United States v. Strother ( 2010 )

REVISED AUGUST 18, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 09-40169 July 22, 2010
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
REGINALD STANLY STROTHER,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:06-CR-182-1
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Reginald Stanly Strother has appealed pro se from his conviction of
possession with intent to distribute 50 grams or more of cocaine base, a violation
of 21 U.S.C. § 841(a). Strother’s motions for leave to file a supplemental brief
and a reply brief are GRANTED. Strother complains that he was not provided
with copies of “the docket sheet, pre-trial motions filed with this court, the actual
suppression hearing minutes and etc.” Although this contention may be
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 09-40169
construed as a motion to supplement the record, the motion is DENIED, as
Strother does not state with sufficient specificity what portions of the record
were not provided to him or how the absence of those documents impaired his
ability to present his issues on appeal.
After Strother’s case was tried before a jury, Strother moved for a new
trial and his motion was granted. Strother contends, in relation to the first trial,
that he received ineffective assistance of counsel because one of his attorneys
labored under a conflict of interest by representing a Government witness and
that his right to due process was violated because of prosecutorial misconduct
related to that witness’s testimony. This claim is moot because Strother was
granted a new trial. Strother contends also that his right against double
jeopardy was violated because his retrial was the product of prosecutorial
misconduct. Strother has not shown and the record does not reflect that the
prosecutor intended to provoke a mistrial. See Oregon v. Kentucky, 456 U.S. 667,
679 (1982).
Strother contends for the first time in his reply brief that the district court
erred in denying his first motion to suppress. Strother contended that the
cocaine base found during a search of his vehicle and any of his statements about
the offense or giving consent to search should be suppressed. The drugs were
found during a search of Strother’s vehicle as part of a valid traffic stop. The
record reflects that Strother gave consent to the search while the police officers
were waiting for a reasonable period of time for a return on a record check and
that the consent was not the product of coercion or improper questioning. See
United States v. Santiago, 310 F.3d 336, 341 (5th Cir. 2002). Strother has not
shown that this court should set aside its usual rule against considering issues
that were not raised in an appellant’s original brief. See United States v. Ogle,
415 F.3d 382, 383-84 (5th Cir. 2005).
Strother contends that the district court erred in denying his second
motion to suppress, in which Strother contended that his post-arrest statements
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No. 09-40169
should be suppressed because the arresting officer failed to admonish him of his
constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436, 479
(1966). The district court’s finding that the arresting officer gave Strother the
complete Miranda warning was not clearly erroneous. See United States v.
Waldrop, 404 F.3d 365, 367-68 (5th Cir. 2005); see also Florida v. Powell, 130
S. Ct. 1195, 1204 (2010); Miranda, 384 U.S. at 479.
Strother complains that his post-arrest confession that the drugs were his
was “the product of police threats and coercion” and that the district court erred
in admitting evidence of the confession. Strother contends that the arresting
officer threatened to charge his girlfriend and mother with possessing the
cocaine base and that he confessed in order to protect them from prosecution.
Because Strother did not object at trial to admission of the evidence, we
review the question whether the district court erred in permitting the arresting
officer to testify about Strother’s confession for plain error. See United States v.
Rogers, 126 F.3d 655, 657 (5th Cir. 1997). To show plain error, Strother must
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If Strother
makes such a showing, this court has the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
The record reflects that, after Strother was given his Miranda warnings,
he waived his right to remain silent by continuing to speak with the arresting
officer. See Soffar v. Cockrell, 300 F.3d 588, 593 (5th Cir. 2002). The evidence
does not show that the arresting officer overreached. See Colorado v. Connelly,
479 U.S. 157, 170 (1986); United States v. Guanespen-Portillo, 514 F.3d 393, 403
(5th Cir. 2008). The district court did not plainly err in failing to suppress
evidence of the confession. See Puckett, 129 S. Ct. at 1429.
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No. 09-40169
Strother contends that the district court erred in denying his motion for
a new trial following the retrial, in which Strother argued that the prosecutor
had violated his right to due process by encouraging his girlfriend, whom he
intended to call as a witness, to invoke her right against self incrimination. We
review the denial of a motion for a new trial for an abuse of discretion. United
States v. Jimenez, 509 F.3d 682, 691 (5th Cir. 2007).
The record reflects that the witness overheard the prosecuting attorney
advise the witness’s attorney that she was at risk of being prosecuted for perjury
or for possession of the drugs if she elected to testify. “A prosecutor is always
entitled to attempt to avert perjury and to punish criminal conduct.” United
States v. Viera, 839 F.2d 1113, 1114-15 (5th Cir. 1988) (en banc) (quote at 1115).
Thus, it was not improper for the prosecuting attorney to seek to prevent the
introduction of testimony that he reasonably believed would be untruthful. See
id. Moreover, Strother has not shown that the witness’s testimony would have
been material or exculpatory and the evidence of Strother’s guilt was
overwhelming. See id. at 1115. Thus, Strother cannot show that he was
deprived of a fair trial because of the prosecuting attorney’s conduct. See United
States v. Hernandez-Guevara, 162 F.3d 863, 874 (5th Cir. 1998). The district
court did not abuse its discretion in denying the motion for a new trial. See
Jimenez, 509 F.3d at 691.
Strother contends that the district court erred in denying his motion to
dismiss the indictment, in which he challenged the district court’s jurisdiction,
arguing that Title 21 of the United States Code has never been enacted into
positive law. Strother argues that Title 21 was not an “Act of Congress” because
it is not “included in the Statutes at Large and published in the Federal
Register.” Strother contends also that the district court lacked jurisdiction
because the State of Texas is not a federal territory and because the state did not
legally cede constitutional legislative jurisdiction to the federal government.
These contentions are specious. See Gonzales v. Oregon, 546 U.S. 243, 249
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No. 09-40169
(2006) (discussing enactment of the Controlled Substances Act (CSA)); Gonzales
v. Raich, 545 U.S. 1, 12-13 (2005) (discussing Congress’ enactment of the CSA
pursuant to its authority under the Commerce Clause); see also U.S. CONST. ART.
I § 8, cl. 17 (cited by Strother, pertaining to the creation and exercise of
congressional authority over the District of Columbia).
Strother contends in his reply brief that the district court failed to comply
with FED. R. CRIM. P. 32(i)(1)(A). Strother has not shown that his substantial
rights were affected by any error on the part of the district court in determining
whether he had an adequate opportunity to read and discuss the presentence
report with his attorney. See FED. R. CRIM. P. 52(a) (harmless error standard).
Moreover, Strother has not shown that this court should set aside its usual rule
against considering issues that were not raised in an appellant’s original brief.
See Ogle, 415 F.3d at 383-84. To the extent that Strother wishes to assert a
claim of ineffective assistance of counsel related to the district court’s
noncompliance with Rule 32(i)(1)(A), we decline to consider it at this juncture.
See Gulley, 526 F.3d at 821. The judgment is
AFFIRMED.
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