United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 21, 2007
Charles R. Fulbruge III
Clerk
No. 06-30780
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TORREY S. SCOTT, also known as Torrey Scott,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(2:05-CR-206)
Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
On numerous bases, Torrey Scott challenges his conviction for
possessing firearms, body armor, and a substance containing cocaine
base. AFFIRMED.
I.
In 2005, having been advised that an individual named “Tory”
had stockpiled weapons inside a nightclub and was preparing to move
them, Officers arrived and observed Scott: exit the nightclub into
*
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this opinion should not be published and is not precedent except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.
an adjacent alley; place a short-barreled shotgun in a hole in the
wall of an adjacent structure; and return inside.
Officers arrested Scott for possessing that firearm and found:
four additional firearms in the hole; another loaded firearm and an
FBI-inscribed bullet-proof vest close to Scott’s seat in the
nightclub; and, pursuant to a search incident to the arrest, a
plastic bag containing a substance resembling crack cocaine in
Scott’s clothing.
Scott was initially charged on 1 July 2005. His trial,
however, was twice continued, pursuant to 18 U.S.C. § 3161(h)(8)(A)
(governing ends-of-justice continuances), upon motion by his newly-
appointed counsel and, subsequently, due to Hurricane Katrina.
On 4 November 2005, Scott was charged by superseding
indictment with possession of: various firearms, including a Rohm
.38 caliber pistol, by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2); an unregistered short-barreled shotgun, in
violation of 26 U.S.C. §§ 5841, 5845, 5861(d), and 5871; body
armor, having been convicted previously of a crime-of-violence
felony, in violation of 18 U.S.C. § 931; and a substance containing
cocaine base, in violation of 21 U.S.C. § 844(a).
Scott’s trial commenced on 30 January 2006, the district
court’s having, on the Government’s motion, granted a third ends-
of-justice continuance. A jury found Scott guilty on all counts.
He was sentenced, inter alia, to 71 months’ imprisonment.
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II.
Scott presents numerous contentions. Each fails.
A.
Scott raises various constitutional challenges to his statutes
of conviction for firearm and body-armor possession. Of course,
the constitutionality of a federal statute is reviewed de novo.
E.g., United States v. Patterson, 431 F.3d 832, 835 (5th Cir.
2005), cert. denied, 126 S. Ct. 2043 (2006).
1.
For his firearm-possession convictions, Scott’s challenges
based on the Commerce Clause, Tenth Amendment, and Equal Protection
Clause, and his Second Amendment challenge to § 922(g)(1), are
foreclosed. See United States v. Everist, 368 F.3d 517, 519 & n.3
(5th Cir. 2004); United States v. Darrington, 351 F.3d 632, 634-35
(5th Cir. 2003). Scott concedes as much, raising the issues only
to preserve their possible further review. Scott’s Second
Amendment challenge to 26 U.S.C. § 5861(d) also fails. See United
States v. Emerson, 270 F.3d 203, 261 (5th Cir. 2001).
2.
Regarding his body-armor-possession conviction, Scott’s
Commerce Clause, Tenth Amendment, and Equal Protection Clause
challenges to 18 U.S.C. § 931 are unavailing. See United States v.
Patton, 451 F.3d 615, 634-36 (10th Cir. 2006), cert. denied, 127 S.
Ct. 1247 (2007); Darrington, 351 F.3d at 634-35.
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B.
Relying on Ex Parte Garland, 71 U.S. 333 (1866), Scott
contends his first-offender pardon under Louisiana law, LA. REV.
STAT. § 15:572, which specifically excepted the right to receive,
possess, or transport a firearm, precludes his body-armor-
possession conviction. This contention, for which we have plenary
review, see, e.g., United States v. Daugherty, 264 F.3d 513, 514
(5th Cir. 2001), fails. See United States v. Richardson, 168 F.3d
836, 839-40 (5th Cir. 1999); State v. Adams, 355 So.2d 917, 921-22
(La. 1978).
C.
Scott claims violations of the Speedy Trial Act, 18 U.S.C. §§
3161-3174, contending: the superseding indictment should have been
dismissed for undue delay because the district court did not make
on-the-record findings in granting the Government the third ends-
of-justice continuance and, therefore, more than 70 unexcluded days
passed during the 213-day period between his initial indictment and
trial, see id. § 3161(c)(1); Zedner v. United States, 126 S. Ct.
1976, 1989 (2006); and, alternatively, because he was not charged
with possessing the Rohm .38 caliber pistol within 30 days of his
arrest, that count should have been dismissed, see 18 U.S.C. §
3161(b). Regarding a district court’s Speedy Trial Act ruling,
legal conclusions are reviewed de novo; factual findings, for clear
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error. E.g., United States v. Bieganowski, 313 F.3d 264, 281 (5th
Cir. 2002).
