USA v. Paul Hicks

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USA v. Paul Hicks

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Case: 09-40396

Document: 00511215603

Page: 1

Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40396 S u m m a r y Calendar August 26, 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. P A U L STEVE HICKS, 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 Southern District of Texas U S D C No. 5:08-CR-1305-2

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* P a u l Steve Hicks challenges his conviction, following a jury trial, on c h a r g e s of conspiracy to possess with intent to distribute over 100 kilograms of m a r iju a n a and possession with intent to distribute over 100 kilograms of m a r iju a n a . See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. A t the jury trial, Hicks's co-defendant Terrance Martin, a commercial truck d r iv e r , testified that in July 2008 he delivered a load to Brownsville, Texas, and t h e n traveled to Laredo, Texas, to drop off the empty trailer and pick up another
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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lo a d to return to Michigan. While he was in a Wal-Mart store in Laredo, he was a p p r o a c h e d by Hicks. Hicks and another individual, later identified as Howard D r u m g o , offered Martin money in exchange for transporting marijuana. Martin t e s t ifie d that he ultimately agreed to transport the marijuana, picked up Hicks, a n d proceeded to a warehouse where the marijuana was loaded into Martin's t r a i le r . Martin then drove towards San Antonio with Hicks as his passenger. T h e y stopped at a Pilot store where Hicks purchased seals with which Martin s e a le d the trailer. The Government introduced the Pilot receipt into evidence. U n it e d States Border Patrol Agent Brian Mitchell testified that, on J u ly 29, 2008, Martin drove his tractor trailer, with Hicks as his passenger, into t h e checkpoint. A drug-sniffing canine alerted to Martin's trailer twice and a g e n t s then viewed the truck using a VACIS machine, which Mitchell described a s a giant x-ray machine. The VACIS revealed what Mitchell termed Agents found

" a n o m a lie s " in the cargo, and agents inspected the cargo.

a p p r o x im a t e ly 70 bundles of marijuana and placed both Hicks and Martin under a r r e s t . The testimony of other Border Patrol agents Adam Aviles and Steve N u n e z further detailed the inspections and subsequent arrest as described by M itc h e ll. S p e c ia l Agents Alvaro Benavides and Gabriel Colon with the Drug E n fo r c e m e n t Administration of the Department of Justice testified that they in t e r v ie w e d Hicks on July 30, 2008. The agents testified that Hicks admitted t o them that he flew from John F. Kennedy Airport to Houston and traveled by b u s with Drumgo to Laredo. The agents stated that Hicks admitted that his goal w a s to recruit truck drivers to transport marijuana. The agents further testified t h a t Hicks told them that he approached Martin in the Wal-Mart McDonald's a n d that he and Drumgo offered Martin $3,000 to transport approximately 400 p o u n d s of marijuana. After Martin agreed to transport the marijuana, Hicks t o ld the agents, Martin picked up Hicks and they drove to a warehouse, where t h e y remained in the truck while the marijuana was loaded into the trailer. 2

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H i c k s stated to the agents that he and Martin then left together in the loaded t r u c k . Colon additionally testified that he later searched the tractor of the t r a c t o r trailer and discovered a leather bag, in which there were two bus tickets in the names of Hicks and Drumgo to travel from Houston to Laredo on J u ly 26, 2008. On appeal, Hicks argues that the district court plainly erred in admitting in t o evidence the Pilot store receipt and the bus tickets. Hicks argues that the t im e and date stamp on the store receipt and the information on the bus tickets w e r e inadmissible hearsay. He asserts that not only were they used to prove the t r u t h of the matter asserted, but also that the Government used them in closing a r g u m e n t to corroborate Martin's testimony and Hicks's post-arrest statement. Hicks further avers that the documents do not fit within an exception to the h e a r s a y rule. H ic k s argues this issue in a wholly conclusory fashion. He does not cite t o , much less brief the application of, the rules of evidence defining hearsay, FED. R . EVID. 801; prohibiting its admission, FED. R. EVID. 802; or defining the e x c e p t io n s to the rule, FED. R. EVID. 803-807. See FED. R. APP. P. 28(a)(9). Nor d o e s he support his argument with citation to relevant case authority. See id. Thus, he has waived this challenge to the admission of the store receipt and the b u s tickets. See id; United States v. Waskom, 179 F.3d 303, 313 (5th Cir. 1999); s e e also United States v. Thames, 214 F.3d 608, 612 n.3 (5th Cir. 2000). H ic k s additionally challenges the prosecutor's references, in questioning w it n e s s e s and in opening and closing statements, to Hicks's statements to the a g e n t s as "admissions" or a "confession." Hicks argues that the prosecutor's r e fe r r a l to Hicks's post-arrest statements as "admissions" "cloak[ed] the agents' c r e d ib ilit y with that of the office held by the Assistant United States Attorney." Hicks further avers that the prosecutor then built upon that basis by referring t o Hicks's post-arrest statements repeatedly in closing argument as a " c o n fe s s io n ." Because Hicks raises this issue for the first time on appeal, we 3

