IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10720
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMAS DAVILA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:94-CR-84-3)
October 27, 1995
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Tomas Davila appeals his jury conviction
for violating 21 U.S.C. § 841(a)(1) by possessing with intent to
distribute marijuana. On appeal Davila complains of plain error
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
caused by improper comments by the prosecutor and admission of
hearsay; also, he complains of ineffective assistance of counsel.
For the reasons set forth below we find no clear error, and decline
to consider ineffective assistance of counsel on this direct
appeal. We therefore affirm Davila's conviction.
I
FACTS AND PROCEEDINGS
In February 1994, Drug Enforcement Administration (DEA)
special agent Henry Biddle received information from a shipping
company, Central Transport, indicating that it had received two
large, suspicious-looking crates from Laredo Texas. Although the
bill of lading accompanying the crates indicated that they
contained textiles, the type of crate was not appropriate for
shipping textiles. Biddle investigated and found that the company,
the name of which appeared on the side of the crates, did not
exist. Biddle next obtained the services of a narcotics-detecting
dog from the Dallas Police Department, and the dog alerted to the
presence of narcotics in the two crates. A search warrant was
obtained, and the ensuing search revealed approximately 500 pounds
of marijuana in the crates.
Several days later, Central Transport informed Biddle that an
unknown man had been inquiring about the two crates. The DEA
established surveillance at Central Transport and observed as two
men picked up the creates and loaded them into a truck. Agents
followed the truck to a private residence in Arlington, later
identified as Davila's residence, where the two creates were
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unloaded into the garage. After the two men drove away in the
truck, a third man came out of the house and moved a yellow
Chevrolet Malibu into the spot in front of the garage where the
truck had been parked.
Officers obtained a search warrant at approximately 2:30 a.m.
and executed a search during which they found over 1000 pounds of
marijuana in the garage, and Davila in the house. In the house,
the officers also found a bag in Davila's bedroom closet containing
$53,215, a 100-pound scale, a 10-pound scale, and several shipping
crates similar to those observed at Central Transport.
Davila was charged in a one-count indictment with possession
with intent to distribute in excess of 100 kilograms of marijuana.
After pleading not guilty, Davila was tried and convicted by a
jury. After he was sentenced, Davila timely noticed his appeal.
II
ANALYSIS
On appeal, Davila objects to the prosecutor's allegedly
improper argument and to admission of alleged hearsay testimony
from Agent Biddle. Davila failed to object to these two purported
errors in the district court, so we review these errors for plain
error.
To succeed under the plain error standard, an appellant has
the burden of showing that there is actually an error, that it is
plain, and that it affects substantial rights. Olano, 113 S. Ct.
at 1777-78; United States v. Rodriguez, 15 F.3d 408, 414-15
(5th Cir. 1994); Fed. R. Crim. P. 52(b). Plain error is one that
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is "clear or obvious, and, at a minimum, contemplates an error
which was clear under current law at the time of trial." United
States v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994) (en banc)
(internal quotation and citation omitted). "[I]n most cases, the
affecting of substantial rights requires that the error be
prejudicial; it must affect the outcome of the proceeding." Id. at
164. We lack authority to relieve an appellant of this burden.
Olano, 113 S. Ct. at 1781.
Moreover, the Supreme Court has directed that, even when the
appellant carries his burden, "Rule 52(b) is permissive, not
mandatory. If the forfeited error is `plain' and `affect[s]
substantial rights,' the Court of Appeals has authority to order
correction, but is not required to do so." Olano, 113 S. Ct. at
1778 (quoting Fed. R. Crim. P. 52(b)). As we stated in Olano:
the standard that should guide the exercise of
[this] remedial discretion under Rule 52(b)
was articulated in United States v. Atkinson,
297 U.S. 157, 56 S. Ct. 391, 80 L.Ed. 555
(1936). The Court of Appeals should correct a
plain forfeited error affecting substantial
rights if the error "seriously affect[s] the
fairness, integrity or public reputation of
judicial proceedings."
Olano, 113 S. Ct. at 1779 (quoting Atkinson, 297 U.S. at 160).
Thus, our discretion to correct an error pursuant to Rule 52(b) is
narrow. Rodriquez, 15 F.3d at 416-17.
A. Prosecutorial Misconduct
Davila contends that the prosecutor repeatedly made improper
comments during closing arguments, asserting that he repeatedly
injected his personal opinion as to the credibility of each side's
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witnesses and as to the conclusions to be drawn from the evidence.
Davila also urges that the prosecutor improperly referred to
Davila's failure to call his wife as a witness, contending that,
because his wife was potentially a witness available to both sides,
it was impermissible for the prosecution to highlight Davila's
decision not to call his wife as a witness. We have examined the
trial transcript and find no plain error in the prosecutor's
statements.
B. Hearsay
Conceding that his attorney failed to raise an objection at
trial, Davila contends that the district court plainly erred by
allowing hearsay testimony from Agent Biddle. Davila asserts that
the hearsay testimony occurred when Biddle testified about
conversations he had with a manager and other personnel at Central
Transport, with other DEA agents, and with other law enforcement
agents. The government responds that it is not hearsay for a law
enforcement officer to testify to statements made to him by others
in the course of his investigation. Irrespective of whether
Biddle's testimony concerning such statements was hearsay, the
overwhelming evidence supporting Davila's conviction keeps him from
establishing that his substantial rights were violated by the
admission of that testimony. See Calverley, 37 F.3d at 164.
C. Ineffective Assistance of Trial Counsel
Finally, Davila argues that trial counsel was ineffective for
failing to object to the prosecutor's misconduct during closing
argument, or to admission of the hearsay testimony of Agent Biddle.
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"As a general rule, Sixth Amendment claims of ineffective
assistance of counsel cannot be litigated on direct appeal, unless
they were adequately raised in the district court." United States
v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Davila did not raise
this ineffectiveness claim in the district curt. As a result, we
cannot determine from the record, for example, whether Davila's
trial counsel was exercising a strategic choice by not objecting to
the prosecutor's statements or to the alleged hearsay testimony.
We therefore decline to consider Davila's ineffectiveness claim in
this direct appeal. He is not, however, precluded from raising an
ineffective-assistance claim in a 28 U.S.C. § 2255 motion. See
United States v. Bounds, 943 F.2d 541, 544 (5th Cir. 1991).
AFFIRMED.
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