IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-30809 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LYNN T. CRAWFORD,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 96-CR-50023-1 -------------------- December 20, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Convicted for assault on a federal officer with a deadly

weapon and of using a firearm during a crime of violence Lynn T.

Crawford contends, pro se, that the evidence is insufficient to

support his convictions, that the district court abused its

discretion by failing to give his proposed self-defense jury

instruction, that the jury instructions concerning reasonable

doubt, deliberate ignorance, assault, and intent were erroneous,

that he was subjected to prosecutorial misconduct, and that the

district court failed to adequately preserve the record.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-30809 -2-

Crawford’s argument that the evidence is insufficient to support

his convictions is without merit. The evidence was sufficient

for a jury to find beyond a reasonable doubt that Crawford was

guilty of both assault on a federal officer and of using a

firearm during a crime of violence.

Crawford has not shown that the district court abused its

discretion by failing to give his proposed self-defense jury

instruction. The self-defense charge substantially covered the

instruction that Crawford requested. See United States v. Neal,

(5th Cir. 1992).

Crawford has not shown that the district court plainly erred

by giving its jury instruction on reasonable doubt. The

reasonable doubt instruction used in Crawford’s case has been

approved by this court. See United States v. Alonzo,

(5th Cir. 1982).

Crawford’s argument that the district court plainly erred by

omitting any instruction regarding mens rea is without merit.

Examination of the jury instructions reveals that intent was

listed as an essential element of the first count and that

“knowingly” was defined due to its use in many of the other

instructions. The court used the 1990 Fifth Circuit Pattern Jury

Instructions for the definitions of “forcible assault,”

“knowingly,” and “willfully.” See Fifth Circuit Pattern Jury

Instructions (Criminal), 1.35, 1.36, 2.09 (1990). The

instructions were not so confusing as to constitute plain error.

The district court also did not plainly err in failing to

instruct the jury regarding simple assault. Although the offense No. 97-30809 -3-

of simple assault is a lesser-included offense of assault of a

federal officer with a dangerous weapon, Crawford has not shown

that the evidence adduced at trial would permit a rational jury

to find him guilty of the lesser offense and to acquit him of the

greater offense. See United States v. Estrada-Fernandez,

(5th Cir. 1998).

Crawford has not shown that the district court abused its

discretion by giving a deliberate ignorance instruction. The

evidence was sufficient to justify the court’s decision to

instruct the jury on that issue. See United States v. Hull,

(5th Cir.), cert. denied,

, and

cert. denied,

(1999).

Crawford has not shown that he was subjected to

prosecutorial misconduct because the prosecutor made prejudicial

remarks during his opening statement, closing argument, and

rebuttal argument.2 Counsel is accorded wide latitude during

opening and closing argument. See United States v. Palmer,

(5th Cir. 1995). Although Crawford lists

numerous instances of alleged error, he has not shown that the

prosecutor’s comments were improper or that they affected his

substantial rights. See United States v. Munoz,

(5th Cir. 1998). He has not shown plain error.

Nor has Crawford shown that the prosecutor knowingly used

perjured testimony to obtain his conviction. Crawford has not

2 As Crawford failed to object to most of the prosecutor's comments, this court will reverse his conviction as to those alleged errors only if the prosecutor's conduct amounts to plain error. See United States v. Wicker,

(5th Cir. 1991). No. 97-30809 -4-

demonstrated that the testimony was false or that the prosecutor

knew that it was false. See United States v. Blackburn,

(5th Cir. 1993).

As Crawford has not shown any individual instance of

prosecutorial misconduct, his argument that the cumulative effect

of all of the prosecutor’s comments denied his right to a fair

trial is without merit.

Crawford has not shown that the district court failed to

adequately preserve a record of the proceedings relating to the

jury foreman’s request for transcripts, a hearing held regarding

the judge’s response to the jury foreman’s request about the

legal definition of assault, and the denial of his Rule 29

motion. These transcripts are already included in the record or

do not exist.

Crawford has not shown error on the part of the district

court; his convictions are AFFIRMED. The Government’s motion to

strike the portions of Crawford’s appellate brief which refer to

the transcript of Agent Miller’s grand jury testimony and which

refer to an affidavit prepared by Bonnie Crawford concerning a

telephone conversation she had with the foreman of Crawford’s

jury is GRANTED. Material that was not presented in district

court and is not a part of the record on appeal is not

considered. See Fed. R. App. P. 10(a). Crawford’s motion to

file his brief in its present form, including his request for

transcripts, is DENIED. Crawford has not shown that the

transcripts are necessary to the adjudication of his appeal. See

Harvey v. Andrist,

(5th Cir. 1985).