United States v. Deandre Miller

Filing

PER CURIAM OPINION FILED - THE COURT: MICHAEL J. MELLOY, PASCO M. BOWMAN and LAVENSKI R. SMITH (UNPUBLISHED); Granting [3624822-2] motion to withdraw as counsel filed by Attorney Mr. David Roy Treimer for Appellant Deandre Terrell Miller. [3679252] [09-3617]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 09-3617
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United States of America,
Appellee,
v.
Deandre Terrell Miller,
Appellant.

*
*
* Appeal from the United States
* District Court for the
* Southern District of Iowa.
*
* [UNPUBLISHED]
*
*
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Submitted: June 25, 2010
Filed: June 30, 2010
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Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
After a bench trial, the District Court1 found Deandre Miller guilty of a drug
offense and imposed sentence. Miller appealed, and counsel has moved to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967). In the Anders brief, counsel
argues that the District Court erred in denying Miller’s motion to suppress evidence
obtained after an alleged body-cavity search that was conducted without a warrant.
In a pro se supplemental brief, Miller argues that the District Court erred in failing to

1

The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.

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Date Filed: 06/30/2010 Entry ID: 3679252

conduct a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and in
denying his motion to substitute counsel.
We reject these arguments. First, at the suppression hearing, the District Court
credited the police officers’ testimony that no body-cavity search occurred, see United
States v. Wright, 512 F.3d 466, 472 (8th Cir. 2008) (noting that witness credibility is
within the province of the trial court), and no warrant was required for the search for
contraband conducted incident to Miller's arrest, see United States v. Davis, 457 F.3d
817, 823 (8th Cir. 2006), cert. denied, 549 U.S. 1258 (2007). Thus, the motion to
suppress was properly denied. Second, no Franks hearing was required because the
search was not executed pursuant to a warrant supported by an allegedly false
affidavit. Cf. Franks, 438 U.S. at 171–72. Third, the District Court acted within its
discretion in denying Miller’s motion to substitute counsel: the court held a hearing
and acknowledged Miller’s complaints but found that counsel had performed
adequately, that there was no conflict of interest or breakdown of communication, and
that substitution would cause delay. See United States v. Webster, 84 F.3d 1056,
1062 & n.2 (8th Cir. 1996).
Finally, after reviewing the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), we have found no nonfrivolous issues for appeal. Accordingly,
we grant counsel’s motion to withdraw, and we affirm the District Court.
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Date Filed: 06/30/2010 Entry ID: 3679252