United States v. Hughes ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4864
KEENAN LEVIRT HUGHES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-98-224-A)
Submitted: September 28, 1999
Decided: October 14, 1999
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Kenneth Michael Robinson, THE ROBINSON LAW FIRM, Wash-
ington, D.C., for Appellant. Helen F. Fahey, United States Attorney,
Rebeca Hidalgo Bellows, Assistant United States Attorney, Alexan-
dria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Keenan Levirt Hughes appeals from a 151 month sentence follow-
ing his conviction for conspiracy to possess with the intent to distrib-
ute and to distribute crack cocaine, 21 U.S.C.A.§ 846 (West Supp.
1999). Finding no reversible error, we affirm.
Hughes contends that the district court erred when it did not, sua
sponte, hold an evidentiary hearing on the admissibility of his confes-
sion and did not, in the absence of a request from defense counsel,
give a specific instruction on the jury's consideration of the confes-
sion. While 18 U.S.C. § 3501(a) (1994) requires that a district court
hold an evidentiary hearing on the admissibility of a confession prior
to its admission at a jury trial, the district court did not err because
Hughes did not timely move to suppress the statement. See United
States v. Wilson, 895 F.2d 168, 172-73 (4th Cir. 1990) (per curiam).
Although this court has held that the failure of a trial court to give a
specific instruction regarding the jury's consideration of the confes-
sion constitutes plain error, we will not reverse a conviction on this
basis if the error is harmless beyond a reasonable doubt. See id.;
United States v. Sauls, 520 F.2d 568, 570 (4th Cir. 1975); see also
Arizona v. Fulminante, 499 U.S. 279, 288-89 (1991). In light of the
substantial evidence against Hughes and the court's general instruc-
tion to the jury on the credibility of witnesses and the weight that they
were to accord each witness's testimony, we find that the error in this
case was harmless beyond a reasonable doubt. Moreover, Hughes'
claim that his attorney's representation was ineffective for failing to
move to suppress the confession and for failing to request a specific
instruction concerning the confession is not cognizable on direct
appeal because the record does not conclusively establish that he is
entitled to relief. See United States v. Hoyle , 33 F.3d 415, 418 (4th
Cir. 1994).
Hughes also seeks to invalidate his conviction on the basis that the
Government's inquiries into the past drug distribution activities and
prior arrest and conviction history of a defense witness were
improper. The Government concedes that most of its questions were
improper, but argues that none merit reversal of Hughes' convictions.
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We agree. The government cannot use artful cross-examination to
introduce evidence that would otherwise be inadmissible. See United
States v. Hall, 989 F.2d 711, 716 (4th Cir. 1993). Where, however,
a district court sustains a defense objection to an improper govern-
ment question, the witness does not answer, and the defense does not
move for a mistrial, this court will not reverse a conviction unless the
prejudice resulting from the improper question was of such a magni-
tude that the defendant was denied a fair trial. See United States v.
Lamarr, 75 F.3d 964, 969 (4th Cir. 1996).
Hughes' counsel objected and the court sustained the objection to
the Government's questions about Rosan Abdul Rahim's length of
incarceration while awaiting trial on unrelated charges and whether
Rahim had ever distributed drugs. In light of the substantial evidence
against Hughes, and in light of the curative instruction that was given
by the court, see Hall, 989 F.2d at 717, we find that any error caused
by the Government's cross-examination of Rahim with respect to
these two questions was harmless beyond a reasonable doubt.
We further find that questions regarding Rahim's pending charges
and previous arrests and convictions did not constitute plain error. See
United States v. France, 164 F.3d 203, 207 (4th Cir. 1998), cert.
denied, ___ U.S. ___, 119 S.Ct. 2351 (1999). We have considered the
Government's questioning to which the defense lodged no objection
and conclude that none of these questions, when considered together
and in light of the entire record, was prejudicial to such an extent that
outcome of the proceeding was affected. See id. Thus, because this
aspect of the Government's cross-examination of Rahim did not
affect Hughes' substantial rights, we find no reversible error.
Accordingly, we affirm Hughes' conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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