* Pursuant to 5 TH C IR . R. 47.5, the Court has determ ined th at th is opinion should not be published and is not precedent except under the limit ed circumstances set fo rth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED September 8, 2006 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________ No. 05-50716

____________ UNITED STATES OF AMERICA,

Pl aint iff- Appellee,

versus JOHN MICHAEL SHERWOOD, Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas USDC No. 4:04-CR-191-1

Before GARZA, DeMOSS, and STEWART, Circuit Judges. PER CURIAM: * John Sherwood appeals his conviction and sentence for possessing wit h int ent to di stri bute 500 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. I Border Patrol agents stopped and searched the truck John Sherwood (“John”) and his brother,-2-

David Sherwood (“David”), were driving. A narcotics dog alerted to several pallets o f cans of jalap eño peppers in the back of the truck. Inside those cans, the agents discovered bundles of marijuana underneath a layer of jalapeños. The total weight of the bundles was 747.11 kilograms. Inside the cab of the truck, the agents fo un d a newspaper article from Ojinaga, Mexico, describing the destruction of several marijuana fields by Mexican state pol ice, a business card for a hotel in Ojinaga, and an invoice for ten pallets of grocery products. David and John were subsequently indict ed. John elected to represent himself at trial, and the court appoint ed standby counsel to assist him. In addition to the evidence previously described, the Government int roduced recor d ings of incriminat ing telephone calls th at John made to Kristin Lajeunesse while in jail, in which he state d “they were ti pped” and that his brother may “snap any minut e and tell, help break the whole thing” and instructed Lajeunesse to pay his attorney “[w]hen the Drug Dealers pay me the rest of the money.” A jury ultimately found him guilty. Following the jury’s verdict, the district court appoint ed cou nsel to represent John at sentencing and on appeal. II A John argues th at the district court erred in permitting him to represent himself wit hout making a greater ef

fo rt to determ

ine whether he had mastered the Federal Rules of Evidence. There is, however, no requirement th at a defendant have knowledge of the Federal Rules of Evidence fo r his waiver of th e right to counsel to b e valid. S ee Faretta v. California , 422 U.S. 806, 836 (1975) (defendant’s “t echnical legal knowledge

. . . [i s] not relevant to an assessment of his knowing exercise of the right to defend himself”). “[A] defendant who elect s to represent himself cannot thereafter1 We also note th at John took classes fo r two years at the University of Pennsylvania,

operated a “liqu idation business,” worked in a prison law library, and had previously represented himself in a felo ny criminal case. -3- com plain th at the quality of his own defense amo unted to a denial of ‘effective assistance of counsel.’

” Id . at 834 n.46. 1 Nor was it error to deny John’s request, made mid-trial, to have standby counsel conduct the balance of the trial. The decision to permit the accused “to examine som e but not all t he witnesses must be left to the sound discretion of the district court.” United States v. Norris , 780 F.2d 1207, 1211 (5th Cir. 1986); see also McKaskle v. Wiggins , 465 U.S. 168, 183 (1984) (“Faretta does not require a trial judge to permit ‘hybrid’ representation . . . .”). We discern no abuse of discretion. B John argues th at the district court erred in permitting Border Agent Gonzales to translate fo r the jury the Spanish-language newspaper article seized during the arrest and in failing to inst ruct the jurors to refrain from attem pting to translate the article themselves. Because John did not object to the admission of this testimo ny or request a jury inst ruction, we review fo r plain error. U nited States v. Akpan , 407 F.3d 360, 373 (5th Cir. 2005). Under this standard, we may reverse only where: 1) there is error; 2) th at is plain; 3) th at affects the defendant’s substantial rights; and 4) th at “seriously affects the fairness, int egrity, or public reputation of judicial proceedings.” U nited States v. Valdez , 453 F.3d 252, 267 (5th Cir. 2006). To establish that an error affects “substantial rights,” a defendant must ordinarily establish that the error was prejudicial. United States v. Olano , 507 U.S. 725, 734 (1993). John has failed to present any argument that Officer Gonzales mistranslated the article or that any error effected his substantial rights. He has therefore not established plain error.-4- C John argues th at the district court erred in admit ti ng into evidence a tape recording of a conversation between himself and Lajeunesse in which he stated th at David was about to “snap” and “break.” He fails t o identify any evidentiary rule or other source of law that would prohibit the admission of this evidence, and the basis for his argument is unclear. Accordingly, the argument is waived. S ee FED . R. APP . P. 28(a)(9)(A) (appellant ’s brief must contain citation to relevant legal authori ties); United States v. Edw ards , 303 F.3d 606, 647 (5th Cir. 2002) (inadequately briefed arguments are waived). D John raises two arguments wit h respect to the disclosure of an audio recording of a telephone call David made to Lajeunesse while in jail. First, he argues that the district co urt ab used its discretion when it denied his pretrial motion for copies of the recordings. The district court denied this mo tion because it failed to com ply wit h it s “Standing Discovery and Scheduling Order,” which required the parties to make discovery requests upon each other before filing mo tions. John had not demonstrated that he had served such a request on the Government. The district court’s order did not prevent John from making a request on the Government and filing an appropri ate mo tion if th at request were denied. “We review a district court’s discovery rul ings fo r an abuse of discretion.” U nited States v. Butler , 429 F.3d 140, 148 (5th Cir. 2005). Because John’s motion failed to comply with the district court’s discovery order and the Rules of Criminal Procedure, there was no abuse of discretion. See FED . R. C RIM . P. 16 (note to 1975 Enactment) (“[T]he rule provides th at the parties themselves will accomplish discovery

