UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4318
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LYNN RAY DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cr-00249-JAB)
Submitted: April 30, 2008 Decided: May 19, 2008
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Kyle Smith, LAW OFFICE OF J. KYLE SMITH, PLLC, Newton, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lynn Ray Davis appeals his jury conviction for conspiracy
to distribute cocaine base, two counts of distributing cocaine
hydrochloride, possession with intent to distribute cocaine base
and cocaine hydrochloride, and possession with intent to distribute
cocaine base, in violation of 21 U.S.C. §§ 841, 846 (2000). Davis
contends that the district court erred in admitting evidence; the
evidence was insufficient for the jury to find him guilty of count
three; the district court plainly erred in instructing the jury on
count three; and the district court plainly erred in violation of
his rights under the Confrontation Clause in allowing testimony by
an expert in the field of forensic chemistry regarding the testing
performed by another chemist. We affirm.
Davis first contends the district court erred under Fed.
R. Evid. 403 by allowing into evidence a videotape of alleged drug
sales by Davis, because the admission was more prejudicial than it
was probative of his conspiracy to distribute cocaine base. “Under
Federal Rule of Evidence 403, relevant evidence ‘may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice.’” United States v. Myers, 280 F.3d 407, 413 (4th
Cir. 2002) (quoting Fed. R. Evid. 403). “Because the evidence
sought to be excluded under Rule 403 is concededly probative, the
balance under Rule 403 should be struck in favor of admissibility,
and evidence should be excluded only sparingly.” United States
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v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996). Thus, we have
“interpreted Rule 403 to require the exclusion of evidence ‘only in
those instances where the trial judge believes that there is a
genuine risk that the emotions of the jury will be excited to
irrational behavior, and that this risk is disproportionate to the
probative value of the offered evidence.’” United States v. Van
Metre, 150 F.3d 339, 350 (4th Cir. 1998) (quoting United States
v. Powers, 59 F.3d 1460, 1467 (4th Cir. 1995)).
We review the district court’s “application of this
balancing test with the broad deference that the abuse of
discretion standard requires.” Myers, 280 F.3d at 413 (citation
omitted). Abuse of discretion “occurs only when it can be said
that the trial court acted arbitrarily or irrationally in admitting
evidence.” United States v. Williams, 445 F.3d 724, 732 (4th Cir.
2006) (internal quotation marks and citation omitted). Where the
district court gives a limiting instruction on the use of evidence,
the fear that the jury may improperly use the evidence subsides.
United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).
We have reviewed the record and find no abuse of
discretion. The videotape evidence of Davis engaged in what
appeared to be street-level drug distribution was relevant to the
conspiracy charge, and it corroborated testimony given by other
Government witnesses regarding Davis’s conspiracy to distribute
cocaine base. Davis argues that the probative value of the
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videotape was outweighed by its prejudice because it “instilled an
impression that the items sold [by Davis] were cocaine base,” even
though the officer making the videotape was not close enough to
identify the drugs. However, the videotape merely illustrated the
officer’s testimony describing the same events, and Davis did not
object to the testimony. Moreover, in response to Davis’s concern
that the tape did not relate to any of the substantive distribution
counts, the district court gave a limiting instruction that the
evidence should be considered only for the purpose of showing
Davis’s knowledge of and involvement in a drug conspiracy.
Davis next contends that the district court erred in
denying his motion to dismiss as to count three, because the
evidence was insufficient to support the charge, and the district
court plainly erred in its jury instructions. We must sustain a
jury’s verdict if there is substantial evidence, taking the view
most favorable to the Government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942). Substantial evidence is that which
a reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of guilt beyond a reasonable doubt. United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). We
do not review credibility of witnesses or decide between differing
reasonable interpretations of the evidence. United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Reversal for
insufficient evidence is reserved for the rare case in which the
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prosecution’s failure is clear. United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997).
Count three charged Davis with possessing with intent to
distribute 14.1 grams of a mixture and substance containing
detectable amounts of cocaine base and cocaine hydrochloride in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2000). The district
court instructed the jury that when determining whether any drug
quantity fell within certain ranges, they should consider the total
weight of the mixture or substance containing a detectable amount
of the drug charged. Although Davis conceded that the substance
and mixture which was the subject of count three contained cocaine
base, he argued that it did not contain 14.1 grams of cocaine base,
and the jury would be unable to determine whether it did so.
On appeal, Davis contends the evidence was insufficient
to show the individual weights of the cocaine base and cocaine
hydrochloride, and it was therefore impossible for the jury to
conclude that the weight of the cocaine base was greater than five
grams under 21 U.S.C. § 841(b)(1)(B). He further contends the
district court plainly erred in failing to give a special jury
instruction that they should determine the actual individual
weights of the two drugs. We find these arguments without merit.
The district court properly concluded that the entire mixture or
substance is weighed when calculating the sentence. See 21 U.S.C.
§ 841(b)(1)(B) (2000); Chapman v. United States, 500 U.S. 453, 459
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(1991). Thus, the district court erred neither in denying Davis’s
motion to dismiss nor in instructing the jury.
Finally, Davis contends that the district court plainly
erred in violation of his Sixth Amendment right to confront
witnesses under Crawford v. Washington, 541 U.S. 36 (2004), when
the district court allowed expert testimony by a chemist regarding
testing performed by another chemist in identifying the drugs
involved in count three. Because Davis did not raise the issue in
the district court, our review is for plain error. See United
States v. Olano, 507 U.S. 725, 731-32 (1993).
We recently concluded that data generated by lab machines
from the testing of a blood sample taken by a lab technician was
not a testimonial statement for Confrontation Clause purposes.
United States v. Washington, 498 F.3d 225, 229 (4th Cir. 2007),
pet. for cert. filed, __ U.S.L.W. __ (Dec. 14, 2007) (No. 07-8291).
Even if Davis could show error in allowing the chemist’s testimony
in this case, we conclude he has not shown plain error affecting
his substantial rights. On appeal, he contends that the individual
weight of the two drugs contained in the count three mixture was a
critical issue, and he should have had an opportunity to cross-
examine the chemist who tested the sample regarding any conclusions
drawn from the sample. However, the individual weight of the drugs
was not a critical issue affecting his substantial rights. Because
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Davis does not dispute the total weight of the sample or the fact
that it contained cocaine base, he has shown no prejudice.
Accordingly, we affirm the district court’s judgment. 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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