United States v. Burnette ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4223
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARVEY LEE BURNETTE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. William L.
Osteen, Jr., District Judge. (1:09-cr-00193-WO-1)
Submitted: March 24, 2011 Decided: April 13, 2011
Before AGEE, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
A. Wayne Harrison, Sr., LAW OFFICES OF A. WAYNE HARRISON,
Greensboro, North Carolina, for Appellant. John W. Stone, Jr.,
Acting United States Attorney, Randall S. Galyon, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Harvey Lee Burnette, Jr., of
conspiracy to distribute cocaine, in violation of 21 U.S.C.
§ 846 (2006). The district court sentenced Burnette to 240
months of imprisonment and he now appeals. Finding no error, we
affirm.
Burnette first argues that the district court erred in
admitting audiotapes of recorded phone calls between Burnette
and a co-conspirator regarding a controlled purchase of cocaine
that occurred after the conspiracy ended. However, Burnette
failed to object to the admission of the tapes before the
district court. “When an item of evidence is entered without
objection, the standard of review is very deferential. We will
reverse only if the district court plainly erred by failing to
disallow the evidence sua sponte, and if failing to reverse
would cause a miscarriage of justice.” United States v. Lamarr,
75 F.3d 964, 969 (4th Cir. 1996) (citation omitted). To
establish that the court plainly erred, Burnette must
demonstrate that there was error, that was plain, and that
affected his substantial rights. United States v. Olano, 507
U.S. 725, 731-32 (1993). Moreover, even if Burnette
demonstrates plain error occurred, this court will not exercise
discretion to correct the error “unless the error seriously
affect[s] the fairness, integrity or public reputation of
2
judicial proceedings.” Id. (internal quotation marks and
citation omitted).
Rule 404(b) prohibits the admission of “[e]vidence of
other crimes, wrongs, or acts . . . to prove the character of a
person in order to show action in conformity therewith.” Fed.
R. Evid. 404(b). Such evidence is “admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake. . . .” Id. Rule 404(b) is an inclusionary rule,
allowing evidence of other crimes or acts to be admitted, except
that which tends to prove only criminal disposition. See United
States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997).
For such evidence to be admissible, it must be
“(1) relevant to an issue other than the general character of
the defendant; (2) necessary to prove an element of the charged
offense; and (3) reliable.” United States v. Hodge, 354 F.3d
305, 312 (4th Cir. 2004) (citing Queen, 132 F.3d at 997).
Additionally, the probative value of the evidence must not be
substantially outweighed by its prejudicial effect. Id.
(citing Fed. R. Evid. 403). Moreover, evidence may be admitted
pursuant to Rule 404(b) even if it encompasses events that took
place after the alleged offense. See United States v. Mohr, 318
F.3d 613, 618 (4th Cir. 2003) (Rule 404(b) “covers evidence of
both prior and subsequent acts.”). We have thoroughly reviewed
3
the record and conclude that the court did not err in admitting
the challenged evidence.
Burnette next argues that the court erred in its
charge to the jury regarding the use of the tapes as evidence of
the charged conspiracy. However, Burnette has forfeited
appellate review of this claim by failing to develop his
argument in his opening brief. See Eriline Co. S.A. v. Johnson,
440 F.3d 648, 653 n.7 (4th Cir. 2006) (finding conclusory single
sentence in brief “insufficient to raise on appeal any merits-
based challenge to the district court’s ruling”).
Moreover, this argument is without merit. “‘The
decision to give or not to give a jury instruction is reviewed
for an abuse of discretion.’” United States v. Hurwitz, 459
F.3d 463, 474 (4th Cir. 2006) (quoting United States v. Moye,
454 F.3d 390, 398 (4th Cir. 2006) (en banc)). “‘We review a
jury instruction to determine whether, taken as a whole, the
instruction fairly states the controlling law.’” Id. (quoting
Moye, 454 F.3d at 398). If this court determines that the
district court erred in refusing an instruction, such error
“warrant[s] reversal of the conviction only if the error is
prejudicial based on a review of the record as a whole.” Moye,
454 F.3d at 399 (internal quotation marks and citation omitted).
Having reviewed the record and the relevant legal authorities,
4
we conclude that the district court’s instructions to the jury
did not misstate the controlling law.
Accordingly, we affirm the judgment of the district
court. 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
5