US v. George Lecco, No. 10-5003 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5003 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GEORGE M. LECCO, a/k/a Porgy, Defendant Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:05-cr-00107-1) Submitted: June 20, 2011 Decided: July 13, 2011 Before WILKINSON, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Brian J. Kornbrath, Federal Public Defender, Clarksburg, West Virginia; Amy L. Austin, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, E. Gregory McVey, Assistant United States Attorney, Huntington, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: George Lecco appeals his conviction, following a jury trial, of one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846 (2006); one count of use of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1) (2006); two counts of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006); four counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006); one count of murder with a firearm during a cocaine conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A), (j) (2006); one count of witness tampering by killing, in violation of 18 U.S.C. § 1512(a)(1)(C) (2006); one count of witness retaliation by killing, in violation of 18 U.S.C. § 1513(a)(1)(B) (2006); and one count of conspiracy to destroy and conceal § 1512(k) (2006). evidence, in violation of 18 U.S.C. Lecco s convictions arose from his cocaine distribution and hiring of Patricia Burton and Valeri Friend to murder Carla Collins in retaliation for her telling police that Lecco continued to deal cocaine and carry firearms after agreeing to assist police in their drug investigation. On appeal, Lecco argues that (1) the district court erred in admitting statements Burton or Friend made to Collins during the murder implicating Lecco; (2) the district court erred in excluding evidence that Lecco was a fixer in the 2 community; (3) the district court erred in excluding statements made to police investigation; Amendment to rights police misconduct (4) and show the Government violated by presenting perjured during Lecco s testimony at the Fifth trial. Finding no reversible error, we affirm. We rulings on review the for abuse admissibility of of discretion evidence. Cole, 631 F.3d 146, 153 (4th Cir. 2011). hearsay if it is offered against a trial United court s States v. A statement is not the defendant and is a statement of a co-conspirator of the defendant made during the course and in furtherance of the conspiracy. 801(d)(2)(E). For a statement to be Fed. R. Evid. admissible under Rule 801(d)(2)(E), the government must show by a preponderance of the evidence that (1) a conspiracy existed of which the defendant was a member; and (2) the co-conspirator s statement was made in United States v. Neal, 78 F.3d furtherance of the conspiracy. 901, 905 (4th Cir. 1996). A co-conspirator s statement is made in furtherance of a conspiracy if it was intended to promote the conspiracy s objectives, whether or not it actually has that effect. 1994). United States v. Shores, 33 F.3d 438, 443 (4th Cir. We broadly construe the in furtherance requirement, such that even casual relationships to the conspiracy suffice to satisfy the exception. 254, 262 (4th Cir. 2006) United States v. Smith, 441 F.3d (upholding 3 the admission of a co- conspirator s explanation, in a drug conspiracy, that he had obtained drugs through a robbery); see also United States v. Robinson, 367 F.3d admission of informant because a 278, 292 (5th co-conspirator s he had Cir. threat snitched 2004) to on (upholding kill the a the government leader of the abused its conspiracy). Lecco discretion Collins contends in that admitting they disagree. The explanation that was were district Burton and killing her district in the court furtherance court Friend s at Lecco s correctly of the explanation to request. We held conspiracy that the because it effectively furthered the retaliatory goal of the conspiracy. Further, the conspirators explanation of the was penalty intended for to failing remind the co- carry out the to conspiracy s goals, and it was not unduly prejudicial. Lecco next argues that the district court abused its discretion when it excluded evidence of his helpfulness. Rule 404(a), Fed. R. Evid., deems inadmissible evidence of a person s character for therewith, the purpose excepting of evidence character offered by an accused. proving of a action in pertinent conformity trait of Proof of such a trait may be made by reputation or opinion testimony in all cases, and if the trait is an essential element of the charge, claim, or defense, specific instances of conduct also may be admitted. 4 Fed. R. Evid. 405; see also United States v. Gravely, 840 F.2d 1156, 1164 (4th essential Cir. 1988) element of ( Unless a evidence charge, claim or of character an proof of defense, is character is limited to general good character (reputation as a good person and law abiding citizen). ). Here, Lecco sought to introduce evidence that he had helped people in his community on several occasions in an attempt to show that he only helped his friends bury Collins after the murder. essential against Evidence of character, however, is not an element Lecco, of see any 18 of the U.S.C. charges that §§ 922(g)(1), were brought 924(c)(1), (j) 1512(a)(1)(C), (k), 1513(a)(1)(B); 21 U.S.C. §§ 841(a)(1), 846, nor did he raise a defense with a character element. Moreover, as the district court held, Lecco s status as a fixer is not a pertinent character trait, as the fact that he helped members of the community in noncriminal matters did not make it more likely that he would bury a body after a murder for which he was not otherwise culpable. Lecco s third claim is also without merit. Lecco challenges the district court s exclusion of a witness s false statements to police. At trial, Lecco argued that those statements were similar enough to another witness s concededly false statements investigation. to suggest police misconduct during the The district court excluded them, finding that 5 they were hearsay, at best, and that they were otherwise Lecco that the proffered irrelevant and immaterial. Although we agree with evidence was not hearsay, as it was not offered for the truth of the matter asserted, Fed. R. Evid. 801(c), we hold that it was within the district court s discretion to exclude the evidence as irrelevant. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed. R. Evid. 401. [R]elevance typically presents a low barrier to admissibility. United States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003). Thus, to be consideration relevant, by the evidence jury, or have need a only plus be value. worth Id. (quoting United States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997)). However, relevancy must be determined in relation to the charges and claims being tried, rather than in the context of defenses which might have been raised but were not. United States v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005). Prior to his attempted introduction of the false statements, Lecco did not argue police misconduct as a defense; rather, his theory was that the murder was the result of an outof-control cocaine binge with which he was not involved. Because police manipulation did not tend to prove Lecco s claim 6 that the witnesses lied to police to protect themselves, we hold that the district court did not abuse its discretion in excluding the statements as irrelevant. Finally, Lecco claims that the Government denied him due process when it called Friend, but not Burton, to testify. Essentially, Lecco diametrically argues opposed that to Friend s Burton s testimony that the was so Government knowingly presented perjured testimony by calling only Friend. The government may not knowingly use false evidence, including false testimony, to obtain a tainted Illinois, 360 U.S. 264, 269 (1959). process violation, a claimant conviction. Napue v. In order to establish a due must show the falsity and materiality of the testimony and the prosecutor s knowledge of its falsity. Perjured Basden v. Lee, 290 F.3d 602, 614 (4th Cir. 2002). testimony likelihood that is the material judgment of the jury. there is testimony false if any could have reasonable affected the Id. (internal quotation marks omitted). Lecco has not shown that the Government deprived him of due process by calling Friend to testify rather than Burton because he has not shown that the Government knew of any falsity in Friend s testimony or that the testimony was material. falsely characterizes the Government s assertion at Lecco Burton s sentencing hearing that Burton was the first to come forward with at least the closest true 7 story of what happened to Collins, and he has not established that Friend and Burton s slightly differing accounts of the murder could have affected the judgment of the jury. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 8

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