     Case: 12-40714       Document: 00512247103         Page: 1     Date Filed: 05/20/2013




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

                                                                            FILED
                                                                           May 20, 2013
                                       No. 12-40714
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

versus

COREY JAMES LEWIS,

                                                  Defendant–Appellant.




                    Appeal from the United States District Court
                         for the Eastern District of Texas
                                 No. 4:10-CR-223



Before REAVLEY, JOLLY, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Corey Lewis appeals his conviction of conspiracy to possess with intent to
distribute cocaine. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40714

                                           I.
      At the request of a government confidential informant (“CI”), Lewis
arranged the sale of five kilograms of cocaine. Lewis found a source for the
cocaineSSJimmie EvansSSset a price for the drugs, and negotiated a location for
the transaction. Lewis and Evans met the CI in a mall parking lot and showed
him one kilogram of a white substance in the center console of a rented vehicle.1
      Lewis and Evans were arrested as they followed the CI to a second loca-
tion; law enforcement officers had established surveillance at the mall before
Lewis and Evans arrived. The white substance field-tested positive for cocaine.
After waiving his rights, Lewis confessed that he had contacted Evans through
an intermediary to obtain five kilograms of cocaine to sell to the CI. Lewis
admitted there was a kilogram of the drug in the vehicle in which he was riding
with Evans before their arrest.


                                           II.
      Lewis was charged with a single count of conspiracy to possess with intent
to distribute cocaine. The district court denied his motion to exclude evidence
that the government did not disclose until the week before trial—several months
after the discovery deadline.
      At trial, the CI described Lewis’s role in the cocaine transaction, which
was also documented in numerous recorded conversations.                 In one, Lewis
bragged to the CI about “blowing weed smoke” in Evans’s face. The CI also testi-
fied that he had previously purchased illegally-copied DVDs from Lewis and
claimed that he had also sent multiple individuals to buy marihuana from Lewis.
      Evans corroborated Lewis’s role in the cocaine conspiracy. He also claimed
knowledge of Lewis’s illegal DVD sales and testified that Lewis had boasted

      1
        Under the arrangement Lewis and Evans made with the CI, the four additional kilos
were reserved for a future transaction.

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                                  No. 12-40714

about selling “sacks” of marihuana to strippers at a local cabaret. Lewis admit-
ted that he had regularly sold illegally-copied DVDs to the CI but denied ever
selling marihuana. Lewis’s common-law wife, Brandi Frongner, testified to Lew-
is’s marihuana use and role in the cocaine transaction. On cross-examination,
she stated that Lewis had been arrested for family violence against her.
      Before closing arguments, Lewis requested a jury instruction on entrap-
ment, which the court denied, and Lewis was convicted. At the conclusion of the
sentencing hearing, Lewis’s counsel requested that the court “allow me to with-
draw and . . . appoint an appellate lawyer for him so he can exercise his appel-
late rights.” The court granted the motion, and Lewis timely appeals his convic-
tion with the assistance of appointed counsel.


                                        III.
      Lewis contends the district court erred by admitting (1) a government
expert’s curriculum vitae (“CV”) and lab report; (2) evidence that Lewis had pre-
viously distributed marihuana; and (3) evidence that Lewis used marihuana and
sold illegally-copied DVDs. “Where the party challenging the trial court’s evi-
dentiary ruling makes a timely objection, we review the ruling under an abuse
of discretion standard.” United States v. Sumlin, 489 F.3d 683, 688 (5th Cir.
2007). “District courts are given broad discretion in rulings on the admissibility
of evidence. . . .” Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 277 (5th Cir. 1991).
      If we find an error in the admission or exclusion of evidence, we
      review for harmless error. . . . “Any error, defect, irregularity, or
      variance that does not affect substantial rights must be disre-
      garded.” FED. R. CRIM. P. 52(a). An error affects substantial rights
      if there is a reasonable probability that the improperly admitted evi-
      dence contributed to the conviction.

Sumlin, 489 F.3d at 688 (citation omitted). Where the complaining party failed
to object to an evidentiary ruling at trial, we review only for plain error. United


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                                  No. 12-40714
States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006).

      Plain error review requires four determinations: whether there was
      error at all; whether it was plain or obvious; whether the error
      affected the defendant’s substantial rights; and whether this court
      should exercise its discretion to correct the error in order to prevent
      a manifest miscarriage of justice.
United States v. Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012).


