USA v. Strother

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USA v. Strother

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Case: 09-40169

Document: 00511207735

Page: 1

Date Filed: 08/18/2010

REVISED AUGUST 18, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
N o . 09-40169 S u m m a r y Calendar July 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R E G I N A L D STANLY STROTHER, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 1:06-CR-182-1

B e fo r e JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges. P E R CURIAM:* R e g in a ld Stanly Strother has appealed pro se from his conviction of p o s s e s s io n with intent to distribute 50 grams or more of cocaine base, a violation o f 21 U.S.C. § 841(a). Strother's motions for leave to file a supplemental brief a n d a reply brief are GRANTED. Strother complains that he was not provided w it h copies of "the docket sheet, pre-trial motions filed with this court, the actual s u p p r e s s io n hearing minutes and etc." Although this contention may be

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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c o n s t r u e d as a motion to supplement the record, the motion is DENIED, as S t r o t h e r does not state with sufficient specificity what portions of the record w e r e not provided to him or how the absence of those documents impaired his a b ility to present his issues on appeal. After Strother's case was tried before a jury, Strother moved for a new t r ia l and his motion was granted. Strother contends, in relation to the first trial, t h a t he received ineffective assistance of counsel because one of his attorneys la b o r e d under a conflict of interest by representing a Government witness and t h a t his right to due process was violated because of prosecutorial misconduct r e la t e d to that witness's testimony. g r a n t e d a new trial. This claim is moot because Strother was

Strother contends also that his right against double

je o p a r d y was violated because his retrial was the product of prosecutorial m is c o n d u c t . Strother has not shown and the record does not reflect that the p r o s e c u t o r intended to provoke a mistrial. See Oregon v. Kentucky, 456 U.S. 667, 6 7 9 (1982). Strother contends for the first time in his reply brief that the district court e r r e d in denying his first motion to suppress. Strother contended that the c o c a in e base found during a search of his vehicle and any of his statements about t h e offense or giving consent to search should be suppressed. The drugs were fo u n d during a search of Strother's vehicle as part of a valid traffic stop. The r e c o r d reflects that Strother gave consent to the search while the police officers w e r e waiting for a reasonable period of time for a return on a record check and t h a t the consent was not the product of coercion or improper questioning. See U n ite d States v. Santiago, 310 F.3d 336, 341 (5th Cir. 2002). Strother has not s h o w n that this court should set aside its usual rule against considering issues t h a t were not raised in an appellant's original brief. See United States v. Ogle, 4 1 5 F.3d 382, 383-84 (5th Cir. 2005). Strother contends that the district court erred in denying his second m o t io n to suppress, in which Strother contended that his post-arrest statements 2

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s h o u ld be suppressed because the arresting officer failed to admonish him of his c o n s t it u t io n a l rights in accordance with Miranda v. Arizona, 384 U.S. 436, 479 (1 9 6 6 ). The district court's finding that the arresting officer gave Strother the c o m p le t e Miranda warning was not clearly erroneous. See United States v. W a ld r o p , 404 F.3d 365, 367-68 (5th Cir. 2005); see also Florida v. Powell, 130 S . Ct. 1195, 1204 (2010); Miranda, 384 U.S. at 479. Strother complains that his post-arrest confession that the drugs were his w a s "the product of police threats and coercion" and that the district court erred in admitting evidence of the confession. Strother contends that the arresting o ffic e r threatened to charge his girlfriend and mother with possessing the c o c a in e base and that he confessed in order to protect them from prosecution. Because Strother did not object at trial to admission of the evidence, we r e v ie w the question whether the district court erred in permitting the arresting o ffic e r to testify about Strother's confession for plain error. See United States v. R o g e r s , 126 F.3d 655, 657 (5th Cir. 1997). To show plain error, Strother must s h o w a forfeited error that is clear or obvious and that affects his substantial r ig h t s . See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If Strother m a k e s such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial p r o c e e d in g s . See id. The record reflects that, after Strother was given his Miranda warnings, h e waived his right to remain silent by continuing to speak with the arresting o ffic e r . See Soffar v. Cockrell, 300 F.3d 588, 593 (5th Cir. 2002). The evidence d o e s not show that the arresting officer overreached. See Colorado v. Connelly, 4 7 9 U.S. 157, 170 (1986); United States v. Guanespen-Portillo, 514 F.3d 393, 403 (5 t h Cir. 2008). The district court did not plainly err in failing to suppress e v id e n c e of the confession. See Puckett, 129 S. Ct. at 1429. Strother contends that the district court erred in denying his motion for a new trial following the retrial, in which Strother argued that the prosecutor 3

