           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                      November 20, 2009

                                      No. 08-31136                   Charles R. Fulbruge III
                                                                             Clerk

UNITED STATES OF AMERICA

                                                 Plaintiff–Appellee
v.

ALBERT E. MOSLEY

                                                 Defendant–Appellant




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CR-00219


Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*


       Appellant Albert E. Mosley appeals his conviction for being a felon in
possession of a firearm. At trial, Appellant’s primary defense theory was that
officers of the Baton Rouge Police Department (“BRPD”) planted a gun in his
apartment and fabricated the charge to punish him for running from them. To
support this theory, Appellant sought to introduce evidence that officers also had
punished him for running from them by beating him and by fabricating other

       *
        Under Fifth Circuit Rule 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
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charges. The district court excluded evidence of the alleged beatings and the
alleged fabricated charges as irrelevant on the ground that these events occurred
after the crime of conviction was completed.
      Appellant also sought to introduce the testimony of Assistant State Public
Defender Scott Collier, who would have testified generally about why a
defendant might plead guilty in state court to a crime he did not commit. The
district court excluded this testimony as irrelevant.
      The jury convicted Appellant.     The district court applied a two-point
sentence enhancement for perjury under United States Sentencing Guideline
(“USSG”) § 3C1.1.
      On appeal, Appellant argues that the district court abused its discretion
by excluding evidence of police brutality and fabricated charges, abused its
discretion by excluding Collier’s testimony, and committed clear error by giving
him an obstruction of justice sentence enhancement for perjury. Appellant’s
arguments are not persuasive. Thus, we affirm Appellant’s conviction.
           I. FACTUAL AND PROCEDURAL BACKGROUND
A.    Factual Background
      Officer Brian Hunter, a patrol officer with the BRPD, was working at the
duty desk when a man entered the station. The man explained that he lived in
a nearby apartment complex, and that every time he walked past Apartment 55,
three men standing outside threatened him. Officer Hunter and Officer James
Roy drove to the apartment complex and walked toward Apartment 55. They
saw three men outside the apartment. One, later identified as Appellant, was
sitting. The others, later identified as David Young and Montreal Williams,
were standing.
      At this point, the officers’ accounts differ from those of Appellant, Young,
and Williams. At trial, Officers Hunter and Roy testified that when Appellant
saw the officers, he jumped up, and a silver and black pistol fell from his

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waistband. According to the officers, Appellant picked up the pistol and ran into
Apartment 55 (later identified as Appellant’s home for the last six months).
Appellant, Young, and Williams testified that they had been drinking gin when
the officers arrived. They testified that Appellant stood up when he saw the
officers, the gin bottle fell to the ground, and Appellant went inside.
      The officers testified that after Appellant ran into the apartment, Officer
Roy stayed with Young and Williams while Officer Hunter called for backup and
covered the rear of the building. As Officer Eisworth arrived to assist Officers
Hunter and Roy, Appellant ran out the front door. Officer Eisworth chased
Appellant.   With help from Officers Jason Dohm and Paul Brown, Officer
Eisworth arrested Appellant. At the time of his arrest, Appellant did not have
a weapon on his person.
      Appellant consented to a search of the apartment. Officers Hunter and
Dohm searched the kitchen. Officer Hunter testified that the stove had been
pushed out from the wall, and that he shone his flashlight behind the stove,
where he found a silver and black pistol. Officer Dohm testified that he saw
Officer Hunter reach behind the stove and pick up the pistol.
      Appellant testified that when he said he did not have a gun one of the
officers responded, “[I]t belongs to you now.” Young testified that he overheard
the officers saying they found the gun in a briefcase in the bedroom rather than
behind the stove in the kitchen.
B.    State Proceedings
      Appellant was charged in state court with possession of a firearm by a
convicted felon. Appellant pled guilty to the lesser included misdemeanor charge
of illegal carrying of a weapon. In conjunction with his plea, Appellant admitted
under oath that he had been carrying a gun on the night of his arrest.




