United States v. Olvis ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                    No. 97-4372
    ANTHONY L. OLVIS, a/k/a Tony,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Newport News.
    Robert G. Doumar, Senior District Judge.
    (CR-95-38)
    Submitted: April 30, 1998
    Decided: May 20, 1998
    Before ERVIN, NIEMEYER, and HAMILTON, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    James S. Ellenson, Newport News, Virginia, for Appellant. Helen F.
    Fahey, United States Attorney, Robert E. Bradenham, II, Assistant
    United States Attorney, Norfolk, Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Anthony L. Olvis appeals his conviction for his role in a large-scale
    conspiracy to distribute crack cocaine including related firearm and
    money laundering charges. See 18 U.S.C.§§ 924(c) &
    1956(a)(1)(B)(i) (1994); 
    21 U.S.C. §§ 841
    (a)(1) & 846 (1994). Olvis
    was convicted by a jury following a three-day trial after this court
    reversed the district court's previous order dismissing the indictment
    against Olvis. See United States v. Olvis, 
    97 F.3d 739
     (4th Cir. 1996).
    In challenging his conviction, Olvis makes two related assignments of
    error. He claims that the district court abused its discretion in admit-
    ting evidence of Olvis's activities in relation to the conspiracy which
    occurred before his eighteenth birthday. Because the Federal Juvenile
    Delinquency Act specifically circumscribes the instances in which a
    juvenile may be tried as an adult, see 
    18 U.S.C. § 5032
     (1994), Olvis
    argues that the admission of evidence of his pre-majority criminal
    activities violated Fed. R. Evid. 404(b). Olvis also advances a conclu-
    sory suggestion that the district court erred in its instruction to the
    jury regarding that evidence. For those reasons, he urges this court to
    vacate his conviction.
    Even assuming that Olvis properly preserved the district court's
    evidentiary rulings for review on appeal, see Fed. R. Crim. P. 51, this
    court generally reviews the district court's decision to admit evidence
    of bad acts under Rule 404(b) for abuse of discretion. See Cook v.
    American S.S. Co., 
    53 F.3d 733
    , 742 (6th Cir. 1995); United States
    v. Mark, 
    943 F.2d 444
    , 447 (4th Cir. 1991). In order to abuse its dis-
    cretion, a district court must either fail or refuse to exercise its discre-
    tion, or rely on an erroneous legal or factual premise in the exercise
    of its discretionary authority. See James v. Jacobson, 
    6 F.3d 233
    , 239
    (4th Cir. 1993). Stated more succinctly, Rule 404(b) decisions are not
    reversed unless they are "arbitrary and irrational." United States v.
    Powers, 
    59 F.3d 1460
    , 1464 (4th Cir. 1995).
    There is no evidence of an abuse of discretion in this case. Olvis
    has identified no erroneous legal or factual premises tainting the dis-
    trict court's exercise of its discretion regarding the evidence of
    Olvis's pre-majority activities in furtherance of the conspiracy. Olvis
    2
    relies entirely on United States v. Spoone, 
    741 F.2d 680
    , 687 (4th Cir.
    1984), to support his claim of error. Our decision in that case affirmed
    the conspiracy conviction of a defendant who committed only one
    overt act in furtherance of the conspiracy after his eighteenth birth-
    day. See 
    id.
     The evidence at trial and the charges in the indictment
    identify nearly thirty overt acts in furtherance of the conspiracy after
    Olvis reached the age of majority. Consequently, we find no abuse of
    discretion in the district court's admission of evidence of acts in fur-
    therance of the conspiracy prior to Olvis's eighteenth birthday.
    In addition, the district court properly and repeatedly instructed the
    jury not to consider Olvis's acts before he turned eighteen as evidence
    of his guilt of the conspiracy charge. See 
    id.
     As a result, we find
    Olvis's assignments of error on appeal to be without merit and affirm
    the conviction. 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
    3