United States v. Thompson

195 F. App'x 191
Court of Appeals for the Fourth Circuit·Decided September 19, 2006·No. 05-4562·Unpublished

Opinion

PER CURIAM.

Gregory Tobias Thompson was convicted by a jury of possession with intent to distribute at least 500 grams of cocaine, 21 U.S.C. § 841(a)(1) (2000), and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c) (2000), and sentenced to 78 months on the drug offense, and a mandatory consecutive 60 month sentence on the firearms offense, for a total of 138 months of imprisonment. He appeals, claiming that: (1) the district court erred in denying his motion for a continuance made on the morning of his trial; (2) two statements made by him to DEA agents were admitted at trial in violation of his Fifth Amendment right to *194 remain silent; (3) the prosecutor’s reference to those statements in his closing argument was improper and prejudicial; and (4) evidence of Thompson’s prior rental car use was improperly admitted under Fed.R.Evid. 404(b). We affirm.

The evidence, viewed in the light most favorable to the government, see United States v. Burgos, 94 F.3d 849, 854 (4th Cir.1996) (en banc), was as follows. In the early morning of December 13, 2001, Thompson was stopped by South Carolina Highway Patrol Officer John Owens for speeding. Owens noticed, in plain view, a cell phone, a pager, and a plastic bag protruding from beneath the rear seat of Thompson’s vehicle — a rental van. Thompson claimed that he was returning from a trip to Atlanta to “drop his baby off’ with the child’s mother. According to Owens, Thompson appeared “overly nervous” and wouldn’t make eye contact. Owens testified that the van rental agreement showed that Thompson had rented the van for one day and paid cash.

Thompson gave permission for Owens to search the van whereupon Owens recovered a small box from beneath the back seat containing over 500 grams of powder cocaine and a small quantity of crack cocaine. Officers also found a loaded pistol under the front passenger seat. Thompson was arrested and advised of his Miranda * rights.

An assistant federal public defender was appointed to represent Thompson at his arraignment the morning after his arrest. However, on the morning of trial, Thompson appeared with retained counsel and requested a continuance, which was denied. Thompson’s appointed counsel was allowed to remain with his retained attorney throughout the trial.

Steve Russell, a DEA agent accompanying officer Owens, testified that, after Thompson was advised of his Miranda rights, he asked Thompson if he was interested in participating in a controlled delivery of the cocaine found in the van. Russell testified that Thompson replied, “I’ll have to think about that. And if I decide to go that route, I’ll let you know.” Russell also testified that, when asked how many children he had, Thompson responded “none.” Thompson did not object to any of this testimony.

In his closing argument, the prosecutor stated that Thompson had lied about having a child and, therefore, had lied about the purpose of his trip. The prosecutor also repeated Thompson’s response to the question regarding his willingness to participate in a controlled purchase.

The government also introduced evidence — over Thompson’s objection — that Thompson had rented nine vehicles in 2001, all for periods of less than one week and all paid for with cash. The jury returned a verdict of guilty on both counts, and the district court sentenced Thompson to 138 months of imprisonment. He noted a timely appeal.

Thompson argues, first, that the district court erred in denying his motion for a continuance because he was unable to obtain retained counsel until the morning of trial. A district court’s refusal to grant a continuance is reviewed for abuse of discretion. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); United States v. Speed, 53 F.3d 643, 644 (4th Cir.1995). An abuse of discretion in this context is “ ‘an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.’ ” United States v. LaRouche, 896 F.2d 815, 823 (4th Cir.1990) (quoting Mor *195 ris, 461 U.S. at 11-12, 103 S.Ct. 1610). In order to prove an infringement on the Sixth Amendment right to effective assistance of counsel based on the denial of a continuance, a defendant must demonstrate that he was specifically prejudiced. Id. With these standards in mind, we find no abuse of discretion by the district court in denying Thompson’s motion for a continuance in order for his newly-retained counsel to familiarize himself with the case. Thompson’s case had been pending for almost three months, and he failed to provide the district court with any reason for his delay in obtaining counsel. Nor can he show that he was prejudiced, given that his appointed counsel was allowed to remain with him throughout the trial.

Second, Thompson argues that two statements — one made by him in response to the request that he participate in a controlled purchase and the other regarding whether he had any children — were admitted into evidence in violation of his right to remain silent. However, because he failed to object to either statement, his claim is reviewed only for plain error. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Thompson cannot show any error, let alone plain error. Both of the statements at issue were made by Thompson after he was properly advised of his Miranda rights. There is nothing in the record to show, nor does Thompson allege, that he did not understand the warnings read to him or that he wished to have an attorney present prior to making the statements or that the statements were in any way involuntary. Moreover, the testimony regarding the possibility of a controlled purchase was elicited by Thompson’s attorney on cross-examination and, therefore, any error in its admission was invited. See Shields v. United States, 273 U.S. 583, 586, 47 S.Ct. 478, 71 L.Ed. 787 (1927). In any event, the question regarding Thompson’s children (and his statement in response) was attendant to his arrest and booking and therefore does not constitute interrogation. See Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (noting that routine booking questions and questions attendant to legitimate police procedures do not require Miranda warnings).

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United States v. Thompson, 195 F. App'x 191 (4th Cir. 2006).

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