UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

___________________________

No. 99-50093 ___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAIME ESTRADA-FERNANDEZ,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court for the Northern District of Texas (1:97-CR-4-1-C) ___________________________________________________

December 14, 1999

Before POLITZ, GARWOOD, and DAVIS, Circuit Judges.

PER CURIAM:*

A jury convicted Jaime Estrada-Fernandez of assault with a

dangerous weapon with intent to cause bodily harm,

(a)(3), and aiding and abetting,

. The district

court sentenced Estrada-Fernandez to 120 months incarceration,

three years supervised release, and a $100 fine. He now appeals

both his conviction and sentence. For the reasons that follow, we

affirm.

I.A.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Estrada-Fernandez first argues that the district court

committed reversible error when it permitted the prosecutor to

improperly vouch for and bolster the testimony of the Government’s

key witness, Lieutenant Travis Gilbreath. Estrada-Fernandez avers

that during the Government’s rebuttal, the prosecutor not only

personally vouched for the credibility of the witnesses but also

made comments that were beyond the scope of the evidence presented

at trial and that were designed to cloak the witness with the

mantle of governmental authority. Specifically, Estrada-Fernandez

challenges the following statement:

It all boils down basically whether you believe Lieutenant Gilbreath. . . I will take a 12-year veteran of the Bureau of Prisons, somebody with twelve years, evidently has dedicated his life to public service doing a job that I don’t know that many people would want to do, and that is all we have is him. That is all we can bring you is a 12-year veteran. He has absolutely no reason to lie about whether this man had a weapon or not. It makes no sense. No reason to lie. No reason to put a 12-year career on the line. Think about it and use your common sense. No reason to put his reputation, his Bureau of Prisons service on the line. Why would he do that? It makes absolutely no sense; none at all.

Estrada-Fernandez also challenges the prosecutor’s later statement:

“how much sense does it make that he is going to put his 12-year

career on the line just so you will find that this dangerous weapon

was used? It makes no sense.”

Assuming arguendo that these remarks referred to facts not in

evidence and “improperly invoked the aegis of a governmental

imprimatur,” we must nevertheless consider whether the remarks

affected the substantial rights of the defendant. United States v.

Gallardo-Trapero,

(5th Cir. 1999). In determining

whether the prosecutor’s comments prejudiced Estrada-Fernandez’s substantial rights, we must consider “(1) the magnitude of the

statement’s prejudice, (2) the effect of any cautionary

instructions given, and (3) the strength of the evidence of

defendant’s guilt.” United States v. Hernandez-Guevara,

(5th Cir. 1998). As we explained in United States v.

Wallace,

(5th Cir. 1990), “[f]or prosecutorial

misconduct to warrant a new trial, it must be so pronounced and

persistent that it permeates the entire atmosphere of the trial ...

and casts serious doubt upon the correctness of the jury’s

verdict.”

.

We conclude that the prosecutor’s remarks did not prejudice

Estrada-Fernandez’s substantial rights. Given the photographic

evidence and corroborating testimony, as well as the prosecutor’s

repeated remarks that the jury had to determine on its own whether

to believe the testimony of the witnesses, we cannot say that the

prosecutor’s statements regarding the credibility of Lieutenant

Gilbreath “overshadowed what had come before and unduly influenced”

the jury’s decision. Id. at 320-321.

The district court further mitigated any prejudicial effect by

instructing the jury to base their decision solely upon the

evidence presented, rather than upon the arguments made by lawyers.

The court explained:

You must consider only the evidence presented during the trial, including the sworn testimony of witnesses and the exhibits. Remember that any statements, objections, or arguments made by the lawyers are not evidence. . . . In the final, analysis, . . . it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you.

Similarly, the court instructed the jury that they had the sole responsibility for determining the credibility of all

witnesses:

You are the sole judges of the credibility or believability of each witness and the weight to be given to each witnesses. An important part of your job will be making judgments about the testimony of the witnesses who testified in this case. You should decide whether you believe any part or all of what each person had to say, and how important that testimony was.

“We presume that the jury follows the instructions of a trial

court unless there is an overwhelming probability that the jury

will be unable to follow the instruction and there is a strong

probability that the effect [of the prosecutorial misconduct] is

devastating.” United States v. Tomblin, 1369, 1390 (5th Cir. 1995).

