United States v. Hamlin ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40966
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VAL ROY HAMLIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-96-CR-36-1
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November 28, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Val Roy Hamlin appeals his conviction for conspiracy to
possess with intent to distribute 17 kilograms of cocaine.
Hamlin argues that the district court abused its discretion by
rejecting a plea agreement based on the court’s violation of the
attorney-client privilege. The district court did not violate the
attorney-client privilege and did not abuse its discretion in
rejecting the plea agreement. United States v. Crowell, 60 F.3d
199, 205-06 (5th Cir. 1995).
*
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this opinion should not be published and is not precedent except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.
No. 98-40966
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Hamlin argues that the district court abused its discretion by
instructing the jury that Hamlin had raised the affirmative defense
of withdrawal from the conspiracy and that Hamlin had the burden of
showing that he completely withdrew. Hamlin’s counsel requested
the instruction, which was indistinguishable from the Fifth Circuit
pattern instruction. The court did not err in giving the
instruction as requested. See United States v. Gonzalez, 700 F.2d
196, 201 n.3 (5th Cir. 1983) (no plain error where court instructed
jury as counsel requested); see also United States v. Fotovich, 885
F.2d 241, 242 (5th Cir. 1989) (unobjected-to use of pattern jury
instruction was not plain error).
Hamlin argues that Bobby Flores, his lead counsel, rendered
ineffective assistance. Because Hamlin’s ineffectiveness claims
were not presented to the district court, the record is
insufficient to permit evaluation of these claims on direct appeal.
See United States v. Cornett, 195 F.3d 776, 781 n.2 (5th Cir.
1999); United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992).
Hamlin contends that there was insufficient evidence to
convict him. We review the sufficiency of the evidence de novo and
conclude that a reasonable trier of fact could have concluded that
Hamlin’s participation in the conspiracy were established beyond a
reasonable doubt. United States v. Brown, 186 F.3d 661, 664 (5th
Cir. 1999); United States v. Myers, 104 F.3d 76, 78 (5th Cir.
1997).
Hamlin contends that the prosecution committed misconduct by
using false evidence to indict and to convict him and by
suppressing evidence. The argument concerning false grand jury
No. 98-40966
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testimony, raised here for the first time, is fatally vague and
unsupported. Hamlin fails to show plain error or any effect on his
substantial rights. See United States v. Olano, 507 U.S. 725,
730-36 (1993). The district court excluded the allegedly false
trial evidence; it cannot support a misconduct claim. The record
does not show that any material evidence was suppressed. See
Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994).
The judgment of the district court is AFFIRMED.