United States v. Williams

United States Court of Appeals
Fifth Circuit
F I L E D
August 14, 2003
Charles R. Fulbruge III
Clerk
Revised September 8, 2003
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-60519
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN L. WILLIAMS, JR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________
Before DAVIS, SMITH, and DUHÉ,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
John Williams, a deputy sheriff, shot an ap-
prehended, unarmed suspect in the back. A
jury convicted him of deprivation of the
suspect’s rights under color of law, 18 U.S.C.
§ 242, and discharge of a firearm during and in
relation to a crime of violence, 18 U.S.C.
§ 924(c)(1)(A)(iii). On appeal, Williams pri-
marily argues that the firearm conviction can-
not stand because the civil rights count is not
a “crime of violence.” He also challenges the
civil rights conviction on various evidentiary
and procedural grounds. Finding no error, we
affirm.

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2
I.
Williams was a deputy sheriff; Adam Hall
was on probation for a felony drug conviction.
Hall and his wife drove past Williams’s marked
sheriff’s car. Williams followed Hall for
several miles before pulling him over, then
approached his truck and spoke with him.
After some discussion about the status of
Hall’s driver’s license, Williams asked Hall to
exit the truck and come to Williams’s car.
Hall complied. Williams asked Hall whether
he had any drugs; Hall said no. Williams then
used Hall’s social security number to check
with the dispatcher about the status of Hall’s
license.
While they waited for the dispatch report,
Williams asked Hall whether he could frisk
Hall. Hall consented. According to Hall, Wil-
liams found only some loose change in Hall’s
pocket and a cell phone clipped to his belt.
Although Williams claims to have discovered
a rock of crack cocaine, he never produced it.
The dispatcher radioed Williams to report
that Hall’s license was suspended. Hall
testified that he did not hear this report. At
this point, their accounts sharply diverge.
According to Hall, Williams reached for his
handcuffs. Hall asked why Williams had
stopped him. Williams did not respond, but
grabbed Hall’s arm. Hall jerked away and
walked to his truck, and called out to his wife
to ensure she was watching, because he had
heard that Williams previously had shot one
suspect and planted drugs on another. Hall
got in his truck and drove away, but not before
Williams had sprayed him with mace. Hall
testified that he did not endanger Williams as
he drove away.
According to Williams, however, Hall
struck him and ran to the truck as soon as Hall
heard the dispatch report. Williams ap-
proached the truck, repeatedly questioned
Hall, and tried to stop him with mace.
Williams claims to have barely avoided being
run over.
A high-speed and dangerous car chase en-
sued for about fifteen minutes, beginning,
coincidentally, near the home of Claude
Billings, chief of police of a nearby town.
Billings saw the chase and joined it. After
Williams radioed for assistance, William
Cooper, the chief deputy sheriff, and Robert
Barfield, another deputy sheriff, also joined the
chase.
During the chase, Hall turned off the
highway where Cooper was parked and
standing outside his car. Cooper drew his
weapon and ordered Hall to stop. Hall
stopped about six feet away from Cooper and
asked to speak to Jacob Cartlidge, the sheriff.
Hall later testified that he asked for Cartlidge
because he trusted Cartlidge but feared
Williams. Cooper apparently did not assuage
Hall’s fears, because Hall again sped away just
as Barfield and Williams stopped next to
Cooper. All three officers fired on Hall’s
truck, though Cooper and Barfield later
testified that they intended only to disable the
truck, not to harm Hall.
They succeeded. A bullet punctured a tire
on Hall’s truck, forcing him to stop less than a
mile away. He immediately ran from the truck
into a field. Although Williams testified that
Hall stopped, returned to his truck, and
grabbed somethingSSimplying that it was a
weaponSSBarfield, Cooper, Billings, and Hall
testified that Hall did not appear to take
anything fro m his truck and certainly did not
return to it.

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As Williams fled, Barfield and Williams
stopped next to Hall’s truck and chased him
on foot. Billings drove past them and into the
field to cut off Hall. Williams testified that
Hall reached into his pockets or his waistband,
bent over as if to drop or throw something on
the ground, and turned toward Barfield and
Williams at least once. Barfield, Billings, and
Hall testified that Hall did nothing but run
straight from his truck into Billings’s position.
Billings exited his car and successfully
intercepted Hall. He pointed a rifle at Hall and
ordered him to stop. Hall immediately did so
and raised his arms above his head with his
hands open and empty. Billings later testified
that he never intended to shoot Hall, because
“the threat level never got that high.” Cooper,
who had followed Billings into the field, later
testified that he saw Hall standing motionless
with his arms raised. Cooper therefore
deemed the situation “under control” and
turned his car around to return to Hall’s truck.
Williams, however, asked Barfield for his
weapon and then shot Hall in the upper back.
Williams admitted t hat he gave Hall no
warning. Billings, Barfield, and Hall testified
that Hall was standing motionless with his
arms raised and facing Billings when Williams
shot Hall. Allen Windom, a civilian who
witnessed the foot chase from the highway,
confirmed their testimony.
Hall fell to the ground but kept his arms
raised. As Billings and Barfield approached
Hall, Williams never warned them that Hall
might be armed. Billings ordered Hall to lie on
the ground, and Hall complied. Barfield
reached Hall first and kicked him twice, then
handcuffed him and kicked him again. Cooper
returned to the scene to pick up Hall. He
frisked Hall and found only the loose change
and the cell phone. The officers found neither
a weapon nor any drugs on or around Hall or
in the truck.
Hall recovered from the gunshot wound
and was never charged with a crime. Cartlidge
intended to fire Williams, but allowed him to
resign instead. Cartlidge testified that when he
asked why Williams shot Hall, Williams
answered that “he was tired of chasing [Hall]
and tired of fooling with [Hall].”
As the basis for the civil rights count, the
government alleged that the shooting violated
Hall’s right not to be deprived of liberty
without due process of law and his right to be
free from an unreasonable use of force.
Barfield agreed to plead guilty and testify
against Williams.
The evidence against Williams consisted
primarily of the multiple eyewitness accounts.
Williams’s testimony conflicted with that of
Billings, Barfield, Cooper, Windom, Cartlidge,
Hall, and Mrs. Hall. Unlike Williams, these
witnesses testified that Hall did not return to
his truck to grab something, never turned
around or bent over during the chase, was
standing motionless with his arms above his
head when Williams shot him, and generally
made no threatening movements.
Williams’s testimony also conflicted with
his earlier written statements, which did not al-
lege that Hall had bent over or turned around
during the foot chase or that Barfield stopped
to look for something that Hall allegedly had
thrown on the ground. Finally, Williams’s tes-
timony conflicted with the limited real
evidence, i.e., the absence of a firearm and
drugs on or around Williams and in his truck.
Williams was convicted on both counts.

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The court sentenced him to eighteen months’
imprisonment on the civil rights count and im-
posed the mandatory minimum of ten years’
imprisonment on the firearm count.
II.
Williams argues that his firearm conviction
must be vacated because deprivation of rights
under color of law, § 242, is not a “crime of
violence” as defined by 18 U.S.C. § 924(c)(3).
We review for plain error, because Williams
did not object on this ground in the district
court. United States v. Gracia-Cantu, 302
F.3d 308, 310 (5th Cir. 2002).1 Because there
is no error at all, we affirm the firearm
conviction.
Section 924(c)(1) states that “any person
who, during and in relation to any crime of vi-
olence . . . uses . . . a firearm . . . shall, . . . if
the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10
years.” 18 U.S.C. § 924(c)(1)(A)(iii).
Williams obviously discharged a firearm during
and in relation to the deprivation of Hall’s
rights. He contends, though, that deprivation
of rights under color of law, § 242, is not a
“crime of violence.” Section 924(c)(3) defines
“crime of violence,” in relevant part, as a fel-
ony offense that either “has as an element the
use, attempted use, or threatened use of
physical force against the person,” 18 U.S.C.
§ 924(c)(3)(A), or “by its nature, involves a
substantial risk that physical force against the
person . . . may be used in the course of
committing the offense,” 18 U.S.C. § 924-
(c)(3)(B).
We use the so-called categorical approach
when applying these definitions to the
predicate offense statute. “The proper inquiry
is whether a particular defined offense, in the
abstract, is a crime of violence[.]” United
States v. Chapa-Garza, 243 F.3d 921, 924
(5th Cir. 2001) (applying 18 U.S.C. § 16(b)).2
We do not consider the facts underlying
Williams’s conviction; his actual conduct is
immaterial. Instead, we examine only the
statutory text of § 242 to determine whether it
satisfies the definition of § 924(c)(3).
That is easier said than done. Section 242
is one long sentence with three clauses
separated by two semicolons. The first clause
states the three basic elements of any § 242
offenseSS(1) wilful (2) deprivation of a federal
right (3) under color of lawSSand sets the
maximum term of imprisonment at one year.3
The second clause increases the maximum to
ten years if the deprivation results in “bodily
injury” or “include[s] the use, attempted use,
or threatened use of a dangerous weapon, ex-
plosives, or fire.” The third clause increases
the maximum to life imprisonment or the death
penalty if the deprivation results in death or
involves certain enumerated serious felonies.
1 “Plain error review is very limited. There
must be ‘error’ that is ‘plain’ and that affects ‘sub-
stantial rights,’ and even then we have discretion
not to correct the error unless it ‘seriously affects
the fairness, integrity or public reputation of ju-
dicial proceedings.’” United States v. Phipps, 319
F.3d 177, 189 (5th Cir. 2003) (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)).