In this case, the district court issued these instructions twice:

orally, prior to closing arguments, and in writing, after the

arguments. Estrada-Fernandez presents no convincing argument that

the jury did not follow these instructions. Furthermore, we have

previously held such instructions to be sufficient to remedy

similar allegations of prosecutorial misconduct. See United States

v. Wyly, __ F.3d ___,

(5th Cir. 1999); Gallardo-

Trapero,

; Tomblin, 46 F.3d at 1390; United States

v. Andrews,

, 1343 & n.16 (5th Cir. 1994). Viewing the

prosecutor’s statements in the context of the entire case, we

conclude that the prosecutor’s rebuttal argument did not prejudice

Estrada-Fernandez’s substantial rights.

B.

Estrada-Fernandez next argues that the district court erred in

permitting Gilbreath to testify as to whether a broken mop or broom

handle constituted a “dangerous weapon” for the purposes of

(a)(3). He contends that whether a given instrument is

a “dangerous weapon” within the meaning of section 113(a)(3) is a

legal conclusion that must be left to the jury.

Because Estrada-Fernandez did not object to this testimony at

trial, we review for plain error. See United States v. Olano,

(1993);

(1993). The defendant

therefore bears the burden of demonstrating that the district court

committed an error that was “clear” or “obvious” and that such an

error affected his substantial rights.

Estrada-Fernandez has failed to demonstrate that the district

court committed such an error. Gilbreath testified as an expert

witness regarding the dangerousness of instruments and Estrad-

Fernandez does not challenge his qualifications. The Federal Rules

of Evidence explain that “testimony in the form of an opinion or

inference otherwise admissible is not objectionable because it

embraces an ultimate issue to be decided by the trier of fact.”

Fed. R. Ev. 704(a). Estrada-Fernandez points to no authority that

would direct a contrary result. Thus, we cannot conclude that the

district court committed plain error.

C.

Finally, Estrada-Fernandez argues that the district court

erred in enhancing Estradada-Fernandez’s sentence for causing

“bodily injury” pursuant to U.S.S.G. § 2A2.2(b)(3)(A). Estrada-

Fernandez contends that he caused Lieutenant Gilbreath only minor

injuries, not rising to the level of bodily injury for the purposes

of the enhancement. Because Estrada-Fernandez failed to raise this

argument prior to this appeal, we review for plain error. United States v. Olano,

;

.

The Guidelines provides a two-level enhancement if the victim

sustained bodily injury, a four level enhancement if the victim

sustained a serious bodily injury, and a six level enhancement if

the victim sustained permanent or life-threatening injury.

U.S.S.G. § 2A2(b)(b)(A)-(C). The commentary explains that

“‘[b]odily injury’ means any significant injury, e.g., an injury

that is painful and obvious, or is the type for which medical

attention ordinarily would be sought.” U.S.S.G. § 1B1.1 commentary

at n.1(a).

The evidence at trial showed that as a result of the assault,

Lieutenant Gilbreath suffered red streaks and “tiny” abrasions to

his left arm as well as redness, tenderness, and swelling in his

upper and lower back. The evidence also demonstrates that

Lieutenant Gilbreath sought immediate medical attention for these

wounds. And although Estrada-Fernandez contends that he personally

inflicted only the arm wounds, the district court properly held him

accountable for all the wounds inflicted on Lieutenant Gilbreath,

which he aided and abetted or that were reasonably foreseeable and

jointly undertaken in furtherance of their criminal activity. See

U.S.S.G. § 1B1.3(a)(1)(A).

Courts have found similar injuries to constitute bodily

injury. See United States v. Green,

(9th Cir.

1992)(finding bodily injury where a slap in the face caused

swelling and pain); United States v.Perkins,

(10th Cir. 1997)(finding bodily injury where defendant caused small

laceration and bruising). Cf. United States v. Guerrero,

(5th Cir. 1999)(refusing to find bodily injury where

defendant struck victim but did not cause “any bruising, swelling,

or other type of injury”). The district court did not commit

error, plain or otherwise, in enhancing Appellant’s sentence.

II.

For the reasons stated above, we affirm the judgment of the

district court.