United States v. McCoy ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5511
GERRY LEE MCCOY, a/k/a Cookie,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-6139
GERRY LEE MCCOY, a/k/a Cookie,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-93-90-N, CA-94-957)
Submitted: October 31, 1996
Decided: January 14, 1997
Before WIDENER, WILKINS, and NIEMEYER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Allan D. Zaleski, WEISBERG & ZALESKI, Norfolk, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Fernando Groene,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
A jury convicted Gerry Lee McCoy of conspiracy to distribute
cocaine and possession of cocaine with intent to distribute, in viola-
tion of 21 U.S.C. § 841(a)(1) (1994). McCoy did not timely file a
notice of appeal. Instead, McCoy filed a motion to vacate, correct or
set aside his sentence, pursuant to 28 U.S.C. § 2255 (1994), amended
by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1214. In that motion, McCoy alleged that his
counsel was ineffective due to a conflict of interest1 and also for fail-
ing to file a notice of appeal on his behalf.
The district court found that, although there was no evidence of a
conflict of interest, McCoy's counsel rendered ineffective assistance
of counsel by failing to appeal. Therefore, the district court vacated
the earlier judgment imposed on February 14, 1994, and reentered the
same judgment in the case effective on January 6, 1995. McCoy
timely filed a notice of appeal as to both his conviction (No. 95-5511)
and the decision in his § 2255 action (presumably on the denial of his
conflict of interest claim) (No. 95-6139). Finding no merit to any of
McCoy's contentions on appeal, we affirm.
I.
McCoy first contends that the trial court abused its discretion in
denying his motion for severance from his co-defendants. McCoy was
tried with four co-conspirators in a fourteen-day trial with numerous
witnesses, including law enforcement agents and dozens of co-
conspirators. Many of the witnesses did not mention McCoy at all.
Thus, McCoy asserts, the court's failure to grant severance resulted
in the jury finding him guilty by association.
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1 While McCoy had two attorneys (one retained and one appointed), he
only alleged that his retained attorney had a conflict of interest.
2
Defendants charged in the same conspiracy normally should be
tried together. United States v. Brooks, 957 F.2d 1138, 1145 (4th
Cir.), cert. denied, 505 U.S. 1228 (1992). The strength of the Govern-
ment's case against a co-defendant is not a reason for severance
unless there is also a strong showing of prejudice. Id.In his pre-trial severance motion, McCoy failed to make anything
but general allegations of prejudice.2 In addition, his acquittal on an
aiding and abetting count demonstrates that he was not convicted sim-
ply because of his association with his co-defendants. Consequently,
we find that the district court did not abuse its discretion in denying
the severance motion.
II.
McCoy also asserts that much evidence was erroneously admitted,
including testimony of robberies in furtherance of the conspiracy,
prior bad acts of several witnesses, and hearsay, much of which had
little or nothing to do with McCoy personally. The admission of evi-
dence is committed to the discretion of the trial court and is not over-
turned on appeal absent irrationality or arbitrariness. United States v.
Bailey, 990 F.2d 119, 122 (4th Cir. 1993); see also United States v.
Russell, 971 F.2d 1098, 1104 (4th Cir. 1992) (district court's evidenti-
ary rulings entitled to substantial deference on appeal), cert. denied,
506 U.S. 1066 (1993).
McCoy asserts that the cumulative effect of the admission of unre-
liable and irrelevant evidence was unduly prejudicial under Fed. R.
Evid. 403. However, even if the district court erred in admitting the
controverted testimony, McCoy's argument is without merit because
the testimony, which only tangentially concerned McCoy, was not
prejudicial. McCoy does not explain how testimony regarding the
criminal activities of co-defendants and witnesses would have proven
him guilty of drug trafficking beyond a reasonable doubt. Moreover,
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2 In his pre-trial severance motion, McCoy contended only that his
retained attorney needed more time to prepare and that an unnamed co-
defendant might be a witness for him if he was granted a separate trial.
McCoy does not reassert these claims on appeal, resting instead on con-
tentions of prejudice.
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any undue prejudice suffered by the admission of the evidence was
obviated by the court's instructions to the jury that the Government
had to prove every element of the charged offenses against each
defendant beyond a reasonable doubt and that the jury was to consider
the charges against each defendant separately. United States v. Mark,
943 F.2d 444, 449 (4th Cir. 1991).
III.
McCoy next asserts that the Government improperly bolstered the
credibility of its witnesses by asking them repeatedly if they were tell-
ing the truth. We have generally held that it is error for the Govern-
ment to bolster or vouch for its own witnesses. United States v.
Samad, 754 F.2d 1091, 1100 (4th Cir. 1984). Vouching occurs
when the prosecutor's actions are such that a jury could rea-
sonably believe that the prosecutor was indicating a personal
belief in the credibility of the witness. Consequently, the
prosecutor may not, among other things, make explicit per-
sonal assurances that a witness is trustworthy or implicitly
bolster the witness by indicating that information not pres-
ented to the jury supports the testimony.
United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993) (citations
omitted).
However, it is not improper bolstering for the Government to
explain its investigation, procedures, or relationship with its wit-
nesses. Id.; United States v. Evans, 917 F.2d 800, 809 (4th Cir. 1990),
overruled on other grounds, United States v. Lancaster, ___ F.3d ___,
1996 WL 544462 (4th Cir. Sept. 26, 1996). This includes the Govern-
ment's right to present evidence of the details of plea agreements with
its witnesses, including those witnesses' promises to testify truthfully.
United States v. Henderson, 717 F.2d 135, 138 (4th Cir. 1983) (no
error in Government's eliciting evidence of promise to testify truth-
fully made in plea agreement, whether or not defense intends to use
plea agreement to impeach witness's credibility), cert. denied, 465
U.S. 1009 (1984).
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In the instant case, there was no bolstering or vouching. The Gov-
ernment neither gave personal assurances that its witnesses were
trustworthy nor indicated that information not presented to the jury
supported the witnesses' testimony. The Government merely elicited
testimony as to the witnesses' plea agreements, their promises to tes-
tify truthfully, and their assurances that they were indeed telling the
truth. Such testimony was proper, especially considering that the
strategy of most defense counsel involved was to expose the bias and
unreliability of these witnesses.
IV.
McCoy next asserts that the court improperly permitted the Gov-
ernment's investigative agent to testify regarding the background of
his investigation. We find that the trial court did not abuse its broad
discretion in permitting the agent to testify regarding his duties and
actions in investigating the case. See Lewis, 10 F.3d at 1089.
V.
Finally, McCoy raises claims of ineffective assistance of trial coun-
sel. Such claims, however, may not be raised on direct appeal unless
it conclusively appears from the record that defense counsel did not
provide effective representation. See United States v. DeFusco, 949
F.2d 114, 120-21 (4th Cir. 1991), cert. denied , 503 U.S. 997 (1992).
McCoy's claims of ineffective assistance are largely based on his con-
tentions that counsel failed to object to the alleged substantive errors
previously discussed. As those claims are without merit, we find that
the record does not conclusively establish counsel's ineffective assis-
tance.
VI.
Accordingly, we affirm McCoy's conviction. In addition, because
McCoy has raised no appellate issues regarding his§ 2255 motion,
we affirm the final order of the district court in that proceeding as
well. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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