United States v. Antonio Reese , 481 F. App'x 153 ( 2012 )

Case: 11-60228 Document: 00511903529 Page: 1 Date Filed: 06/28/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 28, 2012
No. 11-60228
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ANTONIO REESE,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:09-CR-103-1
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Following a jury-trial conviction on three counts of distribution of more
than five grams of cocaine base (crack cocaine), Antonio Reese was sentenced to
concurrent sentences of 10-years’ imprisonment, the mandatory minimum
sentences in effect at the time of the offenses. He appeals the conviction and
sentence.
The Government’s main trial evidence was the testimony of two witnesses:
a supervising Agent of the Mississippi Bureau of Narcotics (MBN); and a paid
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60228
confidential informant (CI) who made controlled drug buys from Reese under the
Agent’s direction.
First, Reese contends the district court abused its discretion by not
allowing him, on cross-examination, to ask the Agent whether money paid to the
CI was reported to state taxing authorities so that the CI would be expected to
pay taxes on it. He asserts he was barred from confronting the Government’s
witness and presenting a “complete defense”.
Constitutional claims, such as claims based on the right to confront
witnesses and the right to present a defense, are reviewed de novo, subject to
review for harmless error. E.g., United States v. Skelton, 514 F.3d 433, 438 (5th
Cir. 2008). An error is harmless and “must be disregarded” if it “does not affect
substantial rights”. Fed. R. Crim. P. 52(a). Absent a constitutional violation, a
court’s limits on cross-examination are reviewed only “for an abuse of discretion,
which requires a showing that the limitations were clearly prejudicial”. Skelton,
514 F.3d at 438.
If there was any error in limiting cross-examination, it was harmless. The
jury had already heard that the CI had been paid several hundred dollars in
cash as “pocket” money, and the relevance of the MBN’s reporting of these
payments to the state taxing authority was so tenuous and peripheral to the
issue of the CI’s motivation as to be insignificant. In other words, its exclusion
resulted in no prejudice.
Second, Reese contends the district court erred by denying his motion for
a mistrial after the Agent testified about two other cases in which the CI
assisted law enforcement. Both the denial of the mistrial motion and the
admission of the evidence are reviewed for abuse of discretion. E.g., United
States v. Akpan, 407 F.3d 360, 366, 374 (5th Cir. 2005). The Agent’s testimony
was elicited on redirect examination after the defense had cross-examined him
vigorously about the quality of the MBN’s investigation and its assessment of
the CI’s reliability. The defense specifically asked about a prior occasion when
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No. 11-60228
the CI allegedly did not perform as promised. Eliciting the Agent’s brief
testimony was a permissible response to Reese’s cross-examination. Fed. R.
Evid. 608(b)(2). The district court did not abuse its discretion by either
admitting the testimony or denying the mistrial motion.
Third, Reese contends the district court committed reversible plain error
by allowing the CI to read from a document that was not admitted in evidence.
As reflected in Reese’s contention, there was no objection at trial. Reversible
plain error exists only if the error was clear or obvious and affected Reese’s
substantial rights; even then, we have discretion whether to reverse the error
and generally will do so only if it seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. E.g., Puckett v. United States, 556
U.S. 129, 135 (2009).
The document at issue was a report made by the CI after a controlled drug
buy. Defense counsel first showed it to the testifying CI in an effort to establish
that the CI failed to report a difference in the amount of money given to him to
buy drugs and their cost. On redirect examination, the Government showed the
CI the same document, which he read from and which showed that the CI had
reported the difference to the supervising Agents. With the court’s assent, the
document was not displayed to the jury because it had not been admitted in
evidence.
Reese maintains the evidence was “not tested by the rigors of the federal
rules of evidence”, but he cites no evidentiary rule or any other law suggesting
that reading from the unadmitted report was improper in any way. He does not
explain why the CI’s testimony might have been inadmissible. Reese fails to
show reversible plain error.
Concerning his sentence, Reese contends the district court should have
applied the Fair Sentencing Act (FSA) of 2010, which reduced penalties for
trafficking in crack cocaine. We do not consider his misplaced contention based
on 18 U.S.C. § 3582(c)(2), which concerns retroactive amendments to the
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No. 11-60228
Sentencing Guidelines, because no § 3582(c)(2) motion was filed or ruled on in
district court. In any event, the law of our circuit is that the FSA does not apply
in cases such as Reese’s, where the crimes were committed prior to the FSA’s
effective date, even though sentencing occurred after it. United States v. Tickles,
661 F.3d 212, 215 (5th Cir.), petitions for cert. filed 15 Dec. 2011 (No. 11-8023)
and 27 Dec. 2011 (No. 11-8268). Although the Supreme Court has granted
certiorari on this issue in United States v. Fisher, 635 F.3d 336 (7th Cir.), cert.
granted sub nom. Dorsey v. United States, 132 S. Ct. 759 (2011) (No. 11-5683),
and United States v. Hill, 417 F. App’x 560 (7th Cir.), cert. granted, 132 S. Ct.
759 (2011) (No. 11-5721), we are bound by our precedent absent an intervening
Supreme Court or en banc decision. E.g., United States v. Lopez-Velasquez, 526
F.3d 804, 808 n.1 (5th Cir. 2008).
AFFIRMED.
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