2 Section 924(c)(3) is materially identical to the
generic definition in 18 U.S.C. § 16. The only dif-
ference is that § 16(a) applies to misdemeanors,
whereas § 924(c)(3)(A) applies only to felonies.
3 To be precise, the first clause identifies other
elementsSSe.g., deprivation on account of race,
color, or alienage and deprivation within certain
geographic localesSSbut they are not disputed in
this case.

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Williams and the government disagree
about which clause of § 242 we should
examine; Williams argues that we may look
only to the first. If he is correct, we must
reverse the firearm conviction, because the
offense defined by the first clauseSSwilful
deprivation of rights under color of lawSSis
not a “crime of violence.” These facts do not
satisfy the definition in § 924(c)(3)(A),
because they do not include the use, attempted
use, or threatened use of physical force. Nor
do they satisfy the definition in § 924(c)(3)(B),
because they do not, by their nature, involve a
substantial risk of physical force.4
The government counters that we also
should examine the second clause, because
Williams was indicted, convicted, and
sentenced pursuant to it. If the government is
correct, we must affirm the firearm conviction,
because the additional fact in the second
clauseSSbodily injury or use of a dangerous
weaponSScreates a separate offense that nec-
essarily satisfies either § 924(c)(3)(A) or (B).5
Thus, Williams and the government
essentially dispute whether § 242 defines three
separate offenses or one offense with two
sentence enhancements. And with that, they
have bought “a ticket to Apprendi-land.” Ring
v. Arizona, 536 U.S. 584, 613 (2002) (Scalia,
J., concurring). Traditionally, an “offense”
was defined by its “elements,” i.e., facts
necessary to support a conviction for the
offense. These “elements” had to be pleaded
in the indictment and proved to a jury beyond
a reasonable doubt to convict a defendant of
an “offense.” A “sentence enhancement,” on
the other hand, could be based on additional
“sentencing factors,” which a judge could find
by a preponderance of the evidence.
The landmark case of Apprendi v. New
Jersey, 530 U.S. 466 (2000), altered this tra-
ditional understanding. Now, “any fact (other
than prior conviction) that increases the
maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and
proven beyond a reasonable doubt.” Id. at 476
(quotation marks omitted). After Apprendi,
terms such as “offense” and “elements,” and
“sentence enhancement” and “sentencing
factors,” are “conclusions, not reasons for a
conclusion.” United States v. Gonzales, 327
F.3d 416, 419 (5th Cir. 2003). A court must
not carelessly toss these labels around, but
instead must examine concretely how all the
facts in the statutory text affect the sentence.
If a fact increases the statutory maximum, it
may be called an “element”; if not, it may be
called a “sentencing factor.” “What matters,
though, is the effect of the fact on the
statutory maximum.” Id. at 420.
The rule of Apprendi dictates that the facts
in the second clause of § 242SSbodily injury or
use of a dangerous weaponSSmust be pleaded
in the indictment and proved to the jury
beyond a reasonable doubt (as they were
4 We recognize that, as a practical matter, § 242
prosecutions almost always involve an excessive
use of force by a law enfor cement officer. Yet,
there are far too many hypothetical ways wilfully
to deprive one of rights under color of law without
using forceSSfor example, stealing ballots from a
predominantly minority precinct or depriving a
criminal defendant of legal counselSSto hold that
the first clause of § 242 “by its nature” involves a
substantial risk of force.
5 “[C]ausing bodily injury necessarily includes
the element of use of physical force.” United
States v. Shelton, 325 F.3d 553, 555 (5th Cir.
2003). The use, attempted use, or threatened use
of a dangerous weapon obviously creates a sub-
stantial risk of physical force.

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here). A defendant convicted of a deprivation
of rights under color of law that did not result
in bodily injury or involve a dangerous weapon
would face a maximum sentence of one year.
Add those facts to the mix, however, and the
defendant faces a maximum sentence of ten
years.
In other words, the facts in the second
clause of § 242 are “elements” that define an
“offense.” Furthermore, this “offense,” which
includes the “elements” of the first clause,
must be distinct from the “offense” defined
solely by the “elements” of the first clause, be-
cause one can deprive another of rights under
color of law without inflicting bodily injury or
using a dangerous weapon.
