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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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