                                        A.
      The government timely disclosed offense reports reflecting that Lewis
believed he was transporting one kilogram of cocaine and indicating that the
seized substance field-tested positive for cocaine. But the record does not show
that the government produced the lab report and CV of its expert witness, a
Drug Enforcement Administration (“DEA”) chemist, before the week prior to
trial. The district court denied Lewis’s motion to exclude that evidence, because
“[t]here’s no surprise” that the substance at issue was cocaine. Lewis maintains
that ruling was an error prejudicing his substantial rights, because it “generally
affected how [his attorney] had advised [Lewis] and prepared for trial . . . and
specifically precluded him from properly investigating the DEA chemist’s
credentials.”
      Even assuming the court abused its discretion in admitting the lab report
and CV, Lewis has not shown prejudice to his substantial rights. Beyond bare
assertion, he has not demonstrated that the tardy disclosure affected his defense
in any way. He did not move for a continuance or ask any questions about the
chemist’s background and education on cross-examination. Cf. United States v.
Aguilar, 503 F.3d 431, 434 (5th Cir. 2007) (per curiam).
      There was overwhelming evidence that Lewis was guilty of the charged




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                                        No. 12-40714
offense,2 including tape-recorded conversations, testimony of numerous wit-
nesses describing his role in the conspiracy, and Lewis’s confession that he and
Evans intended to sell cocaine.3 There is no reasonable probability that the lab
report and CV, even if improperly admitted, affected the verdict. See Sumlin,
489 F.3d at 688.


                                               B.
       The week before trial, the government provided written notice that it
intended to offer evidence of Lewis’s involvement in the distribution of mari-
huana. The district court denied Lewis’s motion to exclude but allowed him to
add two new witnesses. It also found that the evidence was admissible as extrin-
sic under Federal Rule of Evidence 404(b).4
       A district court’s broad discretion in evidentiary matters extends to Rule
404(b).5 Lewis concedes that “no circuit court has passed on the breadth of a dis-
trict court’s discretion in such cases. . . .” He avers, however, that the govern-
ment’s “blatant disregard for the District Court’s scheduling order should not be

       2
          See United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989) (“To establish guilt
of conspiracy to distribute cocaine under 21 U.S.C. §§ 841(a)(1), 846, the government must
prove beyond a reasonable doubt (1) the existence of an agreement between two or more per-
sons to commit one or more violations of the narcotics laws and (2) the defendant’s knowledge
of, (3) intention to join, and (4) voluntary participation in the conspiracy.”).
       3
        Lewis’s attorney also stated that Lewis was “guilty of the offense but for the defense
of entrapment . . . . If he doesn’t have entrapment,” see part V, infra, “there’s no defense for
him.” Additionally, although the actual nature of seized substance is not among the elements
the government was required to prove, see Lechuga, 888 F.2d at 1476, Lewis has never
asserted—either before the production of the lab report or afterwards—that it was anything
other than cocaine.
       4
       We need not, and do not, reach the issue of whether the marihuana-distribution evi-
dence was admissible as intrinsic to the charged offense, nor do we address whether the gov-
ernment provided sufficient oral notice before filing its Rule 404(b) notice.
       5
        See FED. R. EVID. 404(b) Advisory Committee’s Note (1991 Amendments) (“Other than
requiring pretrial notice, no specific time limits are stated in recognition that what constitutes
a reasonable request or disclosure will depend largely on the circumstances of each case.”).

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                                         No. 12-40714
rewarded, particularly where such disregard resulted in miscommunication or
misunderstanding affecting Lewis’s right to due process of law and effective
assistance of trial counsel.”
         As with the CV and lab report, Lewis did not move for a continuance in
response to the Rule 404(b) notice. Although he vehemently denied ever selling
marihuana, he has not explained, much less shown, how the government’s alleg-
edly late disclosure significantly affected his trial strategy or contributed to his
conviction. See Sumlin, 489 F.3d at 688. Even if the district court erred when
it concluded that “the information was disclosed in a manner that would allow
defense counsel to prepare for trial,” Lewis has not shown prejudice to his
substantial rights. Cf. Aguilar, 503 F.3d at 434.
         In the district court, Lewis’s objection to the admission of the marihuana-
distribution evidence focused on the alleged untimeliness of the government’s
notice. We review Lewis’s argument that the evidence was substantively inad-
missible under Rule 404(b)SSmade for the first time on appealSSfor plain error
only.6
           Although extrinsic offense evidence is not admissible to prove the
         defendant’s bad character and action in conformity therewith, it
         may be introduced to show motive, opportunity, intent, preparation,
         plan, knowledge, identity, or absence of mistake or accident. See
         [Rule] 404(b). Interpreting Rule 404(b), we have stated:

               What the rule calls for is essentially a two-step test.
               First, it must be determined that the extrinsic offense
               evidence is relevant to an issue other than the defen-
               dant’s character. Second, the evidence must possess


         6
         In his reply brief, Lewis observes that the district court specifically addressed the sub-
stantive admissibility of the marihuana-distribution evidence under Rule 404(b). Though
maintaining that the government’s notice was untimely, Lewis, however, never objected to the
court’s substantive finding. See United States v. Williams, 620 F.3d 483, 488–89 (5th Cir.
2010) (“[W]here the defendant did not object to the evidence on the basis presented on appeal,
we review the district court’s evidentiary ruling for plain error.”); see also Dominguez-
Alvarado, 695 F.3d at 327–28 (discussing when plain-error review applies).

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                                         No. 12-40714
               probative value that is not substantially outweighed by
               its undue prejudice . . . .
United States v. Hernandez-Guevara, 162 F.3d 863, 870 (5th Cir. 1998) (quoting
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc)).
       Lewis does not contest the probative value of the marihuana-distribution
evidence but argues that it was not relevant. He relies on United States v. Car-
rillo, 660 F.3d 914, 929 (5th Cir. 2011), cert. denied, 132 S. Ct. 1639 (2012), in
which we stated that “Carrillo’s conviction for delivery of cocaine in 2005 argu-
ably had no legitimate relevance to either his knowledge of methamphetamine
or his intent to distribute methamphetamine in 2009.” We concluded, however,
that “the error, if any, was harmless,” in part because “there was strong evidence
of Carrillo’s guilt, including his confession.” Id.
       The district court found that Lewis’s prior distribution of marihuana was
“relevant to an issue other than the defendant’s character” and noted that Lew-
is’s not-guilty plea “puts the issue of his intent into the mix . . . .”7 The alleged
error—even if plain or obvious—did not affect Lewis’s substantial rights, especi-
ally given the overwhelming evidence of guilt. Cf. id.


                                                C.
       For the first time on appeal, Lewis claims that evidence of his marihuana
use and illegal DVD sales was neither intrinsic nor admissible under Rule
404(b). We review this contention for plain error only. Thompson, 454 F.3d
at 464.

       To determine whether “other acts” evidence was erroneously admit-
       ted, we must first decide whether the evidence was intrinsic or


       7
          See United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005) (“In a drug-trafficking
case, the issue of intent is always material . . . since [the defendant] plead[ed] not guilty[,] the
issue of intent was sufficiently raised to permit the admission of Rule 404(b) evidence.”) (cita-
tion omitted).

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                                  No. 12-40714
      extrinsic. “‘Other act’ evidence is ‘intrinsic’ when the evidence of the
      other act and the evidence of the crime charged are ‘inextricably
      intertwined’ or both acts are part of a ‘single criminal episode’ or the
      other acts were ‘necessary preliminaries' to the crime charged.”
      United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990). Intrin-
      sic evidence is admissible to “complete the story of the crime by
      proving the immediate context of events in time and place,” United
      States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996), and to “evaluate
      all of the circumstances under which the defendant acted,” United
      States v. Randall, 887 F.2d 1262, 1268 (5th Cir. 1989). Intrinsic evi-
      dence does not implicate rule 404(b), and “consideration of its
      admissibility pursuant to [that rule] is unnecessary.” United States
      v. Garcia, 27 F.3d 1009, 1014 (5th Cir. 1994).

United States v. Rice, 607 F.3d 133, 141 (5th Cir. 2010) (alteration in original).
      Regarding his marihuana use, Lewis again relies on Carrillo, 660 F.3d at
927, in which we found that evidence of Carrillo’s use of methamphetamine, the
month before he possessed with intent to distribute the same, was not intrinsic.
Carrillo is inapposite, however, because Lewis used marihuana—and, in a taped
conversation, admitted to doing so—while he and his co-conspirator were waiting
to deliver the cocaine.    As Carrillo itself indicates, such temporally proxi-
mate conduct is presumptively intrinsic. See id. at 927–28 (collecting cases).
      It is a closer question whether evidence of Lewis’s illegal DVD sales is
intrinsic. The government contends that the evidence “showed how [the CI] and
Lewis knew each other” but offers no authority in support of its theory that the
evidence is thereby intrinsic. Nor does the government maintain that it ever
provided written notice of Lewis’s DVD sales pursuant to Rule 404(b). Lewis,
however, has made no showing—or even argument—that the admission of the
DVD evidence affected his substantial rights. Nor would a failure to notice the
error blacken the reputation of the judiciary or effect a “manifest miscarriage of
justice.” Dominguez-Alvarado, 695 F.3d at 328. Lewis’s claim, therefore, fails
on plain-error review.


