United States v. Webb , 311 F. App'x 582 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4608
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAWRENCE MCARTHUR WEBB,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:06-cr-00079-GEC)
Submitted: October 17, 2008 Decided: February 3, 2009
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Melissa W. Friedman, ANDERSON & FRIEDMAN, Roanoke, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Lawrence McArthur Webb was
convicted of conspiracy to possess with intent to distribute more
than fifty grams of cocaine base and more than five kilograms of
cocaine, in violation of 21 U.S.C. § 846 (2000), and two counts of
distribution of cocaine, in violation of 21 U.S.C. § 841(a) (2000).
Webb was sentenced to 240 months on the conspiracy count and 120
months on the distribution counts, to run concurrently. Webb
appeals, contending that the district court erred by: (1) denying
Webb’s motion to suppress his statements; (2) refusing to give the
jury a lesser-included offense instruction; (3) denying Webb’s
motion for a new trial based on improper remarks by the prosecutor
in his closing; and (4) denying Webb’s motion to continue the trial
based upon an absent character witness. Finding no reversible
error, we affirm.
I.
Webb first contends that the district court erred by not
suppressing his statements to Agent Cunningham because Webb had
previously invoked his right to counsel. On appeal from a district
court’s determination on a motion to suppress, the factual findings
are reviewed for clear error and the district court’s legal
determinations are reviewed de novo. Ornelas v. United States, 517
U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d 868, 873
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(4th Cir. 1992). The evidence is reviewed in the light most
favorable to the government, the prevailing party in the district
court. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998).
A criminal defendant’s “Sixth Amendment right to counsel
is violated when incriminating statements deliberately elicited by
the government, made after indictment and outside the presence of
counsel, are admitted against the defendant at trial.” United
States v. Love, 134 F.3d 595, 604 (4th Cir. 1998) (internal
quotation marks omitted). “[A]n accused . . . having expressed his
desire to deal with the police only through counsel, is not subject
to further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.”
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see Michigan v.
Jackson, 475 U.S. 625, 636 (1986) (applying Edwards to Sixth
Amendment cases). If the accused does not initiate the
conversation, any waiver of rights made after further police
interrogation is invalid. Jackson, 475 U.S. at 636.
The Government only need show by a preponderance of the
evidence that Webb initiated contact and waived his rights. See
Colorado v. Connelly, 479 U.S. 157, 168 (1986). It is the district
court’s role to determine the credibility of the witnesses and this
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court reviews those determinations for clear error. United
States v. Murray, 65 F.3d 1161, 1169 (4th Cir. 1995).
Our review of the record leads us to conclude that Webb
initiated contact with Agent Cunningham and did not invoke his
right to counsel at any time during Agent Cunningham’s visit to the
jail. Webb agrees that Agent Cunningham came to the jail upon his
request, but argues that because he was held in isolation for four
days, without access to the general inmate population or the
telephone to contact an attorney, the conditions were such that he
was at his “breaking point,” and Agent Cunningham easily overbore
his will, such that even if he waived his right to counsel, that
waiver was not knowing or voluntary. Despite Webb’s argument, the
record reflects that he clearly waived his rights without
requesting counsel and Agent Cunningham did not employ coercive
tactics. The district court accordingly did not err by denying the
motion to suppress.
II.
Webb next contends that the district court erred when it
failed to give a “lesser-included offense” jury instruction. Webb
did not object to the conspiracy instruction given by the district
court or proffer an example of the requested instruction, but
proffered only a special verdict form that the district court
refused. This court generally reviews challenges to jury
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instructions for an abuse of discretion. South Atlantic Ltd.
P’ship v. Riese, 284 F.3d 518, 530 (4th Cir. 2002). However,
because Webb did not specifically challenge the conspiracy
instruction in the district court, this claim is reviewed for plain
error. See United States v. Olano, 507 U.S. 725 (1993).
“A district court's refusal to provide an instruction
requested by a defendant constitutes reversible error only if the
instruction: ‘(1) was correct; (2) was not substantially covered
by the court's charge to the jury; and (3) dealt with some point in
the trial so important[] that failure to give the requested
instruction seriously impaired the defendant’s ability to conduct
his defense.’” United States v. Lewis, 53 F.3d 29, 32 (4th Cir.
1995) (citing United States v. Camejo, 929 F.2d 610, 614 (11th Cir.
1991)). “For the defendant to be entitled to a lesser-included
offense [instruction], the proof on the element that differentiates
the two offenses must be sufficiently in dispute to allow a jury
consistently to find the defendant innocent of the greater and
guilty of the lesser offense.” United States v. Baker, 985 F.2d
1248, 1258-59 (4th Cir. 1993). For an element to be “sufficiently
in dispute,” either “the testimony on the distinguishing element
must be sharply conflicting, or the conclusion as to the lesser
offense must be fairly inferable from the evidence presented.”
United States v. Walker, 75 F.3d 178, 179 (4th Cir. 1996).
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The evidence at trial was not “sharply conflicting,” as
to the drug weight for which Webb was responsible, which was
significantly greater than the amounts charged in the indictment.
Thus, the district court did not plainly err in failing to give a
“lesser-included offense” instruction as to drug weight.
III.
Webb next argues that the district court erred when it
denied his motion for a new trial based upon the Government’s
improper inclusion in its closing argument of a brief remark
attributed to Webb that was not in evidence, and was purportedly
obtained through an immunized proffer. Webb argues that use of
this remark violated his Fifth Amendment right against self-
incrimination.
A prosecutor’s improper closing argument may “so infect[]
the trial with unfairness as to make the resulting conviction a
denial of due process.” United States v. Wilson, 135 F.3d 291, 297
(4th Cir. 1998) (quoting Darden v. Wainwright, 477 U.S. 168, 181
(1986)) (internal quotation marks omitted). In determining whether
a defendant’s due process rights were violated by a prosecutor’s
closing argument, this court considers whether the remarks were, in
fact, improper, and, if so, whether the improper remarks so
prejudiced the defendant’s substantial rights that the defendant
was denied a fair trial. Id.6
Our review of the record convinces us that although the
remark was improper, it was not so prejudicial as to deny Webb a
fair trial. Wilson, 135 F.3d at 299. We conclude the district
court properly denied the motion for a new trial.
IV.
Webb also alleges that the district court erred in
denying his motion to continue the trial based upon the absence of
a defense character witness. On the morning of trial, Webb learned
that a character witness was unavailable to testify at trial
because he was caring for an ailing spouse. The district court
denied the continuance, but permitted the witness’ expected
testimony to be read to the jury by stipulation, including the
reasons for his absence. The court advised the jury that the
stipulated testimony could be given the same weight as evidence as
if the witness had been present and testifying in the court room.
A district court’s refusal to grant a continuance is
reviewed for abuse of discretion. Morris v. Slappy, 461 U.S. 1,
11-12 (1983); United States v. Speed, 53 F.3d 643, 644 (4th Cir.
1995). An abuse of discretion in this context is “‘an unreasoning
and arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay.’” United States v. LaRouche, 896
F.2d 815, 823 (4th Cir. 1990) (quoting Morris, 461 U.S. at 11-12).
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We conclude the district court did not abuse its discretion in
denying the motion to continue the trial.
Accordingly, we affirm Webb’s convictions and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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