United States v. Lucero-Hernandez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50270
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ FERNANDO LUCERO-HERNANDEZ, also known as
José Hernandez Lucero,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-1224-2-DB
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October 17, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
José Fernando Lucero-Hernandez (“Lucero”) appeals from his
conviction of possession with intent to distribute marijuana and
conspiracy to possess with intent to distribute marijuana.
Lucero contends that the Government infringed on his right to
compulsory process of José Ayala. According to Lucero, the
prosecutor made clear that Ayala would lose sentencing
adjustments for acceptance of responsibility and his minor role
in the offense were he to testify on Lucero’s behalf,
intimidating Lucero into invoking his privilege against self-
*
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that this opinion should not be published and is not precedent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. 00-50270
-2-
incrimination. Lucero contends that the district court erred by
permitting Ayala not to testify without stating personally that
he was invoking his privilege against self-incrimination.
Lucero cannot demonstrate error, plain or otherwise, on his
contention that the Government substantially interfered with his
right of compulsory process, a contention that he raises for the
first time on appeal. United States v. Thompson, 130 F.3d 676,
686 (5th Cir. 1997), cert. denied, 524 U.S. 920 (1998); United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en
banc). The record demonstrates that Ayala invoked his right
against self-incrimination on the advice of counsel. Neither
counsel’s comments that he wished to avoid losing the benefits of
Ayala’s plea bargain nor the prosecutor’s recitation of the terms
of his understanding with Ayala indicated that Ayala necessarily
would be punished in any way were he to testify on Lucero’s
behalf.
Lucero has failed to brief adequately his contention that
the district court erred by allowing Ayala not to testify without
stating personally that he was invoking his privilege against
self-incrimination. See United States v. Heacock, 31 F.3d 249,
258 (5th Cir. 1994). We do not consider that contention.
Lucero’s appeal is frivolous. Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The appeal therefore is dismissed.
APPEAL DISMISSED. 5TH CIR. R. 42.2.