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r e v ie w only for plain error. See United States v. Rice, 607 F.3d 133, 138 (5th Cir. 2 0 1 0 ). We review assertions of prosecutorial misconduct by determining, first, w h e t h e r the prosecutor made an improper remark and, if so, whether the im p r o p e r remark affected the defendant's substantial rights. United States v. G a lla r d o -T r a p e r o , 185 F.3d 307, 320 (5th Cir. 1999). We consider remarks in c o n t e x t to determine their propriety. Id. T h e cases cited by Hicks are ultimately inapplicable to the facts before this c o u r t. In those cases, the prosecutors essentially made direct statements about t h e credibility of their witnesses. See United States v. Gallardo-Trapero, 185 F .3 d 307, 320 (5th Cir. 1999); United States v. Goff, 847 F.2d 149, 162 (5th Cir. 1 9 8 8 ); United States v. Garza, 608 F.2d 659, 664 (5th Cir. 1979). The

p r o s e c u t o r 's characterization, in the instant case, of Hicks's statements to agents a s admissions, does not address, much less bolster, the agents' credibility and w a s thus unlike the cases cited by Hicks. Moreover, the prosecutor did not c h a r a c t e r iz e disparate statements by Hicks as a confession or an admission of g u ilt on a particular charge, but rather asked witnesses about the admission of s p e c ific and discrete facts by Hicks. Hicks has failed to show that the

p r o s e c u t o r 's questioning of the witnesses was improper. See Gallardo-Trapero, 1 8 5 F.3d at 320. A s to the prosecutor's reference to Hicks's statements as a confession, H ic k s again fails to show plain error. See Rice, 607 F.3d at 138. Hicks relies on U n ite d States v. Morsley, 64 F.3d 907, 912 (4th Cir. 1995), for the proposition t h a t a prosecutor's reference to a defendant's statements as a confession c o n s t it u t e s prosecutorial misconduct. Morsley, however, involved very different fa c t s . See 64 F.3d at 912-13. In closing argument in Morsley, the prosecutor s p e c ific a lly asserted that the defendant had admitted to one of the charges a g a in s t him. Id. at 912. Although the defendant had "certainly admitted several a s p e c t s of his involvement in the conspiracy," the Fourth Circuit concluded, "he d id not formally `confess' his guilt" and the prosecutor's remark was improper. 4

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I d . at 913. In United States v. LaMorte, 950 F.2d 80, 83 (2d Cir. 1991), the p r o s e c u t o r suggested that the government is too busy to prosecute innocent p e o p le . Although the statement did not bolster any witness's testimony, it acted a s a personal observation that the defendant was guilty and suggested that the p r o s e c u t o r had extra-record evidence proving the defendant guilty. Id. In the in s t a n t case, while questioning the witnesses, the prosecutor did not c h a r a c t e r iz e disparate statements generally as a confession or admission of guilt o n a particular charge, but rather repeatedly referenced the specific admissions o f various facts made by Hicks to the agents. It was Hicks's own counsel who a s k e d the agent extensively about recording "confessions" by witnesses. I n the prosecutor's opening argument, the prosecutor used the words " a d m is s io n " or "admitted" in reference to discrete facts, and again not as a legal c o n fe s s io n of guilt on the charges generally. In closing argument, the prosecutor r e it e r a t e d the evidence presented at trial, noting that the Government had p r e s e n t e d evidence that Hicks had admitted to certain facts. When the

p r o s e c u t o r referred specifically to the admitted statements as a confession, he d id so in the context of noting that the admitted facts were supported by other e v id e n c e and that all of the admitted facts amounted to a confession. In

r e fe r e n c in g the "confession" in the instant case, the prosecutor was summing up t h e evidence that the Government produced and explaining the inferences that c o u ld be drawn from it. See United States v. Washington, 44 F.3d 1271, 1278 (5 t h Cir. 1995). The prosecutor's last reference to the statements as a confession c a m e directly in answer to Hicks's challenge that the Government ought to be r e q u ir e d to videotape or transcribe directly confessions and was a fair rebuttal t o Hicks's insinuation that the jury should acquit him in order to make a policy s t a t e m e n t about recording confessions. See United States v. Vaccaro, 115 F.3d 1 2 1 1 , 1217 (5th Cir. 1997). F o r these reasons, we AFFIRM the conviction and sentence.

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