United States v. Dailey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ORLANDO DAILEY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (5:03-00172-02)
Submitted: June 8, 2007 Decided: July 10, 2007
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John L. Machado, LAW OFFICE OF JOHN L. MACHADO, Washington, D.C.,
for Appellant. Charles T. Miller, United States Attorney, Steven I.
Loew, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Orlando Dailey appeals following his jury convictions of
aiding and abetting possession with intent to distribute
hydrocodone and aiding and abetting possession with intent to
distribute oxycodone, both in violation of 21 U.S.C. § 841(a)(1)
(2000), and causing bodily injury to a person with intent to
retaliate, in violation of 18 U.S.C. § 1513(b)(2) (2000) (“Count
Three”), and his resulting sixty-month sentence. On appeal, Dailey
asserts the district court erred in: (i) denying his motion to
proceed pro se; (ii) denying his Fed. R. Civ. P. 29 motion for
judgment of acquittal based on insufficiency of the evidence as to
Count Three; (iii) denying his motion to dismiss the indictment
because his constitutional right to a speedy trial was violated;
and (iv) admitting a daily ledger of drug transactions drafted by
his brother, Marshall Dailey, and Dailey’s prior bad acts into
evidence. Finding no error, we affirm Dailey’s convictions and
sentence.
We conclude the district court correctly denied Dailey’s
motion to proceed pro se. The parties do not dispute that Dailey’s
request to represent himself was clear and unequivocal or that it
was knowing, intelligent and voluntary. See United States v.
Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000). Dailey did not make
his motion to the district court, however, until after the jury was
chosen and on the morning the trial was scheduled to begin.
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Because “meaningful trial proceedings” had already commenced, we
conclude the district court properly exercised its discretion to
deny Dailey’s motion to proceed pro se. See United States v.
Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979) (upholding the denial
of defendant’s motion to represent himself when jury had been
chosen but not yet sworn).
We also conclude the district court correctly denied
Dailey’s motion for judgment of acquittal as to Count Three. To
prove a violation of § 1513(a)(3), the Government was required to
establish Dailey: (i) knowingly engaged in conduct that (ii) caused
or threatened to cause bodily injury to another person (iii) with
the intent to retaliate against that person for providing
information of a crime to law enforcement. See 18 U.S.C.
§ 1513(a)(1)(B) (2000); United States v. Cofield, 11 F.3d 413, 419
(4th Cir. 1993). We reject Dailey’s assertion that his beating of
a confidential informant (“CI”) could not be considered retaliatory
since no time elapsed between the CI’s assistance to the Government
and Dailey’s attack; we find there is no such requirement that a
certain amount of time must pass between an individual’s assistance
to law enforcement and the retaliation suffered. Moreover,
Dailey’s assertions to the contrary, the Government presented
sufficient evidence to establish Dailey knew the wire found on the
CI was placed there in an effort to assist law enforcement. It is
undisputed that, prior to attacking the CI, Dailey knew the CI may
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have been working for police and that he was a “snitch.”
Accordingly, we find the district court correctly denied Dailey’s
motion for judgment of acquittal as to Count Three.
We also find the district court correctly denied Dailey’s
motion to dismiss the indictment on the ground that the Government
violated his Sixth Amendment right to a speedy trial. Dailey was
indicted on July 29, 2003, but was not arrested until he turned
himself in to police in February 2005. Dailey admitted, however,
that he knew of the arrest warrant against him for several months
before he turned himself in to authorities. Although a little more
than one year and seven months passed between the issuance of
Dailey’s indictment and his arrest, much of that time was
attributable to Dailey’s successful effort to elude capture.
The record also established that, during the period of
delay, the Government tried to locate Dailey but was unable to do
so because Dailey left West Virginia to avoid prosecution in state
court. Accordingly, we find no violation of Dailey’s
constitutional right to a speedy trial. See United States v.
Grimmond, 137 F.3d 823, 827-31 (4th Cir. 1998) (finding no Sixth
Amendment violation where delay lasted thirty-five months); United
States v. Thomas, 55 F.3d 144, 148-51 (4th Cir. 1995) (finding no
Sixth Amendment violation where delay lasted two-and-a-half years).
