United States v. White

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60908 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO WHITE; NATHANIEL THERIS,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:00-CR-14-2-BrS -------------------- September 13, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Ricardo White and Nathaniel Theris appeal their convictions

and sentences for assault with a deadly weapon, steel-toed boots,

committed within the maritime and territorial jurisdiction of the

United States. We AFFIRM.

White seeks leave to file a pro se reply brief. Appointed

counsel for White moves for this court to permit White, pro se,

an extension of seven days from the deadline for filing a timely

reply brief. Although White also asks for the dismissal of

appointed counsel, White’s desire to proceed pro se arises from

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-60908 -2-

his intention to file a pro se reply brief. Thus, White’s intent

to proceed pro se is not unequivocal. White is not entitled to

hybrid representation. United States v. Ogbonna, 184 F.3d 447,

449 n.1 (5th Cir.), cert. denied, 528 U.S. 1055 (1999). “By

accepting the assistance of counsel the criminal appellant waives

his right to present pro se briefs on direct appeal.” Myers v.

Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996). IT IS ORDERED that

the motions are DENIED.

White argues that the indictment is fatally defective

because it failed to allege the acts by White which constituted

assault with the steel-toed boots. White raised the issue at

sentencing. “Because the sufficiency of an indictment is

jurisdictional, a defendant may, at any time, contest an

indictment for failing to charge an offense.” United States v.

Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir. 2000), cert. denied,

121 S. Ct. 2600 (2001).

“To pass constitutional muster, an indictment must allege

all of the elements of the offense charged.” United States v.

Ramirez, 233 F.3d 318, 323 (5th Cir. 2000). The indictment

charged a violation of 18 U.S.C. § 113(a)(3). The elements of 18

U.S.C. § 113(a)(3) are (1) assault, as defined under common-law

tort and criminal law; “(2) with a dangerous weapon[,] (3) with

the intent to do bodily harm.” United States v. Estrada-

Fernandez, 150 F.3d 491, 494 (5th Cir. 1998). It does not

require physical contact by the assailant. Id. at 495. The

indictment alleged the elements of the offense, and the absence

of an allegation concerning White kicking or attempting to kick No. 00-60908 -3-

the victim did not render the indictment fatally defective. See

Ramirez, 233 F.3d at 323.

Theris challenges the sufficiency of the evidence. He

argues that his conviction cannot stand because there is no

evidence indicating he intended to cause the victim’s injuries,

he used a dangerous weapon, or he acted in concert with White.

Although Theris moved for judgment of acquittal after the

Government presented its case-in-chief, he did not renew his

motion. Consequently, the failure to renew the FED. R. CRIM. P.

29 motion waives any objection to the court’s denial of the

motion to acquit. United States v. Shannon, 21 F.3d 77, 83 (5th

Cir. 1994). Thus, our review is limited to determining whether a

manifest miscarriage of justice ensues from Theris’ conviction.

Id.

The indictment charged Theris and White with assault with a

deadly weapon, 18 U.S.C. § 113(a)(3), and referenced the aiding

and abetting statute, 18 U.S.C. § 2. The jury was instructed on

aiding and abetting liability. “To prove aiding and abetting,

the Government had to show that [Theris] (1) associated himself

with the criminal enterprise, (2) participated in the venture,

and (3) sought by his actions to make the venture succeed.”

United States v. Polk, 118 F.3d 286, 295 (5th Cir. 1997). The

evidence, especially the testimony of the victim and of the

correctional officer who encountered Theris and White hitting the

victim, reveals that the record is not devoid of evidence

pointing toward Theris’ guilt as an aider and abettor. See

United States v. Ruiz, 860 F.2d 615, 618 (5th Cir. 1988). No. 00-60908 -4-

Both Theris and White challenge the district court’s

admission into evidence of Government exhibits (Gov’t exhs) 17

and 18, injury-assessment reports made by Physician Assistant

Lopez. They contend that the evidence should have been excluded

pursuant to a physician-patient privilege.** Theris’ failure to

assert a timely objection to Gov’t exh. 17 constitutes waiver.

See Nguyen v. Excel Corp., 197 F.3d 200, 206-07 (5th Cir. 1999).

Even if objection had been timely, the district court did not

abuse its discretion in admitting the exhibits because no

recognized privilege covers this evidence.

“Rule 501 of the Federal Rules of Evidence authorizes

federal courts to define new privileges by interpreting ‘common

law principles . . . in the light of reason and experience.’”

Jaffee v. Redmond, 518 U.S. 1, 8 (1996) (quoting the rule). In

Jaffee, 518 U.S. at 15, the Supreme Court held that “confidential

communications between a licensed psychotherapist and her

patients in the course of diagnosis or treatment are protected

from compelled disclosure under Rule 501.” In explaining the

need for this privilege, the Court contrasted it with

“[t]reatment by a physician for physical ailments,” thus

implicitly rejecting a privilege involving other healthcare

providers. Id. at 10. A physician-patient privilege did not

exist at common law. See United States v. Mancuso, 444 F.2d 691,

695 (5th Cir. 1971). Under federal common law, the privilege

** White states but does not argue that admission of Gov’t exh. 18 violated the rule of Miranda v. Arizona, 384 U.S. 436 (1966). Thus, we deem the constitutional issue abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). No. 00-60908 -5-

does not exist, except as a privilege between a licensed

psychotherapist and patient involving confidential communication.

See Jaffee, 518 U.S. at 15; United States v. Burzynski Cancer

Research Inst., 819 F.2d 1301, 1311 (5th Cir. 1987).

White and Theris challenge their sentences by arguing that

the district court impermissibly double counted by enhancing

their respective offense levels by four pursuant to U.S.S.G.

§ 2A2.2(b)(2)(B). Neither defendant raised this issue before the

district court. Consequently, our review is limited to plain

error. See United States v. Calverley, 37 F.3d 160, 162-64 (5th

Cir. 1994) (en banc). In United States v. Morris, 131 F.3d 1136,

1139-40 (5th Cir. 1997), this court held that double counting

under the guidelines is impermissible “only if the particular

guidelines at issue forbid it,” and U.S.S.G. § 2A2.2 does not.

Thus, no plain error ensued in this case. See Calverley, 37 F.3d

at 162-63.

AFFIRMED. MOTIONS DENIED.