United States v. Nelson , 207 F. App'x 291 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4525
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HENRY LEE NELSON, a/k/a Goldie,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-04-952)
Submitted: November 21, 2006 Decided: November 28, 2006
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James A. Brown, Jr., LAW OFFICES OF JIM BROWN, P.A., Beaufort,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Carlton R. Bourne, Jr., Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Henry Lee Nelson appeals his conviction by a jury and
sentence on charges of conspiracy to possess with intent to
distribute and distribution of five kilograms or more of cocaine
and fifty grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 846 (2000) (Count 1), and conspiracy to
launder money, in violation of 18 U.S.C. § 1956(h) (2000) (Count
18).* Nelson appeals, alleging that the district court abused its
discretion in limiting the scope of cross-examination as to the
polygraph provision of the witness’ plea agreement, and that the
Government improperly bolstered the credibility of certain
witnesses by referencing their cooperation in other cases than the
one at bar. We find these challenges to be without merit.
First, we find no abuse of discretion in the district
court’s decision to preclude cross-examination of Government
cooperating witnesses as to the polygraph provision in their plea
agreements. It is well-established in this Circuit that polygraph
examination results, or even the reference to the fact that a
witness has taken a polygraph examination, are not admissible.
United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003).
We decline to revisit this per se rule against polygraph evidence
here.
*
The district court sentenced Nelson to a life sentence as to
Count 1 and twenty years’ imprisonment as to Count 18.
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We review Nelson’s assertion of improper bolstering for
plain error, as he failed to object at trial. United States v.
Jarvis, 7 F.3d 404, 410 (4th Cir. 1993). He challenges the
Government’s questioning of Elliott Porcher, Leones Lesane,
Flarantino Rhodes, and Leonard Pelzer, four of its eighteen
witnesses, regarding their previous cooperation. We find that,
even assuming, arguendo, that the Government’s comments constituted
improper vouching, there was no prejudice to Nelson. The comments
were not such that they could have misled the jury, they were not
extensive, there was a plethora of other evidence, including the
unchallenged testimony of fourteen other cooperating witnesses,
which provided strength of proof of guilt absent the challenged
comments, and there is no dispute that the comments were not made
deliberately to divert the jury’s attention. See, e.g., United
States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997); United States
v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). As the challenged
comments did not so infect the trial with unfairness such that
Nelson’s conviction resulted from a denial of due process, we
reject his claim of error.
Accordingly, we affirm Nelson’s conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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