245 F. App'x 391

5th Cir.

2007

UNITED STATES of America, Plaintiff-Appellee, v. Torrey S. SCOTT, also known as Torrey Scott, Defendant-Appellant.

No. 06-30780.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 2007.

246 Fed. Appx. 391

of the hearing before the ALJ, the ALJ should have deferred to his opinion or conducted a detailed analysis of his views as described in 20 C.F.R § 404.1527(d)(2). However, nothing about Taylor‘s relationship with Dr. Weisberg establishes the “longitudinal” pattern of care described in section 404.1527(d)(2); Taylor‘s two visits to Dr. Weisberg, four years apart, are the sort of “individual examinations” that are distinguished in the regulation from the continuous care provided by a treating physician. The ALJ did not need to accept Taylor‘s assertion that Weisberg was her treating physician at face value, given the limited treatment relationship she established with him. See Hernandez v. Heckler, 704 F.2d 857, 860-61 (5th Cir. 1983) (affirming ALJ‘s determination that a doctor who only saw the claimant twice in a 17-month period was not a treating physician). Because Taylor‘s two visits to Dr. Weisberg did not establish him as her treating physician, the ALJ did not err by not attempting to resolve his statements with Dr. Mandich‘s conclusions. Nor was it error to deny Dr. Weisberg‘s opinion controlling weight.

Taylor also asserts that the ALJ made errors of fact in rejecting Dr. Weisberg‘s findings. Specifically, she contends that, contrary to the ALJ‘s findings, (1) Dr. Weisberg‘s findings were not inconsistent with those of Dr. Mandich; (2) Dr. Weisberg‘s findings were not based on Taylor‘s subjective complaints; and (3) Dr. Weisberg‘s findings were not contrary to the weight of the medical evidence.

Taylor‘s first assertion is belied by the fact that she rests her procedural claim on a contention that the ALJ should have given more weight, not less, to Dr. Weisberg‘s findings, and that if the ALJ did so she would have prevailed. The record makes clear that Dr. Weisberg and Dr. Mandich did not have identical views of the nature of Taylor‘s medical condition.

The ALJ stated that Dr. Weisberg‘s opinion “appears to be based on the subjective complaints of [Taylor] which he takes at face value.” This statement was a reference to Dr. Weisberg‘s conclusion that Taylor was not capable of independent living despite being able to cook, clean, and perform other household activities. The ALJ found Dr. Weisberg‘s conclusion to be inconsistent with his observations and thus found that Dr. Weisberg was crediting Taylor‘s self-evaluation. The record supports this finding, as well as the related finding that Dr. Weisberg‘s conclusion that Taylor was incapable of independent living was contrary to the weight of the medical evidence. Both Dr. Mandich and a vocational expert procured by the ALJ found that Taylor‘s disabilities were not so severe as to preclude employment.

IV. CONCLUSION

For the foregoing reasons, the order of the district court is AFFIRMED.

Christopher Cox, U.S. Attorney‘s Office, New Orleans, LA, for Plaintiff-Appellee.

Guy Earl Wall, Wall & Bullington, New Orleans, LA, for Defendant-Appellant.

Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:^*

On numerous bases, Torrey Scott challenges his conviction for possessing firearms, body armor, and a substance containing cocaine base. AFFIRMED.

I.

In 2005, having been advised that an individual named “Tory” had stockpiled weapons inside a nightclub and was preparing to move them, Officers arrived and observed Scott: exit the nightclub into an adjacent alley; place a short-barreled shotgun in a hole in the wall of an adjacent structure; and return inside.

Officers arrested Scott for possessing that firearm and found: four additional firearms in the hole; another loaded firearm and an FBI-inscribed bullet-proof vest close to Scott‘s seat in the nightclub; and, pursuant to a search incident to the arrest, a plastic bag containing a substance resembling crack cocaine in Scott‘s clothing.

