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1 Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by
designation.
2 Local Rule 47.5 provides: "The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled principles of law imposes needless expense on
the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-3443
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERRY CUREAUX and LEHMAN K. LUNDY,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Louisiana
(#CR-91-405-M)
(November 12, 1993)
Before SNEED1, REYNALDO G. GARZA, and JOLLY, Circuit Judges.
SNEED, Circuit Judge:2

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Defendants Kerry Cureaux and Lehman Lundy appeal their
convictions on three counts of drug-related offenses. Cureaux
challenges the district court's denial of his requested jury
instruction on accomplice testimony, and he further alleges that
the court interfered with his cross-examination. Lundy
challenges the district court's refusal to instruct the jury on
his proposed intoxication defense. We affirm.
I.
FACTS AND PRIOR PROCEEDINGS
An informant, Donald Mims, told Special Agent Charles E.
Smith, an undercover officer for the Bureau of Alcohol, Tobacco
and Firearms (ATF), that appellant Cureaux was distributing
cocaine. Agent Smith and Mims drove around a New Orleans housing
project several times until a man, later identified as Jesse
Smith, recognized Mims. Jesse Smith and appellant Lundy were
together. Jesse Smith directed Lundy to go to the car to find
out what Mims and Agent Smith wanted. According to Agent Smith,
when Lundy arrived, Mims informed him that he and Agent Smith
wanted to purchase one quarter ounce of cocaine for $300. After
some brief negotiations as to price and quantity, Lundy and Jesse
Smith took Agent Smith to an apartment (the Desire Street
apartment) later identified as that of Cureaux's live-in
girlfriend Gilda Green. Cureaux did not allow Agent Smith to
enter the apartment, as a consequence of which Agent Smith waited
outside in the common hallway.

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Shortly thereafter, Jesse Smith, followed by Cureaux and
Lundy, came out of the apartment carrying what appeared to be
cocaine wrapped in plastic. Lundy then asked Agent Smith to pay
before he would deliver the cocaine, but Agent Smith demanded
that he receive the drugs first. When his request was denied,
Agent Smith aborted the attempted drug purchase.
Agent Smith thereafter obtained a search warrant for the
Desire Street apartment, based on the attempted purchase. ATF
officers executed the search warrant the next morning and found
Lundy, Cureaux, and another man and a child in the apartment,
along with approximately 350 grams of cocaine, various drug
paraphernalia, and firearms.
At Cureaux's and Lundy's trial, Mims and Gilda Green
testified for the Government and implicated Cureaux in the drug
distribution scheme. Green characterized Lundy as a look-out who
primarily came to the apartment to use drugs.
After a three-day joint trial in the district court, Cureaux
and Lundy were convicted of (l) conspiracy to possess cocaine
with the intent to distribute, (2) possession of cocaine with the
intent to distribute, and (3) possession of a firearm in relation
to a drug trafficking offense. Cureaux was sentenced to 74
months on counts one and two, to be served concurrently. Lundy
was sentenced to 98 months on counts one and two, to be served
concurrently. Both were sentenced to 60 months on count three,
to be served consecutively. Cureaux and Lundy appeal their

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convictions.
II.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to
28 U.S.C. §§ 1441 and 1443. This court has jurisdiction pursuant
to 28 U.S.C. § 1291.
We review a district court's refusal to include a
defendant's proposed jury instruction for abuse of discretion.
United States v. Chaney, 964 F.2d 437, 444 (5th Cir. 1992).
Abuse of discretion in this context occurs only when the failure
to give a requested instruction prevents the jury from
considering a defense. United States v. Masat, 948 F.2d 923, 928
(5th Cir. 1991), cert. denied, 113 S. Ct. 108 (1992).
In determining whether the district court should have given
an instruction, we consider the evidence in the light most
favorable to the defendant. United States v. Lewis, 592 F.2d
1282, 1286 (5th Cir. 1979). However, the trial court retains
substantial latitude in deciding whether to give a requested
instruction when the theory of defense is highlighted elsewhere
in the charge. United States v. Rubio, 834 F.2d 442, 446-47 (5th
Cir. 1987).
In reviewing the effect of the trial court's comments on the
management of cross-examination, this court looks for a
substantial demonstration that the trial judge had overstepped
his or her bounds. United States v. Davis, 752 F.2d 963, 974

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3 An accomplice instruction is designed to warn the jury
that an alleged accomplice who testifies against a defendant for
his personal advantage should be held to a more stringent level
of scrutiny by the jury than an ordinary witness. See, e.g.,
United States v. D'Antignac, 628 F.2d 428, 435-36 n.10 (5th Cir.
1980), cert denied, 450 U.S. 967 (1981).
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(5th Cir. 1985).
III.
DISCUSSION
A. Cureaux's Requested Accomplice Instruction
Cureaux argues that the trial court committed reversible
error by refusing to dilute the strength of Green's testimony
with an "accomplice instruction" to the jury.3 Although a trial
court's refusal to issue a requested accomplice instruction may
be grounds for reversal under some circumstances, those
circumstances do not exist in this case. Cureaux relies on
United States v. Bernal, 814 F.2d 175 (5th Cir. 1987), which
provides that a defendant is generally entitled to an accomplice
instruction if:
important elements of the accomplice's testimony are
uncorroborated by other direct evidence and if
circumstantial evidence tending to corroborate the
accomplice's testimony is not compelling or supports
that testimony only through a chain of inferences that
is less than immediate and not altogether clear.
Id. at 183-84 (footnote omitted). These circumstances are not
present here.
Green's testimony also was not the only evidence of
Cureaux's participation in the drug distribution scheme. A
review of the record provides compelling circumstantial evidence

