              Case: 16-10361    Date Filed: 01/20/2017   Page: 1 of 6


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-10361
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 3:15-cr-00005-TCB-RGV-2

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

OCTAVIOUS HASTINGS,
a.k.a. Tay Lay,

                                                              Defendant-Appellant.
                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                (January 20, 2017)

Before MARTIN, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Octavious Hastings appeals his conviction after a jury trial for possession of

a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). Hastings argues that the government committed an “abuse of process”
              Case: 16-10361     Date Filed: 01/20/2017   Page: 2 of 6


when it knowingly subpoenaed a witness “of questionable reliability” to testify at

trial. After careful review, we affirm.

                                          I.
      Hastings was convicted for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Hastings and Rashard Jones

sold a gun to Teresa Murphy, who was a confidential informant. Special Agent

Allan McLeod supervised Murphy while she made a controlled purchase of the

gun under audio and video surveillance. Murphy drove Jones and Hastings to

Hastings’s house where Jones and Hastings went inside and then returned to the

car. Then, they all drove to another spot where Jones handed Murphy the gun in

exchange for $250.

      At issue on appeal is part of Murphy’s trial testimony. She testified that

when Hastings and Jones left Hastings’s house she saw Hastings grab Jones and

hand him something. She said she then saw Jones stick something in his pants and

pull his shirt over it. Murphy admitted at trial she had not told law enforcement (or

anyone else) she saw Hastings hand something to Jones as they exited Hastings’s

house until a week before she testified at trial. She said reviewing the surveillance

video helped her recall this handoff. She also testified no one prompted her to say

she saw the handoff between Hastings and Jones. On cross-examination, Murphy




                                           2
                 Case: 16-10361   Date Filed: 01/20/2017   Page: 3 of 6


answered that she did not give this testimony to “help [the government] get the ball

over the goal line.”

       Special Agent McLeod testified that when he debriefed Murphy right after

the purchase she did not mention seeing Hastings hand anything to Jones as they

left Hastings’s house. Nor was this handoff included in any police reports about

the purchase. McLeod said Murphy mentioned it for the first time during witness

preparation one week before trial, and that she volunteered the information without

prompting. He also testified that the Bureau of Alcohol, Tobacco, Firearms, and

Explosives paid Murphy $200 for the purchase from Jones and Hastings, and a

total of $17,000 for her work on various undercover purchases and investigations.

                                         II.
       Hastings argues for the first time on appeal that the government committed

an abuse of process. He contends the government reasonably should have known

Murphy’s testimony would be unreliable but still compelled the testimony under a

subpoena ad testificandum. Hastings claims Murphy’s new recollection of

Hastings handing something to Jones as they were leaving Hastings’s house

provided the only direct evidence of Hastings possessing a firearm. Thus, Hastings

argues, her testimony was crucial to conviction and affected Hastings’s substantial

right to a fair trial.




                                          3
               Case: 16-10361     Date Filed: 01/20/2017    Page: 4 of 6


      We review claims not raised in the district court for plain error. United

States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 1776 (1993). To prevail on

plain-error review an appellant must show: “(1) an error (2) that is plain and

(3) that has affected the defendant’s substantial rights.” United States v. Madden,

733 F.3d 1314, 1320 (11th Cir. 2013). “[A]nd if the first three prongs are met,

then a court may exercise its discretion to correct the error if (4) the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Id.

(alteration adopted and quotation omitted).

      Even if we assume error here, Hastings cannot demonstrate that error was

plain. “For a plain error to have occurred, the error must be one that is obvious and

is clear under current law.” United States v. Dortch, 696 F.3d 1104, 1112 (11th

Cir. 2012) (quotation omitted).

      Abuse of process is a common-law tort claim. See, e.g., Dunwoody

Homeowners Ass’n v. DeKalb Cty., 887 F.2d 1455, 1457 n.1 (11th Cir. 1989) (per

curiam) (“[T]he Georgia Supreme Court merged the common law torts of

malicious abuse of process and malicious use of process into a new tort.” (citing

Yost v. Torok, 344 S.E.2d 414, 417 (Ga. 1986))); Dykes v. Hosemann, 776 F.2d

942, 950 (11th Cir. 1985) (Tjoflat, J., concurring in part and dissenting in part)

(“Florida law provides that the deliberate use of a legal procedure, whether

criminal or civil, for a purpose for which it was not designed constitutes a tort,


                                           4
                Case: 16-10361       Date Filed: 01/20/2017       Page: 5 of 6


abuse of process.”); Preskitt v. Lyons, 865 So. 2d 424, 430 (Ala. 2003) (“[I]n order

to prove the tort of abuse of process, a plaintiff must prove: (1) the existence of an

ulterior purpose; 2) a wrongful use of process, and 3) malice.” (quotation

omitted)). But Hastings is asserting abuse of process in this direct appeal of his

criminal conviction, and not in a civil suit. Hastings has provided no legal basis

for concluding that an abuse of process claim is proper in a direct appeal of a

criminal conviction, much less that the claim is “clear under current law.”1 Dortch,

696 F.3d at 1112. Neither did our own efforts produce support for his claim.

       Hastings cites White v. Holderby, 192 F.2d 722 (5th Cir. 1951), which was a

civil suit for damages. He also mentions United States v. Davis, 754 F.3d 1205

(11th Cir.), which we vacated, 573 F. App’x 925 (11th Cir. 2014), reh’g en banc,

785 F.3d 498 (11th Cir. 2015). Even if Davis remained good law, it would not

support an abuse of process claim because it discussed prosecutorial misconduct

with no mention of abuse of process. 2 754 F.3d at 1218–19. Hastings also cites




       1
          Hastings may have intended to bring a prosecutorial misconduct claim. See, e.g.,
United States v. McNair, 605 F.3d 1152, 1208 (11th Cir. 2010) (“To establish prosecutorial
misconduct for the use of false testimony, a defendant must show the prosecutor knowingly used
perjured testimony, or failed to correct what he subsequently learned was false testimony, and
that the falsehood was material.”). He did not, however, so we do not address whether a
prosecutorial misconduct claim would be viable.
       2
         Hastings mentions more prosecutorial misconduct cases in his reply brief that also do
not mention abuse of process. E.g., Berger v. United States, 295 U.S. 78, 55 S. Ct. 629 (1935);
Davis v. Zant, 36 F.3d 1538 (11th Cir. 1994); United States v. Wallach, 935 F.2d 445 (2d Cir.
1991).
                                                5
                 Case: 16-10361       Date Filed: 01/20/2017        Page: 6 of 6


several noncriminal cases from other jurisdictions. 3 Because Hastings does not

support his abuse of process claim with relevant cases or law, he cannot show that

the district court plainly erred. See Dortch, 696 F.3d at 1112.

       AFFIRMED.




       3
          E.g., Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585 (9th Cir. 1983) (sanctions in an
antitrust case); Att’y Grievance Comm’n of Md. v. Kahn, 431 A.2d 1336 (Md. 1981)
(disbarment proceedings).
                                                 6
