United States v. Kyle , 84 F. App'x 288 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
HENRY J. KYLE, a/k/a H. James  No. 02-4537
Kyle, a/k/a James Kyle, a/k/a Jim
Kyle,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-01-245-AW)
Submitted: October 31, 2003
Decided: December 23, 2003
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Harold I. Glaser, Baltimore, Maryland, for Appellant. Thomas M.
DiBiagio, United States Attorney, David I. Salem, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. KYLE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Henry J. Kyle appeals his convictions for wire fraud and money
laundering in violation of 18 U.S.C. §§ 1343, 1957 (2000). We have
reviewed his claims of error and conclude they are without merit.
Accordingly, we affirm.
Kyle first claims that the district court erred in excluding evidence
relating to subsequent remedial measures taken by him in regard to
a debenture assigned to one of his victims. Even if we were to accept
Kyle’s premise that, in a criminal proceeding, the exclusion of subse-
quent remedial measures is not appropriate under Fed. R. Evid. 407,
he still must demonstrate the relevance of the evidence he seeks to
introduce and that its probative value is not substantially outweighed
by undue prejudice. See Fed. R. Evid. 402 & 403. Kyle has failed to
demonstrate the relevance of the proposed evidence. His subsequent
actions have no relationship to the relevant inquiry into his criminal
intent at the time of his fraudulent behavior. Accordingly, we reject
this claim.
Kyle next asserts that the district court erred in permitting the Gov-
ernment to introduce evidence of his prior bad acts. Specifically, he
claims the court should have excluded the testimony of Jolene Martin
relating to her prior investments and subsequent losses with Kyle.
This court reviews a district court’s determination of the admissibility
of evidence under Fed. R. Evid. 404(b) for an abuse of discretion. See
United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). We con-
clude that the district court did not abuse its discretion because Kyle’s
prior acts were relative to the intent the Government was required to
prove as an element of its case. See Fed. R. Evid. 404(b). The evi-
dence was also substantially similar to crimes for which Kyle was
being tried, further enhancing its relevance under Rule 404. Accord-
ingly, we deny relief on this claim.
UNITED STATES v. KYLE 3
Kyle’s final claim on appeal is that insufficient evidence supported
his conviction for wire fraud in relation to the defrauding of Brent
Butler. In determining whether there is sufficient evidence to support
a conviction, this court considers whether "there is substantial evi-
dence, taking the view most favorable to the Government, to support
it." Glasser v. United States, 315 U.S. 60, 80 (1942). This court does
not weigh the evidence or determine the credibility of the witnesses.
United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002). Here, sub-
stantial evidence supports Kyle’s fraudulent intent. Butler testified
that he expected his funds to be invested. Uncontradicted testimony
at trial demonstrated that the funds were used for Kyle’s personal
expenses in a manner consistent with Kyle’s impermissible use of
funds tendered to him by other victims of his fraud. This evidence
supports Kyle’s conviction. Accordingly, this claim is meritless.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED