United States v. Bobby Pittman, 401 F. App'x 895

Defendant-Appellant Bobby Caswell Pittman was convicted after a jury trial on two counts of smuggling aliens under 8 U.S.C. § 1324(a)(1)(A)(ii) & (1)(B)(ii).
Around 10:00 p.m. on April 22, 2009, agents stopped Pittman at a U.S. Border Patrol checkpoint in Falfurrias, Texas and found five illegal aliens in his trailer.
Pittman was arrested; approximately $4,103 in cash was found in his front shirt pocket; he waived Miranda rights but did not provide a written statement.
Trial testimony showed Pittman confessed to agreeing to transport five aliens for $700 each; two aliens testified they were delivered to the Academy store and loaded into Pittman’s trailer.
Pittman testified he did not transport aliens and claimed he merely put a seal on an empty trailer after removing an extra seal; he claimed no admission of guilt.
The district court instructed the jury that questions and arguments were not evidence; Pittman was sentenced to 48 months; he appealed alleging improper cross-examination and rebuttal closing arguments.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutor’s cross-examination concerning witness veracity	Government argues cross-examination about lies was proper to test credibility	Pittman contends such questioning was clear error for bolstering credibility	Plain error; but not reversible given strong evidence and instructions
Rebuttal closing argument bolstering government witnesses	Government argues rebuttal appropriately responded to defense theme	Pittman argues it improperly bolstered witnesses and urged law-enforcement credibility	Plain error; but not reversible due to overwhelming evidence and jury instruction
Effect of prosecutorial misconduct on substantial rights	Government asserts errors were harmless in light of overwhelming proof	Pittman argues errors prejudiced fair trial	No substantial rights affected; conviction affirmed
Adequacy of jury instruction to cure prejudice	Court instruction mitigates prejudice from remarks	Instructions insufficient to cure error	Instructions adequate under circumstances

Gracia v. United States, 522 F.3d 493 (5th Cir. 2006) (prosecutor’s improper bolstering and discussing witness credibility; plain error when tied to substantive evidence)
United States v. Gallardo-Trapero, 185 F.3d 307 (5th Cir. 1999) (prosecutor’s reliance on government authority to bolster credibility improper)
United States v. Williams, 343 F.3d 423 (5th Cir. 2003) (prosecutor’s questioning of defendant about witnesses’ truthfulness inappropriate)
United States v. Ramirez-Velasquez, 322 F.3d 868 (5th Cir. 2003) (substantial evidence can sustain conviction despite improper remarks)
United States v. Thompson, 482 F.3d 781 (5th Cir. 2007) (assessing prejudicial effect of prosecutor’s remarks)
United States v. Olano, 507 U.S. 725 (1993) (plain-error standard for review)