     Case: 09-40392     Document: 00511163281          Page: 1    Date Filed: 07/02/2010




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

                                                 FILED
                                                                             July 2, 2010
                                     No. 09-40392
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee

v.

ARTIS RYAN MILLER; FERRELL DAMON SCOTT,

                                                   Defendants – Appellants


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:08-CR-347-2


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Artis Ryan Miller and Ferrell Damon Scott appeal from their convictions
following a joint jury trial. The jury convicted both defendants of conspiracy to
possess with intent to distribute over 1,000 kilograms of marijuana and
possession with intent to distribute over 100 kilograms of marijuana. The jury
convicted Scott of two additional counts of possession with intent to distribute
over 100 kilograms of marijuana. Miller was sentenced to a total of 240 months’
imprisonment, five years of supervised release, and a $5,000 fine. Scott was

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40392

sentenced to life imprisonment, 10 years of supervised release, and a $10,000
fine.
        Scott has filed a motion for appointment of new counsel or, in the
alternative, to have his appellate brief stricken and counsel withdrawn so that
Scott may proceed pro se. In response to that motion, Scott’s counsel has filed
a motion for leave to withdraw. We deny both motions as untimely.1 And
because “the general rule in this circuit is that a claim for ineffective assistance
of counsel cannot be resolved on direct appeal when the claim has not been
raised before the district court,” we decline to review the issue at this time.2
        As for the merits of his appeal, Scott first argues that the prosecutor made
several improper comments during closing arguments. Before the trial court, he
objected only to the prosecutor’s comments regarding Judy Sepulveda,
preserving claims of error as to those comments but leaving all others subject to
plain error review on appeal.3 A review of all of the challenged comments shows
that they were appropriate as it was clear that any conclusions urged by the
prosecutor must be drawn from the evidence.4 Scott has therefore failed to show
any error regarding the prosecutor’s closing arguments as to Sepulveda or any
error—plain or otherwise—regarding the prosecutor’s other closing arguments.5
        Scott also asserts that the district court erred by denying his motion for
a mistrial. He filed that motion after being forcibly removed from the courtroom,
an action made necessary by his own outburst during closing arguments.
Because the district court gave a curative instruction, and there is no indication

        1
            See United States v. Wagner, 158 F.3d 901, 902–03 (5th Cir. 1998).
        2
       See United States v. Cantwell, 470 F.3d 1087, 1090 (5th Cir. 2006) (internal quotation
marks and citation omitted).
        3
            See United States v. Thompson, 482 F.3d 781, 785 (5th Cir. 2007).
        4
            See id. at 785–86.
        5
        See Thompson, 482 F.3d at 786; United States v. Machuca-Barrera, 261 F.3d 425,
435–36 (5th Cir. 2001).

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                                     No. 09-40392

from the record of a significant possibility that the incident had a substantial
impact upon the jury’s verdict, the district court did not abuse its discretion by
denying the motion for mistrial.6
      Both Scott and Miller argue that the evidence produced at trial was
insufficient to support the jury’s verdict against them as to their conspiracy
convictions. Because both defendants failed to renew their motions for acquittal
at the close of all evidence, their sufficiency claims are reviewed for a “manifest
miscarriage of justice.”7 Our examination of the record shows that the record is
not “devoid of evidence pointing to guilt” so as to meet this demanding standard;8
rather, even if Scott and Miller had preserved the issue for appeal, we reject it
because a rational trier of fact could have found that the evidence produced at
trial established guilt beyond a reasonable doubt for the conspiracy charges.9
      Miller argues that the district court erred by admitting evidence of prior
convictions and arrests. The court admitted the evidence under Federal Rule of
Evidence 404(b) for the limited purpose of showing intent, opportunity to commit
the offense, a plan for the commission of the crime, and the absence of accident
or mistake. This was not an abuse of discretion.10
      Miller asserts that his trial counsel rendered ineffective assistance by
failing to ask certain questions of a particular witness in order to corroborate his
defense theory. He did not raise this claim in the district court, and the current
record is not sufficient to evaluate it fairly. We thus decline to address the claim
at this time.11

      6
          See United States v. Valles, 484 F.3d 745, 756–57 (5th Cir. 2007).
      7
          United States v. Miller, 576 F.3d 528, 529 (5th Cir. 2009).
      8
          Id.
      9
          See Jackson v. Virginia, 443 U.S. 307, 318 (1979).
      10
           See United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006).
      11
           See Cantwell, 470 F.3d at 1090.

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       Miller also argues that the district court erred by denying his motion to
suppress a photographic lineup and in-court identification. He asserts that the
procedures surrounding the photographic lineup were improper and tainted the
in-court identification. The record indicates that the district court conducted a
suppression hearing and that Miller submitted photographs from the lineup as
exhibits for that hearing. As Miller failed to provide either a transcript of that
hearing or the photographic exhibits for the appellate record, we are precluded
from review of this issue.12
       In sum, we DENY all outstanding motions and AFFIRM the judgments of
conviction.




       12
         See United States v. Narvaez, 38 F.3d 162, 167 (5th Cir. 1994) (“It is appellant’s
responsibility to order parts of the record which he contends contain error and his failure to
do so prevents us from reviewing this assignment of error. As the district court relied upon
such evidence and as [appellant] failed to order that portion of the record, this court is
precluded from reviewing his allegation.”) (internal quotation marks and citations omitted).

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