United States v. Batterman ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4234
ALLEN KEITH BATTERMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(CR-97-213)
Submitted: January 19, 1999
Decided: March 23, 1999
Before MURNAGHAN and TRAXLER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Michael W. Patrick, HAYWOOD, DENNY & MILLER, L.L.P., Dur-
ham, North Carolina, for Appellant. Walter C. Holton, Jr., United
States Attorney, Paul A. Weinman, Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Allen Keith Batterman was convicted by a jury of bank robbery,
18 U.S.C. § 2113(a) (1994), armed bank robbery, 18 U.S.C. § 2113(d)
(1994), and using and carrying a firearm during a crime of violence,
18 U.S.C.A. § 924(c) (West 1994 & Supp. 1998). Batterman appeals,
claiming that (1) the district court erred in admitting evidence of his
drug use and prior thefts and (2) his sentence was improperly
enhanced for obstruction of justice. See U.S. Sentencing Guidelines
Manual § 3C1.1 (1997). For the reasons that follow, we affirm.
On the morning of August 5, 1997, Batterman and Robert Durham,
armed with an automatic rifle, robbed the Guaranty State Bank in
Durham, North Carolina. Durham and Batterman had met several
weeks before the robbery--both were in a parking lot injecting her-
oin. Durham testified that in the eight weeks prior to the robbery, he
and Batterman began using drugs together and stealing to supply their
drug habits. According to Durham, he and Batterman stole lawn-
mowers and groceries, and committed several burglaries to obtain
money to buy more drugs. Durham stated that it was he who came up
with the idea of robbing a bank in the two weeks prior to the bank
robbery. After the robbery, Durham and Batterman used the proceeds
to purchase, among other items, eight bottles of heroin. The govern-
ment also called David Clemonts and Gene Dunn, both of whom testi-
fied that they had seen Batterman inject heroin intravenously on
several different occasions.
Durham and Batterman were arrested shortly after the robbery.
While they were housed in the same cell awaiting trial, Batterman
composed a written statement that read: "I Robert Durham state that
Allen Keith Batterman was not with me between the times of 10:30
am & 12:30 pm on Aug. 5th, 1997. I swear that everything above is
true and unfabricated." The statement was signed by Durham and wit-
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nessed by a detention officer. However, Durham later admitted that
the statement was false and that he had signed it to"get Batterman
off my back" and to avoid a fight. Based on this conduct, the district
court imposed a two-level sentencing enhancement for obstruction of
justice.
Batterman first claims that the district court erred in admitting the
testimony of Durham, Dunn, and Clemonts regarding his drug use and
unrelated thefts. Decisions regarding the admission and exclusion of
evidence are peculiarly within the province of the district court and
will not be reversed on appeal absent an abuse of discretion. See
United States v. Loayza, 107 F.3d 257, 263 (4th Cir. 1997). Under
Rule 404(b), evidence of other crimes or bad acts is not admissible
to prove the character of the defendant, but may be admissible for
other purposes, including proof of motive, opportunity, intent, prepa-
ration, plan, knowledge, identity, or absence of mistake or accident.
Rule 404(b) is an "inclusive rule" which "admits all evidence of other
crimes (or acts) relevant to an issue in a trial except that which tends
to prove only criminal disposition." United States v. Masters, 622
F.2d 83, 85 (4th Cir. 1980) (internal quotations omitted). Evidence
under Rule 404(b) is admissible if it is (1) relevant to an issue other
than character, (2) necessary, and (3) reliable. See United States v.
Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988).
In United States v. Madden, 38 F.3d 747, 752 (4th Cir. 1994), we
developed a specific inquiry to evaluate the admissibility of evidence
of drug use to establish motive in a bank robbery prosecution. The
government must demonstrate "both that the accused has a significant
drug habit or addiction and that he did not have the financial means
to support it." Id. In Madden, we found that "highly imprecise evi-
dence of drug usage with no corresponding evidence of financial
need" was insufficient to establish admissibility of the defendant's
drug use. By contrast, here we find that the evidence presented by the
government at Batterman's trial established that he had a significant
drug habit and that he did not have the financial means to support it.
With respect to the testimony regarding Batterman's participation in
various thefts prior to the robbery, we find that the evidence was rele-
vant to an issue other than character, namely that it helped "explain
to the jury how the illegal relationship between the participants in the
crime developed." United States v. McMillon , 14 F.3d 948, 955 (4th
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Cir. 1994) (quoting United States v. Roldan-Zapata, 916 F.2d 795,
804 (2d Cir. 1990)). Therefore, the district court did not abuse its dis-
cretion in admitting the evidence regarding Batterman's drug use or
his involvement in the thefts.
Batterman next claims that the district court improperly enhanced
his sentence for obstruction of justice because the statement upon
which the enhancement was based was never introduced into evi-
dence at his trial. Section 3C1.1 provides that a defendant's offense
level shall be increased by two levels if "the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the admin-
istration of justice during the investigation, prosecution, or sentencing
of the instant offense." USSG § 3C1.1. A"wide range of conduct falls
within the parameters of this section." United States v. Hicks, 948
F.2d 877, 883 (4th Cir. 1991). Application Note 3 provides a "non-
exhaustive" list of the types of conduct to which this enhancement
was intended to apply, including: "(c) producing or attempting to pro-
duce a false, altered, or counterfeit document or record during an offi-
cial investigation or judicial proceeding." USSG§ 3C1.1, comment.
(n.3). Batterman clearly produced a false document during the investi-
gation and prosecution of his case which he intended to use to exoner-
ate himself. Whether the document was actually used at his trial is of
no consequence as the guidelines applies to attempts as well as com-
pleted conduct. Accordingly, we find that the enhancement was prop-
erly applied.
Therefore, we affirm Batterman's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid in the decisional process.
AFFIRMED
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