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United States Court of Appeals
Fifth Circuit
F I L E D
Revised September 8, 2003
August 14, 2003
Charles R. Fulbruge III
In the
Clerk
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,
§ 242, and discharge of a firearm during and in
Circuit Judges.
relation to a crime of violence, 18 U.S.C.
§ 924(c)(1)(A)(iii). On appeal, Williams pri-
JERRY E. SMITH, Circuit Judge:
marily argues that the firearm conviction can-
not stand because the civil rights count is not
John Williams, a deputy sheriff, shot an ap-
a "crime of violence." He also challenges the
prehended, unarmed suspect in the back. A
civil rights conviction on various evidentiary
jury convicted him of deprivation of the
and procedural grounds. Finding no error, we
suspect's rights under color of law, 18 U.S.C.
affirm.

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

As Williams fled, Barfield and Williams
and the cell phone. The officers found neither
stopped next to Hall's truck and chased him
a weapon nor any drugs on or around Hall or
on foot. Billings drove past them and into the
in the truck.
field to cut off Hall. Williams testified that
Hall reached into his pockets or his waistband,
Hall recovered from the gunshot wound
bent over as if to drop or throw something on
and was never charged with a crime. Cartlidge
the ground, and turned toward Barfield and
intended to fire Williams, but allowed him to
Williams at least once. Barfield, Billings, and
resign instead. Cartlidge testified that when he
Hall testified that Hall did nothing but run
asked why Williams shot Hall, Williams
straight from his truck into Billings's position.
answered that "he was tired of chasing [Hall]
and tired of fooling with [Hall]."
Billings exited his car and successfully
intercepted Hall. He pointed a rifle at Hall and
As the basis for the civil rights count, the
ordered him to stop. Hall immediately did so
government alleged that the shooting violated
and raised his arms above his head with his
Hall's right not to be deprived of liberty
hands open and empty. Billings later testified
without due process of law and his right to be
that he never intended to shoot Hall, because
free from an unreasonable use of force.
"the threat level never got that high." Cooper,
Barfield agreed to plead guilty and testify
who had followed Billings into the field, later
against Williams.
testified that he saw Hall standing motionless
with his arms raised. Cooper therefore
The evidence against Williams consisted
deemed the situation "under control" and
primarily of the multiple eyewitness accounts.
turned his car around to return to Hall's truck.
Williams's testimony conflicted with that of
Billings, Barfield, Cooper, Windom, Cartlidge,
Williams, however, asked Barfield for his
Hall, and Mrs. Hall. Unlike Williams, these
weapon and then shot Hall in the upper back.
witnesses testified that Hall did not return to
Williams admitted that he gave Hall no
his truck to grab something, never turned
warning. Billings, Barfield, and Hall testified
around or bent over during the chase, was
that Hall was standing motionless with his
standing motionless with his arms above his
arms raised and facing Billings when Williams
head when Williams shot him, and generally
shot Hall. Allen Windom, a civilian who
made no threatening movements.
witnessed the foot chase from the highway,
confirmed their testimony.
Williams's testimony also conflicted with
his earlier written statements, which did not al-
Hall fell to the ground but kept his arms
lege that Hall had bent over or turned around
raised. As Billings and Barfield approached
during the foot chase or that Barfield stopped
Hall, Williams never warned them that Hall
to look for something that Hall allegedly had
might be armed. Billings ordered Hall to lie on
thrown on the ground. Finally, Williams's tes-
the ground, and Hall complied. Barfield
timony conflicted with the limited real
reached Hall first and kicked him twice, then
evidence, i.e., the absence of a firearm and
handcuffed him and kicked him again. Cooper
drugs on or around Williams and in his truck.
returned to the scene to pick up Hall. He
frisked Hall and found only the loose change
Williams was convicted on both counts.
3

