Take the Fifth

Designated for publication

• U.S. v. Sharp, 20-60437, appeal from N.D. Miss.
  • Costa, J. (Jones, Southwick, Costa), criminal, search and seizure, sufficiency of evidence, severance, Confrontation Clause, right to counsel
  • Affirming conviction on fifteen drug trafficking and firearms counts arising from three separate incidents.
  • The Court held there was no clear error in the district court’s denial of a motion to suppress evidence obtained during a February 2018 traffic stop upon the district court’s finding after an evidentiary hearing that the deputy’s account of the traffic stop was more credible than the defendant’s. The Court deferred to the district court’s finding that the deputy’s testimony that defendant had sharply swerved into his lane and almost hit him was credible.
  • The Court held that there was sufficient evidence in the record to support the defendant’s convictions for drug possession with an intent to distribute. “Officers explained that in September 2017, February 2018, and April 2018, they found Sharp with narcotics and in the presence of either drug paraphernalia, firearms, or both. Investigators also described text messages in which Sharp appeared to be negotiating drug sales in the days surrounding his September 2017 and April 2018 arrests. On the stand, Sharp even admitted that he had traded firearms for drugs and that he would offer free drugs to women but would not “get dudes high for free.” A rational jury could have therefore concluded that, on each occasion, Sharp knowingly possessed a controlled substance and intended to distribute it.” And while the quantities at some of the incidents could have suggested personal use, the drugs were always found with digital scales, baggies, or firearms, supporting the jury’s finding on intent to distribute.
  • The Court held that witness testimony from a purchaser of defendant’s drugs was alone sufficient to support the conviction on drug distribution.
  • The Court summarized the “ample evidence” supporting the jury’s verdict that the defendant possessed firearms in furtherance of a drug trafficking offense.
  • The Court held that the district court did not abuse its discretion in denying the defendant’s motion to sever for trial the charges arising from each of the three incidents. “Sharp has not made a ‘specific and compelling’ showing of prejudice resulting from the failure to sever his counts.” The Court rejected defendant’s argument that he was prejudiced because he wished to testify in his own behalf as to some charges but not others, finding that he did not identify which charges as to which he was eager to speak or to remain silent, which testimony on his own behalf he had not wanted to give, and that the district court had limited cross-examination to those matters Sharp presented in his narrative testimony.
  • The Court held that there was no plain error in the district court’s ordering him to wear leg shackles during trial. “Here, the district court identified safety concerns to justify using the padded shackles: Sharp’s criminal history, which included battering a juror and assaulting a law enforcement officer; the long sentence he faced; and the Marshal’s security concerns. Indeed, Sharp had threatened one of his lawyers before trial in this case.”
  • The Court found no reversible error in a detective’s testimony about what he had been told by an informant, an out-of-court statement. The Court found that defendant had “cleared the first hurdle by showing error in the admission of an informant’s out-of-court statement in violation of the Confrontation Clause.” While the government argued that it had a non-hearsay purpose, to describe the reason the detective commenced the investigation rather than for the truth of the informant’s statement, the Court held that “surely such a rationale does not permit an end run around the confrontation right. The nonhearsay justification fails because, by recounting a witness’s statement to the police that the defendant is guilty of the crime charged, the officer has introduced an intolerably high risk that the jury will take that statement as proof of the defendant’s guilt.” (Internal quotation marks omitted). However, “[a]lthough the jury should not have heard the informant’s statement, Sharp cannot establish that the error affected the outcome of the district court proceedings.” (Internal quotation marks omitted). The Court recounted the “weighty evidence of Sharp’s guilt” to support a finding of no prejudice.
  • The Court held there was no error in the district court’s declining to elevate the defendant’s stand-by counsel to full trial counsel when the lawyer suggested it (defendant was conducting the trial pro se after causing two prior appointed counsel to withdraw). The Court noted that the defendant’s waiver of his right to counsel was knowing and voluntary, and that he had not requested the elevation of the stand-by counsel to full trial counsel. “Allowing stand-by counsel’s suggestion that full representation is warranted to override the defendant’s stated desire to proceed pro se would undermine the right to self-representation.”

Unpublished

• Fulton v. United Airlines, Inc., 19-20140, appeal from S.D. Tex.
  • per curiam (King, Elrod, Willett), personal injury, sufficiency of evidence
  • Affirming judgment on $3.8 million jury verdict in favor of plaintiff for injuries and damage to property caused by air carrier during her travels.

• Dugas v. Scott, 20-20210, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Engelhardt), prisoner suit
  • Dismissing as frivolous appeal of denial of Rule 60 post-judgment motion following the dismissal of prisoner’s § 1983 claim.

• Harvey v. Paxton, 20-20359, appeal from S.D. Tex.
  • per curiam (Stewart, Haynes, Ho), prisoner suit
  • Dismissing as frivolous plaintiff’s appeal from dismissal of § 1983 claims, and imposing three-strike sanction against further IFP proceedings.

• U.S. v. Gibson, 20-51036, appeal from W.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Moon, 20-51057, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal, sentencing
  • Affirming 30-month sentence on conviction for maintaining a drug-involved premises.

• Singh v. Garland, 20-60368, petition for review of BIA order
  • per curiam (Barksdale, Willett, Duncan), immigration
  • Dismissing in part and denying in part Indian citizen’s petition for review of BIA order dismissing his appeal from an order of an Immigration Judge (IJ) denying: his applications for asylum; withholding of removal; and relief under the Convention Against Torture.

• U.S. v. Kizer, 20-61235, appeal from N.D. Miss.
  • per curiam (King, Ho, Duncan), criminal, compassionate release
  • Affirming denial of motion for compassionate release.