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C.    Federal Trial
      Despite his state court guilty plea, Appellant pled not guilty in federal
court to being a felon in possession of a firearm. Before opening statements, the
Government informed the district court that Appellant intended to call Collier.
Collier had not been Appellant’s counsel in the state prosecution but would
testify generally about considerations in state prosecutions that might lead a
defendant to plead guilty to a crime he did not commit. This testimony would
include the advice public defenders give to defendants regarding guilty pleas to
lesser charges, the heavy caseloads of public defenders, and public defenders’
problems managing their cases. The Government objected, and the district court
ruled that Collier’s proposed testimony was not relevant.
      The district court held a suppression hearing outside the presence of the
jury to determine the voluntariness of a statement Appellant made after his
arrest.    At the hearing, Officer Eisworth testified that when he arrested
Appellant, he struck Appellant’s shoulder several times to loosen his arm enough
to take him into custody, read Appellant his Miranda warnings, and walked him
back to his patrol car. He testified that Appellant tried to run away, slipped, and
fell against the car, shattering its window. He testified that Appellant showed
no signs of physical injury after hitting the car and that Appellant said he did
not need medical attention.      Initially, the officers charged Appellant with
criminal damage to property and resisting arrest, but later those charges were
dropped.
      Appellant testified that Officer Eisworth did not read him his Miranda
warnings and that the officers kicked him in his face and head when they first
arrested him. He also testified that Officer Eisworth smashed his head onto the
car, and that he complained he was hurt and needed medical attention but was
ignored.



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      Patricia Thomas, a resident of the apartment complex, testified that she
lived upstairs from Appellant and was home on the night of the arrest. She
testified that she saw one of the officers smash Appellant’s head against the
patrol car door several times. She said that she feared the officers would kill
Appellant, and when she cried out, one of the officers told her to go back inside.
She testified that Appellant was not resisting the officers in any way.
      At the conclusion of the suppression hearing, the district court ruled that
Appellant’s statement was not admissible because Officer Eisworth skipped a
portion of the Miranda warning.
      Appellant’s defense to the possession charge was that the gun in the
apartment was not his and had been left by a previous resident, or in the
alternative that the officers planted the gun and fabricated the charge to punish
him for running from them. To support the latter theory, Appellant sought to
introduce evidence that the officers also punished him by beating him, and that
the officers also fabricated charges of criminal destruction of property and
resisting arrest. Specifically, Appellant sought to introduce Thomas’s and his
own testimony about the beatings, to cross-examine Officer Hunter, and to call
Officer Eisworth. The district court sustained the Government’s objections to
this evidence, ruling that it was not relevant because it dealt with events that
occurred after Appellant’s arrest-related conduct (namely, possession of a
firearm).
      After the close of trial, Appellant moved for a new trial, arguing that he
had presented credible evidence of a set-up by the BRPD. The district court
denied Appellant’s motion, reasoning that the jury had heard two versions of the
events on the night of the arrest and had rejected Appellant’s version.
      At sentencing, the district court increased Appellant’s base offense level
by two points for obstruction of justice because Appellant testified at trial that



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he did not possess a gun, which contradicted Appellant’s guilty plea in the state
court proceeding, and which the district court found untruthful.
                              II. JURISDICTION
      This court has jurisdiction over the final judgment of the district court in
this criminal case under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                 III. ANALYSIS
A.    Whether the District Court Was within Its Discretion When It
      Excluded Evidence of Alleged Police Brutality That Occurred
      after the Crime of Conviction Was Completed
      Appellant argues that the district court violated his constitutional right
to present a defense by excluding evidence of his alleged police beating and the
allegedly fabricated charges of criminal destruction of property and resisting
arrest. This court reviews a district court’s determination of the admissibility
of evidence for abuse of discretion. United States v. West, 22 F.3d 586, 591 (5th
Cir. 1994).
      The Sixth Amendment to the United States Constitution guarantees a
criminal defendant the right “to have compulsory process for obtaining witnesses
in his favor.”   This provision protects “[t]he right to offer the testimony of
witnesses, and to compel their attendance . . . [and] the right to present the
defendant’s version of the facts as well as the prosecution’s to the jury so that it
may decide where the truth lies.” Washington v. Texas, 388 U.S. 14, 19 (1967).
But the right to offer testimony is not absolute. It permits a defendant “to put
on the stand a witness who was physically and mentally capable of testifying to
events that he had personally observed, and whose testimony would have been
relevant and material to the defense.” Id. at 23 (emphasis added). “Relevant
evidence” is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.”         F ED. R. E VID . 401.   “All



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relevant evidence is admissible, except as otherwise provided . . . . Evidence
which is not relevant is not admissible.” F ED. R. E VID. 402.
      The district court reasoned that because the alleged events happened after
the crime of conviction, evidence related to these events was not relevant. The
district court allowed Appellant to argue his defense theory to the jury and
allowed Appellant to present some evidence in support. Appellant, Young, and
Williams testified that Appellant dropped a gin bottle rather than a gun; Young
testified that he heard an officer say that the gun was in a briefcase rather than
behind the kitchen stove; and Appellant testified that an officer told him that the
gun “belongs to you now.”
      The district court did not abuse its discretion by excluding testimony about
the alleged beatings and alleged false charges. The tenuous connection between
the proffered testimony and Appellant’s defense theory, and the tenuousness of
the defense theory itself, place the testimony within the district court’s
discretion.   Officer Hunter, who found the gun, did not have any direct
knowledge of the events that led to the charges of criminal destruction of
property and resisting arrest. Likewise, Thomas’s testimony would not have
been helpful because she says she only saw one officer—Eisworth—beating
Appellant.    It is possible that Appellant’s testimony could have sought to
establish that Officer Dohm, who was present at the initial arrest and also at the
search of the kitchen, both beat Appellant and planted the gun. But this is a
thin reed on which to hang an argument.
      Appellant seeks to circumvent these logical impediments by arguing that
the officers acted as a “unified team” and should essentially be treated as a
single entity. For us to accept this theory, we would have to believe several
improbable prerequisites. For example, we would have to believe that all of the
officers agreed beforehand to punish any suspect who ran from them by planting
a gun and conducting a beating: it is unlikely that the officers would have had

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an opportunity to reach such an agreement at the apartment complex, because
Appellant ran out the door just as Officer Eisworth was arriving, and apparently
before Officers Dohm and Brown even reached the scene. Further, we would
have to believe that one of the officers kept an unlicensed, untraceable gun
hidden on his person or in his patrol car, in case he wanted to plant it on a
suspect.
       Appellant cites several cases, but none of them supports his argument.
United States v. Viera, 819 F.2d 498 (5th Cir. 1987), United States v. Kimble, 719
F.2d 1253 (5th Cir. 1983), and Fountain v. United States, 384 F.2d 624 (5th Cir.
1967) address the interplay between the competing constitutional rights of a
defendant and a witness.      In those cases, there was no question that the
proposed cross-examination would elicit relevant testimony. In contrast, the
instant case deals exclusively with relevance. Appellant also cites United States
v. Bensabat, 568 F.2d 1226 (5th Cir. 1978). Appellant does not explain why he
believes Bensabat is relevant, and after reviewing this case, we conclude that it
is not.
B.     Whether the District Court Was within Its Discretion When It
       Excluded Collier’s Testimony on the General Handling of Guilty
       Pleas in State Court
       Appellant argues that the district court violated his Sixth Amendment
rights by excluding Collier’s testimony. At trial, Appellant argued that although
he pled guilty in state court to illegal carrying of a weapon, he was actually
innocent of that crime.     Appellant wanted Collier to testify about why a
defendant would plead guilty to a crime he did not commit. The district court
excluded this evidence on the ground that general evidence of how criminal cases
are handled in state court is not relevant in a separate federal trial. We review
a district court’s exclusion of evidence for abuse of discretion. West, 22 F.3d at
591.



