United States v. Luis Morgan , 397 F. App'x 281 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2558
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Luis Morgan, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 22, 2010
Filed: October 25, 2010
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Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
A jury convicted Luis Morgan of conspiring to distribute 5 kilograms or more
of cocaine, and the district court1 sentenced him to 135 months in prison and 5 years
of supervised release. This appeal followed, in which Morgan’s counsel moved to
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967); Morgan
has filed two pro se supplemental briefs. Morgan and his counsel raise issues
regarding sufficiency of the evidence, the denial of motions to suppress and to sever,
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
instructional error, drug quantity, and other matters, all of which we have reviewed
and found meritless for the reasons discussed below.
First, the district court did not err in denying the motion to suppress based on
the suppression-hearing testimony of the two arresting officers who testified that
Morgan waived his Miranda2 rights prior to making post-arrest statements. See
United States v. Carlson, 613 F.3d 813, 817 (8th Cir. 2010). Morgan complains that
the magistrate judge3 failed to sequester one of the officers while the other was
testifying, but he failed to move for sequestration and has not shown that he was
prejudiced. See Fed. R. Evid. 615; United States v. Collins, 340 F.3d 672, 680-81
(8th Cir. 2003). Second, the court did not abuse its discretion in refusing to sever
Morgan’s case from that of his co-conspirators, because co-conspirators are generally
tried together and proof of the charges against each involved some of the same
evidence. See United States v. Kime, 99 F.3d 870, 880 (8th Cir. 1996). Third,
Morgan did not object below to the lack of Hispanics on the jury, and in any event,
we see nothing in the record suggesting that Hispanics were deliberately excluded
from the jury. See United States v. Turcotte, 558 F.2d 893, 895 (8th Cir. 1977).
Fourth, the jury’s verdict was supported by Morgan’s post-arrest statements to
police, various wiretapped conversations, and the testimony of two co-conspirators
as well as investigating agents, see United States v. Hernandez, 569 F.3d 893, 896 (8th
Cir. 2009); witness credibility was for the jury to determine, see United States v.
Foxx, 544 F.3d 943, 950 (8th Cir. 2008); and the court’s jury instructions on weighing
evidence and testimony adequately covered the substance of Morgan’s proposed
instruction on credibility, see United States v. Meads, 479 F.3d 598, 601 (8th Cir.
2007). Fifth, the district court was entitled to rely upon the unobjected-to drug-
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
The Honorable Sarah W. Hays, United States Magistrate Judge for the Western
District of Missouri.
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quantity assessment in the presentence report, see United States v. Beatty, 9 F.3d 686,
690 (8th Cir. 1993). We defer Morgan’s claims regarding counsel’s ineffective
representation to 28 U.S.C. § 2255 proceedings. See United States v. McAdory, 501
F.3d 868, 872-73 (8th Cir. 2007).
Finally, after reviewing the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we
affirm the judgment of the district court, and we grant counsel’s motion to withdraw,
subject to counsel informing Morgan about procedures for seeking rehearing or filing
a petition for certiorari.
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