         09-4125-cr
         United States v. Bethea


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of                                      Appeals
 2       for the Second Circuit, held at the Daniel Patrick                                      Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                                      City of
 4       New York, on the 19 th day of July, two thousand and                                    ten.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                PETER W. HALL,
 8                         Circuit Judges,
 9                RICHARD W. GOLDBERG,
10                         Judge. *
11
12
13       UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                       -v.-                                                   09-4125-cr
18
19       CRAIG BETHEA,
20
21                                       Defendant-Appellant.
22
23
24




                 *
                 The Honorable Richard W. Goldberg, United States Court of
         International Trade, sitting by designation.
 1   FOR APPELLANT:                 LAURIE S. HERSHEY, Manhasset,
 2                                  NY.
 3
 4   FOR APPELLEE:                  WENDY L. FULLER, Assistant
 5                                  United States Attorney (Gregory
 6                                  L. Waples, Assistant United
 7                                  States Attorney, on the brief),
 8                                  for Tristram J. Coffin, United
 9                                  States Attorney for the District
10                                  of Vermont, Burlington, VT.
11
12        Appeal from the United States District Court for the
13   District of Vermont (Murtha, J.).
14
15       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

16   AND DECREED that the judgment of the district court is

17   AFFIRMED.

18       Appellant Craig Bethea appeals from the district

19   court’s September 30, 2009 judgment of conviction, entered

20   following his December 10, 2008 conditional guilty plea to

21   one count of conspiring to distribute and possess with

22   intent to distribute fifty or more grams of cocaine base, in

23   violation of 21 U.S.C. § 846.       Appellant’s plea agreement

24   conditioned his guilty plea on the result of appellate

25   review of the district court’s August 8, 2008 denial of his

26   pro se motion to suppress. 1   See Fed. R. Crim. P. 11(a)(2).


         1
           Appellant was represented in the district court
     proceedings by two separate attorneys. These attorneys
     filed two successive motions to suppress, dated June 15,
     2007 and February 15, 2008, respectively. The district
     court denied both motions. Appellant filed his third

                                     2
1    This is that appeal.    We assume the parties’ familiarity

2    with the underlying facts, the procedural history, and the

3    issues presented for review.

4         In the motion in question, appellant sought the

5    suppression of “all items seized in the purported execution

6    of a search warrant” on January 20, 24, and 25, 2006.    The

7    search warrant referenced in appellant’s motion was issued

8    on January 20, 2006 by a state-court judge in Vermont under

9    Vermont law. 2   The “items seized” were a series of recorded

10   conversations that took place on those dates between

11   appellant and a confidential informant; the conversations

12   pertained to several transactions in which appellant sold

13   crack cocaine to the informant.    In addition to the state-

14   law warrant, the discussions were also monitored and



     motion, acting pro se, on June 19, 2008.
          2
           Law enforcement obtained the warrant under Vermont
     law because “obtaining evidence by electronic monitoring in
     a defendant’s home without his consent and without prior
     court authorization violates Article 11” of Vermont’s
     constitution. State v. Blow, 157 Vt. 513, 520 (1991).
     Nevertheless, as the district court acknowledged, federal
     law governs this federal criminal prosecution, including any
     questions relating to the lawfulness of the searches
     conducted. See United States v. Rommy, 506 F.3d 108, 129
     (2d Cir. 2007) (“The admissibility of evidence in a United
     States court depends solely on compliance with United States
     law.”); see also United States v. Pforzheimer, 826 F.2d 200,
     203 (2d Cir. 1987).

                                    3
1    recorded pursuant to the informant’s written consent.

2        The district court denied appellant’s pro se motion,

3    reasoning that the recordings were lawfully obtained because

4    the informant had knowingly and voluntarily consented to the

5    government surveillance.   On appeal, appellant’s counsel

6    does not attack that conclusion.   Nor could he.     The

7    informant’s consent allowing the government to record the

8    conversations rendered those recordings lawful under both

9    Title III, see 18 U.S.C. § 2511(2)(c); United States v.

10   Friedman, 300 F.3d 111, 120-21 (2d Cir. 2002), and the

11   Fourth Amendment, see United States v. Workman, 80 F.3d 688,

12   694 (2d Cir. 1996).

13       Instead, appellant’s counsel argues that we should

14   construe his client’s pro se motion to suppress as also

15   challenging:   (1) a subsequent April 12, 2006 warrant issued

16   by the district court in Vermont that authorized a search of

17   appellant’s residence; and (2) the circumstances surrounding

18   his warrantless arrest following that search.      However,

19   although we construe pro se submissions liberally, we do not

20   create arguments out of whole cloth.   See Green v. United

21   States, 260 F.3d 78, 83 (2d Cir. 2001).   Appellant’s pro se

22   motion to suppress presented no arguments regarding the


                                   4
1    subsequent search of his residence or his arrest.

2    Therefore, in light of the appellate waiver in his plea

3    agreement, counsel’s arguments are not properly before us.

4    See United States v. Simmons, 763 F.2d 529, 533 (2d Cir.

5    1985).   Moreover, even if we were to reach these additional

6    contentions, we would reject them for reasons substantially

7    similar to those stated by the district court in its order

8    of October 12, 2007.   See United States v. Bethea, No. 07

9    Cr. 003, 2007 WL 3025042, at *2-4 (D. Vt. Oct. 12, 2007).

10       Finally, in addition to the brief filed by his

11   attorney, appellant filed a separate pro se brief with this

12   Court in which he argues, inter alia, that:    (1) the January

13   20, 2006 warrant issued under Vermont law was invalid under

14   state and federal law; (2) the prosecutor engaged in

15   “federal forum shopping”; (3) the district court erred by

16   failing to conduct an evidentiary hearing to provide

17   appellant with an opportunity to “impeach the government’s

18   witnesses prior to trial”; and (4) he received ineffective

19   assistance of counsel in the district court.

20       With respect to the fourth argument, we are “generally

21   disinclined to resolve ineffective assistance claims on

22   direct review.”   United States v. Gaskin, 364 F.3d 438, 467


                                   5
1    (2d Cir. 2004).   We therefore dismiss defendant’s

2    ineffective assistance claim without prejudice to it being

3    raised in a subsequent motion pursuant to 28 U.S.C. § 2255.

4    See Gaskin, 364 F.3d at 468. 3       As to the remainder of

5    appellant’s pro se contentions in this appeal, to the extent

6    they bear on the district court’s August 8, 2008 denial of

7    his pro se motion to suppress, we have already concluded

8    that the district court properly denied that motion.          To the

9    extent the arguments challenge aspects of the district court

10   proceedings other than the effectiveness of his counsel

11   under the Sixth Amendment, those arguments are not only

12   meritless, but they were also forfeited pursuant to the

13   appellate waiver in appellant’s plea agreement.

14       We have considered each of appellant’s arguments and

15   find them to be without merit.        Accordingly, the judgment of

16   the district court is hereby AFFIRMED.

17
18                                FOR THE COURT:
19                                Catherine O’Hagan Wolfe, Clerk
20
21
22
23



         3
           We need not, and therefore do not, express any view
     at this juncture as to whether defendant waived his ability
     to bring this form of collateral attack by entering into his
     plea agreement.

                                      6
