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

RULI NGS BY SUMMARY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASU MMARY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PERMIT TED AND IS GOVERNED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AND TH IS COU RT ’ S L OCA L RULE 32.1.1. W HEN CIT ING A SUMMAR Y ORD ER IN A DOC UME NT FIL ED WIT H THI S C OUR T , A PAR TY MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATABAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APA RTY CI TIN G ASU MMARY ORD ER MUS T S ERV E ACO PY OF IT ON ANY PARTY NO T R EPR ESE NTE D B Y C OUN SEL . 

### 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 24Appellant 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). 1motion, 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 state

### 14 law warrant, the discussions were also monitored and4 

### 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 the5 

### 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, 467We 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 22 23