United States v. Cowards ( 2022 )

Case: 20-60529 Document: 00516153676 Page: 1 Date Filed: 01/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60529 January 4, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Joshua Cowards,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:18-CR-230-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Joshua Cowards appeals his jury trial conviction for Hobbs Act
Robbery and use of a firearm during a crime of violence, for which he received
a total 180-month sentence. He argues that the district court (1) erred in
denying counsel’s motion to withdraw and his request to accept the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60529 Document: 00516153676 Page: 2 Date Filed: 01/04/2022
No. 20-60529
Government’s plea offer, thereby violating his Sixth Amendment right to
effective assistance of counsel; (2) violated Rule 404(b) of the Federal Rules
of Evidence when it allowed the Government to introduce jail recordings
containing evidence of prior bad acts without adequate notice; (3) erred when
it allowed a video showing the events that occurred on the night of the
robbery into evidence without proper authentication; (4) improperly allowed
the Government to rehabilitate a witness outside the presence of the jury;
and (5) violated his Sixth Amendment right to confrontation by erroneously
allowing his co-defendant to refuse to testify by invoking the Fifth
Amendment right against self-incrimination.
We generally review a denial of a motion to withdraw for an abuse of
discretion. See United States v. Austin, 812 F.3d 453, 455 (5th Cir. 2016).
Cowards, though, did not object in the district court; therefore, review is for
plain error only. See United States v. Sanders, 952 F.3d 263, 281–82 (5th Cir.
2020). The record reveals that defense counsel’s request to withdraw was
not accompanied by the required “detailed explanation” of “good cause” to
withdraw. Austin, 812 F.3d at 456 & n.11 (quotation marks and citation
omitted). Moreover, at the time of his initial request to accept the
Government’s plea agreement, the Government had not yet made an official
plea offer. When the Government did make a formal offer, Cowards elected
to continue with his trial. Accordingly, he has not demonstrated error, plain
or otherwise. Sanders, 952 F.3d at 281–82. Furthermore, we generally will
not consider the merits of an ineffective assistance of counsel claim on direct
appeal. United States v. Velasquez, 881 F.3d 314, 341 (5th Cir. 2018).
Properly preserved evidentiary rulings are reviewed for an abuse of
discretion. United States v. Mazkouri, 945 F.3d 293, 301 (5th Cir. 2019).
Preserved allegations of Confrontation Clause violations are reviewed de
novo, “but are subject to a harmless error analysis.” United States v. Bell,
367 F.3d 452, 465 (5th Cir. 2004).
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No. 20-60529
Federal Rule of Evidence 404(b) bars evidence of other crimes,
wrongs, or acts to prove the character of the person, such evidence, with
reasonable notice, can be admitted for other purposes such as to prove
motive. See Fed. R. Evid. 404(b)(2), (3). Here, the Government
introduced the recordings to establish motive. Moreover, the district court
concluded that the recordings did not contain Rule 404(b) evidence but
contained an admission, and Cowards does not meaningfully dispute this. An
admission is “intrinsic evidence” not governed by Rule 404(b) because it is
“inextricably intertwined” with the charged offense. See United States v.
Williams, 900 F.2d 823, 825 (5th Cir. 1990) (quotation marks and citations
omitted). Accordingly, notice was not required.
Cowards’ arguments regarding authentication and witness
rehabilitation are conclusory at best, and he fails to provide adequate briefing
of the issues because he does not provide any citations to relevant legal
authority. See Fed. R. App. P. 28(a)(8)(A). His counseled brief is not
entitled to liberal construction. See Beasley v. McCotter, 798 F.2d 116, 118 (5th
Cir. 1986). Accordingly, he has waived these issues. See United States v.
Harrison, 777 F.3d 227, 236 (5th Cir. 2015).
Furthermore, regarding his Confrontation Clause claim, Cowards
does not provide any rebuttal to the district court’s extensive factual and legal
analysis and does not support his contentions with any legal authority.
Accordingly, he cannot demonstrate that the district court committed error
in allowing his co-defendant to exercise the right against self-incrimination.
See Bell, 367 F.3d at 465; Beasley, 798 F.2d at 118.
AFFIRMED.
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