United States v. Falco , 370 F. App'x 357 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5156
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH CHARLES FALCO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:08-cr-00042-F-1)
Submitted: February 24, 2010 Decided: March 9, 2010
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Stephen J. Britt, Blue Bell, Pennsylvania, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Joseph Charles Falco of conspiring to
transport in interstate commerce stolen goods valued in excess
of $5000, in violation of 18 U.S.C. § 371 (2006). Falco appeals
his conviction, contending that federal agents violated his
Fifth Amendment rights and that the district court erred by
admitting certain testimony. Finding no reversible error, we
affirm.
Falco first argues that officers violated his Fifth
Amendment rights by questioning him after his arrest without
giving him Miranda 1 warnings and by continuing to question him
after he invoked his right to counsel. The Government asserts,
however, that Falco waived the right to raise his claims on
appeal by failing to assert them in a pretrial motion to
suppress. We agree with the Government. See Fed. R. Crim. P.
12(b)(3)(C), (e); United States v. Whorley, 550 F.3d 326, 337
(4th Cir. 2008) (collecting cases enforcing waiver), cert.
denied, __ U.S. __, available at 2010 WL 58479 (Jan. 11, 2010).
Falco also contends that the district court violated
Rules 403 and 404(b) of the Federal Rules of Evidence by
admitting testimony that characterized items federal agents saw
in his new home as evidence of mail fraud where he did not
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
operate out of that home during the course of the conspiracy
alleged in the indictment. Because defense counsel lodged no
objection to the witness’s reference to mail fraud, we review
the district court’s admission of the testimony for plain error.
See United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir.
2009) (establishing that plain-error review requires defendant
to “show: (1) an error was made; (2) the error is plain; and
(3) the error affects substantial rights”). The Government
concedes on appeal that the witness’s reference to mail fraud
was not relevant to the issues before the district court. See
United States v. Siegel, 536 F.3d 306, 317, 319 (4th Cir.)
(providing standard for admission of evidence under Rule
404(b)), cert. denied, 129 S. Ct. 770 (2008). In light of that
concession, we assume, without deciding, that the district
court’s admission of that testimony was plain error. See
Massenburg, 564 F.3d at 342-43.
Turning to whether the district court’s admission of
the testimony affected Falco’s substantial rights, see
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009), our
review of the record discloses that the witness’s reference to
mail fraud was an isolated comment, that defense counsel
elicited on cross-examination that Falco had not been charged
with mail fraud, that testimony established Falco used items
similar to those agents saw in his new home when he operated in
3
his prior residence during the course of the conspiracy, and
that the evidence overwhelmingly demonstrated Falco agreed to
transport stolen goods across state lines. Moreover, the
district court reduced the risk of unfair prejudice by
instructing the jury that Falco was on trial only for the
offense charged in the indictment, see Whorley, 550 F.3d at 338,
and we presume the jury followed the court’s limiting
instructions. United States v. Johnson, 587 F.3d 625, 631 (4th
Cir. 2009). We therefore conclude that the district court’s
admission of the testimony did not affect Falco’s substantial
rights. 2
Accordingly, we affirm the district court’s judgment.
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
2
Even if we were to conclude, as Falco argues, that he
preserved his objection in the district court to the witness’s
reference to mail fraud, we would have to conclude that any
error in admitting such testimony was harmless. For the same
reasons that we find Falco’s substantial rights unaffected by
the testimony’s admission, we find that “the judgment was not
substantially swayed” by this alleged error. Johnson, 587 F.3d
at 637.
4