     Case: 17-10463      Document: 00514566510         Page: 1    Date Filed: 07/23/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                  United States Court of Appeals

                                    No. 17-10463
                                                                           Fifth Circuit

                                                                         FILED
                                  Summary Calendar                   July 23, 2018
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


                                                 Plaintiff-Appellee

v.

STERIC PAUL MITCHELL,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:13-CR-128-1


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Steric Paul Mitchell appeals his jury trial convictions for conspiracy to
commit kidnapping and for kidnapping, see 18 U.S.C. §§ 2, 1201(a)(1), (c), and
the concurrent 420-month sentences that followed.                He contends that the
district court undermined his ability to present a complete defense or
alternatively that his defense counsel was ineffective for failing to develop
evidence necessary to support his primary defensive theory.                          We affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10463

      Mitchell’s constitutional right to present a complete defense was not
infringed by the district court’s in limine order excluding evidence that the
victim was a prostitute or engaged in prostitution at the time of the crimes
charged in the indictment. See FED. R. EVID. 412; see also Holmes v. South
Carolina, 547 U.S. 319, 324 (2006); United States v. Ramos, 537 F.3d 439, 448
(5th Cir. 2008).
      To prove a violation of the kidnapping statute, the Government must
establish “(1) the transportation in interstate [or foreign] commerce (2) of an
unconsenting person who is (3) held for ransom or reward or otherwise, (4) such
acts being done knowingly and willfully.” United States v. Garza-Robles, 627
F.3d 161, 166 (5th Cir. 2010) (internal quotation marks and citation omitted).
“To prove conspiracy to commit kidnapping, the Government must establish:
(1) the existence of an agreement between two or more people to pursue the
offense of kidnapping; (2) the defendant knew of the agreement; and (3) the
defendant voluntarily participated in the conspiracy.” Id. at 168.
      We discern no due process violation. Whether the victim was a prostitute
is “irrelevant to this case,” as that status alone “does not make more or less
probable the fact that” Mitchell committed the crimes of conviction. United
States v. Lockhart, 844 F.3d 501, 510 (5th Cir. 2016) (internal quotation marks,
citation, and ellipsis omitted). Therefore, “the district court did not violate the
Fifth Amendment when it excluded such evidence pursuant to Rule 412.” Id.;
see Garza-Robles, 627 F.3d at 166, 168.
      Nor do we discern an infringement of the right of confrontation. Mitchell
is not constitutionally guaranteed “cross-examination that is effective in
whatever way, and to whatever extent, [he] might wish.” Lockhart, 844 F.3d
at 510 (internal quotation marks and citation omitted). “[C]ross-examination
limited on the basis of a Federal Rule of Evidence does not abridge an accused’s



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                                 No. 17-10463

right to present a defense so long as the rule is not arbitrary or
disproportionate to the purposes it is designed to serve.” Lockhart, 844 F.3d
at 510 (internal quotation marks, citation, and brackets omitted).
      Mitchell does not explain why he did not avail himself of the opportunity
to revisit the exclusion ruling in the district court before or during the trial.
The record shows that the district court was at pains before trial to assure
Mitchell that the order excluding mention of prostitution matters was not
definitive but instead was merely preliminary and subject to revision or
revocation. Mitchell fails to show that the evidentiary rules at issue in this
case were arbitrary or were applied arbitrarily and that consequently he was
improperly prevented from challenging the conspiracy and kidnapping charges
by presenting evidence that the victim was a prostitute who voluntarily
rendered sexual services. See Lockhart, 844 F.3d at 510.
      We decline to consider Mitchell’s alternative claim of ineffective
assistance of counsel, without prejudice to Mitchell’s right to assert the claim
on collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir.
2014). A proceeding under 28 U.S.C. § 2255 is the favored forum for litigating
federal prisoners’ claims of ineffective assistance of counsel. Massaro v. United
States, 538 U.S. 500, 504-09 (2003).       The record before us is devoid of
information about whether strategic decisions were made by Mitchell in
concert with his trial counsel that may bear on the ineffectiveness claim. In
sum, Mitchell does not present any justification for “an exception to [the]
general rule of non-review” of an ineffectiveness claim on direct appeal. United
States v. Stevens, 487 F.3d 232, 245 (5th Cir. 2007).
      AFFIRMED.




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