The court sentenced him to eighteen months'
person . . . may be used in the course of
imprisonment on the civil rights count and im-
committing the offense," 18 U.S.C. § 924-
posed the mandatory minimum of ten years'
(c)(3)(B).
imprisonment on the firearm count.
We use the so-called categorical approach
II.
when applying these definitions to the
Williams argues that his firearm conviction
predicate offense statute. "The proper inquiry
must be vacated because deprivation of rights
is whether a particular defined offense, in the
under color of law, § 242, is not a "crime of
abstract, is a crime of violence[.]" United
violence" as defined by 18 U.S.C. § 924(c)(3).
States v. Chapa-Garza, 243 F.3d 921, 924
We review for plain error, because Williams
(5th Cir. 2001) (applying 18 U.S.C. § 16(b)).2
did not object on this ground in the district
We do not consider the facts underlying
court. United States v. Gracia-Cantu, 302
Williams's conviction; his actual conduct is
F.3d 308, 310 (5th Cir. 2002).1 Because there
immaterial. Instead, we examine only the
is no error at all, we affirm the firearm
statutory text of § 242 to determine whether it
conviction.
satisfies the definition of § 924(c)(3).
Section 924(c)(1) states that "any person
That is easier said than done. Section 242
who, during and in relation to any crime of vi-
is one long sentence with three clauses
olence . . . uses . . . a firearm . . . shall, . . . if
separated by two semicolons. The first clause
the firearm is discharged, be sentenced to a
states the three basic elements of any § 242
term of imprisonment of not less than 10
offenseSS(1) wilful (2) deprivation of a federal
years." 18 U.S.C. § 924(c)(1)(A)(iii).
right (3) under color of lawSSand sets the
Williams obviously discharged a firearm during
maximum term of imprisonment at one year.3
and in relation to the deprivation of Hall's
The second clause increases the maximum to
rights. He contends, though, that deprivation
ten years if the deprivation results in "bodily
of rights under color of law, § 242, is not a
injury" or "include[s] the use, attempted use,
"crime of violence." Section 924(c)(3) defines
or threatened use of a dangerous weapon, ex-
"crime of violence," in relevant part, as a fel-
plosives, or fire." The third clause increases
ony offense that either "has as an element the
the maximum to life imprisonment or the death
use, attempted use, or threatened use of
penalty if the deprivation results in death or
physical force against the person," 18 U.S.C.
involves certain enumerated serious felonies.
§ 924(c)(3)(A), or "by its nature, involves a
substantial risk that physical force against the
2 Section 924(c)(3) is materially identical to the
generic definition in 18 U.S.C. § 16. The only dif-
1 "Plain error review is very limited. There
ference is that § 16(a) applies to misdemeanors,
must be `error' that is `plain' and that affects `sub-
whereas § 924(c)(3)(A) applies only to felonies.
stantial rights,' and even then we have discretion
not to correct the error unless it `seriously affects
3 To be precise, the first clause identifies other
the fairness, integrity or public reputation of ju-
elementsSSe.g., deprivation on account of race,
dicial proceedings.'" United States v. Phipps, 319
color, or alienage and deprivation within certain
F.3d 177, 189 (5th Cir. 2003) (quoting United
geographic localesSSbut they are not disputed in
States v. Olano, 507 U.S. 725, 732 (1993)).
this case.
4