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to link Cureaux to the drug distribution scheme and the firearm
offenses. For example, Mims testified that he had purchased
cocaine in the Desire Street apartment on four or five different
occasions and that the drugs were only available for sale when
Cureaux was present. Moreover, the AFT agents found guns in the
Desire Street apartment, and Agent Smith testified that he saw
Jesse Smith with a firearm when he and Lundy walked up to the
Desire Street apartment to initiate the drug transaction. Agent
Smith also testified that he observed Cureaux take part in the
attempted drug transaction. Finally, the defense did not provide
any evidence contradicting the accomplice's testimony. We
therefore find no merit in Cureaux's arguments on this issue.
B. Judicial Interference with Cureaux's Defense
Cureaux also argues that the trial court committed
reversible error by interfering with his ability to cross-examine
his accusers, Mims and Green, and generally trivializing his
attempts to impeach them. Cureaux, however, does not allege a
specific injury.
To constitute reversible error, the trial court's
intervention, taken as a whole, must be such that it could have
led the jury to be predisposed to find the defendant guilty. Any
such intervention improperly confuses the functions of judge and
prosecutor. Davis, 752 F.2d at 974. Applying the standard
announced in Davis, we find that the trial judge's actions, taken
as a whole, were proper. Regarding Green, Cureaux specifically

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complains that the trial court did not allow him ample
opportunity to explore on cross-examination the timing of Green's
agreement with the government. However, contrary to Cureaux's
contentions, it is abundantly clear from the trial transcript
that Cureaux had ample opportunity to cross-examine Green, that
he took advantage of it, and that he extensively developed the
nature of Green's relationship with the government. Cureaux's
counsel even stated that "with emphatically repeated and restated
questioning," Green admitted her knowledge of the agreement with
the government for a recommendation of leniency in sentencing in
exchange for her testimony against Cureaux. Thus counsel's
rigorous cross-examination was effective. It revealed the
oft-employed technique of promising leniency to less involved
participants in exchange for their testimony directed at the more
involved.
Regarding Mims, Cureaux specifically complains that the
trial court, through a series of rulings and remarks, diminished
and criticized Cureaux's attempt to prove the arrangement between
the Government and Mims. A thorough review of the trial
transcript reveals that the trial court rebuked Cureaux's counsel
because he alluded to the existence of a letter written by the
government on Mims's behalf without following the proper
evidentiary or procedural rules for producing the letter. The
court made clear that it was not obligated to assist counsel's
efforts unless he followed the correct procedures. The court

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further explained that it was inappropriate for defense counsel,
who was neither a witness nor under oath, to testify that he had
not found nor discovered the letter in order to admit the next
best evidence of the letter's contents.
None of the comments of the trial judge relating to either
witness were directed at Cureaux or his counsel personally;
instead, the judge's comments were directed to the relevancy and
admissibility of the evidence and to expediting the trial. None
of the judge's comments were improper. See Davis, 752 F.2d at
975. Moreover, the trial judge specifically criticized both the
government and defense counsel for reiterating points while
examining witnesses. Such even-handed reminders defeat any
finding of prejudice.
We find no merit in Cureaux's complaint about judicial
interference.
C. Lundy's Requested Intoxication Instruction
Lundy argues that the district court committed reversible
error by refusing to instruct the jury pursuant to his
intoxication defense. Lundy argues that drug-induced
intoxication negated the specific intent necessary for conviction
of the crimes.
The trial court's charge should be reviewed in its entirety
to determine whether the charge as a whole was correct. United
States v. Chaney, 964 F.2d 437, 444 (5th Cir. 1992). We will
only find that a district court's refusal to provide a requested

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instruction is reversible error when: (i) the requested
instruction is substantively correct; (ii) the requested
instruction is not substantially covered in the charge actually
given to the jury; and (iii) the requested instruction concerns
an important point in the trial so that the failure to give it
seriously impairs the defendant's ability to present a given
defense effectively. Id.
Applying Chaney to the instant case, we find no reversible
error. Although Lundy's requested instruction is substantively
correct, we find that the requested instruction was substantially
covered in the charge to the jury and that the absence of the
requested instruction did not seriously impair the defendant's
ability to present his defense. The charge, when viewed as a
whole, sufficiently covered the distinction between the mental
state necessary to constitute simple possession of a drug as
opposed to possession with intent to distribute or conspiracy
with intent to distribute. This distinction was made clear by
the stress the district court placed upon the word "voluntary."
For example, in the jury charge, the trial court mentioned no
less than 23 times that the acts making up the charged offenses
must be done knowingly, intentionally, or voluntarily. In
addition, the trial court defined "knowingly" and
"intentionally"; both definitions included the word voluntary.
Thus, the omitted intoxication instruction would not have added
so much more concerning the voluntariness of the crime to require

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inclusion. See United States v. Branch, 989 F.2d 752, 757 (5th
Cir. 1993); see also United States v. Rubio, 834 F.2d 442, 449-50
(holding that the definition of "knowingly" was sufficient to
give the defendant an opportunity to present his defense that he
lacked the requisite mental state for the commission of the
crime).
Further, Lundy had an opportunity to effectively present his
intoxication defense to the jury. Lundy's counsel introduced
evidence of Lundy's intoxication through Agent Smith's testimony.
Lundy's counsel also thoroughly argued the defense of
intoxication in his opening statement and closing argument.
Accordingly, we find that the omission of Lundy's requested
intoxication instruction did not seriously impair Lundy's ability
to present an effective intoxication defense. Therefore, the
district court's refusal to give the intoxication instruction
proposed by Lundy was appropriate and does not constitute
reversible error.
AFFIRMED

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