Filed: Oct. 15, 2020
Latest Update: Oct. 15, 2020
Summary: Case: 19-11234 Document: 00515602593 Page: 1 Date Filed: 10/15/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 15, 2020 No. 19-11234 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Royce Wade Lander, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 2:18-CR-75-1 Before Clement, Higginson, and Engelhardt, Circuit Judges. Per Cur
Summary: Case: 19-11234 Document: 00515602593 Page: 1 Date Filed: 10/15/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 15, 2020 No. 19-11234 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Royce Wade Lander, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 2:18-CR-75-1 Before Clement, Higginson, and Engelhardt, Circuit Judges. Per Curi..
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Case: 19-11234 Document: 00515602593 Page: 1 Date Filed: 10/15/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 15, 2020
No. 19-11234
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Royce Wade Lander,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:18-CR-75-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
A jury convicted Royce Wade Lander of transportation of a minor
with intent to engage in criminal sexual activity in violation of 18 U.S.C.
§ 2423(a). At trial, the Government alleged Lander drove 15-year-old G.C.
from Texas to New Mexico and sexually assaulted her during the drive. He
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-11234
now appeals, arguing (1) the trial court erred by admitting privileged
evidence; (2) the Government committed prosecutorial misconduct; and
(3) he received ineffective assistance from his trial counsel.
Lander first argues the district court erred in ruling that three photos
sent to him by his wife via text message were not privileged marital
communications. This court reviews evidentiary rulings for abuse of
discretion, subject to harmless error analysis. See United States v. Miller, 588
F.3d 897, 903 (5th Cir. 2009). The marital communications privilege
protects private communications between spouses. United States v. Koehler,
790 F.2d 1256, 1258 (5th Cir. 1986). The parties agree the photos were
exchanged privately between Lander and his wife, but they disagree as to
whether the photos constitute communications. This court need not resolve
the dispute because any error in admitting the photos was harmless. Lander
argues the photos, which depicted his wife’s feet, lent credibility to G.C.’s
testimony, from which it could be inferred Lander had a foot fetish.
However, Lander’s fetish had been established by other evidence, including
testimony that Lander told police he had a foot fetish and a photograph of
Lander with his arm around a woman’s foot. 1 The photos that Lander’s wife
sent to him were therefore cumulative, and any error in admitting them was
harmless. See United States v. El-Mezain,
664 F.3d 467, 526 (5th Cir. 2011).
Lander next argues the Government committed prosecutorial
misconduct in its closing argument by referencing the kidnapping of
Elizabeth Smart. Because Lander “failed to make a contemporaneous
objection to the prosecutor’s closing remarks in the trial court,” plain error
review applies. United States v. Mares, 402 F.3d 511, 515 (5th Cir. 2005). To
1
This photograph was not sent to Lander by his wife, and Lander does not assert
that it was improperly admitted.
2
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No. 19-11234
succeed on plain error review, Lander must show a clear or obvious error that
affected his substantial rights. See United States v. Aguilar, 645 F.3d 319, 323
(5th Cir. 2011). Even if he meets his burden, this court will generally not
exercise its discretion to correct the error unless it “seriously affected the
fairness, integrity, or public reputation of the judicial proceeding.”
Id.
Our law is clear that prosecutors may not refer or allude to evidence
not introduced at trial, United States v. Murrah,
888 F.2d 24, 26 (5th Cir.
1989), and may not appeal to passion and prejudice in a way meant to inflame
the jury, United States v. Raney,
633 F.3d 385, 395 (5th Cir. 2011). Although
the references to the Smart case could be viewed as violating these
prohibitions, we need not reach whether they clearly or obviously did so,
because Lander has not shown his substantial rights were affected. See United
States v. Olano,
507 U.S. 725, 734-35 (1993). To do so, he must show the
error affected the outcome of the district court proceedings
, id. at 734, and
the “determinative question is whether the prosecutor’s remarks cast serious
doubt on the correctness of the jury’s verdict,” United States v. Smith,
814
F.3d 268, 276 (5th Cir. 2016). To make this determination, this court
considers “(1) the magnitude of the prejudicial effect of the prosecutor’s
remarks, (2) the efficacy of any cautionary instruction by the judge, and (3)
the strength of the evidence supporting the conviction.”
Id. (internal
quotation marks and citation omitted).
The prosecutor’s comments were not “so pronounced and persistent
as to permeate the entire atmosphere of the trial,” and it is unlikely they had
a significant prejudicial effect. See United States v. Ramirez-Velasquez, 322
F.3d 868, 875-76 (5th Cir. 2003) (internal quotation marks and citation
omitted). Further, the district court instructed the jury before and after
closing arguments that the attorneys’ statements were not evidence, which
reduced any prejudicial effect. See
id. at 875. Finally, there was strong
evidence of Lander’s guilt. The findings of G.C.’s sexual assault examination
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No. 19-11234
were consistent with her assertion that Lander had digitally penetrated her.
Lander expressed concern when investigators told him G.C. was only 15
years old, he admitted to discussing his foot fetish with G.C., and he did not
tell his wife he had given G.C. a ride from Texas to New Mexico, even though
he had been texting with her while he was with G.C. The ample evidence of
Lander’s guilt, combined with the district court’s curative instructions,
outweighs any prejudice stemming from the prosecutor’s comments. See id.
at 876. Thus, Lander cannot show his substantial rights were affected. See
id.
Finally, Lander argues for the first time on appeal that his trial counsel
was ineffective. Generally, an ineffective assistance of counsel claim cannot
be resolved on direct appeal if it was not first raised in the district court since
“no opportunity existed to develop the record on the merits of the
allegations.” United States v. Cantwell,
470 F.3d 1087, 1091 (5th Cir. 2006)
(internal quotation marks and citation omitted). This is not one of those
“rare cases” where the record allows this court to fairly evaluate the merits
of the claim. See United States v. Navejar,
963 F.2d 732, 735 (5th Cir. 1992)
(internal quotation marks and citation omitted). Accordingly, we decline to
consider Lander’s ineffective assistance of counsel claim without prejudice
to his right to seek collateral review.
The district court’s judgment is AFFIRMED.
4