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

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

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

answered that the shooting was unreasonable.
violate rule 704(b).
Williams argues that, for two reasons, these
On the other hand, the court erred under
answers were impermissible opinion testimony.
rule 704(a) by allowing the officers' testimony
First, he contends that the officers' testimony
about the reasonableness of the shooting.
violated rule 704(b), which prohibits experts
Rule 704(a) "does not allow a witness to give
from testifying that a criminal defendant "did
legal conclusions." Izydore, 167 F.3d at 218.
or did not have the mental state or condition
See 3 STEPHEN A. SALTZBURG, MICHAEL M.
constituting an element of the crime." FED. R.
MARTIN & DANIEL J. CAPRA, FEDERAL RULES
EVID. 704(b). Although the officers did not
OF EVIDENCE MANUAL § 704.02[4] (Matthew
testify as experts, Williams argues that their
Bender 2002). Reasonableness under the
opinion testimony about the reasonableness of
Fourth Amendment or Due Process Clause is
the shooting should be treated as expert
a legal conclusion. See, e.g., United States v.
testimony because it was "based on . . .
Chavez, 281 F.3d 479, 483 (5th Cir. 2002).
specialized knowledge within the scope of
Nevertheless, we are confident that this error
[FED. R. EVID.] 702." FED. R. EVID. 701.
did not affect the outcome of Williams's trial.
Second, Williams contends that the officers'
testimony violated rule 704(a), which prohibits
The evidence against Williams was
any witness, expert or lay, from testifying to a
overwhelming.11 The officers' brief opinions
legal conclusion. United States v. Izydore,
followed their damning factual testimony
167 F.3d 213, 218 (5th Cir. 1999) (citing FED.
about the circumstances of the shooting.
R. EVID. 704(a)).
Windom, Mrs. Hall, and Hall corroborated the
officers' factual testimony without improperly
Even if we treat the officers' testimony
opining on reasonableness. No one, on the
about the reasonableness of the shooting as ex-
pert testimony, that testimony would not vio-
late rule 704(b), because the officers did not
10(...continued)
testify to Williams's mental state. To be sure,
under the Fourth Amendment or the Due Process
an element of any § 242 offense is deprivation
Clause. See, e.g., United States v. Gutierrez-
of a federal right, in this case an unreasonable
Farias, 294 F.3d 657, 662-63 (5th Cir. 2002)
use of force under the Fourth Amendment or
(testimony regarding knowledge), cert. denied, 123
Due Process Clause. The reasonableness of a
S. Ct. 869 (2003); United States v. Levine, 80
use of force, though, is no more a mental state
F.3d 129, 134-35 (5th Cir. 1996) (testimony re-
than is action under color of law or bodily in-
garding insanity); United States v. Dotson, 817
jury. The requisite mental state of any § 242
F.2d 1127, 1132 (5th Cir. 1987) (testimony re-
offense is wilfulness, about which the officers
garding wilfulness), modified, 821 F.2d 1034 (5th
did not testify.10 Thus, the testimony did not
Cir. 1987).
11 We have affirmed convictions based on the
strength of the evidence as a whole, notwithstand-
10 This court's precedent confirms that rule
ing opinion testimony admitted in violation of rule
704(b) applies to traditional mental states or con-
704. See, e.g., Gutierrez-Farias, 294 F.3d at 663
ditions such as intent, knowledge, and insanity, not
(holding that error was harmless); Izydore, 167
substantive determinations such as reasonableness
F.3d at 218 (holding that error, if any, was
(continued...)
harmless).
8

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

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

tors: (1) the magnitude of the prejudicial effect
fantastic testimony that Hall made any
of the prosecutor's remarks, (2) the efficacy of
threatening movements. Four eyewitnesses
any cautionary instruction by the judge, and
(Billings, Barfield, Windom, and Hall) testified
(3) the strength of the evidence supporting the
that Williams shot Hall while Hall was facing
conviction." Wyly, 193 F.3d at 299 (quotation
the other direction and standing motionless
marks omitted). All three factors lead us to
with his arms raised. Cartlidge testified that
conclude that the improper questioning did not
Williams admitted to shooting Hall out of
affect Williams's substantial rights.
frustration or anger. Williams gave no "reason
for the jury to disbelieve th[is] substantial
First, the magnitude o f the prejudicial ef-
incriminating testimony." United States v.
fect, weighed in context, id., was surely small.
Boyd, 54 F.3d 868, 872 (D.C. Cir. 1995).
The questioning lasted just moments at the end
of a long and devastating cross-examination.
Tellingly, Williams offers no examples of a
The prosecutor had skillfully and properly led
court of appeals' reversing a conviction be-
Williams to contradict directly the testimony of
cause a prosecutor improperly questioned a
all other witnesses. Thus, Williams already
defendant about another witness's veracity.
had called these witnesses liars, albeit
This court has disapproved this tactic at least
implicitly. "Pointing out the obvious most
twice, but did not reverse for that reason in ei-
likely scored the government, at most,
ther case. Thomas, 246 F.3d at 439 n.1; Unit-
rhetorical points. We cannot say that these
ed States v. Johnston, 127 F.3d 380, 389 (5th
few largely rhetorical questions from the pro-
Cir. 1997). The First and District of Columbia
secutor affected at all the outcome of the
Circuits have affirmed convictions despite
trial." United States v. Sullivan, 85 F.3d 743,
identical misconduct, which they dismissed as
750 (1st Cir. 1996).
merely stating the obvious or as minimally
important. Sullivan, 85 F.3d at 751; Boyd, 54
Second, the court properly instructed the
F.3d at 872 (plain error review). Even in
jury on its role as fact-finder. As with Wise,
Williams's main cases, the Second and Ninth
221 F.3d at 153, and Wyly, 193 F.3d at 299,
Circuits disapproved of this tactic, but
there is no indication, much less an
reversed the conviction because of other, more
"overwhelming probability," that the jury
serious errors. United States v. Sanchez, 176
could not follow that instruction. Moreover,
F.3d 1214, 1220, 1225 (9th Cir. 1999); United
the instruction immediately preceded the jury's
States v. Richter, 826 F.2d 206, 208 (2d Cir.
deliberations, whereas the improper
1987). The questioning, though inappropriate,
questioning occurred earlier in the trial. Wyly,
is not reversible error.14
193 F.3d at 300.
Third, "the evidence of guilt was over-
14 Williams also asserts that in closing argu-
whelming." Id. Williams does not dispute that
ment, the prosecutor improperly vouched for Bar-
he shot an unarmed man in the back. His tes-
field's credibility. The prosecutor did not intimate
timony contradicted his prior written
personal knowledge of Barfield's credibility, but
statements. Six eyewitnesses (Billings,
merely reminded the jury that Barfield began co-
Barfield, Windom, Cooper, Mrs. Hall, and
operating with the government before receiving a
Hall) expressly contradicted Williams's
plea agreement and asked it to infer, altogether rea-
(continued...)
11

