UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 02-50086

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JIMMY ARREOLA RAMOS, also known as Santiago Arreola Ramos,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas MO-00-CR-68-4

February 7, 2003

Before HIGGINBOTHAM and DAVIS, Circuit Judges and HUDSPETH, District Judge.*

PER CURIAM:**

Ramos appeals his conviction for conspiracy to distribute

methamphetamine and aiding and abetting the distribution of that

drug. We affirm the conviction.

* District Judge of the Western District of Texas, sitting by designation ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Ramos raises a number of issues on appeal which we will

discuss briefly below.

He argues first that the district court abused its discretion

in unduly restricting defense counsel’s cross-examination of one of

the arresting officers, Deputy Javier Levya. The defense sought to

use a transcript from an unrelated state court trial where Officer

Levya conceded that an earlier statement he made was not true.

After reviewing pertinent portions of the transcript, the district

court concluded that it was unclear whether Officer Levya’s change

of testimony was the result of a mistake or an intentional

falsehood. Our review of the record fully supports the district

court’s conclusion. There is certainly no clear indication from

the state court transcript Ramos sought to use in his cross-

examination of Officer Levya that the officer made intentional

misrepresentations. The district court did not abuse its

discretion in restricting Officer Levya’s cross-examination.

Ramos also argues that the prosecutor made repeated improper

attacks on “the defense,” including counsel. Ramos, however, did

not object to the prosecutor’s remarks, and we review for plain

error.

We agree with the defense that a prosecutor’s suggestions

that defense counsel is attempting to deceive or trick the jury or

hide evidence is improper where the argument is not supported by

2 the record nor offered in response to remarks by defense counsel.1

But, in this case where evidence of Ramos’s guilt was overwhelming,

we are satisfied that the prosecutor’s improper remarks did not

affect the verdict. Thus, Ramos cannot show that his substantial

rights were affected, and he is therefore unable to demonstrate

that the trial court committed plain error in failing to take

action designed to prevent the prosecutor’s remark or to instruct

the jury to disregard such arguments.2

For the reasons stated above, the district court’s judgment is

AFFIRMED.

1 In this case, the defense points to several arguments made by the prosecutor during his closing argument including:

. . . But evidence doesn’t always come to light. Sometimes because the dealers are actually trying to conceal evidence. They will destroy evidence. You recall the motel clerk stated that someone at some point from the Defense had contacted them trying to get the motel receipt? We’re lucky we got to it before they did. We’re not always able to recover every piece of evidence that we would like. (R. at 729.)

He’s tried to distract you, again, just doing his job. It’s really –Mr. Frost, I like him personally, and know him personally. He’s doing his job. Common defense tactic. Try to wear you down. Hope something breaks. Hope you can disrupt something. Try to get the jury’s attention focused on something other than the issue that is before you right now. It’s nothing personal. It’s his job. (R. At 731).

2 The record reveals that the trial court instructed the jury that: “Remember that any statements, objections, or arguments made by the lawyers are not evidence.” (R. At 694).

3