United States v. McShan ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4984
CIAABATTINO RAPHAEL MCSHAN,
a/k/a Mark Harrell,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-00-111)
Submitted: June 19, 2002
Decided: July 15, 2002
Before LUTTIG, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jacqueline A. Hallinan, HALLINAN LAW OFFICE, Charleston,
West Virginia, for Appellant. Kasey Warner, United States Attorney,
Lisa A. Green, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
2 UNITED STATES v. MCSHAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ciabattino Raphael McShan, a.k.a. Mark Harrell, appeals his con-
viction and 160 month sentence for conspiring to distribute more than
fifty grams of cocaine base, in violation of 21 U.S.C.A. § 846 (West
1999 & Supp. 2001), and aiding and abetting possession with intent
to distribute more than five grams of cocaine base, in violation of 18
U.S.C. § 2 (1994), 21 § 841(a)(1) (West 1999 & Supp. 2001).*
On appeal, McShan argues the district court erred in disallowing
his expert psychologist from testifying on her opinions as to whether
McShan suffered from a diminished capacity to form the intent
required to establish his guilt (the "diminished capacity issue"). We
review this claim for abuse of discretion. United States v. Johnson,
219 F.3d 349, 358 (4th Cir. 2000); United States v. Moore, 27 F.3d
969, 974 (4th Cir. 1994).
McShan’s psychologist did not address the diminished capacity
issue in her written report on McShan, and McShan makes no claim
to have provided the Government with any other summary of the psy-
chologist’s opinions, the bases and reasons for those opinions, and the
psychologist’s qualifications in response to his Fed. R. Crim. P.
16(b)(1)(C) disclosure obligations. Nor does McShan argue that Rule
16 does not apply to him in the instant case. His failure to address the
diminished capacity issue in his disclosure to the government is fatal
to his appeal. We hold that appellant was not in compliance with the
disclosure requirements of Fed. R. Crim. P. 16(b)(1)(C) and that the
district court did not err in excluding testimony from the psychologist
on the diminished capacity issue.
*According to McShan, the record and the Government misspell his
first name as "Ciaabattino," and the correct version is "Ciabattino."
UNITED STATES v. MCSHAN 3
Accordingly, we affirm McShan’s conviction 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 significantly aid the decisional process.
AFFIRMED