United States v. Lewis

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40355
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD ALEXANDER LEWIS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-95-CR-10-4
No. G-98-CV-241
--------------------
December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Clifford Alexander Lewis appeals his drug conspiracy
conviction. The sole issue raised on appeal is whether the
district court properly instructed the jury to consider the
evidence against each defendant separately and individually.
Lewis contends that he was denied due process because the
district court failed to give such an instruction. Lewis
concedes that he did not object on this ground in the district
court and that this issue therefore is reviewed for plain error.

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No. 01-40355
-2-
The record shows that the district court did give a proper
limiting instruction that effectively cured any risk of spillover
prejudice. See United States v. Morrow, 177 F.3d 272, 290 (5th
Cir. 1999). Specifically, the district court instructed the jury
that:
A separate crime is charged against one
or more of the Defendants in each count of
the Superceding Indictment. Each Count, and
the evidence pertaining to it, should be
considered separately. Also, the case of
each Defendant should be considered
separately and individually. The fact that
you may find one or more of the Defendants
guilty or not guilty of any of the crimes
charged should not control your verdict as to
any other crime or any other Defendant. You
must give separate consideration to the
evidence as to each Defendant.
The jury is presumed to follow the court's instructions. Id.
Lewis has shown no error, let alone plain error, in the district
court's jury instructions.
This appeal is without arguable merit and thus frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. 5th Cir. R.
42.2.

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