US v. Douglas Roseby, No. 10-4066 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4066 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DOUGLAS ROSEBY, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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. Maryland, Attorney, Baltimore, Ruter, LAW OFFICES OF GERALD C. RUTER, P.C., Towson, for Appellant. Rod J. Rosenstein, United States Paul E. Budlow, Assistant United States Attorney, 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 Unpublished opinions are not binding precedent in this circuit.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). that: Roseby asserts (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 § 922(g) had the requisite conviction; and interstate (4) the nexus district to support court erred his 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). 2 issues he wanted counsel to raise on appeal. motion to file a pro se supplemental We deny Roseby s 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). defendant demonstrates that the district court Even if a 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). courts on matters [B]road discretion must be granted trial of continuances; 2 only an unreasoning and 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 ). 3 arbitrary insistence justifiable request upon expeditiousness for delay assistance of counsel. in violates the the face right of to a the 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. criminal defendant to be entitled to a Franks For a 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 Franks, 438 U.S. at 155-56. to show that the false disregard for the truth[.] Next, the defendant has the burden 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. 554, 558 (4th Cir. 1994). United States v. Jeffus, 22 F.3d Additionally, the showing must be 4 more than conclusory offer of proof. U.S. at 171). and must be accompanied by a detailed Colkley, 899 F.2d at 300 (quoting Franks, 438 Accordingly, allegations of misconduct must be supported through affidavits and sworn witness statements, or an explanation of why they cannot be provided. 171. Franks, 438 U.S. at 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 evidence to support Roseby s § 922(g) conviction. sufficient 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 5 757, 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. States v. Gallimore, Wells, 247 98 F.3d F.3d at 808, 138 811 (4th (rejecting Cir. See United 1996); defendant s accord 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. the Roseby asserts that absent such an affirmative ruling, agent expressing was an only opinion a lay based witness on who was specialized forbidden knowledge. from 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 6 admitting evidence. United States v. Benkahla, 530 F.3d 300, 309 (internal (4th Cir. 2008) 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. Hopkins, 310 F.3d 145, 150-51 See, e.g., United States v. (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. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7

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