We could not hold otherwise without fla-
grantly violating the rule of Apprendi. Were
we to declare that § 242 defines a single
“offense” with two sentence enhancements,
that holding would mean that the facts in the
second and third clauses are not “elements”
and thus need not be pleaded in the indictment
and proved to the jury beyond a reasonable
doubt. It would mean, for example, that
Williams could have been sentenced to ten
years even if the government had not pleaded
and proved bodily injury or use of a dangerous
weapon. We reject this flatly unconstitutional
result.6
Our decision in United States v. Harris,
293 F.3d 863 (5th Cir.), cert. denied, 123 S.
Ct. 395 (2002), also demonstrates that § 242
defines three separate offenses. In Harris, the
defendant appealed the sufficiency of the evi-
dence for his § 242 conviction. He was
indicted and convicted pursuant to the second
clause of § 242. Id. at 868-69. On appeal, he
argued that he had not caused the victim’s
injuries. Id. at 869-70. We noted that “the
particular crime charged in the indictment re-
quired ‘bodily injury’ or ‘the use, attempted
use, or threatened use of a dangerous wea-
pon.’” Id. at 870 (first emphasis added). In
the next sentence, we explained that “[t]he tri-
al court’s instructions to the jury correctly de-
scribed this element of the crime.” Id.
(emphasis added). We concluded that there
was sufficient evidence that the defendant used
a “dangerous weapon,” hence we did not need
to consider whether he caused bodily injury.
Id.
Harris inescapably treats the second clause
of § 242 as a separate offense. The defendant
faced a single § 242 count. If § 242 did not
define multiple offenses, we would not have
identified the “particular crime charged”
because the defendant could have faced only
the basic § 242 offense. Furthermore, we
explicitly called the facts in the second clause
an “element” of the crime. To reiterate, this
characterization means that those facts must be
pleaded and proved, which in turn means that
they define a separate “offense.” Indeed, un-
der Harris they must be “elements” of a
separate “offense,” because one can violate
(the first clause of) § 242 without inflicting
bodily injury or using a dangerous weapon.
6 See Jones v. United States, 526 U.S. 227,
239-52 (1999) (applying the canon of constitu-
tional doubt to hold that the carjacking statute, 18
U.S.C. § 2119, defines three separate offenses, not
one offense with two sentence enhancements). Al-
though Jones preceded Apprendi by a year, the rule
of Apprendi “was foreshadowed by [the Court’s]
opinion in Jones[.]” Apprendi, 530 U.S. at 476.
In fact, the rule of Apprendi is a quotation from
Jones. See id. (quoting Jones, 526 U.S. at 243
6(...continued)
n.6).

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7
In Apprendi-land, therefore, § 242 defines
three separate offenses, not one offense with
two sentence enhancements.7 From his
sentence and indictment,8 we know that
Williams was indicted for and convicted of the
offense defined in the second clause of § 242.
As we explained earlier, this offense is
unquestionably a “crime of violence” under
§ 924(c)(3). We therefore affirm his firearm
conviction.
III.
Williams argues that we must reverse his
civil rights conviction because of two
evidentiary errors and alleged prosecutorial
misconduct. We review evidentiary rulings
and allegations of prosecutorial misconduct for
abuse of discretion and harmless error. United
States v. Coleman, 78 F.3d 154, 156 (5th Cir.
1996) (evidentiary rulings); United States v.
Wyly, 193 F.3d 289, 298-99 (5th Cir. 1999)
(prosecutorial misconduct).
A.
1.
Williams contends that the court violated
FED. R. EVID. 704 by allowing Barfield,
Cooper, and Billings to testify that the
shooting was not reasonable. He did not,
however, object on this basis in the district
court,9 so we review this argument under the
even more deferential plain error standard.
United States v. Green, 324 F.3d 375, 381
(5th Cir.), petition for cert. filed, 71 U.S.L.W.
3791 (June 6, 2003) (No. 02-1811).
The prosecutor questioned Barfield, Bill-
ings, and Cooper extensively about the
circumstances of the shooting. To sum up
their testimony, the prosecutor asked each
officer whether he thought the shooting was
reasonable. More importantly, she asked them
to answer based o n their training and
experience as law enforcement officers. Each
7 Section 242 effectively defines the basic of-
fense of deprivation of rights under color of law
and two aggravated offenses, which one might call
a deprivation resulting in bodily injury or involving
a dangerous weapon and a deprivation resulting in
death or involving certain serious felonies. Cf.
United States v. Matthews, 312 F.3d 652, 655 (5th
Cir. 2002) (applying this reasoning to the similar
statute of 18 U.S.C. § 2119), cert. denied, 123 S.
Ct. 1604 (2003).
8 Our use of the indictment does not violate the
categorical approach. Where a single statute con-
tains multiple offenses, some of which are a “crime
of violence” and others which are not, we may ex-
amine the indictment to determine the offense of
which the defendant was convicted. Taylor v.
United States, 495 U.S. 575, 602 (1990). We use
the indictment not to determine whether the de-
fendant’s particular conduct actually involved vio-
lence, but merely to identify the statutory offense of
which the defendant was convicted. Once we iden-
tify that offense, we then examine its statutory text
without reference to the defendant’s particular con-
duct, to decide whether the offense is a “crime of
violence.” See United States v. Calderon-Pena,
2003 U.S. App. LEXIS 14348, at *20-*21 (5th
Cir. July 27, 2003).
