United States v. Borders ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4372
JEROME LEE BORDERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-01-6-1)
Submitted: May 30, 2003
Decided: June 20, 2003
Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Howard Sohn, HOWARD SOHN, P.A., Miami, Florida, for Appel-
lant. Robert J. Conrad, Jr., United States Attorney, C. Nicks Williams,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BORDERS
OPINION
PER CURIAM:
Jerome Lee Borders was convicted by a jury for conspiracy to pos-
sess with intent to distribute cocaine and cocaine base, in violation of
21 U.S.C. §§ 841, 846 (2000), and conspiracy to commit money laun-
dering, in violation of 18 U.S.C. § 1956(h) (2000). He was sentenced
to life imprisonment and 240 months imprisonment, respectively. On
appeal, Borders argues that the district court erred in: (1) denying his
request for new counsel; (2) admitting testimony regarding his failure
to file tax returns during the drug conspiracy; and (3) admitting state-
ments made by his co-conspirators. He further maintains that the
cumulative prejudice from the alleged errors below warrants a new
trial. We affirm.
On appeal, Borders first maintains that the district court abused its
discretion in denying his request for new counsel. This court reviews
a district court’s denial of a motion for substitution of counsel for an
abuse of discretion. United States v. Corporan-Cuevas, 35 F.3d 953,
956 (4th Cir. 1994). An indigent defendant has no right to a particular
attorney and can demand another attorney only for good cause.
United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988). Further,
a defendant does not have an absolute right to substitution of counsel.
United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994). In evaluat-
ing whether the trial court abused its discretion in denying Borders’
motion for substitution of counsel, this court must consider: (1) the
timeliness of the motion; (2) the adequacy of the court’s inquiry into
Borders’ complaint; and (3) "whether the attorney/client conflict was
so great that it had resulted in total lack of communication preventing
an adequate defense." Id.; Gallop, 838 F.2d at 108. We find no abuse
of discretion in the court’s denial of Borders’ motion.
Borders next argues that the district court erred in admitting testi-
mony regarding his failure to file tax returns during the drug conspir-
acy. Because defense counsel did not object to the admission of this
testimony, this court reviews for plain error. Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725 (1993). Under this standard, this
court can only correct a forfeited error if: (1) there is an error; (2) it
is plain; (3) the error affects the substantial rights of the party; and (4)
UNITED STATES v. BORDERS 3
the error "seriously affects the fairness, integrity or public reputation
of judicial proceedings." Id. at 730-31 (internal quotations omitted).
We find no plain error in the admission of this testimony.
Borders also claims on appeal that the district court improperly
admitted certain hearsay evidence in violation of Fed. R. Evid. 801
and 802. Rule 801(d)(2)(E) provides that statements by a co-
conspirator, made during the course of and in furtherance of the con-
spiracy, are not hearsay. Accordingly, when the Government shows
by a preponderance of the evidence that a conspiracy existed of which
the defendant was a member, and that the co-conspirator’s statements
were made in furtherance of the conspiracy, the statements are admis-
sible. United States v. Neal, 78 F.3d 901, 904-05 (4th Cir. 1996). To
admit a co-conspirator’s out-of-court statement, the Government must
demonstrate the existence of the conspiracy by evidence extrinsic to
the hearsay statements. United States v. Stroupe, 538 F.2d 1063, 1065
(4th Cir. 1976). Where the defense objects, this court reviews the dis-
trict court’s decision to admit such testimony for an abuse of discre-
tion. Neal, 78 F.3d at 905. Admission of testimony, to which no
objection is lodged, is reviewed for plain error. Fed. R. Crim. P.
52(b); Olano, 507 at 725. We have reviewed the disputed evidence
and find no error in the admission of the evidence.
Last, Borders asserts that the cumulative prejudice arising from the
trial court’s errors deprived him of a fair trial and warrants a new trial.
Under the cumulative error doctrine, errors subject to plain error
review could satisfy requirements of establishing plain error if the
combined effect of the errors "affected [the defendant’s] substantial
rights, even if individually neither error is sufficiently prejudicial."
United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002) (alter-
ation added). In other incidents, errors subject to harmless error
review may be reviewed in the aggregate to determine if reversal is
warranted. See, e.g., United States v. Rivera, 900 F.2d 1462, 1469-70
(10th Cir. 1990). We do not find that a new trial is warranted in this
case.
Accordingly, we affirm Borders’ convictions 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