United States v. Boone ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4857
GARY DEAN BOONE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Raymond L. Acosta, District Judge, sitting by designation.
(CR-97-733)
Submitted: July 15, 2003
Decided: August 7, 2003
Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Teresa L. Norris, CENTER FOR CAPITAL LITIGATION, Colum-
bia, South Carolina; John F. Hardaway, Columbia, South Carolina,
for Appellant. J. Strom Thurmond, Jr., United States Attorney, Alfred
W. Bethea, Jr., Assistant United States Attorney, Thomas E. Booth,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
2 UNITED STATES v. BOONE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gary Dean Boone appeals his convictions and sentence for one
count of being a felon transporting a firearm in violation of 18 U.S.C.
§ 922(g)(1) (2000) and one count of maliciously damaging and
destroying by means of explosive a vehicle used in interstate com-
merce in which a death resulted in violation of 18 U.S.C. § 844(i)
(2000). Boone’s counsel contends the district court made two eviden-
tiary errors. Specifically, counsel claims the district court erred by (1)
admitting evidence of his "swinger" lifestyle, and (2) admitting state-
ments made by the murder victim. Boone has filed a motion to file
a pro se supplemental brief, which we grant.
A district court’s rulings on the admission and exclusion of evi-
dence will not be disturbed absent an abuse of discretion. United
States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995). We will find an
abuse of discretion only if the district court’s evidentiary ruling was
arbitrary or irrational. United States v. Achiekwelu, 112 F.3d 747, 753
(4th Cir. 1997). Evidentiary rulings are also subject to review for
harmless error under Federal Rule of Criminal Procedure 52, and will
be found harmless if the reviewing court can conclude "without strip-
ping the erroneous action from the whole, that the judgment was not
substantially swayed by the error." United States v. Nyman, 649 F.2d
208, 211-12 (4th Cir. 1980) (quoting Kotteakos v. United States, 328
U.S. 750, 765 (1946)).
With regard to evidence of Boone’s lifestyle, we find the district
court did not abuse its discretion. With regard to the decision to admit
the victim’s statements, we find any error harmless. Given the sub-
stantial evidence supporting the conviction for bombing, we find the
judgment was not substantially swayed by the error.
While we grant Boone’s motion to file a pro se supplemental brief,
we find the issues raised in the brief are without merit.
UNITED STATES v. BOONE 3
Accordingly, we affirm the convictions and sentence. We grant
Boone’s motion to file a pro se supplemental brief. We deny his
motion for a hearing en banc. We dispense 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