USA v. Artis Miller

Filing 511163281

USA v. Artis Miller

Doc. 511163281

Case: 09-40392

Document: 00511163281

Page: 1

Date Filed: 07/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40392 S u m m a r y Calendar July 2, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff ­ Appellee v. A R T I S RYAN MILLER; FERRELL DAMON SCOTT, D e fe n d a n t s ­ Appellants

A p p e a ls from the United States District Court fo r the Southern District of Texas U S D C No. 5:08-CR-347-2

B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* A r t is Ryan Miller and Ferrell Damon Scott appeal from their convictions fo llo w in g a joint jury trial. The jury convicted both defendants of conspiracy to p o s s e s s with intent to distribute over 1,000 kilograms of marijuana and p o s s e s s io n with intent to distribute over 100 kilograms of marijuana. The jury c o n v ic t e d Scott of two additional counts of possession with intent to distribute o v e r 100 kilograms of marijuana. Miller was sentenced to a total of 240 months' im p r is o n m e n t , five years of supervised release, and a $5,000 fine. Scott was
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Date Filed: 07/02/2010

s e n te n c e d to life imprisonment, 10 years of supervised release, and a $10,000 fin e . S c o t t has filed a motion for appointment of new counsel or, in the a lt e r n a t iv e , to have his appellate brief stricken and counsel withdrawn so that S c o tt may proceed pro se. In response to that motion, Scott's counsel has filed a motion for leave to withdraw. We deny both motions as untimely.1 And b e c a u s e "the general rule in this circuit is that a claim for ineffective assistance o f counsel cannot be resolved on direct appeal when the claim has not been r a is e d before the district court," we decline to review the issue at this time.2 A s for the merits of his appeal, Scott first argues that the prosecutor made s e v e r a l improper comments during closing arguments. Before the trial court, he o b je c t e d only to the prosecutor's comments regarding Judy Sepulveda, p r e s e r v in g claims of error as to those comments but leaving all others subject to p la in error review on appeal.3 A review of all of the challenged comments shows t h a t they were appropriate as it was clear that any conclusions urged by the p r o s e c u t o r must be drawn from the evidence.4 Scott has therefore failed to show a n y error regarding the prosecutor's closing arguments as to Sepulveda or any e r r or-- p la in or otherwise--regarding the prosecutor's other closing arguments.5 S c o t t also asserts that the district court erred by denying his motion for a mistrial. He filed that motion after being forcibly removed from the courtroom, a n action made necessary by his own outburst during closing arguments. Because the district court gave a curative instruction, and there is no indication
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See United States v. Wagner, 158 F.3d 901, 902­03 (5th Cir. 1998).

See United States v. Cantwell, 470 F.3d 1087, 1090 (5th Cir. 2006) (internal quotation marks and citation omitted).
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See United States v. Thompson, 482 F.3d 781, 785 (5th Cir. 2007). See id. at 785­86.

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See Thompson, 482 F.3d at 786; United States v. Machuca-Barrera, 261 F.3d 425, 435­36 (5th Cir. 2001).

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fr o m the record of a significant possibility that the incident had a substantial im p a c t upon the jury's verdict, the district court did not abuse its discretion by d e n y in g the motion for mistrial.6 B o t h Scott and Miller argue that the evidence produced at trial was in s u ffic ie n t to support the jury's verdict against them as to their conspiracy c o n v ic t io n s . Because both defendants failed to renew their motions for acquittal a t the close of all evidence, their sufficiency claims are reviewed for a "manifest m is c a r r ia g e of justice."7 Our examination of the record shows that the record is n o t "devoid of evidence pointing to guilt" so as to meet this demanding standard;8 r a t h e r , even if Scott and Miller had preserved the issue for appeal, we reject it b e c a u s e a rational trier of fact could have found that the evidence produced at t r ia l established guilt beyond a reasonable doubt for the conspiracy charges.9 M ille r argues that the district court erred by admitting evidence of prior c o n v ic t io n s and arrests. The court admitted the evidence under Federal Rule of E v id e n c e 404(b) for the limited purpose of showing intent, opportunity to commit t h e offense, a plan for the commission of the crime, and the absence of accident o r mistake. This was not an abuse of discretion.10 M ille r asserts that his trial counsel rendered ineffective assistance by fa ilin g to ask certain questions of a particular witness in order to corroborate his d e fe n s e theory. He did not raise this claim in the district court, and the current r e c o r d is not sufficient to evaluate it fairly. We thus decline to address the claim a t this time.11
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See United States v. Valles, 484 F.3d 745, 756­57 (5th Cir. 2007). United States v. Miller, 576 F.3d 528, 529 (5th Cir. 2009). Id. See Jackson v. Virginia, 443 U.S. 307, 318 (1979). See United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006). See Cantwell, 470 F.3d at 1090.

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M ille r also argues that the district court erred by denying his motion to s u p p r e s s a photographic lineup and in-court identification. He asserts that the p r o c e d u r e s surrounding the photographic lineup were improper and tainted the in -c o u r t identification. The record indicates that the district court conducted a s u p p r e s s io n hearing and that Miller submitted photographs from the lineup as e x h ib it s for that hearing. As Miller failed to provide either a transcript of that h e a r in g or the photographic exhibits for the appellate record, we are precluded fr o m review of this issue.12 I n sum, we DENY all outstanding motions and AFFIRM the judgments of c o n v ic tio n .

See United States v. Narvaez, 38 F.3d 162, 167 (5th Cir. 1994) ("It is appellant's responsibility to order parts of the record which he contends contain error and his failure to do so prevents us from reviewing this assignment of error. As the district court relied upon such evidence and as [appellant] failed to order that portion of the record, this court is precluded from reviewing his allegation.") (internal quotation marks and citations omitted).

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