IV.
jail still for up to two years, absolutely will go
Finally, Williams argues that the prosecutor
for at least five months. Somewhere in be-
violated his due process rights during rebuttal
tween there. It will be up to the court. What
closing arguments by stating that Barfield
a deal." The court, however, later sentenced
would be sentenced to at least five months'
Barfield to six months' home confinement.
imprisonment under his plea agreement. We
review de novo an alleged due process
"When the `reliability of a given witness
violation, United States v. Runyan, 290 F.3d
may well be determinative of guilt or
223, 245 (5th Cir.), cert. denied, 123 S. Ct.
innocence,' nondisclosure of evidence
137 (2002), and conclude that the comments
affecting credibility falls within [the] general
did not violate Williams's due process rights.
rule of Brady [v. Maryland, 373 U.S. 83
(1963)]." United States v. Scott, 48 F.3d
In closing argument, Williams's counsel
1389, 1395 (5th Cir. 1995) (quoting Giglio v.
hammered away at Barfield's testimony. He
United States, 405 U.S. 150, 154 (1972)).
contended that Barfield lied to obtain a
This rule applies to "any understanding or
sweetheart plea agreement. In her rebuttal
agreement as to a future prosecution." Giglio,
closing, the prosecutor countered this
405 U.S. at 155. A Giglio violation usually
argument in several ways. First, she noted that
occurs when a cooperating witness denies
Barfield was only one of three officers who
having a plea agreement and the prosecutor
testified against Williams. Next, she reminded
fails to correct the misstatement. See, e.g.,
the jury that Barfield revealed to the
United States v. Mason, 293 F.3d 826, 828
government the events to which he later
(5th Cir. 2002). A prosecutor violates Giglio,
testified before he received a plea agreement.
however, if he denies the existence or
Finally, the prosecutor disagreed that
misrepresents the terms of a plea agreement.
Barfield's agreement was generous.
Armour v. Salisbury, 492 F.2d 1032, 1037
Specifically, she stated, "He's going to jail,
(6th Cir. 1974).
ladies and gentleman. He is going to jail.
There is no chance for him not to go to
To prove a due process violation, Williams
jail . . . ."
must establish that the prosecutor knowingly
made a false and material statement during the
Williams's counsel objected here, but the
rebuttal closing. Cf. Mason, 293 F.3d at 828
court overruled the objection. The prosecutor
(explaining standard for knowing use of false
then stated, "[Barfield] told you that what his
testimony). Williams has not satisfied this
understanding of what that plea agreement was
standard, because the prosecutor did not mis-
and what his deal was, was that he can go to
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
(...continued)
"[t]here is no chance for him not to go to jail"
sonably, that the agreement did not alter Barfield's
and "[he] absolutely will go for at least five
testimony. This kind of request for a favorable in-
months," these statements must be read in
ference from record evidence is not improper
vouching, especially because Williams had at-
context, where the prosecutor also explained
tacked Barfield's credibility. United States v.
that the court ultimately would decide Bar-
Munoz, 150 F.3d 401, 414-15 (5th Cir. 1998).
12

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.
13