USA v. Devlen Ford

Filing

UNPUBLISHED OPINION FILED. [09-20863 Affirmed ] Judge: EHJ , Judge: EGJ (specially concurs), Judge: EMG Mandate pull date is 12/14/2010 for Appellant Devlen H. Ford [09-20863]

USA v. Devlen Ford Case: 09-20863

Document: 00511302981 Page: 1 Date Filed: 11/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 23, 2010 N o . 09-20863 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. D E V L E N H. FORD, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-242-1

B e fo r e JONES, Chief Judge, and JOLLY and GARZA, Circuit Judges. P E R CURIAM:* D e v le n Ford was convicted following a jury trial with being a felon in p o s s e s s io n of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court s e n te n c e d him to 120 months imprisonment, followed by three years of s u p e r v is e d released. Ford now appeals. We affirm.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-20863 Document: 00511302981 Page: 2 Date Filed: 11/23/2010

No. 09-20863 I. I n early February of 2009, Officer M.R. Franklin, a police officer in Harris C o u n ty , received a tip that there was a black male receiving stolen merchandise a t a particular house in the area he was patrolling. Two detectives­Officers T h o m a s and Middleton­were dispatched to help investigate. The three officers w e n t to the identified house, where they saw Devlen Ford pulling into the d r iv e w a y . A c c o r d in g to Officer Middleton, the officers introduced themselves to Ford a n d explained they were investigating a burglary. Officer Thomas asked Ford fo r consent to search his house for the stolen property. Ford gave consent in w r it t e n form. Officer Middleton testified that once in the house, Ford told the o ffic e r s that the day before he had traded marijuana for some items that a p e r s o n named Stephen had brought over, and that those items were in his b e d r o o m , underneath his bed. The officers looked under the bed and found a la p t o p , an X-Box 360, and the pistol that is the subject of this case. The officers a l s o claimed to have found a box of marijuana as they were leaving the room. According to Officer Thomas, Ford admitted to them that the items under the b e d were those for which he had traded marijuana the day before. Ford was a r r e s t e d at the scene. F o r d 's testimony differed considerably from that of the officers. Ford c la im s that he had met Stephen the day before and hired him to perform yard w o r k at Ford's home. When Stephen arrived at Ford's home to work, he carried w it h him a bag. According to Ford, Stephen later went to the store for a drink, le a v in g the bag on the driveway. Ford claims that since Stephen never returned fo r it, he brought the abandoned bag into his home for safekeeping. When police a r r iv e d the next day, Ford consented to the search of his home and showed them t h e bag left by Stephen. As they were taking items out of it, Ford claims he n o tic e d something heavy in the pocket of a jacket that was in the bag. The police 2

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No. 09-20863 fo u n d a pistol in the jacket pocket, a pistol of which Ford testified he had been u naw are. F o r d was later convicted after a jury trial with being a felon in possession o f a firearm and sentenced to 120 months imprisonment. Ford now appeals. II. F o r d raises five issues on appeal. He contends that the district court erred b y (1) allowing the Government to cross-examine Ford about inadmissible prior c o n v ic t io n s and arrests; (2) permitting an ATF agent to testify that a firearm p o s s e s s e d by Ford in a prior case was stolen, testimony which Ford argues was in a d m is s ib le under Federal Rule of Evidence 404(b) and admitted in violation o f the Confrontation Clause; and (3) permitting the Government to crosse x a m in e Ford about his post-Miranda silence in violation of Doyle v. Ohio, 4 2 6 U.S. 610 (1976). Ford also argues that (4) his conviction should be reversed b e c a u s e of improper comments made by the Government in its closing argument a n d that (5) the district court wrongfully imposed a two-level sentencing e n h a n c e m e n t for a stolen firearm. We find no reversible error. A. T h e first three issues raised by Ford relate to evidentiary rulings of the d is t r ic t court. We review evidentiary rulings for abuse of discretion. United S t a t e s v. Parks, 68 F.3d 860, 867 (5th Cir. 1995). Accordingly, the harmless e r r o r standard applies. United States v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2 0 0 7 ); United States v. Rodriguez, 260 F.3d 416, 422 (5th Cir. 2001) (noting that h a r m le s s error doctrine applies to so-called Doyle violations).1 As a result,

The leading case in this Circuit analyzing the harmless error test as applied to Doyle violations is Chapman v. United States, 547 F.2d 1240, 1247-48 (5th Cir. 1977). Many cases cannot be resolved solely by reference to the Chapman categories, however. In such instances, "we apply a case-by-case approach using the Chapman categories as guidelines for assessing the prejudice to the defendant in the particular context, including the strength of the evidence." United States v. Rodriguez, 43 F.3d 117, 121-22 (5th Cir. 1995). Here, in light of the evidence and for the reasons stated elsewhere, we find no prejudice requiring reversal.

