1.36, 2.09 (1990). The
instructions were not so confusing as to constitute plain error.
The district court also did not plainly err in failing to
instruct the jury regarding simple assault. Although the offense
No. 97-30809
-3-
of simple assault is a lesser-included offense of assault of a
federal officer with a dangerous weapon, Crawford has not shown
that the evidence adduced at trial would permit a rational jury
to find him guilty of the lesser offense and to acquit him of the
greater offense. See United States v. Estrada-Fernandez, 150
F.3d 491, 494 (5th Cir. 1998).
Crawford has not shown that the district court abused its
discretion by giving a deliberate ignorance instruction. The
evidence was sufficient to justify the court’s decision to
instruct the jury on that issue. See United States v. Hull, 160
F.3d 265, 271 (5th Cir.), cert. denied, 119 S. Ct. 1091, and
cert. denied, 119 S. Ct. 1791 (1999).
Crawford has not shown that he was subjected to
prosecutorial misconduct because the prosecutor made prejudicial
remarks during his opening statement, closing argument, and
rebuttal argument.2 Counsel is accorded wide latitude during
opening and closing argument. See United States v. Palmer, 37
F.3d 1080, 1085 (5th Cir. 1995). Although Crawford lists
numerous instances of alleged error, he has not shown that the
prosecutor’s comments were improper or that they affected his
substantial rights. See United States v. Munoz, 150 F.3d 401,
414 (5th Cir. 1998). He has not shown plain error.
Nor has Crawford shown that the prosecutor knowingly used
perjured testimony to obtain his conviction. Crawford has not
2
As Crawford failed to object to most of the prosecutor's
comments, this court will reverse his conviction as to those
alleged errors only if the prosecutor's conduct amounts to plain
error. See United States v. Wicker, 933 F.2d 284, 292 (5th Cir.
1991).
No. 97-30809
-4-
demonstrated that the testimony was false or that the prosecutor
knew that it was false. See United States v. Blackburn, 9 F.3d
353, 357 (5th Cir. 1993).
As Crawford has not shown any individual instance of
prosecutorial misconduct, his argument that the cumulative effect
of all of the prosecutor’s comments denied his right to a fair
trial is without merit.
Crawford has not shown that the district court failed to
adequately preserve a record of the proceedings relating to the
jury foreman’s request for transcripts, a hearing held regarding
the judge’s response to the jury foreman’s request about the
legal definition of assault, and the denial of his Rule 29
motion. These transcripts are already included in the record or
do not exist.
Crawford has not shown error on the part of the district
court; his convictions are AFFIRMED. The Government’s motion to
strike the portions of Crawford’s appellate brief which refer to
the transcript of Agent Miller’s grand jury testimony and which
refer to an affidavit prepared by Bonnie Crawford concerning a
telephone conversation she had with the foreman of Crawford’s
jury is GRANTED. Material that was not presented in district
court and is not a part of the record on appeal is not
considered. See Fed. R. App. P. 10(a). Crawford’s motion to
file his brief in its present form, including his request for
transcripts, is DENIED. Crawford has not shown that the
transcripts are necessary to the adjudication of his appeal. See
Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir. 1985).