We reject Dailey’s contention that the death of two witnesses
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before his indictment caused him such prejudice that dismissal of
the indictment was warranted.
Finally, we conclude the district court correctly
admitted the daily ledger of Marshall Dailey’s business
transactions and Dailey’s prior drug purchases into evidence. Fed.
R. Evid. 804(b)(3) provides a hearsay exception for statements
“tending to expose the declarant to criminal liability and offered
to exculpate the accused.” A statement is admissible under this
exception if: (1) the speaker is unavailable; (2) the statement is
actually adverse to the speaker’s penal interest; and (3)
“corroborating circumstances clearly indicate the trustworthiness
of the statement.” United States v. Bumpass, 60 F.3d 1099, 1102
(4th Cir. 1995). In this case, the author of the daily ledger,
Marshall Dailey, was unavailable as a government witness at trial
by virtue of the Fifth Amendment right against self-incrimination.
See Fed. R. Evid. 804(a)(1). Also, the ledger, which was entitled
“Business Transactions,” contained statements regarding drug sales
that occurred between Marshall Dailey and several individuals, one
of whom was identified as Dailey. The ledger indicated that
individuals owed or paid money to Marshall Dailey, and that drugs
had been exchanged, including “1 1/4 Pills” to Dailey.
Because the information contained in the ledger clearly
revealed a sale of drugs had taken place between Marshall Dailey
and Dailey, wherein “1 1/4 Pills” were exchanged for $125, there
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was no need for an expert witness to provide an explanation of the
items contained in the ledger. Cf. Fed. R. Evid. 702 (expert
testimony is allowed where specialized knowledge will assist the
trier of fact’s understanding). Moreover, it was within the
district court’s discretion to determine whether the probative
value of the ledger was outweighed by the prejudicial effect it
might have. See United States v. Simpson, 910 F.2d 154, 157 (4th
Cir. 1990) (recognizing the broadly deferential standard with which
this Court reviews a district court’s determination under Fed. R.
Evid. 403). Accordingly, we conclude the district court did not
err in admitting Marshall Dailey’s daily ledger into evidence.
To be admissible under Fed. R. Evid. 404(b), prior bad
act evidence: (1) must be relevant to an issue other than
character, such as intent; (2) must be necessary to prove an
element of the crime charged; (3) must be reliable; (4) and its
probative value must not be substantially outweighed by its
prejudicial nature. See United States v. Queen, 132 F.3d 991, 995
(4th Cir. 1997). Dailey does not dispute the Government
established the first two prongs of the Queen analysis, but takes
issue as to the last two prongs. We reject Dailey’s arguments.
First, Dailey never challenged the reliability or
probative value of the prior bad acts testimony before the district
court and may not do so for the first time on appeal. See Muth v.
United States, 1 F.3d 246, 250 (4th Cir. 1993). Additionally,
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although Dailey claims the district court failed to conduct a
balancing analysis under Fed. R. Evid. 403, the record reveals the
district court heard argument on the purposes for which the
evidence was proffered, inquired when the prior drug transactions
occurred, and ruled the evidence was admissible, subject to a
limiting instruction. Accordingly, we conclude that the district
court properly considered, in conducting its analysis under Fed. R.
Evid. 404(b), whether the probative value was outweighed by its
prejudicial effect, and determined it could limit any prejudicial
effect with an instruction. See Huddleston v. United States, 485
U.S. 681, 685 (1988) (holding that Fed. R. Evid. 404(b) recognizes
that “[e]xtrinsic acts evidence may be critical to the
establishment of the truth as to a disputed issue, especially when
that issue involves the actor’s state of mind and the only means of
ascertaining that mental state is by drawing inferences from
conduct”). We thus conclude the district court did not err when it
admitted evidence of Dailey’s prior participation in drug
transactions to establish his intent to aid and abet his brother in
selling drugs to the CI.
Accordingly, we affirm Dailey’s convictions and sentence.
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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