United States v. White ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60908
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO WHITE; NATHANIEL THERIS,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:00-CR-14-2-BrS
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September 13, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Ricardo White and Nathaniel Theris appeal their convictions
and sentences for assault with a deadly weapon, steel-toed boots,
committed within the maritime and territorial jurisdiction of the
United States. We AFFIRM.
White seeks leave to file a pro se reply brief. Appointed
counsel for White moves for this court to permit White, pro se,
an extension of seven days from the deadline for filing a timely
reply brief. Although White also asks for the dismissal of
appointed counsel, White’s desire to proceed pro se arises from
*
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that this opinion should not be published and is not precedent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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his intention to file a pro se reply brief. Thus, White’s intent
to proceed pro se is not unequivocal. White is not entitled to
hybrid representation. United States v. Ogbonna, 184 F.3d 447,
449 n.1 (5th Cir.), cert. denied, 528 U.S. 1055 (1999). “By
accepting the assistance of counsel the criminal appellant waives
his right to present pro se briefs on direct appeal.” Myers v.
Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996). IT IS ORDERED that
the motions are DENIED.
White argues that the indictment is fatally defective
because it failed to allege the acts by White which constituted
assault with the steel-toed boots. White raised the issue at
sentencing. “Because the sufficiency of an indictment is
jurisdictional, a defendant may, at any time, contest an
indictment for failing to charge an offense.” United States v.
Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir. 2000), cert. denied,
121 S. Ct. 2600 (2001).
“To pass constitutional muster, an indictment must allege
all of the elements of the offense charged.” United States v.
Ramirez, 233 F.3d 318, 323 (5th Cir. 2000). The indictment
charged a violation of 18 U.S.C. § 113(a)(3). The elements of 18
U.S.C. § 113(a)(3) are (1) assault, as defined under common-law
tort and criminal law; “(2) with a dangerous weapon[,] (3) with
the intent to do bodily harm.” United States v. Estrada-
Fernandez, 150 F.3d 491, 494 (5th Cir. 1998). It does not
require physical contact by the assailant. Id. at 495. The
indictment alleged the elements of the offense, and the absence
of an allegation concerning White kicking or attempting to kick
No. 00-60908
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the victim did not render the indictment fatally defective. See
Ramirez, 233 F.3d at 323.
Theris challenges the sufficiency of the evidence. He
argues that his conviction cannot stand because there is no
evidence indicating he intended to cause the victim’s injuries,
he used a dangerous weapon, or he acted in concert with White.
Although Theris moved for judgment of acquittal after the
Government presented its case-in-chief, he did not renew his
motion. Consequently, the failure to renew the FED. R. CRIM. P.
29 motion waives any objection to the court’s denial of the
motion to acquit. United States v. Shannon, 21 F.3d 77, 83 (5th
Cir. 1994). Thus, our review is limited to determining whether a
manifest miscarriage of justice ensues from Theris’ conviction.
Id.
The indictment charged Theris and White with assault with a
deadly weapon, 18 U.S.C. § 113(a)(3), and referenced the aiding
and abetting statute, 18 U.S.C. § 2. The jury was instructed on
aiding and abetting liability. “To prove aiding and abetting,
the Government had to show that [Theris] (1) associated himself
with the criminal enterprise, (2) participated in the venture,
and (3) sought by his actions to make the venture succeed.”
United States v. Polk, 118 F.3d 286, 295 (5th Cir. 1997). The
evidence, especially the testimony of the victim and of the
correctional officer who encountered Theris and White hitting the
victim, reveals that the record is not devoid of evidence
pointing toward Theris’ guilt as an aider and abettor. See
United States v. Ruiz, 860 F.2d 615, 618 (5th Cir. 1988).
No. 00-60908
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Both Theris and White challenge the district court’s
admission into evidence of Government exhibits (Gov’t exhs) 17
and 18, injury-assessment reports made by Physician Assistant
Lopez. They contend that the evidence should have been excluded
pursuant to a physician-patient privilege.** Theris’ failure to
assert a timely objection to Gov’t exh. 17 constitutes waiver.
See Nguyen v. Excel Corp., 197 F.3d 200, 206-07 (5th Cir. 1999).
Even if objection had been timely, the district court did not
abuse its discretion in admitting the exhibits because no
recognized privilege covers this evidence.
“Rule 501 of the Federal Rules of Evidence authorizes
federal courts to define new privileges by interpreting ‘common
law principles . . . in the light of reason and experience.’”
Jaffee v. Redmond, 518 U.S. 1, 8 (1996) (quoting the rule). In
Jaffee, 518 U.S. at 15, the Supreme Court held that “confidential
communications between a licensed psychotherapist and her
patients in the course of diagnosis or treatment are protected
from compelled disclosure under Rule 501.” In explaining the
need for this privilege, the Court contrasted it with
“[t]reatment by a physician for physical ailments,” thus
implicitly rejecting a privilege involving other healthcare
providers. Id. at 10. A physician-patient privilege did not
exist at common law. See United States v. Mancuso, 444 F.2d 691,
695 (5th Cir. 1971). Under federal common law, the privilege
**
White states but does not argue that admission of Gov’t
exh. 18 violated the rule of Miranda v. Arizona, 384 U.S. 436
(1966). Thus, we deem the constitutional issue abandoned. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
No. 00-60908
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does not exist, except as a privilege between a licensed
psychotherapist and patient involving confidential communication.
See Jaffee, 518 U.S. at 15; United States v. Burzynski Cancer
Research Inst., 819 F.2d 1301, 1311 (5th Cir. 1987).
White and Theris challenge their sentences by arguing that
the district court impermissibly double counted by enhancing
their respective offense levels by four pursuant to U.S.S.G.
§ 2A2.2(b)(2)(B). Neither defendant raised this issue before the
district court. Consequently, our review is limited to plain
error. See United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994) (en banc). In United States v. Morris, 131 F.3d 1136,
1139-40 (5th Cir. 1997), this court held that double counting
under the guidelines is impermissible “only if the particular
guidelines at issue forbid it,” and U.S.S.G. § 2A2.2 does not.
Thus, no plain error ensued in this case. See Calverley, 37 F.3d
at 162-63.
AFFIRMED. MOTIONS DENIED.