United States v. Danine Rydland , 461 F. App'x 208 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4566
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANINE A. RYDLAND,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:10-cr-00053-JPB-DJJ-1)
Argued: December 9, 2011 Decided: January 5, 2012
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James T. Kratovil, KRATOVIL & KRATOVIL, Charles Town,
West Virginia, for Appellant. Erin K. Reisenweber, OFFICE OF
THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for
Appellee. ON BRIEF: William J. Ihlenfeld, II, United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dr. Danine Rydland appeals her conviction on 34 counts of
health care fraud. See 18 U.S.C. § 1347. We affirm.
I
Rydland was charged with 38 counts of health care fraud
arising from her medical office billing practices. Before
trial, Rydland prepared notes that she intended to use at trial
to assist her while testifying. As Rydland prepared to take the
stand for her direct testimony, her attorney presented the notes
to the government, which then objected to her use of them. In
response to the objection, Rydland’s attorney explained that the
notes are her “recollection” after her review of the office
records. J.A. 648. When questioned by the court as to what
rule would permit Rydland to use the notes, her attorney
responded that he did not know any rule that would not permit
her to use them. Id. After reviewing caselaw, the court orally
ruled that Rydland could not use the notes while she was on the
stand. Rydland then testified on direct examination without the
notes.
Before cross-examining Rydland, the government notified the
district court of its intention to use the notes in the cross-
examination. During the ensuing discussion, Rydland’s attorney
asked the district court why the government would be permitted
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to use the notes. When the court answered that the notes may
contain prior inconsistent statements, her attorney asserted
that the notes were “subsequent statements” rather than prior
statements. J.A. 794-95. Although Rydland’s attorney then
noted that he did not understand why the notes contain prior
statements, he offered no substantive basis to preclude the
government from using the notes. The court then permitted the
government to use the notes during cross-examination for the
purpose of establishing that Rydland had made prior inconsistent
statements.
The jury eventually convicted Rydland on 34 counts and
acquitted her on four counts. Thereafter, the court sentenced
her to 34 concurrent terms of imprisonment of 12 months plus one
day.
II
On appeal, Rydland primarily argues that the notes are
appropriate material for refreshing her recollection and,
therefore, the district court erred by denying her the use of
them during her direct testimony. We review the order excluding
the notes for abuse of discretion. See United States v.
Cranson, 453 F.2d 123, 124 (4th Cir. 1971) (“The matter of
refreshing a witness’ recollection and the manner used are
largely within the discretion of the Trial Judge.”). A district
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court abuses its discretion when it acts arbitrarily or
irrationally, fails to consider judicially recognized factors
constraining its exercise of discretion, relies on erroneous
factual or legal premises, or commits an error of law. United
States v. Thompson-Riviere, 561 F.3d 345, 348 (4th Cir. 2009).
The district court did not elaborate on its reasoning in
sustaining the government’s objection, but its citation to three
cases for support implies that it based its ruling on two
principles: (1) a party may not attempt to introduce otherwise
inadmissible evidence under the guise of refreshing recollection
and (2) a witness may not use a document to refresh recollection
unless she has exhibited a failure of memory. 1 This ruling is in
accord with the controlling law in this circuit:
1
The court cited the following cases, to which we have
added the accompanying text: United States v. Balthazard, 360
F.3d 309, 318 (1st Cir. 2004) (“It is hornbook law that a party
may not use a document to refresh a witness’s recollection
unless the witness exhibits a failure of memory.”); Goings v.
United States, 377 F.2d 753, 759-60 (8th Cir. 1967) (“Refreshing
a witness’s recollection by memorandum or prior testimony is
perfectly proper trial procedure and control of the same lies
largely in the trial court’s discretion. However, if a party
can offer a previously given statement to substitute for a
witness’s testimony under the guise of ‘refreshing
recollection,’ the whole adversary system of trial must be
revised.”); Thompson v. United States, 342 F.2d 137, 140 (5th
Cir. 1965) (“The trial judge has a duty to prevent a witness
from putting into the record the contents of an otherwise
inadmissible writing under the guise of refreshing recollection,
. . . and . . . counsel should not be permitted to give a
witness a written statement, especially prepared for his use in
testifying, to obviate the necessity of introducing original
(Continued)
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It is, of course, obvious from everyday experience
that the latent memory of a witness may be revived by
prior written statements which he or others may have
made. Thus, most courts today hold that in examining
a witness at trial, counsel may hand him a memorandum
to inspect for the purpose of refreshing his memory,
with the result that when he testifies, he does so on
the basis of his own recollection, not the writing.
Proper foundation for such procedure requires that the
witness’ recollection be exhausted. A contrary
holding would permit a party to substitute the prior
statement of a witness for his actual testimony.
United States v. Morlang, 531 F.2d 183, 190-91 (4th Cir. 1975)
(citations omitted).
Although Rydland may have believed that it would have been
helpful to use her notes while testifying, she did not lay the
proper foundation for using them to refresh her recollection.
Therefore, under these circumstances, the district court did not
abuse its discretion in denying Rydland the use of her notes.
III
For a variety of reasons, Rydland also argues that the
district court abused its discretion by permitting the
government to use the notes during her cross-examination.
Specifically, she appears to contend that the government’s use
of the notes (1) violated the procedure set forth in Rule 612 of
the Federal Rules of Evidence, (2) permitted the government to
records, on the assumption that anything can be used to refresh
recollection.”).
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introduce otherwise inadmissible evidence, (3) violated her
work-product privilege, and (4) is unfair.
As noted, Rydland asked the district court why the
government could use the notes in its cross-examination. Even
if we construe her question as a proper objection, it is clear
that she did not object on any of the grounds she now asserts on
appeal. See generally United States v. Parodi, 703 F.2d 768,
783 (4th Cir. 1983) (noting that in order to preserve appellate
review an objecting party must object with a reasonable degree
of specificity that would have adequately apprised the trial
court of the true basis for the objection). Therefore, we
review for plain error. United States v. Pratt, 239 F.3d 640,
644 (4th Cir. 2001).
Interpreting Rule 52(b) of the Federal Rules of Criminal
Procedure, which governs plain error review, the Supreme Court
has instructed:
[A]n appellate court may, in its discretion, correct
an error not raised at trial only where the appellant
demonstrates that (1) there is an error; (2) the error
is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected the appellant’s
substantial rights, which in the ordinary case means
it affected the outcome of the district court
proceedings; and (4) the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.
United States v. Marcus, ––– U.S. –––, 130 S.Ct. 2159, 2164
(2010) (internal punctuation and citation omitted). “[T]he
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burden of establishing entitlement to relief for plain error is
on the defendant claiming it,” United States v. Dominguez
Benitez, 542 U.S. 74, 82 (2004), and “[m]eeting all four prongs
is difficult, as it should be,” Puckett v. United States, 556
U.S. 129, 129 S.Ct. 1423, 1429 (2009) (internal punctuation and
citation omitted).
After carefully reviewing Rydland’s contentions, we are
unable to find that she has met her burden of establishing that
the district court plainly erred. Moreover, because the jury
acquitted Rydland of four counts notwithstanding the
government’s use of the notes, we are not convinced that she was
unduly prejudiced by any such error or, in any event, that we
should exercise our discretion to notice any such error.
IV
Based on the foregoing, we affirm the judgment of
conviction.
AFFIRMED
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