US v. Joey Minder, No. 07-4849 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4849 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOEY CARL MINDER, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Senior District Judge. (1:06-cr-00445-WLO) Submitted: March 11, 2009 Decided: April 13, 2009 Before WILKINSON, TRAXLER, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Nash E. Long, III, Ryan G. Rich, James D. Humphries, IV, Melissa A. Patterson, HUNTON & WILLIAMS, LLP, Charlotte, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Robert M. Hamilton, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joseph Carl Minder appeals his conviction and sentence following the jury verdict finding him guilty of twelve counts of mail fraud in violation of 18 U.S.C. § 1341 (West Supp. 2008) and 18 U.S.C. § 2 (2006), one count of securities fraud in violation of 15 U.S.C. §§ 77q(a), 77x (West 2000 & Supp. 2008) and 18 U.S.C. § 2 (2006), and one count of possessing and uttering a forged endorsement on a check in violation of 18 U.S.C. § 513(a) (2006). In 1998, William McNulty introduced Minder to a financial investment scheme promising unusually high rates of return, which purportedly involved overseas accounts managed by Donald, a investments. it used European trader of financial The investment scheme was classically fraudulent; money victims. for multi-millionaire received from later victims to pay earlier McNulty and Minder were indicted on October 31, 2006 engaging interstate in mail. a common At scheme Minder s to trial, defraud investors McNulty, who using had pled guilty to the charges filed against him, exercised his Fifth Amendment privilege against self-incrimination. During attempted to Minder s introduce direct into testimony, evidence as an Minder s counsel exception to the hearsay rule pursuant to Fed. R. Evid. 803(3) instant messages from McNulty to Minder. These messages indicated Donald was a 2 fictitious character. constituted evidence believed the fraudulent. court Counsel that investment argued Minder, program that until was the that messages revelation, legitimate rather than Following the Government s objection, the district excluded the evidence as hearsay. On appeal, Minder acknowledges the district court properly excluded the evidence under Fed. R. Evid. 803(3), but contends that the district court should have allowed it under Fed. R. Evid. 804(b)(3). Because proposed evidence Minder justifies before this the admissibility court under a of the different evidentiary theory than advanced below, we review the district court s evidentiary ruling for plain error. See United State v. Lowe, 65 F.3d 1137, 1144 (4th Cir. 1995). Under Fed. R. Crim. P. 52(b), this court may correct: (3) that affects substantial (1) error; (2) that is plain; rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-34 (1993); Lowe, 65 F.3d at 1144. The parties agree the instant messages are hearsay. Hearsay is generally not admissible in evidence. 802. the Fed. R. Evid. However, Fed. R. Evid. 804(b)(3) provides an exception to rule when an unavailable against penal interest. exception if: declarant has made a statement A statement is admissible under this (1) the speaker is unavailable; (2) the statement 3 is actually adverse (3) corroborating to the speaker's circumstances penal interest; clearly trustworthiness of the statement. and indicate the United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995). The party seeking to introduce the burden statement prerequisites. has a formidable We Id. find Minder of establishing fails to requisite elements to this hearsay exception. these establish the We further find that even if the district court s exclusion of the proffered statements plain was error erroneous, because the such exclusion district does court s not ruling constitute was not so prejudicial as to deny Minder a fair and impartial trial. Accordingly, we affirm the district court s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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