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                                  No. 12-40714
                                        IV.
      The district court sustained Lewis’s objection to Frongner’s brief mention
of Lewis’s domestic-violence arrest. The court promptly instructed the jury to
disregard the testimony but denied Lewis’s contemporaneous and subsequent
motions for a mistrial. Less than a minute elapsed between Frongner’s stricken
testimony and the denial of Lewis’s first motion. The jury instructions reiterated
that “any testimony or other evidence which has been stricken” should not be
considered.
      “We review the denial of a motion for mistrial for abuse of discretion.”
United States v. Hoder, 225 F.3d 549, 555 (5th Cir. 2000). “If the motion for mis-
trial involves the presentation of prejudicial testimony before a jury, a new trial
is required only if there is a significant possibility that the prejudicial evidence
had a substantial impact upon the jury verdict, viewed in light of the entire
record.” United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998).
      We have already observed that the record, when viewed as a whole, con-
tains overwhelming evidence of the charged offense. It also shows that Lewis’s
objection to the improper testimony was swiftly sustained. The court, both con-
temporaneously and before deliberation, unambiguously instructed the jury to
disregard Frongner’s stricken testimony.       Additionally, in denying Lewis’s
renewed motion for a mistrial, the court noted that Frongner was testifying on
his behalf and was “obviously very fond of [] Lewis.” We “give considerable
weight to the trial judge’s assessment of the prejudicial effect of [a] remark.”
United States v. Nguyen, 28 F.3d 477, 483 (5th Cir. 1994).
      Lewis concedes that the court responded to the improper testimony with
“an immediate curative instruction” but maintains that the testimony “was so
highly prejudicial that it would have promoted a guilty verdict based upon bad
character alone.” Lewis’s only argument in support of that assertion is that the
jury was “largely female.” It is wildly speculative to assume that female jurors

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                                       No. 12-40714
disregarded their instructions and voted to convict Lewis of drug-related conspir-
acy based on fleeting testimony of domestic violence.8 Lewis has not shown
“there is a significant possibility that the prejudicial evidence had a substantial
impact upon the jury verdict. . . .” Paul, 142 F.3d at 844.


                                              V.
       The district court refused to give Lewis’s proposed jury instruction on
entrapment, because “[t]here is insufficient evidence . . . that there was some
government involvement and inducement more substantial than simply provid-
ing an opportunity.” “[W]e review de novo the refusal to instruct the jury on the
defense of entrapment.” United States v. Ogle, 328 F.3d 182, 185 (5th Cir. 2003).
“Before he will be entitled to an entrapment defense, . . . [a] defendant bears the
burden of presenting evidence of both ‘(1) his lack of predisposition to commit the
offense and (2) some governmental involvement and inducement more substan-
tial than simply providing an opportunity or facilities to commit the offense.’”
Id. (quoting United States v. Bradfield, 113 F.3d 515, 521 (5th Cir. 1997)).
       “Government inducement consists of the creative activity of law enforce-
ment officials in spurring an individual to crime” and includes “either threat-
ening or harassing conduct or actions designed specifically to take advantage of
the defendant’s weaknesses. . . .” United States v. Gutierrez, 343 F.3d 415, 420
(5th Cir. 2003) (internal quotation marks omitted).
       It is well settled that the fact that officers or employees of the Gov-
       ernment merely afford opportunities or facilities for the commission
       of the offense does not defeat the prosecution. Artifice and
       stratagem may be employed to catch those engaged in criminal
       enterprises.