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h a d violated his right to due process by encouraging his girlfriend, whom he in t e n d e d to call as a witness, to invoke her right against self incrimination. We r e v ie w the denial of a motion for a new trial for an abuse of discretion. United S ta te s v. Jimenez, 509 F.3d 682, 691 (5th Cir. 2007). The record reflects that the witness overheard the prosecuting attorney a d v is e the witness's attorney that she was at risk of being prosecuted for perjury o r for possession of the drugs if she elected to testify. "A prosecutor is always e n tit le d to attempt to avert perjury and to punish criminal conduct." United S ta te s v. Viera, 839 F.2d 1113, 1114-15 (5th Cir. 1988) (en banc) (quote at 1115). Thus, it was not improper for the prosecuting attorney to seek to prevent the in t r o d u c tio n of testimony that he reasonably believed would be untruthful. See id . Moreover, Strother has not shown that the witness's testimony would have b e e n material or exculpatory and the evidence of Strother's guilt was o v e r w h e lm in g . See id. at 1115. Thus, Strother cannot show that he was

d e p r iv e d of a fair trial because of the prosecuting attorney's conduct. See United S ta te s v. Hernandez-Guevara, 162 F.3d 863, 874 (5th Cir. 1998). The district c o u r t did not abuse its discretion in denying the motion for a new trial. See J im e n e z , 509 F.3d at 691. Strother contends that the district court erred in denying his motion to d is m is s the indictment, in which he challenged the district court's jurisdiction, a r g u in g that Title 21 of the United States Code has never been enacted into p o s it iv e law. Strother argues that Title 21 was not an "Act of Congress" because it is not "included in the Statutes at Large and published in the Federal R e g is t e r ." Strother contends also that the district court lacked jurisdiction b e c a u s e the State of Texas is not a federal territory and because the state did not le g a lly cede constitutional legislative jurisdiction to the federal government. These contentions are specious. See Gonzales v. Oregon, 546 U.S. 243, 249 (2 0 0 6 ) (discussing enactment of the Controlled Substances Act (CSA)); Gonzales v . Raich, 545 U.S. 1, 12-13 (2005) (discussing Congress' enactment of the CSA 4

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p u r s u a n t to its authority under the Commerce Clause); see also U.S. CONST. ART. I § 8, cl. 17 (cited by Strother, pertaining to the creation and exercise of c o n g r e s s io n a l authority over the District of Columbia). Strother contends in his reply brief that the district court failed to comply w it h FED. R. CRIM. P. 32(i)(1)(A). Strother has not shown that his substantial r ig h t s were affected by any error on the part of the district court in determining w h e t h e r he had an adequate opportunity to read and discuss the presentence r e p o r t with his attorney. See FED. R. CRIM. P. 52(a) (harmless error standard). Moreover, Strother has not shown that this court should set aside its usual rule a g a in s t considering issues that were not raised in an appellant's original brief. See Ogle, 415 F.3d at 383-84. To the extent that Strother wishes to assert a c la im of ineffective assistance of counsel related to the district court's n o n c o m p lia n c e with Rule 32(i)(1)(A), we decline to consider it at this juncture. See Gulley, 526 F.3d at 821. The judgment is AFFIRMED.

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