USA vs. Bynum, (5th Cir. 2002)

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* Pursuant to 5 T H C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31249 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JASON BYNUM, Defendant-Appellant. Appeal from the United States District Court for the Western District of Louisiana (01-CR-50010-ALL) May 1, 2002 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM: * Defendant-Appellant Jason Bynum appeals his conviction for retaliatin g against a witness, in violation of 18 U.S.C. § 1513(b)(1). He asserts that the evidence was insufficient to support his conviction and that the district court erred in excluding the testimony of FBI Agent Freddie Watkins. Bynum§ 1513(b)(1); s ee United State s v. Cofield , 11 F.3d 413, 419 (4th Cir. 1993); s ee also United States v. Galvan , 949 F.2d 777, 782 (5th Cir. 1991).

Viewed in the light most favorable to the juryÂ’s verdict, the evidence was sufficient for a reasonable jury to conclude that B ynum threatened to cause bodily harm to Gabriella Rupert in retaliation for her having testified against him at his supervisedrelease hearing. S ee United States v. Loe , 262 F.3d 427, 432 (5th Cir. 2001), cert. denied , 122 S. Ct. 1078 (2002); see also Jackson v. Virginia , 443 U.S. 307, 319 (1979).

Bynum complained to Rupert§ 1513(b)(1).

BynumÂ’s contention that the district court erred in excluding FBI Agent WatkinsÂ’s testimony under the residual hearsay rule, F ED .

R. E VID . 807, is similarly unavailing. We review the admission or exclusion of evidence for abuse of discretion. U nited States v. Perez , 217 F.3d 323, 329-30 (5th Cir.), cert. denied , 531 U.S. 973 (2000). We will “not disturb the trial court’s ruling on the admissibility of evidence under the residual exception to the hearsay rule ‘absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighi ng of the relevant factors.’” I d. (quoting Page v. Barko Hydraulics , 673 F.2d 134, 140 (5th Cir. 1982)).

Agent Watkins’s testim ony was properly excluded under the residual hearsay rule because it was not relevant to any material fact. Bynum contends that Agent Watkins’s testimony was relevant to show that Bynu m was not “stalking” Rupert and to show that Rupert had not been truthful with the agent, thereby destroying her credibility. Whether various witnesses who were interviewed by Agent Watkins had denied seeing or speaking to Bynum in the vicinity of the Creswell Hotel during the time in question —— contrary to Rupert’s statement to the agent —— was immaterial to the questi on whether Bynum made threats against Rupert with the intent to retaliate against her. Bynum conveyed his threat and intent to Finley and Cox; whether other witnesses saw or spoke to Bynum at the same time was immaterial.

In addition, that testimony was not relevant for impeachment purposes because RupertÂ’s credibility was not central to the governmentÂ’s case, so any impingement upon her credibility was only a minor point. Rupert did not testify that she saw Bynum after his r elease from prison or that Bynum directly threatened her .

Instead, the critical testimony suppo rting the governmentÂ’s case was FinleyÂ’s. Agent WatkinsÂ’s proffered testimony had no bearing on FinleyÂ’s credibility and was thus not relevant to a material fact. Bynum has failed to establish that the district court abused its discretion in excluding the testimony, so we shall not disturb the district courtÂ’s evidentiary ruling. S ee United States v. Phillips , 219 F.3d 404, 419 n.23 (5th Cir. 2000) ; Perez , 217 F.3d at 329-30.

Bynum also states conclusionally that the exclusion of Agent Watk insÂ’s testimony violated BynumÂ’s due process rights and his Sixth Amendment right to confrontation and compulsory process. He briefs no argument and cites no legal authority in support of these conclusional claims, so they are waived. S ee Yohey v. Collins , 985 F.2d 222, 224-25 (5th Cir. 1993); F ED .

R. A PP .

P. 28(a).

Bynum has not demonstrated any error in the district courtÂ’s judgment. Accordingly, the judgment is AFFIRMED.

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