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      Collier did not represent Appellant in state court, and Appellant did not
intend to call Collier to testify about any personal interactions between Collier
and Appellant. It appears that Appellant wanted Collier to help Appellant
explain to the jury that Appellant pled guilty to ensure he would essentially get
time served. It also appears that Appellant wanted Collier to explain that state
deputy public defenders were overworked, had heavy caseloads, and could not
adequately investigate or even remember every case, and thus could not provide
every defendant with an adequate defense—so that a defendant might prefer to
plead to a lesser charge rather than risk sub-par representation at trial.
         There is no indication that the district court would have barred Appellant
from presenting other evidence of this theory, including his own testimony and
testimony from people who had direct experience with Appellant’s case. But
Collier would only have testified generally about state court criminal
prosecutions, so the district court did not abuse its discretion by excluding his
testimony.
C.    Whether the District Court Committed Clear Error When It
      Applied a Two-Point Enhancement for Obstruction of Justice
      Appellant argues that the district court committed clear error when it
increased his base offense level for obstruction of justice by two points under
USSG § 3C1.1. A finding of obstruction of justice under USSG § 3C1.1 is a
factual finding reviewed for clear error. United States v. Mann, 493 F.3d 484,
498 (5th Cir. 2007). A factual finding is not clearly erroneous if it is plausible in
light of the complete record. United States v. Huerta, 182 F.3d 361, 364 (5th Cir.
1999).
      A court may increase a defendant’s base offense level by two points if “the
defendant willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation, prosecution or
sentencing” of the crime of conviction. USSG § 3C1.1. “[T]he Constitution


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permits a court to enhance a defendant’s sentence under [USSG] § 3C1.1, if the
court finds the defendant committed perjury at trial.”            United States v.
Dunnigan, 507 U.S. 87, 88–89 (1993).
         A witness testifying under oath commits perjury if he “gives false
testimony concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.” Id.
at 94; see also 18 U.S.C. § 1621 (federal perjury statute). To apply a sentence
enhancement based on a defendant’s trial testimony, a court must “‘review the
evidence and make independent findings necessary to establish a willful
impediment to or obstruction of justice, or an attempt to do the same.’” United
States v. Creech, 408 F.3d 264, 270–71 (5th Cir. 2005) (quoting Dunnigan, 507
U.S. at 95). “[I]t is preferable for a district court to address each element of the
alleged perjury in a separate and clear finding.” Dunnigan, 507 U.S. at 95. But
“[t]he district court’s determination that enhancement is required is sufficient
. . . if . . . the court makes a finding of obstruction of, or impediment to, justice
that encompasses all of the factual predicates for a finding of perjury.” Id. In
other words, a district court need not make an explicit finding of willfulness. Id.;
United States v. Morris, 131 F.3d 1136, 1140 (5th Cir. 1997).
         Appellant argues that the district court committed clear error because it
failed to make a sufficient finding of willfulness.         This argument is not
persuasive. While it is true that the district court did not make an explicit
finding of willfulness, an explicit finding is not necessary. Dunnigan, 507 U.S.
at 95.
         The district court’s statements show that it made an implicit finding of
willfulness. The district court observed that Appellant had a right not to testify,
but because he chose to do so, he was “obligated to testify truthfully, and he did
not.” The district court noted that Appellant tried to convince the jury that his
state court plea “was not valid because the facts that he admitted to in state

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court were not true . . . and therefore, the jury . . . should not convict him,” and
that “[f]ortunately, the jury was smarter than that.” The district court explained
that Appellant “took the stand in this trial and said that he didn’t have this gun,
and that he had somehow—he had a gin bottle that he dropped on the concrete
sidewalk, and it didn’t break, but somehow the policemen took the gin bottle for
a gun.” The district court explained that “[t]hat statement alone . . . is sufficient
to form the basis of the deduction for obstruction of justice in this trial.” Thus,
although the district court did not make an explicit finding of willfulness, it
made an implicit finding based on its conclusion that Appellant lied under oath
about having a gin bottle instead of a gun, and about his state court plea.
      Appellant also argues that the district court committed clear error because
Appellant, Young, and Williams all testified that Appellant was holding a gin
bottle rather than a gun. But the fact that other witnesses gave the same story
as Appellant does not mean the district court erred in concluding that Appellant
committed perjury.
      The district court did not commit clear error in applying an enhancement
under USSG § 3C1.1.
                               IV. CONCLUSION
      Appellant argues that the district court abused its discretion by excluding
evidence of police brutality and fabricated charges, abused its discretion by
excluding Collier’s testimony, and committed clear error by giving a sentence
enhancement for perjury. Appellant’s arguments are unpersuasive. We affirm
Appellant’s conviction.




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