As Scott concedes, 100 days of the indictment-to-trial period,
related to various motions by his counsel and the Hurricane-
Katrina-related continuance, are excludable from the speedy-trial
clock. Moreover, in granting the challenged third (ends-of-
justice) continuance, the district court referenced the
Government’s motion and tracked the language of § 3161(h)(8)(A),
(B)(i). Accordingly, that continuance is also excludable. See
United States v. Brickey, 289 F.3d 1144, 1150-51 (9th Cir. 2002);
United States v. Mitchell, 723 F.2d 1040, 1044 (1st Cir. 1983). As
Scott’s alternative contention concerning the .38-caliber-pistol
possession count fails, see United States v. Phipps, 319 F.3d 177,
182 (5th Cir. 2003) (noting if defendant is not indicted within 30
days of arrest, Speedy Trial Act requires dismissal only of an
offense charged in the original complaint), denial of his §
3162(a)(2) motion to dismiss was proper.
D.
For his cocaine-base-possession conviction, Scott claims,
inter alia: 21 U.S.C. § 844(a) is impermissibly vague because
there is no statutory definition of “cocaine base”; and the
evidence was insufficient to support it because the Government did
not present scientific testimony identifying the substance he
possessed. Scott’s properly-preserved sufficiency challenge is
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reviewed in the light most favorable to the verdict, inquiring only
whether a rational juror could find the offense elements
established beyond a reasonable doubt. E.g., United States v.
Cuellar, 478 F.3d 282, 287 (5th Cir. 2007) (en banc). Such review
does not include weight or credibility of the evidence. E.g., id.
1.
A void-for-vagueness claim is reviewed de novo. E.g., United
States v. Monroe, 178 F.3d 304, 308 (5th Cir. 1999). Scott’s claim
is without merit. See United States v. Thomas, 932 F.2d 1085, 1090
(5th Cir. 1991).
2.
There was testimony from two narcotics Officers, with five and
15 years’ experience, respectively, that the substance Scott
possessed was consistent with crack cocaine. Viewing this evidence
in the light most favorable to the verdict, this sufficiency
challenge fails. See United States v. Osgood, 794 F.2d 1087, 1095
(5th Cir. 1986). Concomitantly, Scott’s related claim under
Apprendi v. New Jersey, 530 U.S. 466 (2000), is unavailing.
E.
Scott contends the Government’s failure to timely disclose
potential impeachment evidence violated Brady v. Maryland, 373 U.S.
83, 87 (1963) (holding “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment”),
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and Giglio v. United States, 405 U.S. 150 (1972) (extending Brady
to impeachment evidence). Such a contention is reviewed de novo.
E.g., United States v. Infante, 404 F.3d 376, 386 (5th Cir. 2005).
To establish such a violation, Scott must show: “(1) the
prosecution did not disclose evidence; (2) the evidence was
favorable to [his] defense [because it was either exculpatory or
impeaching]; and (3) the evidence was material — i.e., there is a
reasonable probability that if the [G]overnment had disclosed [it],
the result of the proceeding would have been different”. Id.
The evidence at issue related to the criminal history of a
witness called by the Government. Regarding this evidence, Scott,
inter alia: obtained it prior to a lunch recess; questioned the
witness about it on cross-examination; and referred to it during
closing argument. Moreover, Scott did not subsequently call the
witness in order to further develop the evidence and failed to
present related evidence during the over-four-month period between
trial and his new-trial motion’s denial. Particularly in the light
of the other evidence supporting the verdict, Scott fails to show
the evidence at issue was material. See United States v. O’Keefe,
128 F.3d 885, 898-99 (5th Cir. 1997).
F.
Finally, Scott maintains the district court erred in allowing
an expert witness’ testimony regarding the shotgun’s barrel length
because the Government failed to produce a related expert report,
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in violation of Federal Rule of Criminal Procedure 16(a)(1)(G)
(requiring the Government to provide, upon defendant’s request, a
written summary of expert testimony it intends to use in its case-
in-chief).
A district court’s rulings on claimed discovery violations are
reviewed for abuse of discretion. E.g., Cuellar, 478 F.3d at 293.
Along that line, a Rule 16 violation does not mandate exclusion of
the evidence. E.g., id. Where a district court admits such
evidence without sanctions, “a new trial must be ordered based on
alleged discovery error only when a defendant demonstrates
prejudice to his substantial rights”. Id.; see also FED. R. CRIM.
P. 52(a).
There was testimony from another Government expert witness,
whose report was produced, establishing the shotgun’s barrel length
was well below the minimum length. See 26 U.S.C. § 5845(a). The
requisite prejudice is lacking. See Cuellar, 478 F.3d at 293.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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