Case: 09-40396 Document: 00511215603 Page: 1 Date Filed: 08/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 26, 2010
No. 09-40396
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
PAUL STEVE HICKS,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:08-CR-1305-2
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Paul Steve Hicks challenges his conviction, following a jury trial, on
charges of conspiracy to possess with intent to distribute over 100 kilograms of
marijuana and possession with intent to distribute over 100 kilograms of
marijuana. See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846.
At the jury trial, Hicks’s co-defendant Terrance Martin, a commercial truck
driver, testified that in July 2008 he delivered a load to Brownsville, Texas, and
then traveled to Laredo, Texas, to drop off the empty trailer and pick up another
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 09-40396
load to return to Michigan. While he was in a Wal-Mart store in Laredo, he was
approached by Hicks. Hicks and another individual, later identified as Howard
Drumgo, offered Martin money in exchange for transporting marijuana. Martin
testified that he ultimately agreed to transport the marijuana, picked up Hicks,
and proceeded to a warehouse where the marijuana was loaded into Martin’s
trailer. Martin then drove towards San Antonio with Hicks as his passenger.
They stopped at a Pilot store where Hicks purchased seals with which Martin
sealed the trailer. The Government introduced the Pilot receipt into evidence.
United States Border Patrol Agent Brian Mitchell testified that, on
July 29, 2008, Martin drove his tractor trailer, with Hicks as his passenger, into
the checkpoint. A drug-sniffing canine alerted to Martin’s trailer twice and
agents then viewed the truck using a VACIS machine, which Mitchell described
as a giant x-ray machine. The VACIS revealed what Mitchell termed
“anomalies” in the cargo, and agents inspected the cargo. Agents found
approximately 70 bundles of marijuana and placed both Hicks and Martin under
arrest. The testimony of other Border Patrol agents Adam Aviles and Steve
Nunez further detailed the inspections and subsequent arrest as described by
Mitchell.
Special Agents Alvaro Benavides and Gabriel Colon with the Drug
Enforcement Administration of the Department of Justice testified that they
interviewed Hicks on July 30, 2008. The agents testified that Hicks admitted
to them that he flew from John F. Kennedy Airport to Houston and traveled by
bus with Drumgo to Laredo. The agents stated that Hicks admitted that his goal
was to recruit truck drivers to transport marijuana. The agents further testified
that Hicks told them that he approached Martin in the Wal-Mart McDonald’s
and that he and Drumgo offered Martin $3,000 to transport approximately 400
pounds of marijuana. After Martin agreed to transport the marijuana, Hicks
told the agents, Martin picked up Hicks and they drove to a warehouse, where
they remained in the truck while the marijuana was loaded into the trailer.
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No. 09-40396
Hicks stated to the agents that he and Martin then left together in the loaded
truck. Colon additionally testified that he later searched the tractor of the
tractor trailer and discovered a leather bag, in which there were two bus tickets
in the names of Hicks and Drumgo to travel from Houston to Laredo on
July 26, 2008.
On appeal, Hicks argues that the district court plainly erred in admitting
into evidence the Pilot store receipt and the bus tickets. Hicks argues that the
time and date stamp on the store receipt and the information on the bus tickets
were inadmissible hearsay. He asserts that not only were they used to prove the
truth of the matter asserted, but also that the Government used them in closing
argument to corroborate Martin’s testimony and Hicks’s post-arrest statement.
Hicks further avers that the documents do not fit within an exception to the
hearsay rule.
Hicks argues this issue in a wholly conclusory fashion. He does not cite
to, much less brief the application of, the rules of evidence defining hearsay, F ED.
R. E VID. 801; prohibiting its admission, F ED. R. E VID. 802; or defining the
exceptions to the rule, F ED. R. E VID. 803-807. See F ED. R. A PP. P. 28(a)(9). Nor
does he support his argument with citation to relevant case authority. See id.
Thus, he has waived this challenge to the admission of the store receipt and the
bus tickets. See id; United States v. Waskom, 179 F.3d 303, 313 (5th Cir. 1999);
see also United States v. Thames, 214 F.3d 608, 612 n.3 (5th Cir. 2000).