Scott was initially charged on 1 July 2005. His trial, however, was twice continued, pursuant to 18 U.S.C. § 3161(h)(8)(A) (governing ends-of-justice continuances), upon motion by his newly-appointed counsel and, subsequently, due to Hurricane Katrina.

On 4 November 2005, Scott was charged by superseding indictment with possession of: various firearms, including a Rohm .38 caliber pistol, by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2); an unregistered short-barreled shotgun, in violation of 26 U.S.C. §§ 5841, 5845, 5861(d), and 5871; body armor, having been convicted previously of a crime-of-violence felony, in violation of 18 U.S.C. § 931; and a substance containing cocaine base, in violation of 21 U.S.C. § 844(a).

Scott‘s trial commenced on 30 January 2006, the district court‘s having, on the Government‘s motion, granted a third ends-of-justice continuance. A jury found Scott guilty on all counts. He was sentenced, inter alia, to 71 months’ imprisonment.

II.

Scott presents numerous contentions. Each fails.

A.

Scott raises various constitutional challenges to his statutes of conviction for firearm and body-armor possession. Of course, the constitutionality of a federal statute is reviewed de novo. E.g., United States v. Patterson, 431 F.3d 832, 835 (5th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2043, 164 L.Ed.2d 798 (2006).

1.

For his firearm-possession convictions, Scott‘s challenges based on the Commerce Clause, Tenth Amendment, and Equal Protection Clause, and his Second Amendment challenge to § 922(g)(1), are foreclosed. See United States v. Everist, 368 F.3d 517, 519 & n. 3 (5th Cir.2004); United States v. Darrington, 351 F.3d 632, 634-35 (5th Cir.2003). Scott concedes as much, raising the issues only to preserve their possible further review. Scott‘s Second Amendment challenge to 26 U.S.C. § 5861(d) also fails. See United States v. Emerson, 270 F.3d 203, 261 (5th Cir.2001).

2.

Regarding his body-armor-possession conviction, Scott‘s Commerce Clause, Tenth Amendment, and Equal Protection Clause challenges to 18 U.S.C. § 931 are unavailing. See United States v. Patton, 451 F.3d 615, 634-36 (10th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1247, 167 L.Ed.2d 87 (2007); Darrington, 351 F.3d at 634-35.

B.

Relying on Ex Parte Garland, 71 U.S.(4 Wall.) 333, 18 L.Ed. 366 (1866), Scott contends his first-offender pardon under Loui-siana law, LA.REV.STAT. § 15:572, which specifically excepted the right to receive, possess, or transport a firearm, precludes his body-armor-possession conviction. This contention, for which we have plenary review, see, e.g., United States v. Daugherty, 264 F.3d 513, 514 (5th Cir.2001), fails. See United States v. Richardson, 168 F.3d 836, 839-40 (5th Cir.1999); State v. Adams, 355 So.2d 917, 921-22 (La.1978).

C.

Scott claims violations of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, contending: the superseding indictment should have been dismissed for undue delay because the district court did not make on-the-record findings in granting the Government the third ends-of-justice continuance and, therefore, more than 70 unexcluded days passed during the 213-day period between his initial indictment and trial, see id. § 3161(c)(1); Zedner v. United States, ___ U.S. ___, 126 S.Ct. 1976, 1989, 164 L.Ed.2d 749 (2006); and, alternatively, because he was not charged with possessing the Rohm .38 caliber pistol within 30 days of his arrest, that count should have been dismissed, see 18 U.S.C. § 3161(b). Regarding a district court‘s Speedy Trial Act ruling, legal conclusions are reviewed de novo; factual findings, for clear error. E.g., United States v. Bieganowski, 313 F.3d 264, 281 (5th Cir.2002).

