United States v. Sullivan

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 9, 2007
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 05-51273
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
BOBBY L. SULLIVAN,
Defendant-
Appellant.
Consolidated with
No. 05-51525
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
EDWARD A. BROWN,
Defendant-
Appellant.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-113-1
USDC No. 6:03-M-627-2
USDC No. 6:04-CR-113-1
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, Bobby L. Sullivan and Edward A. Brown appeal their convictions
and sentences for aiding and abetting each other in the violation of the Archaeological Resource
Protection Act (ARPA). The appellants were convicted after a jury trial presided over by a
magistrate judge, and they were sentenced to a year of probation and an order of forfeiture. They
appealed to the district court, but the four issues they raise in their instant appeals are raised for the
first time before this court.
First, the appellants argue that the attorney who represented them in their appeal to the district
court rendered ineffective assistance by failing to file a copy of the trial transcript. To demonstrate
that they received ineffective assistance of counsel, Sullivan and Brown must show, under the two-
prong test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984), that counsel’s
assistance was deficient and that the deficiency prejudiced their defense. To demonstrate prejudice,
they “must show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. The appellants
have not demonstrated that they would have prevailed on appeal had the transcript been properly
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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filed. Their conclusory assertions of prejudice do not satisfy the second prong of Strickland. See
Green v. Johnson, 160 F.3d 1029, 1041 (5th Cir. 1998).
Second, the appellants argue that the district court erred under the Double Jeopardy Clause
by convicting and sentencing them when they had already been fined for their conduct. Neither
appellant offered a copy of his prior citation into evidence, and it is impossible to determine whether
the fine each paid was a permissible civil penalty. See Hudson v. United States, 522 U.S. 93, 95-96
(1997). The appellants have therefore not made a prima facie showing of a nonfrivolous double
jeopardy claim and have not demonstrated plain error. See United States v. Olano, 507 U.S. 725,
732 (1993); United States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001).
Third, the appellants argue that the magistrate judge plainly erred by not sua sponte dismissing
their case after hearing testimony from an Army Corps of Engineers employee involved in the
investigation of their case. The appellants argue that the Corps employee’s involvement in the
prosecution violates the Posse Comitatus Act, 18 U.S.C. § 1385. The appellants arguably waived
this argument by not raising it prior to trial. See FED. R. CRIM. P. 12(b)(3). Furthermore, the
appellants have not demonstrated that the dismissal of their case would have been an appropriate
remedy if the Act was violated. See United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979); United
States v. Walden, 490 F.2d 372, 376-77 (4th Cir. 1974). They have therefore not shown that the
magistrate judge committed plain error. See United States v. Dupre, 117 F.3d 810, 817 (5th Cir.
1997).
Last, the appellants argue that the prosecutors withheld exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963). They have not demonstrated that “there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would
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have been different.” United States v. Moore, 452 F.3d 382, 387 (5th Cir.), cert. denied, 127 S. Ct.
423 (2006). They have thus failed to demonstrate that the evidence was material or that they should
prevail on plain error review. See id.; Olano, 507 U.S. at 732. The judgment of the district court
is AFFIRMED.
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