United States v. Bethea ( 2010 )

09-4125-cr
United States v. Bethea
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19 th day of July, two thousand and ten.
5
6 PRESENT: RICHARD C. WESLEY,
7 PETER W. HALL,
8 Circuit Judges,
9 RICHARD W. GOLDBERG,
10 Judge. *
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 09-4125-cr
18
19 CRAIG BETHEA,
20
21 Defendant-Appellant.
22
23
24
*
The Honorable Richard W. Goldberg, United States Court of
International Trade, sitting by designation.
1 FOR APPELLANT: LAURIE S. HERSHEY, Manhasset,
2 NY.
3
4 FOR APPELLEE: WENDY L. FULLER, Assistant
5 United States Attorney (Gregory
6 L. Waples, Assistant United
7 States Attorney, on the brief),
8 for Tristram J. Coffin, United
9 States Attorney for the District
10 of Vermont, Burlington, VT.
11
12 Appeal from the United States District Court for the
13 District of Vermont (Murtha, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
16 AND DECREED that the judgment of the district court is
17 AFFIRMED.
18 Appellant Craig Bethea appeals from the district
19 court’s September 30, 2009 judgment of conviction, entered
20 following his December 10, 2008 conditional guilty plea to
21 one count of conspiring to distribute and possess with
22 intent to distribute fifty or more grams of cocaine base, in
23 violation of 21 U.S.C. § 846. Appellant’s plea agreement
24 conditioned his guilty plea on the result of appellate
25 review of the district court’s August 8, 2008 denial of his
26 pro se motion to suppress. 1 See Fed. R. Crim. P. 11(a)(2).
1
Appellant was represented in the district court
proceedings by two separate attorneys. These attorneys
filed two successive motions to suppress, dated June 15,
2007 and February 15, 2008, respectively. The district
court denied both motions. Appellant filed his third
2
1 This is that appeal. We assume the parties’ familiarity
2 with the underlying facts, the procedural history, and the
3 issues presented for review.
4 In the motion in question, appellant sought the
5 suppression of “all items seized in the purported execution
6 of a search warrant” on January 20, 24, and 25, 2006. The
7 search warrant referenced in appellant’s motion was issued
8 on January 20, 2006 by a state-court judge in Vermont under
9 Vermont law. 2 The “items seized” were a series of recorded
10 conversations that took place on those dates between
11 appellant and a confidential informant; the conversations
12 pertained to several transactions in which appellant sold
13 crack cocaine to the informant. In addition to the state-
14 law warrant, the discussions were also monitored and
motion, acting pro se, on June 19, 2008.
2
Law enforcement obtained the warrant under Vermont
law because “obtaining evidence by electronic monitoring in
a defendant’s home without his consent and without prior
court authorization violates Article 11” of Vermont’s
constitution. State v. Blow, 157 Vt. 513, 520 (1991).
Nevertheless, as the district court acknowledged, federal
law governs this federal criminal prosecution, including any
questions relating to the lawfulness of the searches
conducted. See United States v. Rommy, 506 F.3d 108, 129
(2d Cir. 2007) (“The admissibility of evidence in a United
States court depends solely on compliance with United States
law.”); see also United States v. Pforzheimer, 826 F.2d 200,
203 (2d Cir. 1987).
3
1 recorded pursuant to the informant’s written consent.
2 The district court denied appellant’s pro se motion,
3 reasoning that the recordings were lawfully obtained because
4 the informant had knowingly and voluntarily consented to the
5 government surveillance. On appeal, appellant’s counsel
6 does not attack that conclusion. Nor could he. The
7 informant’s consent allowing the government to record the
8 conversations rendered those recordings lawful under both
9 Title III, see 18 U.S.C. § 2511(2)(c); United States v.
10 Friedman, 300 F.3d 111, 120-21 (2d Cir. 2002), and the
11 Fourth Amendment, see United States v. Workman, 80 F.3d 688,
12 694 (2d Cir. 1996).
13 Instead, appellant’s counsel argues that we should
14 construe his client’s pro se motion to suppress as also
15 challenging: (1) a subsequent April 12, 2006 warrant issued
16 by the district court in Vermont that authorized a search of
17 appellant’s residence; and (2) the circumstances surrounding
18 his warrantless arrest following that search. However,
19 although we construe pro se submissions liberally, we do not
20 create arguments out of whole cloth. See Green v. United
21 States, 260 F.3d 78, 83 (2d Cir. 2001). Appellant’s pro se
22 motion to suppress presented no arguments regarding the
4
1 subsequent search of his residence or his arrest.
2 Therefore, in light of the appellate waiver in his plea
3 agreement, counsel’s arguments are not properly before us.
4 See United States v. Simmons, 763 F.2d 529, 533 (2d Cir.
5 1985). Moreover, even if we were to reach these additional
6 contentions, we would reject them for reasons substantially
7 similar to those stated by the district court in its order
8 of October 12, 2007. See United States v. Bethea, No. 07
9 Cr. 003, 2007 WL 3025042, at *2-4 (D. Vt. Oct. 12, 2007).
10 Finally, in addition to the brief filed by his
11 attorney, appellant filed a separate pro se brief with this
12 Court in which he argues, inter alia, that: (1) the January
13 20, 2006 warrant issued under Vermont law was invalid under
14 state and federal law; (2) the prosecutor engaged in
15 “federal forum shopping”; (3) the district court erred by
16 failing to conduct an evidentiary hearing to provide
17 appellant with an opportunity to “impeach the government’s
18 witnesses prior to trial”; and (4) he received ineffective
19 assistance of counsel in the district court.
20 With respect to the fourth argument, we are “generally
21 disinclined to resolve ineffective assistance claims on
22 direct review.” United States v. Gaskin, 364 F.3d 438, 467
5
1 (2d Cir. 2004). We therefore dismiss defendant’s
2 ineffective assistance claim without prejudice to it being
3 raised in a subsequent motion pursuant to 28 U.S.C. § 2255.
4 See Gaskin, 364 F.3d at 468. 3 As to the remainder of
5 appellant’s pro se contentions in this appeal, to the extent
6 they bear on the district court’s August 8, 2008 denial of
7 his pro se motion to suppress, we have already concluded
8 that the district court properly denied that motion. To the
9 extent the arguments challenge aspects of the district court
10 proceedings other than the effectiveness of his counsel
11 under the Sixth Amendment, those arguments are not only
12 meritless, but they were also forfeited pursuant to the
13 appellate waiver in appellant’s plea agreement.
14 We have considered each of appellant’s arguments and
15 find them to be without merit. Accordingly, the judgment of
16 the district court is hereby AFFIRMED.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
22
23
3
We need not, and therefore do not, express any view
at this juncture as to whether defendant waived his ability
to bring this form of collateral attack by entering into his
plea agreement.
6