       8
         See Zafiro v. United States, 506 U.S. 534, 540 (1993) (noting that “juries are presumed
to follow their instructions”) (internal quotation marks omitted)

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                                        No. 12-40714
Jacobson v. United States, 503 U.S. 540, 548 (1992) (internal quotation marks
omitted).
       “Courts have found a basis for sending the entrapment issue to the jury
. . . where government officials . . . used ‘repeated suggestions’ which succeeded
only when defendant had lost his job and needed money for his family’s food and
rent. . . .”9 Lewis asserted at trial that the CI offered him $1,000 to facilitate the
drug transaction at a time when Lewis was in dire financial straits. The CI
denied ever offering Lewis money to participate in the transaction, nor did Lewis
mention this supposed arrangement in his initial confession.10 The record is also
devoid of evidence that the CI was aware of Lewis’s financial situation.
       Nor has Lewis shown that it took “repeated suggestions” for him to break
the law. Contra Kessee, 992 F.2d at 1003. When Lewis initially informed the CI
that he might not be able to obtain the cocaine, the CI told Lewis that he was
willing to get the drugs elsewhere. Rather than withdraw from the conspiracy,
Lewis quickly found a supplier and arranged the transaction.
       Most significantly, there is no evidence—or even suggestion—that the
government or its agents engaged in “threatening or harassing conduct,” which
we have identified as the common element in cases in which government induce-
ment has been found. See Gutierriez, 343 F.3d at 420. To demonstrate induce-
ment, Lewis “was required to present not just a smattering or a scintilla of evi-
dence . . . but substantial evidence that it was the Government that was respon-
sible for the formation of [his] intent to join the conspiracy.” Ogle, 328 F.3d at


       9
         United States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994) (quoting United States v.
Kessee, 992 F.2d 1001, 1003 (9th Cir.1993)); see also Gutierrez, 343 F.3d at 420 n.13.
       10
           The record shows, however, that Lewis structured the transaction to ensure himself
a profit of $1,000 per kilogram of cocaine. Evans testified that the price was “[$]23,500 each
kilo,” and that Lewis “said he was gonna make [$] 5,000 off five kilos . . . .” Evans’s testimony
was corroborated by a recorded phone conversation in which Lewis told the CI that the
“ticket,” i.e., price of the first kilo, was “like two, four, five,” i.e., $24,500.

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187–88. He has failed to do so and therefore was not entitled to an entrapment
instruction.11


                                            VI.
      After Lewis’s attorney moved to withdraw at the close of sentencing, the
district court stated that “normally you would represent him on appeal.” Lewis’s
attorney averred that “I think there may be some things I wouldn’t be able to do,
maybe something I did wrong, and I wouldn’t want to call that on myself if I did.
It puts me kind of in a conflict to represent him on it.” On appeal, Lewis main-
tains that the court should have sua sponte found ineffective assistance of coun-
sel (“IAC”), because his attorney’s (1) “pre-trial investigation was inadequate to
prepare for trial and his inadequate investigation prejudiced Lewis’s defense”;
and (2) “presentation of Lewis’s case-in-chief was deficient and prejudiced
Lewis’s defense.”
      [T]he general rule in this circuit is that a claim of [IAC] cannot be
      resolved on direct appeal when the claim has not been raised before
      the district court since no opportunity existed to develop the record
      on the merits of the allegations. . . . Only in those rare occasions
      where the record is sufficiently developed will the court undertake
      to consider claims of inadequate representation on direct appeal
      . . . . If we cannot fairly evaluate the claim from the record, we must
      decline to consider the issue without prejudice to a defendant’s right
      to raise it in a subsequent proceeding.

United States v. Gulley, 526 F.3d 809, 821 (5th Cir.2008) (per curiam) (citations
and internal quotation marks omitted).
      This case falls within that general rule, because Lewis did not raise an
IAC claim in the district court. Nor is the record otherwise “sufficiently devel-
oped”: “[T]he district court did not hold a hearing and the record does not pro-
vide sufficient detail about trial counsel’s conduct and motivations to allow this

      11
           Because Lewis has not shown inducement, we do not address predisposition.

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                                  No. 12-40714
court to make a fair evaluation of the merits of [defendant’s] claim.” Aguilar,
503 F.3d at 436.
      Lewis contends that his attorney’s statements upon withdrawal consti-
tuted a tacit admission of “deficient performance and the prejudice to Lewis’s
defense resulting therefrom.” Such conjecture is not a sufficient substitute for
the record development—such as “the reasons for [the]’s attorney’s decisions []or
the availability of alternative strategies,” United States v. Montes, 602 F.3d 381,
387 (5th Cir. 2010)—that is a necessary predicate to consideration of an IAC
claim. Because Lewis’s claim is premature, we decline to consider it. Gulley,
526 F.3d at 821.
      The judgment of conviction is AFFIRMED.




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