As Scott concedes, 100 days of the indictment-to-trial period, related to various motions by his counsel and the Hurricane-Katrina-related continuance, are excludable from the speedy-trial clock. Moreover, in granting the challenged third (ends-of-justice) continuance, the district court referenced the Government‘s motion and tracked the language of § 3161(h)(8)(A), (B)(i). Accordingly, that continuance is also excludable. See United States v. Brickey, 289 F.3d 1144, 1150-51 (9th Cir.2002); United States v. Mitchell, 723 F.2d 1040, 1044 (1st Cir.1983). As Scott‘s alternative contention concerning the .38-caliber-pistol possession count fails, see United States v. Phipps, 319 F.3d 177, 182 (5th Cir.2003) (noting if defendant is not indicted within 30 days of arrest, Speedy Trial Act requires dismissal only of an offense charged in the original complaint), denial of his § 3162(a)(2) motion to dismiss was proper.

D.

For his cocaine-base-possession conviction, Scott claims, inter alia: 21 U.S.C. § 844(a) is impermissibly vague because there is no statutory definition of “cocaine base“; and the evidence was insufficient to support it because the Government did not present scientific testimony identifying the substance he possessed. Scott‘s properly-preserved sufficiency challenge is reviewed in the light most favorable to the verdict, inquiring only whether a rational juror could find the offense elements established beyond a reasonable doubt. E.g., United States v. Cuellar, 478 F.3d 282, 287 (5th Cir.2007) (en banc). Such review does not include weight or credibility of the evidence. E.g., id.

1.

A void-for-vagueness claim is reviewed de novo. E.g., United States v. Monroe, 178 F.3d 304, 308 (5th Cir.1999). Scott‘s claim is without merit. See United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir.1991).

2.

There was testimony from two narcotics Officers, with five and 15 years’ experience, respectively, that the substance Scott possessed was consistent with crack cocaine. Viewing this evidence in the light most favorable to the verdict, this suffi-ciency challenge fails. See United States v. Osgood, 794 F.2d 1087, 1095 (5th Cir. 1986). Concomitantly, Scott‘s related claim under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is unavailing.

E.

Scott contends the Government‘s failure to timely disclose potential impeachment evidence violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment“), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (extending Brady to impeachment evidence). Such a contention is reviewed de novo. E.g., United States v. Infante, 404 F.3d 376, 386 (5th Cir.2005). To establish such a violation, Scott must show: “(1) the prosecution did not disclose evidence; (2) the evidence was favorable to [his] defense [because it was either exculpatory or impeachment]; and (3) the evidence was materiali.e., there is a reasonable probability that if the [G]overnment had disclosed [it], the result of the proceeding would have been different“. Id.

The evidence at issue related to the criminal history of a witness called by the Government. Regarding this evidence, Scott, inter alia: obtained it prior to a lunch recess; questioned the witness about it on cross-examination; and referred to it during closing argument. Moreover, Scott did not subsequently call the witness in order to further develop the evidence and failed to present related evidence during the over-four-month period between trial and his new-trial motion‘s denial. Particularly in the light of the other evidence supporting the verdict, Scott fails to show the evidence at issue was material. See United States v. O‘Keefe, 128 F.3d 885, 898-99 (5th Cir.1997).

F.

Finally, Scott maintains the district court erred in allowing an expert witness’ testimony regarding the shotgun‘s barrel length because the Government failed to produce a related expert report, in violation of Federal Rule of Criminal Procedure 16(a)(1)(G) (requiring the Government to provide, upon defendant‘s request, a written summary of expert testimony it intends to use in its case-in-chief).

A district court‘s rulings on claimed discovery violations are reviewed for abuse of discretion. Cuellar, 478 F.3d at 293. Along that line, a Rule 16 violation does not mandate exclusion of the evidence. E.g., id. Where a district court admits such evidence without sanctions, “a new trial must be ordered based on alleged discovery error only when a defendant demonstrates prejudice to his substantial rights“. Id.; see also FED.R.CRIM.P. 52(a).

There was testimony from another Government expert witness, whose report was produced, establishing the shotgun‘s barrel length was well below the minimum length. See 26 U.S.C. § 5845(a). The requisite prejudice is lacking. See Cuellar, 478 F.3d at 293.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

Notes

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.