United States v. West ( 2004 )

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4307
WALTER ANTHONY WEST,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4405
HARRY NOLAN MOODY,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-02-4)
Submitted: April 30, 2004
Decided: June 3, 2004
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Baltimore, Maryland; Kyle King, Asheville,
2 UNITED STATES v. WEST
North Carolina, for Appellants. Robert J. Conrad, Jr., United States
Attorney, D. Scott Broyles, Assistant United States Attorney, Char-
lotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Harry Nolan Moody and Walter Anthony West appeal from their
convictions and sentences for conspiracy to manufacture metham-
phetamine, in violation of 21 U.S.C. §§ 841, 846 (2000). Finding no
error, we affirm.
Moody and West first claim that a pattern of prosecutorial miscon-
duct, evidenced in the closing remarks of counsel for the Government,
violated their due process rights. We review a claim of prosecutorial
misconduct to determine whether the conduct complained of so
infected the trial with unfairness as to make the resulting conviction
a denial of due process.1 United States v. Scheetz, 293 F.3d 175, 185
(4th Cir.), cert. denied, 123 S. Ct. 397, 400 (2002). To prevail under
this standard, West and Moody must show that "the prosecutor’s
remarks or conduct were improper and, second . . . that such remarks
or conduct prejudicially affected [their] substantial rights" so as to
deprive them of a fair trial. Id. We have reviewed the several claims
presented in their brief and conclude that Moody and West have
failed to demonstrate the requisite degree of misconduct. Accord-
ingly, we conclude their right of due process was not infringed.
Moody next claims that the district court erred in allowing the
1
To the degree that Moody and West failed to preserve these claims at
trial, the standard is modified in that they must demonstrate plain error.
See United States v. Olano, 507 U.S. 725, 732-34 (1993).
UNITED STATES v. WEST 3
Government to solicit hearsay testimony from an investigator about
a statement made by Moody’s wife that inculpated Moody. Because
the evidence was submitted in compliance with Moody’s qualified
objection, we likewise review this claim for plain error. Even if
Moody could demonstrate that the admission of the statement was
erroneous, he can demonstrate no infringement of a substantial right
because his wife subsequently corroborated this testimony. See
United States v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). Accord-
ingly, we find no plain error.
Moody also claims that the district court’s consideration of state-
ments made by his co-conspirator outside of the scope of the conspir-
acy amount to plain error. We have reviewed the record with regard
to this claim and conclude that overwhelming and independent evi-
dence supports Moody’s conviction. Accordingly, even if the chal-
lenged statements were inappropriately admitted into evidence,
Moody can demonstrate no prejudice. See id.Moody claims next that the district court failed to appropriately
instruct the jury with respect to evidence of prior crimes or bad acts
that fall within the purview of Fed. R. Evid. 404(b). We have
reviewed the instructions to the jury and conclude that the substance
of Rule 404(b) was "substantially covered by the court’s charge to the
jury." United States v. Patterson, 150 F.3d 382, 388 (4th Cir. 1998).
Accordingly, this claim lacks merit.
West next assigns error to the district court’s enhancement of his
sentence for "unlawful discharge, emission, or release into the envi-
ronment of a hazardous or toxic substance." See U.S. Sentencing
Guidelines Manual § 2D1.1(b)(5)(A) (2001). Our review of the tran-
script supports the application of this enhancement. The district court
heard testimony regarding the release of anhydrous ammonia as well
as other noxious and hazardous materials into the environment.
Accordingly, we find no error.
West likewise claims that the district court erred in applying a
three-level enhancement for his role as a manager or supervisor in the
conspiracy. See USSG § 3B1.1(b). Again, our review of the record
discloses nothing to question the application of this enhancement.
4 UNITED STATES v. WEST
Finally, we have reviewed the supplemental claims contained in
Moody’s informal brief relating to his status as a career criminal
within the context of USSG § 4B1.1.2 Finding no error in the district
court’s application of the enhancement, we deny relief on this final
claim.
We affirm West’s and Moody’s convictions and sentences. We dis-
pense 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
2
The other claims in Moody’s pro se brief were duplicative of those
raised in counsel’s brief, so we do not discuss them separately.