Case: 12-30588 Document: 00512478707 Page: 1 Date Filed: 12/20/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-30588
FILED
December 20, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAMAL DERRICK HUDSON, also known as Cali Hudson,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CR-171-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Following a jury trial, Jamal Derrick Hudson was convicted of several
charges of conspiracy to commit access fraud and bank fraud, access device
fraud and aiding and abetting, and bank fraud and aiding and abetting. The
district court sentenced him to serve 116 months in prison and a five-year term
of supervised release, and the district court also ordered that he pay restitution
in the amount of $188,756.44.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Proceeding pro se, Hudson now appeals his convictions and sentences,
and he has also filed several motions with this court. We start with his claim
that the district court erred by denying his motion to dismiss the charges
against him as barred by the statute of limitations. He acknowledges the
written waiver of limitations in the record but disavows it, contending that the
signature on it purporting to be his was not in fact placed there by him and
that the waiver is fraudulent. Although Hudson filed three motions to dismiss
the charges in the district court, none of them raised this issue. Consequently,
it is reviewed for plain error only. See United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir. 2009). He has not met this standard because this
claim is based on no more than his own unsworn allegation that his signature
on the waiver is not authentic, which does not establish a plain or obvious
error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
Additionally, our review of the record does not show that the
Government intentionally delayed charging Hudson to gain some tactical
advantage, nor has he shown that the delay resulted in actual, substantial
prejudice to his defense. See United States v. Avants, 367 F.3d 433, 441 (5th
Cir. 2004). Consequently, he has not shown that his due process rights were
infringed by the delay in charging him.
Next, we consider Hudson’s challenge to the district court’s denial of his
motion to suppress. When reviewing a denial of a motion to suppress evidence,
we review the district court’s factual findings for clear error and conduct a de
novo review of its legal determinations. United States v. Scroggins, 599 F.3d
433, 440 (5th Cir. 2010). Hudson disputes the district court’s factual
determination that Alltel did not act as a Government agent when it
intercepted telephone communications as part of its investigation into the
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conspiracy underlying the charges against him. See United States v. Blocker,
104 F.3d 720, 725 (5th Cir. 1997).
Hudson is correct insofar as he avers that we may consider the evidence
admitted at trial when reviewing the propriety of the denial of the motion to
suppress. See United States v. Jones, 239 F.3d 716, 718 (5th Cir. 2001).
However, our review of the evidence both confirms the district court’s
conclusion that Alltel did not act as a Government agent and refutes Hudson’s
assertion that the Government withheld cell phone tower records.
Our review of the record likewise shows that the evidence is sufficient to
uphold Hudson’s convictions and that the convictions are not a manifest
miscarriage of justice. See United States v. Davis, 690 F.3d 330, 336 (5th Cir.
2012), cert. denied, 133 S. Ct. 1283 (2013). Hudson does not argue that the
evidence adduced at trial failed to establish the elements of the offenses with
which he was charged. Instead, he contends that his convictions should be
overturned because there was no physical evidence to show that he committed
the charged crimes and because his own testimony proved his innocence. In
essence, he asks us to overturn the jury’s determination that he was not
credible and that his testifying coconspirators were.
The jury is wholly responsible for weighing the evidence and assessing
witness credibility. United States v. Powell, 732 F.3d 361, 375 & n.14 (5th Cir.
2013). Testimony will be discredited only if it “relates to facts that the witness
could not possibly have observed or to events which could not have occurred
under the laws of nature.” United States v. Green, 180 F.3d 216, 221-22 (5th
Cir. 1999) (internal quotation marks and citations omitted). This standard has
not been met in this case. Although Hudson denied everything and testified
that the other witnesses were lying, the jury was not obligated to believe him.
It is inappropriate for this court to consider whether the jury erred by rejecting
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Hudson’s version of events. See Powell, 732 F.3d at 375 n.14. This case “was
largely a swearing contest” that Hudson lost, and we are “not inclined to
interfere with the jury’s decision about witnesses’ credibility when that issue
was so squarely set before it.” See United States v. Doke, 171 F.3d 240, 243
(5th Cir. 1999).
Too, Hudson contends that the district court erred by not giving his
requested alibi instruction, which he avers was needed to support his
testimony that he had never met his alleged coconspirators. We review the
district court’s denial of a requested jury charge for an abuse of discretion.
United States v. Laury, 49 F.3d 145, 152 (5th Cir. 1995). The district court did
not abuse its discretion by concluding that the requested charge was
inappropriate because the charged offenses could be committed by one who was
not physically present when the underlying acts were accomplished. See
United States v. Lee, 483 F.2d 968, 970 (5th Cir. 1973). Hudson’s argument
that his right to a public trial was infringed when the trial judge held
proceedings on Veterans Day was waived because it was not raised in the
district court. See United States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006).
