United States v. Jamal Hudson ( 2013 )


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  •      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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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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    No. 12-30588
    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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    No. 12-30588
    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
    ,
    6
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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.
    7