United States v. Joel Lopez, Sr. , 426 F. App'x 260 ( 2011 )

Case: 09-20724 Document: 00511482759 Page: 1 Date Filed: 05/19/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 19, 2011
No. 09-20724
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOEL LOPEZ, SR.,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-187-2
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Joel Lopez, Sr., was convicted of conspiracy to commit kidnaping (count 1)
and aiding and abetting the use of interstate facilities in the murder for hire of
Blanca Lopez (count 3). He was sentenced to life imprisonment and five years
of supervised release on count 1 and 120 months of imprisonment and three
years of supervised release on count 3, to be served concurrently.
Proceeding pro se, Lopez argues that his Sixth Amendment right to be
represented by counsel at his initial appearance was violated because he was not
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-20724
represented by counsel at the initial appearance and because he did not waive
his right to counsel. He further contends that because he was denied his right
to counsel at his initial appearance, the district court lacked jurisdiction over the
criminal proceedings for the remainder of his case. However, under the
particular facts of this case, the events occurring the initial appearance at issue
did not amount to a critical stage in the proceedings, and thus Lopez was not
entitled to counsel at that time. See Rothgery v. Gillespie Cty., Tex., 554 U.S.
191, 212-13 & n.16 (2008). During subsequent continued proceedings, Lopez
knowingly and voluntarily waived his right to counsel. See United States v.
Cano, 519 F.3d 512, 516 (5th Cir. 2008). Accordingly, the district court did not
lose jurisdiction over the case due to an invalid waiver of Lopez’s right to
counsel. See Johnson v. Zerbst, 304 U.S. 458, 467 (1938).
Lopez conversely argues that his right to represent himself was
subsequently denied because his appointed standby counsel intruded on that
right and because the district court acquiesced in this intrusion by allowing his
standby counsel to approve a Government motion for a continuance without his
approval. However, the record does not support this argument.
Lopez argues that his right to a speedy trial was denied because his trial
took place seven days beyond the time permitted by the Speedy Trial Act. In
support of this assertion, Lopez contends that (1) the Government submitted an
unnecessary motion for a Faretta v. California, 422 U.S. 806 (1975), hearing
despite the fact that Lopez had already waived his right to counsel in accordance
with Faretta in a prior hearing; (2) the court consented to then-co-defendant
Aracely Lopez-Gonzalez’s motion for a continuance due to her counsel’s
conflicting trial schedule; (3) the district court granted the Government a
continuance based on counsel for the Government’s vacation plans; (4) the
Government obtained a continuance due to its difficulty in securing the travel
plans of witnesses for trial dates including an intervening federal holiday; and
(5) the court improperly granted a four-and-a-half month delay to allow his
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standby counsel, who had since become lead counsel, to become familiar with
Lopez’s case. However, Lopez’s first, third, and fourth asserted delays did not
affect the running of the speedy trial clock because the clock had already stopped
running due to other excludable delays, and Lopez has not shown that the
remaining two asserted delays were not granted based on the ends of justice;
therefore Lopez has not demonstrated any violation of the Speedy Trial Act. See
18 U.S.C. § 3161(h); United States v. Bermea, 30 F.3d 1539, 1568 (5th Cir. 1994).
Accordingly, Lopez has not shown that the district court committed clear error
in its Speedy Trial Act rulings. See United States v. McNealy, 625 F.3d 858, 862
(5th Cir. 2010).
Lopez argues that the district court erred in admitting statements made
by Lopez-Gonzalez and by Rudy Martinez because they were hearsay that did
not fall within the hearsay exception for coconspirators found in Federal Rule of
Evidence 801(d)(2)(E). Lopez also argues that certain wiretapped
communications were improperly admitted at trial because there is no indication
in the record that the wiretaps were properly authorized or that Martinez or
Lopez-Gonzalez consented to the wiretaps. Additionally, Lopez contends that
the district court prevented him from raising a police fabrication defense when
it refused to serve his pro se subpoena duces tecum for an expert witness.
However, Lopez has not provided proper statements of the facts relevant to these
issues, nor has he cited the relevant portions of the record on which he relies.
See F ED. R. A PP. P. 28(a)(7), (9)(A). Although pro se briefs are liberally
construed, pro se parties must still brief the issues and reasonably comply with
the standard for appellate briefs set forth in Rule 28. Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995). Because Lopez has not properly briefed these issues,
he has abandoned them. See Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir.
1999).
Lopez contends that the Government knowingly used or failed to correct
false testimony by Government witness Martinez and by FBI Agent Scott Payne.
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However, Lopez has not demonstrated that the Government actually knew that
any of the cited testimony was false. See Giglio v. United States, 405 U.S. 150,
153-54 (1972); Napue v. Illinois, 360 U.S. 264, 265, 269 (1959).
Lopez argues that the district court violated the Double Jeopardy Clause
and acted fraudulently by acting in a manner not authorized by Congress when
it imposed “consecutive” special assessments for each of his counts of conviction
because his sentence was “purely concurrent.” However, because Lopez was
sentenced for the separate and distinct offenses of conspiracy to commit
kidnaping and the use of interstate facilities to commit a murder for hire and
because Lopez does not explain how or why those two offenses should be
considered to constitute the same offense, there was no Double Jeopardy Clause
violation. See United States v. Ogba, 526 F.3d 214, 232-33, 237-38 (5th Cir.
2008).
Lopez also argues that the district court erred in failing to strike
Martinez’s testimony after Martinez invoked his Fifth Amendment right against
self-incrimination. However, because Martinez answered Lopez’s question after
Martinez invoked his right against self-incrimination, Martinez’s testimony need
not have been stricken because Lopez’s inquiry was not limited in any way by
the invocation, nor did the invocation create a substantial danger of prejudice.
See United States v. Diecidue, 603 F.2d 535, 552 (5th Cir. 1979).
Lopez argues that he was entitled to a mistrial because Martinez’s
testimony about Lopez’s plan to murder United States District Court Judge
Hinojosa was prejudicial. Lopez did not move for a mistrial on this basis in the
district court, and thus the district court’s failure to sua sponte grant a mistrial
is reviewed for plain error only. United States v. McCall, 553 F.3d 821, 826 (5th
Cir. 2008). Because the evidence was otherwise sufficient to support Lopez’s
conviction, there is no indication in the record that the testimony at issue had
a substantial impact on the jury’s verdict, and thus there is no indication that
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the district court committed plain error in not sua sponte declaring a mistrial.
See id.Lopez argues that the Government violated Brady v. Maryland, 373 U.S.
83 (1963), when it failed to disclose its notes and reports concerning its
interviews with co-conspirator Lopez-Gonzalez after she pleaded guilty.
However, Lopez has not demonstrated that such notes or reports existed.
Accordingly, Lopez has not shown that the Government withheld any favorable
evidence in violation of Brady. See United States v. Moore, 452 F.3d 382, 387
(5th Cir. 2006).
Finally, Lopez argues that this court should dismiss his indictment
because the Government knowingly sponsored perjured Grand Jury testimony
concerning the conspiracy to assassinate Judge Hinojosa. However, Lopez has
not demonstrated the existence of any perjured testimony, and thus his
argument lacks merit. See United States v. Strouse, 286 F.3d 767, 768 (5th Cir.
2002).
AFFIRMED; MOTION FOR WRIT OF MANDAMUS DENIED.
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