The Honorable Richard W. Goldberg, United States Court of *

International Trade, sitting by designation.

09-4125-cr

United States v. Bethea

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,

2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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 day of July, two thousand and ten. th

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
 Appellant was represented in the district court 1

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 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. See Fed. R. Crim. P. 11(a)(2). 1
motion, acting pro se, on June 19, 2008.

 Law enforcement obtained the warrant under Vermont 2

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

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 state14 law warrant, the discussions were also monitored and
4

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
5

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
 We need not, and therefore do not, express any view 3

at this juncture as to whether defendant waived his ability

to bring this form of collateral attack by entering into his

plea agreement.

6

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. As to the remainder of 3

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

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23