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No. 09-20863 r e v e r s a l is appropriate only if any of the claimed evidentiary errors affected F o r d 's substantial rights. Sumlin, 489 F.3d at 688. Because we find that any e r r o r was harmless, we need not decide whether the district court erred in these e v id e n t ia r y rulings. T h is court has stated that an error affects substantial rights if there is a r e a s o n a b le probability that the improperly admitted evidence contributed to the c o n v ic t io n . Id. Here, after considering the parties' briefs and the evidence a g a in s t Ford, we are not persuaded there is a reasonable probability the jury w o u ld not have convicted Ford absent the challenged testimony. Both parties a g r e e d this case turned on whose testimony the jury credited­the officers' or F o r d 's . Ford's alibi­that a man named "Stephen" inexplicably left a bag of very e x p e n s iv e items at his home, the contents of which were unknown to Ford­was, t o put it charitably, far less plausible than the officers' story. The jury had s u ffic ie n t reason to credit the officers' testimony over Ford's, even without e v id e n t ia r y errors. Thus, we find no reversible error. B. F o r d next argues that his conviction should be reversed because of im p r o p e r comments made in the Government's closing argument. Assuming, w it h o u t deciding, that the comments were inappropriate, reversal would be a p p r o p r ia te only if the remarks cast serious doubt on the correctness of the jury's v e r d ic t. United States v. Fierro, 38 F.3d 761, 771 (5th Cir. 1994). For the same r e a s o n s stated above, we find that any inappropriate comments made by the G o v e r n m e n t did not cast serious doubt on the correctness of the jury's verdict. Thus, we find no reversible error here. C. F o r d 's final argument on appeal is that the district court abused its d is c r e t io n by imposing a two-level enhancement for a stolen firearm pursuant t o U.S.S.G. § 2K2.1(b)(4) based on an unreliable affidavit, which stated that the 4

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No. 09-20863 g u n at issue was stolen. Ford argues that it was "highly unusual" that the a ffia n t claimed to be the victim of a burglary in 2006, but did not report the c r im e until questioned by the ATF during the investigation in this case. Ford a ls o contends that the district court erred by denying his request for an e v id e n t ia r y hearing to determine whether the gun was stolen. We find these c h a lle n g e s to be without merit. S e n t e n c in g judges are entitled to find, by a preponderance of the evidence, a ll facts relevant to determination of a Guidelines sentencing range. United S ta te s v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The court's ultimate findings o f fact are reviewed for clear error, United States v. Mauskar, 557 F.3d 219, 232 (5 t h Cir. 2009), while the denial of an evidentiary sentencing hearing is reviewed fo r abuse of discretion, United States v. Henderson, 19 F.3d 917, 927 (5th Cir. 1 9 9 4 ). T h is court has stated that defendant bears the burden of showing that in fo r m a t io n in the PSR relied on by the district court is materially untrue. United States v. Smith, 528 F.3d 423, 425 (5th Cir. 2008). Ford has failed to e s t a b lis h anything approaching this threshold. He provides no reasons to

s u s p e c t the affiant in question was lying, nor does he even assert what evidence o r additional facts he would adduce at an evidentiary hearing to support his c l a im that the affidavit was incorrect. Simply claiming that it was "highly u n u s u a l" for the affiant not to report to the police that her gun had been stolen is not sufficient to show that the affidavit was not true. For these reasons, the d is t r ic t court did not err in relying on the affidavit, nor abuse its discretion in d e n y in g an evidentiary hearing. W e AFFIRM.

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No. 09-20863 E . GRADY JOLLY, Circuit Judge, specially concurring: I concur in the majority's opinion in full. I write separately to take note t h a t underlying the key issues in today's case is the rather crass manner in w h ic h the prosecution was, in part, conducted. As the record before us makes c le a r , the Assistant United States Attorney engaged in conduct that eschewed p r o fe s s io n a l training, which put in jeopardy an otherwise clear conviction. He e x t e n s iv e ly cross-examined Ford about prior convictions and arrests on the ruse t h a t defense counsel had opened the door to such questioning. He put on the s t a n d an ATF agent who testified, based on a National Crime Information C e n t e r report, that a firearm possessed by Ford in a previous case was stolen, w h ic h had little purpose but to inflame the jury. The Government now concedes o n appeal that this testimony was hearsay, and it does not dispute that a d m is s io n of this testimony violated Ford's rights under the Confrontation C la u s e . Beyond these missteps, the prosecutor posed a lengthy

q u e s t io n -- a m o u n t in g to little more than invective--with respect to Ford r e m a in in g silent after he had invoked his Miranda rights. During cross-

e x a m in a t io n the prosecutor attributed to him a marijuana or "dope-dealing b u s in e s s ," an accusation bearing no relevance to the crime of possession of a fir e a r m by a felon. Indeed, during the Government's summation, the AUSA c la im e d that "all [Ford] does is hang around with marijuana, and that is what h e is." The prosecutor is fortunate that his general resort to naked and raw e m o t io n a lis m did not cost him the case; any evidentiary errors are ultimately in s u ffic ie n t to warrant a reversal of Ford's conviction. Notwithstanding this r e s u lt , the prosecutor needs reminding that we must demand a higher degree of p r o fe s s io n a l prosecution than we have seen here.

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