United States v. Rodney A. Cutler ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4593
RODNEY A. CUTLER, a/k/a 45,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-98-645)
Submitted: March 14, 2000
Decided: May 3, 2000
Before NIEMEYER and MOTZ, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Tara Dawn Shurling, Columbia, South Carolina, for Appellant. John
M. Barton, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Rodney Cutler appeals from his conviction and sentence imposed
for conspiracy to make and possess counterfeit United States currency
in violation of 18 U.S.C.A. § 371 (West 1966 & Supp. 1999), making
and counterfeiting obligations and securities of the United States in
violation of 18 U.S.C.A. § 471 (West Supp. 1999), and possessing
and concealing falsely made and counterfeited obligations and securi-
ties of the United States in violation of 18 U.S.C.A. § 472 (West
Supp. 1999). Cutler's attorney filed a brief pursuant to Anders v. Cali-
fornia, 386 U.S. 738 (1967), in which she argues that the district court
improperly limited trial counsel's cross-examination of a government
witness, but represents that there are no arguable issues of merit in
this appeal. Cutler has filed a supplemental brief arguing that the dis-
trict court erred by (1) not conducting an inquiry of a juror who stated
that he recognized a person in the courtroom; (2) informing the jury
that Cutler was advised by the court concerning his right to testify and
right not to testify and informing the jury as to the court's procedure
for responding to a jury inquiry during deliberations; and (3) assess-
ing two criminal history points for offenses that Cutler contends were
related and for enhancing his sentence for his role in the offense. Cut-
ler also argues that he was denied the effective assistance of counsel
before trial, during trial, at sentencing, and on appeal. After a review
of the entire record in this case, we affirm.
The district court's limitations on cross-examination are reviewed
for abuse of discretion. See United States v. Turner, 198 F.3d 425,
429 (4th Cir. 1999). Cutler's attorney sought to introduce, pursuant
to Federal Rule of Evidence 608(b), evidence that the government's
witness, Donald Gist, violated a condition of his bond by testing posi-
tive for cocaine. Rule 608(b) allows for the admission of probative
evidence of a "witness' character for truthfulness or untruthfulness."
We find that evidence of Gist's violations of a condition of bond is
not evidence of his character for truthfulness and that the district court
did not abuse its discretion in refusing to allow the evidence.
We find no merit to the issues raised by Cutler's supplemental
brief. Specifically, the person recognized by the juror was not a par-
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ticipant in the trial, the jury instructions were proper, and the
enhancement for role in the offense was supported by the record and
was not clearly erroneous. See United States v. Hyppolite, 65 F.3d
1151, 1159 (4th Cir. 1995); United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989).
Also, the district court properly determined that the two prior
offenses for which Cutler received two criminal history points were
not related. The evidence does not support Cutler's argument that the
offenses were "part of a single common scheme or plan", or that they
were consolidated for sentencing. See U.S. Sentencing Guidelines
Manual § 4A1.2(2), and comment. (n.3) (1998); United States v.
Allen, 50 F.3d 294, 296 (4th Cir. 1995).
Lastly, Cutler argues that he was denied the effective assistance of
counsel before trial, during trial, at sentencing, and on appeal.
Because the record does not conclusively support Cutler's contention
that his attorneys rendered ineffective assistance, these claims cannot
be addressed on direct appeal. Rather, claims of ineffective assistance
of counsel should be raised by a motion filed in the district court pur-
suant to 28 U.S.C.A. § 2255 (West Supp. 1999). See United States v.
DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).
Pursuant to Anders, this court has reviewed the record for potential
error and has found none. Accordingly, we affirm Cutler's conviction
and sentence. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United States
for further review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from representation.
Counsel's motion must state that a copy thereof was served on the cli-
ent. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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