)) n o motion need be filed and no court order is necessary. The court will2 John states in his brief th at the allegedly suppressed conversation was between himself and

L ajuenesse. The transcri pt reveals, however, that the conversation was between David, and Lajuenesse. The Government appears to concede, however, that Lajuenesse was relaying instructions from John. -5- int ervene only to resolve a dispute as to whether something is discoverable or to issue a protective order.”); United States v. Sullivan , 578 F.2d 121, 124 (5th Cir. 1978) (denial of discovery motion not an abuse of discretion when defendant failed to fir st serve request on Government and court’s standing order required disclosure upon request); 2 WRIGHT , FEDERAL P RACTICE AND P ROCEDURE § 257, at 179 (3d ed. 2000) (“There is no need for a motion until the party has unsuccessfully requested discovery.”). Second, John argues th at the district court erred in denying his mo tion fo r a new tri al on the ground th at the undisclosed recording contained exculpatory evidence. A transcript of the tape reveals th at Lajeunesse urged David to testify truthfully before the Grand Jury in exchange fo r a grant of immunit y. 2 Where the basis fo r a mo tion fo r a new tri al is an alleged vio lat io n of Brady v. Maryland , 373 U.S. 83 (1963), we review the district court’s rul ing de novo . U

nited States v. Martin , 431 F.3d 846, 850 (5th Cir. 2005). To establish a B rady vio l ati on, a def endant must show that the prosecution suppressed favorable evidence that was material to eit her guilt or punishment. Id. The prosecutor stated before the district court th at he had informed John’s standby counsel, Novert Morales, that recordings of telephone conversations made while John was in jail were available. John did not dispute th at these recordings were made available. The recordings therefore were not suppressed. See United States v. Mulderig , 120 F.3d 534, 541 (5th Cir. 1997) (no req uirem ent that the prosecution point to specific exculpatory mat erial contained within a larger body of disclosed-6-

evidence). E John contends th at the Government improperly argued during clo sing statem ents th at he was

a supplier of marijuana to drug dealers. Because he failed to object, our review is for plain error. S ee United States v. Fuller , 453 F.3d 274, 277 (5th Cir. 2006). Even where an objection has been made, the defendant’s burden in seeking reversal based on improper argument to the jury is “substantial.” United States v. Mares , 402 F.3d 511, 515 (5th Cir. 2005). He must establish that the prosecutor’s remark cast “serious doubt” on the jury’s verdict. I d. John fails to identify any prejudice he suffered

as a result of the Government’s argument and has therefore not met his burden of establishing plain

error. F John argues that the district court erred in denying his mo tions fo r a judgment of acquittal and fo r a new tri al based on the sufficiency of the evidence th at the marijuana weighed mo re th an 500 kilo grams. Because he moved for a judgment of acquittal at the close of the Government’s case but did not renew his mo tion at the clo se of all evidence, we review the deni al o f t hat motion only to determ ine whether his conviction resulted in a manifest miscarriage of justice. U nited S t ates v. Avants , 367 F.3d 433, 449 (5th Cir. 2004). Such a miscarriage occurs when the record is “devoid of evidence of guilt or the evidence [is] so tenuous that a conviction is shocking.” Id. We review fo r an abuse of discretion the denial of a mo tion fo r a new tri al based on insufficiency of the evidence

