United States v. Dunn

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4791
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAUN MICHAEL DUNN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:09-cr-00021-LHT-1)
Submitted: September 15, 2010 Decided: October 18, 2010
Before TRAXLER, Chief Judge, KING, Circuit Judge, and Jerome B.
FRIEDMAN, United States District Judge for the Eastern District
of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Edward R. Ryan, United States Attorney, Charlotte,
North Carolina, Don D. Gast, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shaun Michael Dunn was charged through the Assimilative
Crimes Act, 18 U.S.C.A. § 13 (West 2000), with speeding to elude
arrest while riding his motorcycle on the Blue Ridge Parkway.
He was convicted after a jury trial and sentenced to five
months’ imprisonment and one year of supervised release. Dunn
appeals, arguing that the district court erred by restricting
his cross-examination of the park ranger who charged him. 1
Finding no reversible error, we affirm Dunn’s conviction.
According to Dunn, Ranger Scheid issued a ticket on the
scene charging him with misdemeanor speeding to elude arrest.
See N.C. Gen. Stat. § 20-141.5(a). Two days later, Scheid filed
a criminal complaint charging Dunn with felonious speeding to
elude arrest, alleging aggravating factors to support the felony
charge. See N.C. Gen. Stat. § 20-141.5(b). A few weeks later,
a federal grand jury issued an indictment charging Dunn with
felonious speeding to elude arrest and alleging three
aggravating factors: exceeding the speed limit by more than
fifteen miles per hour, reckless driving, and negligent driving
1
Dunn initially raised two sentencing challenges as well.
Because Dunn has completed the term of imprisonment, this court
previously granted the unopposed motion to dismiss the
sentencing issues as moot.
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leading to an accident causing property damage in excess of
$1,000. 2
On appeal, Dunn contends that the district court erred when
it refused to permit him to cross-examine Ranger Scheid about
the decision to upgrade the charges. Dunn argues that because
Scheid originally charged him with a misdemeanor that did not
allege aggravating factors, but then later decided to upgrade
the charges, he was entitled to cross-examine Scheid about the
charging decision in order to show possible bias or animosity
towards Dunn. Dunn argues that the jury should have been
informed that Scheid “had escalated the charges” and that “trial
counsel should have thus been allowed to argue that this showed
bias toward [Dunn] and a desire to protect [the ranger who
wrecked his patrol car] and himself and shift blame for the
accident.” Brief of Appellant at 9. Dunn contends that the
district court’s refusal to let him pursue this line of
questioning violated his Sixth Amendment right to confront the
witnesses against him. We disagree.
“The Sixth Amendment right to confrontation and the Fifth
Amendment right to due process of law require only that the
accused be permitted to introduce all relevant and admissible
2
One of the rangers wrecked his patrol car while trying to
stop Dunn. The damage to the patrol car provided the factual
basis for the third aggravating factor.
3
evidence.” United States v. Powers, 59 F.3d 1460, 1470 (4th
Cir. 1995) (internal quotation marks omitted). Thus, “[a]
defendant’s Sixth Amendment right to cross-examination is
limited to issues that are relevant to his trial, and the
district court has broad discretion to determine which issues
are relevant.” Id.; see also Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986) (“[T]rial judges retain wide latitude . . . to
impose reasonable limits on . . . cross-examination based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’[s] safety, or
interrogation that is repetitive or only marginally relevant.”).
In this case, the district court agreed with the government
that the cross-examination sought by Dunn was improper because
the ultimate decision to charge Dunn with a felony was made not
by Ranger Scheid, but by the prosecuting attorney, and that the
cross-examination would improperly insert questions about
punishment into the jury’s deliberations. The district court
therefore refused to permit the cross-examination.
Because the ultimate decision to indict Dunn on a felony
charge was made by an assistant United States Attorney, not
Ranger Scheid, we cannot say that the district court abused its
discretion by concluding that Dunn’s line of questioning was not
relevant. We likewise do not believe that the district court
abused its discretion by prohibiting the proposed cross-
4
examination on the basis that it would improperly raise
questions about punishment in the jury’s mind. See, e.g.,
Shannon v. United States, 512 U.S. 573, 579 (1994) (“The jury’s
function is to find the facts and to decide whether, on those
facts, the defendant is guilty of the crime charged. The judge,
by contrast, imposes sentence on the defendant after the jury
has arrived at a guilty verdict. Information regarding the
consequences of a verdict is therefore irrelevant to the jury’s
task.”).
Accordingly, for the foregoing reasons, we hereby affirm
Dunn’s conviction.
AFFIRMED
5