United States v. Davis ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-20877
USDC No. H-00-CR-152-3
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEVAN LEE DAVIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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November 19, 2001
Before SMITH and EMILIO M. GARZA, Circuit Judges, and CUMMINGS, District Judge1.
PER CURIAM:2
Devan Lee Davis appeals his criminal conviction for aiding and abetting one in the
possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C.
841(a)(1), (b)(1)(A)(iii), 18 U.S.C. 2, and for conspiracy to possess with intent to distribute 50
grams or more of crack cocaine in violation of 21 U.S.C. 841(a)(1), (b)(1)(A)(iii), and 846.
Davis argues three points on appeal: that two prior convictions were not relevant and
should have been excluded; that the district court abused its discretion by denying Davis’s request
1
District Judge of the Northern District of Texas, sitting by designation.
2
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
to recall a witness for impeachment purposes; and that the evidence presented at trial was
insufficient to support a conviction for conspiracy and aiding and abetting.
Before the trial began, the United States filed its notice of intent to offer evidence under
Federal Rule of Evidence 404(b), putting Davis on notice of its intent to introduce evidence of his
prior convictions in Harris County, Texas, for possession of marijuana. Davis objected to the
admissibility of the prior convictions before and during trial; the district court ruled that two of
the prior convictions could be admitted into evidence. At the conclusion of the United States’
evidence, Davis verbally moved for a Rule 29 judgment of acquittal based on insufficiency of the
evidence; the trial court denied this motion. During the presentation of Davis’s case, Davis
requested to recall a witness for the purpose of impeachment. The trial court denied this request.
At the conclusion of all the evidence, Davis renewed his request to recall the witness, which the
trial court denied. The jury found Davis guilty on both counts in the indictment; subsequently, the
district court sentenced Davis to 168 months in the custody of the Bureau of Prisons.
A decision by the district court to admit evidence of an extrinsic offense under Federal
Rule of Evidence 404(b) will not be disturbed on appeal absent a clear showing of an abuse of
discretion. United States v. Bruno, 809 F.2d 1097, 1106 (5th Cir. 1987). The admission or
exclusion of evidence at trial is a matter within the sole discretion of the district court. United
States v. Moody, 903 F.2d 321, 326 (5th Cir. 1990). After reviewing the record, this Court finds
that there was no abuse of discretion by the district court in admitting the extrinsic offense
evidence.
While it is well established that a witness may be impeached, the trial court is given “wide
latitude” in imposing reasonable restraints upon a defendant’s right to cross-examination, and
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there is no right to impeach a witness regarding collateral or irrelevant matters. United States v.
Sisto, 534 F.2d 616, 617, 622, 627 (5th Cir. 1976); Sims v. ANR Freight Sys., Inc., 77 F.3d 846,
849 (5th Cir. 1996); United States v. Hawkins, 661 F.2d 436, 444 (5th Cir. 1981). This Court
reviews the district court’s decision for an abuse of discretion. Bruno, 809 F.2d at 1106. The
district court did not abuse its discretion when it denied Davis’s request to recall a witness solely
for impeachment purposes on a collateral matter; Davis was allowed to cross-examine the witness
and had the opportunity to impeach the witness at that time.
This Court reviews the sufficiency of the evidence by determining whether a reasonable
trier of fact could conclude from the evidence that the elements of the offense were established
beyond a reasonable doubt. United States v. Meyers, 104 F.3d 76, 78 (5th Cir. 1997). In
assessing the sufficiency of the evidence, this Court will not evaluate the weight of the evidence or
the credibility of the witnesses but will view the evidence in the light most favorable to the jury
verdict, drawing all reasonable inferences to support the verdict. Id. at 78-79. There is sufficient
evidence to support Davis’s conviction for conspiracy and aiding and abetting.
We have carefully considered Devan Lee Davis’s claims on appeal in light of the entire
record, the parties’ respective briefing on the issues in this appeal, the oral arguments presented
before this Court, and the required standard of review. We are persuaded that there was
sufficient evidence to support Davis’s conviction for conspiracy and aiding and abetting and that
there was no abuse of discretion by the trial court in admitting the extrinsic offense evidence or by
denying Davis’s request to recall a witness for the sole purpose of impeachment on a collateral
matter. We therefore AFFIRM the trial court.
3