United States v. Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL JOSEPH DAVIS, a/k/a Mike Dee,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00205-NCT-1)
Submitted: September 18, 2009 Decided: October 8, 2009
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Joseph Davis appeals his conviction by a jury
of possession with intent to distribute crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006). On appeal, Davis
challenges the district court’s admission of the terminology he
used in prior drug transactions with a confidential informant
and of a police officer’s testimony regarding the description of
Davis’ vehicles and the conversation the officer overheard
between Davis and the informant. Davis also contends that the
district court erred by instructing the jury on aiding and
abetting and by failing to grant a mistrial based upon alleged
juror misconduct. Finding no reversible error, we affirm.
Davis asserts that the district court erred by
admitting under Fed. R. Evid. 404(b) the confidential
informant’s testimony regarding the terms “work” and “O and a
half.” Rule 404(b) prohibits the admission of evidence of
“other crimes” solely to prove a defendant’s bad character, but
“[s]uch evidence . . . may ‘be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.’”
United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009)
(quoting Fed. R. Evid. 404(b)). For such evidence to be
admissible under Rule 404(b), it “must be (1) relevant to an
issue other than character; (2) necessary; and (3) reliable.”
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Id. In addition, the evidence must be more probative than
prejudicial. Id. (citing Fed. R. Evid. 403). “Limiting jury
instructions explaining the purpose for admitting prior bad acts
evidence and advance notice of the intent to introduce such
evidence provide additional protection to defendants.” United
States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004). With these
standards in mind, we have carefully reviewed the trial
transcript and conclude that the district court did not abuse
its discretion in admitting evidence under Rule 404(b). See
Basham, 561 F.3d at 325 (stating standard of review).
Next, Davis contends that the district court erred in
admitting a police officer’s testimony that the informant had
described vehicles Davis had driven in the past because the
testimony was hearsay. Davis asserts that this testimony
bolstered the informant’s testimony that the informant and Davis
had been involved in prior drug transactions. Davis also
challenges the court’s admission of the officer’s testimony that
the officer overheard Davis telling the informant on the
telephone that he (Davis) was picking up the drugs in another
town before meeting the informant because there was no evidence
that the officer could identify Davis’ voice on the telephone.
Because Davis did not object at trial to the admission
of the officer’s testimony, our review is for plain error.
United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).
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“To establish plain error, [Davis] must show that an error
occurred, that the error was plain, and that the error affected
his substantial rights.” United States v. Muhammad, 478 F.3d
247, 249 (4th Cir. 2007). Even if Davis satisfies these
requirements, “correction of the error remains within our
discretion, which we should not exercise . . . unless the error
seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and
citation omitted). Our review of the trial transcript leads us
to conclude that the district court did not err--plainly or
otherwise--in admitting the officer’s testimony.
Davis also asserts that the district court erred in
giving the jury a supplemental instruction on aiding and
abetting because the Government did not advance that theory at
trial. “[T]he necessity, extent and character of any
supplemental instructions to the jury are matters within the
sound discretion of the district court.” United States v.
Horton, 921 F.2d 540, 546 (4th Cir. 1990). We review the
decision to give an instruction and the instruction itself for
abuse of discretion. United States v. Foster, 507 F.3d 233, 244
(4th Cir. 2007), cert. denied, 128 S. Ct. 1690 (2008). If the
district court gives a supplemental instruction, “the district
court’s duty is simply to respond to the jury’s apparent source
of confusion fairly and accurately without creating prejudice.”
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Id. (internal quotation marks and citation omitted). In light
of the defense theory at trial, we find no abuse of discretion
in the district court’s decision to give the jury a supplemental
instruction on aiding and abetting.
Finally, Davis asserts that the district court plainly
erred by failing to declare a mistrial after learning of
possible juror misconduct. As the Government correctly points
out, however, Davis knowingly waived the right to challenge on
appeal the alleged misconduct after a thorough colloquy with the
district court. United States v. Olano, 507 U.S. 725, 733
(1993); United States v. David, 83 F.3d 638, 641 n.5 (4th Cir.
1996).
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
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