United States v. Hudspeth ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60652
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM GREGORY HUDSPETH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:00-CR-19-ALL-S
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May 31, 2001
Before HIGGINBOTHAM, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
William Gregory Hudspeth appeals from his conviction of wire
fraud. He argues that the district court erred by denying his
motion for a new trial because a Government witness alluded to
plea negotiations on cross-examination; that the district court
erred by allowing testimony concerning false documents
purportedly submitted to the Nigerian government; that he
received ineffective assistance of counsel; and that the
cumulative effect of errors at his trial violated the Due Process
Clause.
*
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that this opinion should not be published and is not precedent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. 00-60652
-2-
Hudspeth’s attorney, by asking the witness when a second
meeting between Hudspeth and the witness occurred, effectively
assumed the risk that the witness would mention plea
negotiations. Moreover, the attorney, as a matter of trial
strategy, attempted to use the mention of plea negotiations to
introduce a letter in which Hudspeth informed the prosecutor that
he could not plead guilty. Hudspeth opened the door to this line
of testimony, and he cannot now complain of the result. See
United States v. Delk, 586 F.2d 513 (5th Cir. 1978). Moreover,
Hudspeth did not timely object at trial, so we review for plain
error only. Hudspeth has not demonstrated plain error regarding
the witness’s allusion to plea negotiations. See United States
v. Loney, 959 F.2d 1332, 1341 & n.22 (5th Cir. 1992).
The evidence about false invoices supposedly submitted to
Nigerian authorities was intrinsic to Hudspeth’s fraud scheme.
How Hudspeth and the Nigerians arranged to present the fraudulent
claims for payment was part of the same criminal episode that
resulted in Hudspeth directing his employer’s banks to send funds
to the Nigerian accounts. United States v. Powers, 168 F.3d 741,
748 (5th Cir.), cert. denied, 528 U.S. 945 (1999).
Hudspeth’s ineffective-assistance claims are sufficiently
developed in the record for consideration by this court. Cf.
United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987)(as
a general rule this court will not address ineffective assistance
on direct appeal). Hudspeth, however, has failed to demonstrate
that he received ineffective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
No. 00-60652
-3-
Lastly, Hudspeth argues that the cumulative effect of these
errors denied him a fair trial. If Hudspeth is seeking to
advance any argument here distinct from the three points of error
already discussed, it is unavailing. As we have explained, we do
not find that a set of district court rulings – all of which are
constitutional exercises of the district court’s discretion –
somehow transform themselves into a constitutional violation when
accumulated. See United States v. Loe, 2001 WL 388098, *10 n.68
(5th Cir. April 17, 2001). We acknowledge that trials are path
dependent, such that a ruling which would be perfectly
permissible in a vacuum might be impermissible when viewed in
light of previous rulings. See id. (acknowledging this point in
the context of evidentiary rulings). Thus, for example, a
district court ruling under Federal Rule of Evidence 403 to
exclude evidence on grounds of undue delay might be perfectly
permissible when viewed in a vacuum, yet be impermissible if
preceded by rulings barring other evidence such that the 403
ruling closed off a party’s last chance to present a crucial
element of its case. In such a case, however, the party should
be able to show with particularity the relationship between the
various rulings, and explain how the later ruling is
impermissible in light of the prior rulings. Hudspeth, however,
makes no such showing in this case; rather he presents only the
bare assertion that his first three points of error add up to a
whole greater than the sum of its parts. We are not convinced.
AFFIRMED.