. United States v. Arnold , 416 F.3d 349, 360 (5th Cir. 2005). Alt hough the district court enjoys broad discretion in rul

ing on a mo tion fo r a new tri al, it “may not reweigh the evidence.” Id. ( quoting United States v. Robertson , 110 F.3d 1113, 1118 (5th Cir. 1997)). The motion may be granted only-7-

when the evidence “preponderate[s] heavily against the verdict, such th at it would be a miscarriage of justice to let the verdict stand.” Id . (quoting Robertson , 110 F.3d at 1118). John’s challenges to the sufficiency of the evidence fails under eit her standard. Agent Vanessa Conol y testified th at the marijuana removed from the truck weighed 748.68 kilo grams. John argues th at this measurement erron eously included an “unproved amount of plastic type packaging/wrapping” and marijuana stems and stal ks. 21 U.S.C. § 802(16) provides that, for purposes of the Controlled Substances Act, the term “marijuana” does not include “t he mat ure stal ks” of the plant. However, Officer Raul Gonzales testified that, at most, the packaging accounted for only 3% the weight of the marijuana bundles. Moreover, John stipulated that the substance seized

was marijuana, and he failed to establish th at the marijuana contained any mature stalks or other excludable material. John also argues that the district court abused its discretion when it denied his mo tion for a new trial because a border patrol agent noted on a copy of David’s criminal hist ory th at there were 522 cans in the truck. At tri al, however, Agent Conoly testified that there were 539 cans in the truck. John contends th at this discrepancy may have affected the weight of marijuana attri butable to him if th at f igure was arrived at by multiplying the average weight of the marijuana contained in each can by the total number of cans. John cites no evidence, however, suggesting that Conoly arrived at the weight of the marijuana using such a sampling method. To the contrary, Conoly testified that she counted and weighed the marijuana bundles “one by one.” John also confusingly argues th at the there was insufficient evidence fo r the jury to conclude th at his di scount wholesale business was associated with his marijuana smuggling operation. However, no issue submit ted to the jury required it to make any finding with respect to the nature3 To the extent th at John argues th at the jurors failed to fo llo w the district court’s inst ruction

regarding the “beyo nd a reasonable doubt” standard, his showing is insufficient to rebut the presumption th at jurors fo llo w the court’s inst ruction. S ee Zafiro v. United States , 506 U.S. 534, 540-41 (1993).

4 To the extent th at John argues th at his counsel’s performance was deficient due to inadequate time to prepare fo r the hearing, thereby depriving him of effective assistance of counsel, he has similarly failed t o dem onstrate prej udice . See Strickland v. Washington , 466 U.S. 668, 687 (1984) (defendant must demonstrate prejudice to prevail on ineffect ive assistance of counsel claim). -8- of John’s business. G John argues th at the district court erred in not granting his mo tion for a new trial based on his belief th at som

e of the jurors were “hesit ant” in finding him guilt y. He cites no legal authority in support of this claim. It is therefore waived. See FED . R. APP . P. 28(a)(9)(A). 3 H John argues th at the district court abused its di scretion when it denied his motion for a continuance of his sentencing hearing. Following the trial, the district co urt appoint ed counsel to assist John at sentencing. John requested a continuance so th at his new counsel would have mo re time to review the tri al record. We review a denial of a motion for a continuance prior to sentencing fo r an abuse of discretion. U nited States v. Peden, 891 F.2d 514, 519 (5th Cir. 1989). To prevail, John must demonstrate th at he was prejudiced by the district court’s decision. I d. John fail s to identify any further argument he would have presented to the district court had he had additional time to review the tri al record. 4 III For the foregoing reasons, we AFFIRM the judgment and sentence.