Accordingly, we will not consider it.
Also at issue in this appeal are several of the district court’s evidentiary
rulings. In a criminal case, we review a district court’s decision to admit or
exclude evidence under a heightened abuse of discretion standard. United
State v. Garcia, 530 F.3d 348, 351 (5th Cir. 2002). An abuse of discretion occurs
when the disputed ruling is grounded in a clearly erroneous factual finding or
a legal error. Id.
Our review of the record shows no abuse of discretion in connection with
the district court’s decision to permit the Government to adduce summary
evidence. The disputed exhibit summarized voluminous documents that were
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integral to the case, and the summary witness’s testimony helped explain it to
the jury. See United States v. Whitfield, 590 F.3d 325, 364-65 (5th Cir. 2009);
FED. R. EVID. 1006. Hudson’s assertions that the prosecution should not have
been permitted to use a summary witness because the phone companies did
not authorize this witness to represent them, because the witness was not an
Alltel employee at the time of trial, and because the witness was not the
custodian of the records underlying his testimony do not show an abuse of
discretion regarding the district court’s decision to permit the introduction of
summary evidence.
Likewise unavailing are Hudson’s challenges to the admission of
recordings of several phone conversations. His hearsay argument lacks merit
because “[s]tatements made between co-conspirators in furtherance of a
conspiracy are not testimonial.” See United States v. Alaniz, 726 F.3d 586, 608
(5th Cir. 2013) (internal quotation marks and citation omitted). His argument
that the recordings were hearsay that should not have been admitted gains no
traction because “[h]earsay problems are not a concern if the jury believes that
the defendant was one of the participants in the conversation; any statements
he made would be admissible as a statement of a party opponent.” See United
States v. Thompson, 130 F.3d 676, 683 n.7 (5th Cir. 1997); FED. R. EVID.
801(d)(2). Hudson’s conclusional assertion that the recordings were “doctored”
also shows no abuse of discretion in connection with the district court’s decision
to admit them. Hudson’s argument that he should have been permitted to
testify concerning his military service is unavailing because this issue was not
relevant to the charges against him. See FED. R. EVID. 404(b). Because the
claims discussed above are not worthy of relief, Hudson’s cumulative error
argument fails. See Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996).
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We decline to consider Hudson’s claim that his first attorney rendered
ineffective assistance by not moving to dismiss the charges against him on
limitations grounds because this claim was not presented to the district court.
See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). Similarly,
we decline to consider his Double Jeopardy argument because it was presented
for the first time in his reply brief. See United States v. Jackson, 426 F.3d 301,
304 n.2 (5th Cir. 2005).
Next, we analyze Hudson’s challenges to his sentence. He argues that
the district court erred by determining that his offense involved 50-250 victims,
that it involved sophisticated means, and that he obstructed justice.
Additionally, he argues that his sentence is unreasonably harsh because he is
innocent, because other defendants who caused greater losses and committed
more heinous crimes got lesser sentences, and because he is a veteran,
husband, and father.
We review sentences under the abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). First, we ensure that the district court
committed no significant procedural error, such as failing to properly calculate
the Guidelines range, treating the Guidelines as mandatory, or failing to
consider the § 3553(a) sentencing factors. Id. If the sentence is procedurally
sound, we then consider the substantive reasonableness of the sentence. Id. A
district court’s interpretation and application of the Guidelines are reviewed
de novo, and its factual findings are reviewed for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Our review of the record and pertinent authority shows no clear error in
connection with the district court’s conclusions concerning the number of
victims, obstruction of justice, and sophisticated means. See United States v.
Ford, 558 F.3d 371, 377 (5th Cir. 2009); United States v. Conner, 537 F.3d 480,
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492 (5th Cir. 2008); United States v. Pofahl, 990 F.2d 1456, 1481 (5th Cir.
1993). Hudson’s arguments that his sentence is unduly harsh amount to no
more than a disagreement with the district court’s weighing of the pertinent
sentencing factors and the propriety of the sentence imposed. These
contentions do not suffice to show error in connection with his sentence. See
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
Hudson also challenges his restitution order, arguing that it is improper
because Verizon did not submit an affidavit and because it does not take into
account his circumstances and obligations. The district court did not err by
ordering restitution. See 18 U.S.C. § 3663A(c)(1)(A)(ii); United States v.
Espinoza, 677 F.3d 730, 732 (5th Cir. 2012). Our review of the record also
shows that the district court considered the pertinent factors when setting the
schedule of payments. See United States v. Arledge, 553 F.3d 881, 900 (5th Cir.
2008).
Hudson’s myriad arguments do not show that he should receive relief
from his convictions and sentences. Accordingly, the judgment of the district
court is AFFIRMED. All outstanding motions are DENIED.
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