United States of America, Plaintiff-appellee, v. Roger Lee Shuck, Defendant-appellant.united States of America, Plaintiff-appellee, v. Donald J. Mcelroy, Defendant-appellant.united States of America, Plaintiff-appellee, v. Thomas K. Guidash, Defendant-appellant.united States of America, Plaintiff-appellee, v. Carl Michael Shuck, Defendant-appellant, 848 F.2d 186 (4th Cir. 1988)

Roger Lee Shuck, Donald J. McElroy, Thomas K. Guidash, and Carl Michael Shuck appeal their convictions after a jury trial for threatening bodily injury to a government witness in a prior criminal trial, 18 U.S.C. § 1513, and for aiding and abetting each other in the commission of that offense, 18 U.S.C. § 2.

Michael P. Hogan testified against Ralph Shuck in a criminal trial in the United States District Court for the Northern District of West Virginia. Appellants Carl Shuck and Roger Lee Shuck are a brother and cousin, respectively, of Ralph Shuck. On November 23, 1985, Carl and Roger Shuck, in the company of Guidash and McElroy, drove to the residence of Michael Hogan on November 23, 1985. There is no question that all four of the appellants had indulged heavily in the consumption of alcoholic beverages prior to their arrival at the Hogan residence. The trial evidence indicates, moreover, that all or most of them were alcoholics, living at best under marginal circumstances.

When the men arrived at the Hogan residence, one of them displayed a baseball bat and another a large piece of wood. Hogan's neighbors testified that one of the men was waving the bat in the air and patting it on the ground. The neighbors further testified that they heard shouts and loud language and that they called the police in response. Hogan testified Roger Shuck stated that Ralph Shuck had been incarcerated because of Hogan and that the men had come to settle the score. As the men approached, Hogan retreated into the house. A neighbor testified he saw the four men "shouting and going from one door to another door" at the Hogan residence, and that they "apparently were looking for trouble." According to witnesses, one of the men shouted, "I'll get you, you son-of-a-bitch." Hogan and his mother testified that the Shucks entered the back door of the house but retreated when Hogan confronted them with a shotgun. Guidash and McElroy then went back to their vehicle, while the Shucks attempted to enter the house through the front door. Hogan's father testified that Roger Shuck indicated upon approaching the door that he had a "misunderstanding" with Hogan and that he "had come to settle the score." When Hogan again confronted the Shucks with the shotgun and asked them to leave, the Shucks returned to the vehicle. The police arrived as the men were attempting to drive away. The officers arrested Roger Shuck for driving while intoxicated and arrested his three companions for public intoxication.

On the federal charges on appeal here, Carl Shuck was sentenced to a term of five years in prison, but the sentence was suspended and he was placed on probation for five years. The other three defendants were sentenced to five-year terms of incarceration all but six months of which were suspended, and each was placed on probation for four and one-half years.

The defendants contend on appeal that the evidence was insufficient to sustain the convictions against any of them. More particularly, they assert that the Government failed to establish they had the specific intent to retaliate against Hogan for his testimony in view of their extreme intoxication. They also contend that the court erred in: (1) denying Roger Shuck's motion to sever; (2) failing to sustain Roger Shuck's objection to the testimony of a doctoral student in clinical psychology, who testified as a rebuttal witness to the testimony of a medical doctor; and (3) admitting into evidence a rebuttal statement of a Bureau of Prisons psychologist that "50% of the convicted people report that they were using drugs or under the influence of alcohol during the commission of their offense."

In our view, the brief reference to the statistical evidence of drugs or alcohol as they relate to the commission of crimes was error, see Fed.R.Evid. 403, but was harmless, United States v. Davis, 657 F.2d 637, 640 (4th Cir. 1981); Fed. R. Crim. P. 52. We find no merit to the appellants' other contentions. In view of the above, the judgment of the district court is affirmed.

AFFIRMED.