Hicks additionally challenges the prosecutor’s references, in questioning
witnesses and in opening and closing statements, to Hicks’s statements to the
agents as “admissions” or a “confession.” Hicks argues that the prosecutor’s
referral to Hicks’s post-arrest statements as “admissions” “cloak[ed] the agents’
credibility with that of the office held by the Assistant United States Attorney.”
Hicks further avers that the prosecutor then built upon that basis by referring
to Hicks’s post-arrest statements repeatedly in closing argument as a
“confession.” Because Hicks raises this issue for the first time on appeal, we
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review only for plain error. See United States v. Rice, 607 F.3d 133, 138 (5th Cir.
2010). We review assertions of prosecutorial misconduct by determining, first,
whether the prosecutor made an improper remark and, if so, whether the
improper remark affected the defendant’s substantial rights. United States v.
Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999). We consider remarks in
context to determine their propriety. Id.
The cases cited by Hicks are ultimately inapplicable to the facts before this
court. In those cases, the prosecutors essentially made direct statements about
the credibility of their witnesses. See United States v. Gallardo-Trapero, 185
F.3d 307, 320 (5th Cir. 1999); United States v. Goff, 847 F.2d 149, 162 (5th Cir.
1988); United States v. Garza, 608 F.2d 659, 664 (5th Cir. 1979). The
prosecutor’s characterization, in the instant case, of Hicks’s statements to agents
as admissions, does not address, much less bolster, the agents’ credibility and
was thus unlike the cases cited by Hicks. Moreover, the prosecutor did not
characterize disparate statements by Hicks as a confession or an admission of
guilt on a particular charge, but rather asked witnesses about the admission of
specific and discrete facts by Hicks. Hicks has failed to show that the
prosecutor’s questioning of the witnesses was improper. See Gallardo-Trapero,
185 F.3d at 320.
As to the prosecutor’s reference to Hicks’s statements as a confession,
Hicks again fails to show plain error. See Rice, 607 F.3d at 138. Hicks relies on
United States v. Morsley, 64 F.3d 907, 912 (4th Cir. 1995), for the proposition
that a prosecutor’s reference to a defendant’s statements as a confession
constitutes prosecutorial misconduct. Morsley, however, involved very different
facts. See 64 F.3d at 912-13. In closing argument in Morsley, the prosecutor
specifically asserted that the defendant had admitted to one of the charges
against him. Id. at 912. Although the defendant had “certainly admitted several
aspects of his involvement in the conspiracy,” the Fourth Circuit concluded, “he
did not formally ‘confess’ his guilt” and the prosecutor’s remark was improper.
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Id. at 913. In United States v. LaMorte, 950 F.2d 80, 83 (2d Cir. 1991), the
prosecutor suggested that the government is too busy to prosecute innocent
people. Although the statement did not bolster any witness’s testimony, it acted
as a personal observation that the defendant was guilty and suggested that the
prosecutor had extra-record evidence proving the defendant guilty. Id. In the
instant case, while questioning the witnesses, the prosecutor did not
characterize disparate statements generally as a confession or admission of guilt
on a particular charge, but rather repeatedly referenced the specific admissions
of various facts made by Hicks to the agents. It was Hicks’s own counsel who
asked the agent extensively about recording “confessions” by witnesses.
In the prosecutor’s opening argument, the prosecutor used the words
“admission” or “admitted” in reference to discrete facts, and again not as a legal
confession of guilt on the charges generally. In closing argument, the prosecutor
reiterated the evidence presented at trial, noting that the Government had
presented evidence that Hicks had admitted to certain facts. When the
prosecutor referred specifically to the admitted statements as a confession, he
did so in the context of noting that the admitted facts were supported by other
evidence and that all of the admitted facts amounted to a confession. In
referencing the “confession” in the instant case, the prosecutor was summing up
the evidence that the Government produced and explaining the inferences that
could be drawn from it. See United States v. Washington, 44 F.3d 1271, 1278
(5th Cir. 1995). The prosecutor’s last reference to the statements as a confession
came directly in answer to Hicks’s challenge that the Government ought to be
required to videotape or transcribe directly confessions and was a fair rebuttal
to Hicks’s insinuation that the jury should acquit him in order to make a policy
statement about recording confessions. See United States v. Vaccaro, 115 F.3d
1211, 1217 (5th Cir. 1997).
For these reasons, we AFFIRM the conviction and sentence.
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