US v. Carl Dadaille, No. 09-4582 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4582 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARL DADAILLE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:07-cr-00039-NCT-2) Submitted: March 22, 2010 Decided: April 13, 2010 Before NIEMEYER, MOTZ, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, North Carolina, for Appellant. Anna Mills, Wagoner, United States Attorney, L. Patrick Auld, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A conspiracy jury to convicted commit Carl offenses Dadaille against the of one of States, United count in violation of 18 U.S.C. § 371 (2006), by obstructing justice, by influencing the testimony of a witness proceeding, and by suborning perjury. in an official The jury also convicted Dadaille of separate substantive counts of obstructing justice in violation of 18 U.S.C. § 1503(a) (2006), and tampering with a witness in acquitted uttering violation Dadaille of of 18 two U.S.C. objects counterfeit securities On Dadaille and § 1512 (2006). of conspiracy charge, counterfeit access the using The jury devices. appeal, contends that (1) the district court violated his Sixth Amendment right to confront witnesses when it admitted, over his objection, documentary evidence of the purchase of travelers checks through a witness who had no involvement with the transaction; (2) the district court erred in improperly admitting character evidence; and (3) the district court violated his Sixth Amendment right to trial by jury by considering evidence of acquitted conduct in sentencing him. affirm. 2 We I. Evidentiary Issues Generally, we review decisions to admit evidence for abuse of discretion. (4th Cir. 2005). not substitute United States v. Forest, 429 F.3d 73, 79 Under the abuse of discretion standard, we may our judgment for that of the district court; rather, we must determine whether the district court s exercise of discretion, considering the law and facts, was arbitrary or capricious. Cir. 1995). United States v. Mason, 52 F.3d 1286, 1289 (4th asserted However, violation of where the evidentiary Sixth issues Amendment, relate the to an appropriate standard of review is de novo. United States v. Robinson, 389 F.3d 582, 592 (6th Cir. 2004). Whether reviewed only for abuse of discretion or de novo, any error in the admission or exclusion of evidence is subject to the harmless error test. See Delaware v. Van Arsdall, 475 U.S. 673, 680-84 (1983); United States v. Pendergraph, 388 F.3d 109, 112 (4th Cir. 2004). We review for plain error issues that Dadaille failed to preserve in the district court. See Fed. R. Crim. P. 52(b). A. Confrontation Clause Dadaille claims that the district court violated his Sixth Amendment business records right of to confrontation American Express when through it an admitted employee American Express who had no involvement with the transaction. 3 the at The Confrontation Clause of the Sixth Amendment bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). For a statement to be excludable under the Confrontation Clause, it must be testimonial, United States v. Udeozor, 515 F.3d 260, 268 (4th Cir. 2008), and offered for the truth of the matter asserted, Crawford, 541 U.S. at 59-60 n.9 (the Confrontation Clause does purposes not other bar the than use of establishing testimonial the truth statements of the for matter asserted ). Our review of the record leads us to conclude that the purchase agreement documents, as hearsay and were not testimonial. business records, were not Crawford, 541 U.S. at 56; Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539 (2009). Therefore, the district court did not err in allowing their admission through a records custodian who was not involved in the transaction that led to their creation. B. Character Evidence Dadaille next argues that the district court erred in improperly admitting character evidence 404(b). 4 under Fed. R. Evid. First, examination Dadaille of him argues elicited that the improper Government s character cross- evidence. However, this complaint overlooks the fact that by taking the stand, his credibility examination. became subject attack on cross- Matters affecting the credibility of the witness are always open to cross examination. 769 F.2d to 229, 236 (4th Cir. 1985) United States v. Zandi, (internal quotation marks omitted). We conclude that the Government s cross-examination of Dadaille was related to matters affecting his credibility, and its scope was properly within the subject matter that Dadaille himself raised on direct examination. See Fed. R. Evid. 611(b) ( Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. ). Thus, the district court did not abuse its discretion in overruling the objections that Dadaille made to the Government s questions. For the questions to which Dadaille made no objection, we find no plain error. Further, checks purchase Dadaille agreement has not shown constituted that character the travelers evidence, or that relevant evidence provided by a civil court document was unfairly prejudicial. Thus, we conclude the district court did not abuse its discretion in admitting the contested evidence. 5 II. We review a Sentence sentence for reasonableness, abuse of discretion standard of review. 552 U.S. 38, 51 (2007). the court to ensure 161 (4th that Cir.), Procedural errors Guidelines range. an Gall v. United States, The first step in this review requires the significant procedural error. 155, using cert. court committed no United States v. Evans, 526 F.3d denied, include Gall, district 129 S. (improperly 552 U.S. at Ct. 476 (2008). calculating) 51. The Court the then considers the substantive reasonableness of the sentence, taking into account the totality of the circumstances. Id. A sentence within the properly calculated Guideline range is presumptively reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Our review of the record convinces us that the district court did not violate Dadaille s Sixth Amendment right to trial by jury in sentencing him. based on its The district court did not sentence Dadaille consideration of acquitted conduct. It properly calculated Dadaille s offense level under U.S. Sentencing Guidelines Manual ( USSG ) § 2X3.1 (2008) using a cross-reference from USSG §§ 2J1.2(c)(1), 2J1.3(c)(1), the Guideline for the obstruction and perjury offenses for which Dadaille was convicted. Under USSG § 2X3.1, the district court incorporated the underlying offense level for the counterfeit 6 offenses because Dadaille was convicted of obstructing the investigation into those offenses. Further, conduct in a sentencing sentencing, even court after of may consider the decision acquitted in United States v. Booker, 543 U.S. 220 (2005), as long as the conduct is established by a preponderance of the evidence. United States v. Perry, 560 F.3d 246, 258-59 (4th Cir.), cert. denied, 130 S. Ct. 177 (2009). Here, the Government established Dadaille s involvement in the counterfeit travelers check and counterfeit credit card scheme by a preponderance of the evidence. We therefore in conclude that the district court did not err sentencing Dadaille. Therefore, sentence. legal before affirm Dadaille s conviction and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7

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