9 Williams did not object at all when the pro-
secutor posed the question to Barfield. When the
prosecutor asked Cooper, Williams objected that
the question called for speculation since Cooper did
not see the shooting. Williams voiced only a gen-
eral objection when the prosecutor asked Billings.
The court soon thereafter asked counsel, in a sua
sponte sidebar, whether it had committed error un-
der rule 701 by allowing Billings to give expert tes-
timony without first qualifying him as an expert.
Williams’s counsel reiterated his objection to the
question, but the context demonstrates that he was
objecting to an unqualified lay witness’s giving ex-
pert testimony in violation of Rule 701, not to tes-
timony in violation of rule 704.

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answered that the shooting was unreasonable.
Williams argues that, for two reasons, these
answers were impermissible opinion testimony.
First, he contends that the officers’ testimony
violated rule 704(b), which prohibits experts
from testifying that a criminal defendant “did
or did not have the mental state or condition
constituting an element of the crime.” FED. R.
EVID. 704(b). Although the officers did not
testify as experts, Williams argues that their
opinion testimony about the reasonableness of
the shooting should be treated as expert
testimony because it was “based on . . .
specialized knowledge within the scope of
[FED. R. EVID.] 702.” FED. R. EVID. 701.
Second, Williams contends that the officers’
testimony violated rule 704(a), which prohibits
any witness, expert or lay, from testifying to a
legal conclusion. United States v. Izydore,
167 F.3d 213, 218 (5th Cir. 1999) (citing FED.
R. EVID. 704(a)).
Even if we treat the officers’ testimony
about the reasonableness of the shooting as ex-
pert testimony, that testimony would not vio-
late rule 704(b), because the officers did not
testify to Williams’s mental state. To be sure,
an element of any § 242 offense is deprivation
of a federal right, in this case an unreasonable
use of force under the Fourth Amendment or
Due Process Clause. The reasonableness of a
use of force, though, is no more a mental state
than is action under color of law or bodily in-
jury. The requisite mental state of any § 242
offense is wilfulness, about which the officers
did not testify.10 Thus, the testimony did not
violate rule 704(b).
On the other hand, the court erred under
rule 704(a) by allowing the officers’ testimony
about the reasonableness of the shooting.
Rule 704(a) “does not allow a witness to give
legal conclusions.” Izydore, 167 F.3d at 218.
See 3 STEPHEN A. SALTZBURG, MICHAEL M.
MARTIN & DANIEL J. CAPRA, FEDERAL RULES
OF EVIDENCE MANUAL § 704.02[4] (Matthew
Bender 2002). Reasonableness under the
Fourth Amendment or Due Process Clause is
a legal conclusion. See, e.g., United States v.
Chavez, 281 F.3d 479, 483 (5th Cir. 2002).
Nevertheless, we are confident that this error
did not affect the outcome of Williams’s trial.
The evidence against Williams was
overwhelming.11 The officers’ brief opinions
followed their damning factual testimony
about the circumstances of the shooting.
Windom, Mrs. Hall, and Hall corroborated the
officers’ factual testimony without improperly
opining on reasonableness. No one, on the
10 This court’s precedent confirms that rule
704(b) applies to traditional mental states or con-
ditions such as intent, knowledge, and insanity, not
substantive determinations such as reasonableness
(continued...)
10(...continued)
under the Fourth Amendment or the Due Process
Clause. See, e.g., United States v. Gutierrez-
Farias, 294 F.3d 657, 662-63 (5th Cir. 2002)
(testimony regarding knowledge), cert. denied, 123
S. Ct. 869 (2003); United States v. Levine, 80
F.3d 129, 134-35 (5th Cir. 1996) (testimony re-
garding insanity); United States v. Dotson, 817
F.2d 1127, 1132 (5th Cir. 1987) (testimony re-
garding wilfulness), modified, 821 F.2d 1034 (5th
Cir. 1987).
11 We have affirmed convictions based on the
strength of the evidence as a whole, notwithstand-
ing opinion testimony admitted in violation of rule
704. See, e.g., Gutierrez-Farias, 294 F.3d at 663
(holding that error was harmless); Izydore, 167
F.3d at 218 (holding that error, if any, was
harmless).

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9
other hand, corroborated Williams’s
testimony, which itself contradicted his prior
written statements. Moreover, even if the jury
uncritically accepted the officers’ opinion
testimony, this did not necessitate a guilty
verdict, because the reasonableness of the
shooting was not the ultimate issue; the jury
still could have acquitted Williams, for
example, by finding that he did not act wilfully.
Izydore, 167 F.3d at 218.
2.
