United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED July 30, 2021 No. 20-60056 Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Otha Ray Flowers,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:19-CR-41-1

Before Jones, Smith, and Elrod, Circuit Judges. Edith H. Jones, Circuit Judge: Otha Ray Flowers, convicted of a federal gun violation, appeals the denial of his motion to suppress evidence as a violation of his Fourth Amendment rights. The questions on appeal are whether Flowers and Jeremy Mayo were “seized” when five or six patrol cars parked behind and around Mayo’s Cadillac with their patrol lights flashing, and if they were seized, whether Officer Stanton had reasonable suspicion to conduct a Case: 20-60056 Document: 00515958733 Page: 2 Date Filed: 07/30/2021

No. 20-60056

“Terry stop.” 1 Under the circumstances of this case and viewing the facts in the light most favorable to the Government, assuming arguendo that these individuals were seized, there was reasonable suspicion to do so. We AFFIRM.

I. On Saturday, February 18, 2017, around 8:30 p.m., Officer Eric Stanton of the Jackson Police Department was patrolling an area of Jackson, Mississippi. Officer Stanton was a member of the Direct Action Response Team (DART), a proactive unit tasked to “look[] for suspicious behavior, suspicious activities, traffic stops, [and] things of that nature . . . .” On that night, Officer Stanton’s supervisor had directed the DART to an area of Jackson, around Capitol Street and Road of Remembrance, where “recent violent crime and burglaries” had occurred.

1 Flowers also seeks a new trial, because the prosecutor made several statements during closing arguments, which, he claims, constitute prosecutorial misconduct. Our review is for abuse of discretion. United States v. Stephens, 571 F.3d 401, 407 (5th Cir. 2009). To determine whether there was prosecutorial misconduct, we ask whether (1) “the prosecutor made an improper remark” and (2) “the defendant was prejudiced.” United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007) (quotation marks and citation omitted). Prejudice is a “high bar,” which is met only where “the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.” Id. (quotation marks and citation omitted). “To determine whether a remark prejudiced the defendant’s substantial rights, we assess the magnitude of the statement’s prejudice, the effect of any cautionary instructions given, and the strength of the evidence of the defendant’s guilt.” United States v. Alaniz, 726 F.3d 586, 615 (5th Cir. 2013) (quotation marks and citation omitted). Flowers objects to three statements: The prosecutor said that (1) he didn’t need to call any other officers to corroborate Stanton’s testimony, (2) certain forensic tracing on spent ammunition was impossible when dealing with a revolver—a fact that was, allegedly, not in evidence—and (3) defense counsel sought evidence that only appears on