United States v. Douglas Roseby , 454 F. App'x 186 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4066
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOUGLAS ROSEBY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:09-cr-00178-JFM-1)
Submitted: November 2, 2011 Decided: November 17, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gerald C. Ruter, LAW OFFICES OF GERALD C. RUTER, P.C., Towson,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Paul E. Budlow, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas Roseby appeals his convictions and 420-month
sentence after a jury convicted him of one count each of
possession with intent to distribute cocaine base and aiding and
abetting, in violation of 21 U.S.C.A. §§ 2, 841 (West 1999 &
Supp. 2011); possession with intent to distribute heroin and
aiding and abetting, in violation of 21 U.S.C.A. §§ 2, 841;
possession of a handgun in furtherance of a drug trafficking
crime and aiding and abetting, in violation of 18 U.S.C.A. §§ 2,
924(c) (West 2000 & Supp. 2011); and possession of a firearm by
a convicted felon and aiding and abetting, in violation of 18
U.S.C.A. §§ 2, 922(g) (West 2000 & Supp. 2011). Roseby asserts
that: (1) the district court erred when it denied his request
for a continuance of the motions hearing and trial date; (2) the
district court erred when it denied his request for a Franks 1
hearing; (3) there was insufficient evidence that the firearm he
possessed had the requisite interstate nexus to support his
§ 922(g) conviction; and (4) the district court erred in
admitting a special agent’s testimony concerning the “ways and
means” of drug dealing. Roseby has also filed a motion to file
a pro se supplemental brief with this court, which includes a
letter he purportedly sent to appellate counsel about several
1
Franks v. Delaware, 438 U.S. 154 (1978).
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issues he wanted counsel to raise on appeal. We deny Roseby’s
motion to file a pro se supplemental brief and affirm the
district court’s judgment. 2
First, we review a district court’s denial of a motion
for a continuance for abuse of discretion. United States v.
Williams, 445 F.3d 724, 738-39 (4th Cir. 2006). Even if a
defendant demonstrates that the district court abused its
discretion in denying a motion for a continuance, “the defendant
must show that the error specifically prejudiced [his] case in
order to prevail.” United States v. Hedgepeth, 418 F.3d 411,
419 (4th Cir. 2005). “[B]road discretion must be granted trial
courts on matters of continuances; only an unreasoning and
2
In his motion to file a pro se supplemental brief, Roseby
asks that he be allowed to supplement his appeal with issues he
asserts he asked counsel to include in his opening brief, but
which were not included. Roseby also includes with his motion
what appears to be a copy of a letter he sent to his appellate
counsel, in which he criticizes the district court and trial
counsel, and lists ten issues he wanted appellate counsel to
raise before this court. Because Roseby is represented by
counsel who has filed an extensive merits brief, as opposed to a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), he
is not entitled to file a pro se supplemental brief and we deny
the motion. See Fed. R. App. P. 28(a), (c) (permitting
appellant to file a formal opening and reply brief). Moreover,
to the extent that Roseby attempts to assert an ineffective
assistance of counsel claim based on appellate counsel’s failure
to include several issues in his opening brief, we find that
ineffective assistance does not conclusively appear on the
record. See United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006) (noting ineffective assistance claims may be
addressed on direct appeal “only if the lawyer’s ineffectiveness
conclusively appears from the record”).
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arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the
assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12
(1983) (internal quotation marks and citation omitted). We have
reviewed the record and conclude that the district court did not
abuse its discretion when it denied Roseby’s motion for a
continuance.
We also reject Roseby’s assertion that the district
court erred when it failed to conduct a Franks hearing. For a
criminal defendant to be entitled to a Franks hearing, this
court has required a “dual showing[,] . . . which incorporates
both a subjective and an objective threshold component.” United
States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990). First,
the defendant must show that the affiant to a search warrant
made a false statement in the warrant affidavit, knowingly and
intentionally, or with reckless disregard for the truth[.]”
Franks, 438 U.S. at 155-56. Next, the defendant has the burden
to show that the false statement itself was necessary to a
determination of probable cause, and if probable cause still
exists absent the false statement, then no Franks hearing is
required. Id. at 156.
The defendant carries a heavy burden in showing the
necessity of a Franks hearing. United States v. Jeffus, 22 F.3d
554, 558 (4th Cir. 1994). Additionally, the “showing ‘must be
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more than conclusory’ and must be accompanied by a detailed
offer of proof.” Colkley, 899 F.2d at 300 (quoting Franks, 438
U.S. at 171). Accordingly, allegations of misconduct must be
supported through affidavits and sworn witness statements, or an
explanation of why they cannot be provided. Franks, 438 U.S. at
171. We have conducted a de novo review of the record and
conclude that Roseby did not meet his burden of establishing he
was entitled to a Franks hearing. See United States v. Tate,
524 F.3d 449, 455-57 (4th Cir. 2008).
We conclude that the Government produced sufficient
evidence to support Roseby’s § 922(g) conviction. To establish
a § 922(g) violation, the Government was required to prove that:
(i) Roseby was a convicted felon at the time of the offense;
(ii) he voluntarily and intentionally possessed a firearm; and
(iii) the firearm traveled in interstate commerce at some point.
United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).
As to the last element, which is the only element challenged by
Roseby, the Government was required to prove that the firearm or
ammunition in question was “in or affecting commerce,” or that
the firearm or ammunition “has been shipped or transported in
interstate or foreign commerce.” 18 U.S.C. § 922(g).
It is well established that this element is satisfied
where, as here, there is proof that the firearm was manufactured
in another state or country. United States v. McQueen, 445 F.3d
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757, 759 (4th Cir. 2006). We reject Roseby’s argument that
§ 922(g), as applied to him, should be found unconstitutional
under United States v. Lopez, 514 U.S. 549 (1995), because a
component of the handgun was manufactured more than seventeen
years before it was found in his home by police. See United
States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996); accord
Gallimore, 247 F.3d at 138 (rejecting defendant’s post-Lopez
argument that the Supreme Court requires more than a showing
that a firearm was manufactured in another state); United States
v. Nathan, 202 F.3d 230, 234 (4th Cir. 2000) (holding that proof
that a gun is manufactured in one state and used in another is
sufficient to establish the interstate commerce element of
§ 922(g) and the government is not required to prove the firearm
or ammunition substantially affected interstate commerce).
Roseby last asserts that although the Government
offered a special agent as an expert at trial, the district
court “failed to make an affirmative ruling in accepting him as
such.” Roseby asserts that absent such an affirmative ruling,
the agent was only a lay witness who was forbidden from
expressing an opinion based on specialized knowledge. This
court reviews district court evidentiary rulings for abuse of
discretion, United States v. Basham, 561 F.3d 302, 325-26 (4th
Cir. 2009), and will overturn a conviction only if we find that
a “district court judge acted arbitrarily or irrationally in
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admitting evidence.” United States v. Benkahla, 530 F.3d 300,
309 (4th Cir. 2008) (internal quotation marks and citations
omitted).
We find that the agent’s opinion testimony was not
impermissible testimony under Fed. R. Evid. 701, but that the
district court correctly and affirmatively accepted the agent as
an expert under Fed. R. Evid. 702. See, e.g., United States v.
Hopkins, 310 F.3d 145, 150-51 (4th Cir. 2002) (officer with
seven years drug investigation experience qualified as expert to
explain how materials found with defendant, including pager,
scales, and gun, were indicative of drug distribution).
Based on the foregoing, we deny Roseby’s motion to
file a pro se supplemental brief and affirm the district court’s
judgment. 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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