Williams contends that the court improperly
admitted character evidence in violation of
FED. R. EVID. 404(b). The government want-
ed Hall to testify that he fled from Williams be-
cause he knew that Williams previously had
shot another suspect.12 Hall objected. The
government explained that this testimony
would help the jury to understand why Hall, an
unsympathetic victim, fled from Williams. The
court ruled that Hall could testify to his
knowledge of the shooting but not to the
surrounding circumstances, including whether
Williams had shot the suspect in the back or
whether the shooting was justified. Thus, Hall
testified that he feared Williams “because I
knowed he had shot a guy in Hollandale.”
Immediately after he left the stand, the court
gave the jury a thorough limiting instruction
on this testimony.
“Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible for
other purposes . . . .” FED. R. EVID. 404(b).
“To determine whether ‘other acts’ evidence
was erroneously admitted, first we must
determine whether the evidence was intrinsic
or extrinsic.” Coleman, 78 F.3d at 156. See
1 STEPHEN A. SALTZBURG, MICHAEL M. MAR-
TIN & DANIEL J. CAPRA, FEDERAL RULES OF
EVIDENCE MANUAL § 404.02[11] (Matthew
Bender 2002).
Extrinsic evidence must satisfy rule 404(b),
whereas “[i]ntrinsic evidence does not
implicate Rule 404(b).” Id. Evidence of
another act is “intrinsic” if it and “evidence of
the crime charged are ‘inextri cably
intertwined’ or both acts are part of a ‘single
criminal episode’ or the other acts were
‘necessary preliminaries’ to the crime
charged.” Id. (quoting United States v.
Williams, 900 F.2d 823, 825 (5th Cir. 1990)).
Under this definition, Hall’s testimony about
an old and unrelated shooting is plainly
extrinsic evidence subject to rule 404(b).
In United States v. Beechum, 582 F.2d 898
(5th Cir. 1978) (en banc), we established a
two-step test for the admissibility of extrinsic
evidence under rule 404(b). “First, it must be
determined that the extrinsic offense evidence
is relevant to an issue other than the
defendant’s character.” Id. at 911. The
government argues that Hall’s knowledge of
Williams’s prior shooting was critical to Hall’s
state of mind. Williams disparages this theory,
asking how the victim’s state of mind could be
relevant to the defendant’s offenses.
Though a victim’s state of mind indeed
rarely matters, in this case it somewhat helped
the government disprove Williams’s main de-
fense. The jury had to determine whether Wil-
liams acted reasonably when he shot Hall.
This judgment turned on a credibility
assessment: Was Williams telling the truth
when he testified that Hall made several
threatening movements before Williams shot
12 Hall alleged that Williams shot the suspect in
the back. Williams admitted to having shot a sus-
pect before, but denied shooting him in the back.

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10
him, or were the other witnesses telling the
truth when they denied such movements? If
Hall feared that Williams might shoot him, the
government argues, then Hall would avoid
anything that might provoke Williams to
shoot.
For example, Hall would not rifle around
his truck or reach into his pants as if to grab a
weapon. Although the conflicting eyewitness
testimony easily disproved Williams’s defense,
we cannot say that Hall’s fear of being shot
and the basis of that fear did not have “any
tendency” to disprove Williams’s defense.
FED. R. EVID. 401.
The second step of the Beechum test is that
“the evidence must possess probative value
that is not substantially outweighed by its un-
due prejudice and must meet the other
requirements of [R]ule 403.” Beechum, 582
F.2d at 911. Hall’s testimony did not unduly
prejudice Williams; indeed, it probably did not
prejudice him at all. Hall merely testified that
Williams had previously shot a suspect, not
that the suspect was a drug dealer or that
Williams shot him in the back. Without that
context, the testimony hardly impugns
Williams’s character. Law enforcement
officers must shoot suspects sometimes, and
the jury just as easily could have believed that
the prior shooting was justified and that Hall’s
fear was unfounded. Moreover, the limiting
instruction “further mitigated any potential
prejudicial effect.” United States v. Gonzalez,
328 F.3d 755, 760 n.2 (5th Cir. 2003).
As for the other requirements of rule 403,
Williams does not seriously contend that this
single line of minor testimony could have con-
fused the issues, misled the jury, wasted time,
or resulted in cumulative evidence. FED. R.
EVID. 403. The court did not abuse its
discretion by permitting the testimony under
rule 404(b).13
B.
Williams further argues that the prosecutor
engaged in misconduct by forcing Williams,
through a series of rhetorical questions, to call
the other witnesses liars. “In reviewing an as-
sertion of prosecutorial misconduct, this
[c]ourt employs a two-step analysis.” United
States v. Wise, 221 F.3d 140, 152 (5th Cir.
2000), cert. denied, 532 U.S. 959 (2001). We
initially must determine whether “the
prosecutor made an improper remark.” Id.
The government concedes that the prosecutor
acted improperly by asking Williams about the
other witnesses’ veracity. United States v.
Thomas, 246 F.3d 438, 439 n.1 (5th Cir.
2001).
“[T]he second step is to evaluate whether
the remark affected the substantial rights of the
defendant[ ].” Wise, 221 F.3d at 152. When
applying this standard, we “consider three fac-
13 Williams also contends the court abused its
discretion by allowing Hall to testify that he feared
Williams might plant drugs on him. To justify this
fear, Hall proposed to testify that he had heard that
Williams had planted drugs on other suspects. The
court ruled that Hall could state his fear but could
not testify to any hearsay allegations of Williams’s
planting drugs on suspects. Thus, Hall testified
only tha t he feared Williams might “throw down
drugs on [me] when [I was] stopped.” Because this
testimony refers only to Hall’s unsupported belief,
not any other act by Williams, it cannot violate rule
404(b).
Finally, Williams avers that we must reverse
because the court did not make on-the-record find-
ings for its Beechum analysis. Williams, however,
never requested such findings. United States v.
Robinson, 700 F.2d 205, 213 (5th Cir. 1983).

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tors: (1) the magnitude of the prejudicial effect
of the prosecutor’s remarks, (2) the efficacy of
any cautionary instruction by the judge, and
(3) the strength of the evidence supporting the
conviction.” Wyly, 193 F.3d at 299 (quotation
marks omitted). All three factors lead us to
conclude that the improper questioning did not
affect Williams’s substantial rights.
First, the magnitude o f the prejudicial ef-
fect, weighed in context, id., was surely small.
The questioning lasted just moments at the end
of a long and devastating cross-examination.
The prosecutor had skillfully and properly led
Williams to contradict directly the testimony of
all other witnesses. Thus, Williams already
had called these witnesses liars, albeit
implicitly. “Pointing out the obvious most
likely scored the government, at most,
rhetorical points. We cannot say that these
few largely rhetorical questions from the pro-
secutor affected at all the outcome of the
trial.” United States v. Sullivan, 85 F.3d 743,
750 (1st Cir. 1996).
Second, the court properly instructed the
jury on its role as fact-finder. As with Wise,
221 F.3d at 153, and Wyly, 193 F.3d at 299,
there is no indication, much less an
“overwhelming probability,” that the jury
could not follow that instruction. Moreover,
the instruction immediately preceded the jury’s
deliberations, whereas the improper
questioning occurred earlier in the trial. Wyly,
193 F.3d at 300.
Third, “the evidence of guilt was over-
whelming.” Id. Williams does not dispute that
he shot an unarmed man in the back. His tes-
timony contradicted his prior written
statements. Six eyewitnesses (Billings,
Barfield, Windom, Cooper, Mrs. Hall, and
Hall) expressly contradicted Williams’s
fantastic testimony that Hall made any
threatening movements. Four eyewitnesses
(Billings, Barfield, Windom, and Hall) testified
that Williams shot Hall while Hall was facing
the other direction and standing motionless
with his arms raised. Cartlidge testified that
Williams admitted to shooting Hall out of
frustration or anger. Williams gave no “reason
for the jury to disbelieve th[is] substantial
incriminating testimony.” United States v.
Boyd, 54 F.3d 868, 872 (D.C. Cir. 1995).
Tellingly, Williams offers no examples of a
court of appeals’ reversing a conviction be-
cause a prosecutor improperly questioned a
defendant about another witness’s veracity.
This court has disapproved this tactic at least
twice, but did not reverse for that reason in ei-
ther case. Thomas, 246 F.3d at 439 n.1; Unit-
ed States v. Johnston, 127 F.3d 380, 389 (5th
Cir. 1997). The First and District of Columbia
Circuits have affirmed convictions despite
identical misconduct, which they dismissed as
merely stating the obvious or as minimally
important. Sullivan, 85 F.3d at 751; Boyd, 54
F.3d at 872 (plain error review). Even in
Williams’s main cases, the Second and Ninth
Circuits disapproved of this tactic, but
reversed the conviction because of other, more
serious errors. United States v. Sanchez, 176
F.3d 1214, 1220, 1225 (9th Cir. 1999); United
States v. Richter, 826 F.2d 206, 208 (2d Cir.
1987). The questioning, though inappropriate,
is not reversible error.14
14 Williams also asserts that in closing argu-
ment, the prosecutor improperly vouched for Bar-
field’s credibility. The prosecutor did not intimate
personal knowledge of Barfield’s credibility, but
merely reminded the jury that Barfield began co-
operating with the government before receiving a
plea agreement and asked it to infer, altogether rea-
(continued...)

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IV.
Finally, Williams argues that the prosecutor
violated his due process rights during rebuttal
closing arguments by stating that Barfield
would be sentenced to at least five months’
imprisonment under his plea agreement. We
review de novo an alleged due process
violation, United States v. Runyan, 290 F.3d
223, 245 (5th Cir.), cert. denied, 123 S. Ct.
137 (2002), and conclude that the comments
did not violate Williams’s due process rights.
In closing argument, Williams’s counsel
hammered away at Barfield’s testimony. He
contended that Barfield lied to obtain a
sweetheart plea agreement. In her rebuttal
closing, the prosecutor countered this
argument in several ways. First, she noted that
Barfield was only one of three officers who
testified against Williams. Next, she reminded
the jury that Barfield revealed to the
government the events to which he later
testified before he received a plea agreement.
Finally, the prosecutor disagreed that
Barfield’s agreement was generous.
Specifically, she stated, “He’s going to jail,
ladies and gentleman. He is going to jail.
There is no chance for him not to go to
jail . . . .”
Williams’s counsel objected here, but the
court overruled the objection. The prosecutor
then stated, “[Barfield] told you that what his
understanding of what that plea agreement was
and what his deal was, was that he can go to
jail still for up to two years, absolutely will go
for at least five months. Somewhere in be-
tween there. It will be up to the court. What
a deal.” The court, however, later sentenced
Barfield to six months’ home confinement.
“When the ‘reliability of a given witness
may well be determinative of guilt or
innocence,’ nondisclosure of evidence
affecting credibility falls within [the] general
rule of Brady [v. Maryland, 373 U.S. 83
(1963)].” United States v. Scott, 48 F.3d
1389, 1395 (5th Cir. 1995) (quoting Giglio v.
United States, 405 U.S. 150, 154 (1972)).
This rule applies to “any understanding or
agreement as to a future prosecution.” Giglio,
405 U.S. at 155. A Giglio violation usually
occurs when a cooperating witness denies
having a plea agreement and the prosecutor
fails to correct the misstatement. See, e.g.,
United States v. Mason, 293 F.3d 826, 828
(5th Cir. 2002). A prosecutor violates Giglio,
however, if he denies the existence or
misrepresents the terms of a plea agreement.
Armour v. Salisbury, 492 F.2d 1032, 1037
(6th Cir. 1974).
To prove a due process violation, Williams
must establish that the prosecutor knowingly
made a false and material statement during the
rebuttal closing. Cf. Mason, 293 F.3d at 828
(explaining standard for knowing use of false
testimony). Williams has not satisfied this
standard, because the prosecutor did not mis-
represent Barfield’s plea agreement. Rather,
she merely explained its terms, which call for
five months’ to two years’ imprisonment. Ev-
en if she somewhat overzealously asserted that
“[t]here is no chance for him not to go to jail”
and “[he] absolutely will go for at least five
months,” these statements must be read in
context, where the prosecutor also explained
that the court ultimately would decide Bar-
(...continued)
sonably, that the agreement did not alter Barfield’s
testimony. This kind of request for a favorable in-
ference from record evidence is not improper
vouching, especially because Williams had at-
tacked Barfield’s credibility. United States v.
Munoz, 150 F.3d 401, 414-15 (5th Cir. 1998).

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field’s sentence.
Moreover, Barfield did not get away scot-
free; home confinement, like imprisonment, is
a kind of confinement, and Barfield received a
sentence within the agreed range. This situ-
ation therefore differs in kind, not merely in
degree, from cases in which the prosecutor
and cooperating witness conceal from the jury
the existence of the plea agreement altogether.
See Giglio, 405 U.S. at 151-53; Mason, 293
F.3d at 828-29; United States v. Bigeleisen,
625 F.2d 203, 208 (8th Cir. 1980).
We further note that Barfield’s sentence
was not material to the jury’s assessment of his
credibility. Williams and the government dis-
puted the effect of the plea agreement on Bar-
field’s veracity. To assess Barfield’s cred-
ibility, the jury needed to know the range of
punishment that Barfield expected under the
plea agreement at the time of his testimony,
not his actual, later punishment. See Scott, 48
F.3d at 1394-95. Barfield testified that he
expected imprisonment for a term of five
months to two years, exactly what the plea
agreement specified. Thus, the jury had the
essential fact needed to assess the effect of the
plea agreement on Barfield’s credibility.
Finally, the prosecutor’s initial point in her
opening rebuttal must not be forgotten: Bar-
field was only one of several witnesses against
Williams. On appeal, Williams asserts that
Barfield’s testimony was critical because he
was the closest eyewitness. Maybe so, but
Williams does little to undermine the testimony
of Billings, Cooper, and Windom. Moreover,
Williams forgets the testimony of Cartlidge,
Hall, and Mrs. Hall, not to mention his own
contradictory written statements.
AFFIRMED.

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