UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4849
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEY CARL MINDER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Senior District Judge. (1:06-cr-00445-WLO)
Submitted: March 11, 2009 Decided: April 13, 2009
Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nash E. Long, III, Ryan G. Rich, James D. Humphries, IV, Melissa
A. Patterson, HUNTON & WILLIAMS, LLP, Charlotte, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney,
Robert M. Hamilton, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Carl Minder appeals his conviction and sentence
following the jury verdict finding him guilty of twelve counts
of mail fraud in violation of 18 U.S.C. § 1341 (West Supp. 2008)
and 18 U.S.C. § 2 (2006), one count of securities fraud in
violation of 15 U.S.C. §§ 77q(a), 77x (West 2000 & Supp. 2008)
and 18 U.S.C. § 2 (2006), and one count of possessing and
uttering a forged endorsement on a check in violation of 18
U.S.C. § 513(a) (2006).
In 1998, William McNulty introduced Minder to a
financial investment scheme promising unusually high rates of
return, which purportedly involved overseas accounts managed by
“Donald,” a multi-millionaire European trader of financial
investments. The investment scheme was classically fraudulent;
it used money received from later victims to pay earlier
victims. McNulty and Minder were indicted on October 31, 2006
for engaging in a common scheme to defraud investors using
interstate mail. At Minder’s trial, McNulty, who had pled
guilty to the charges filed against him, exercised his Fifth
Amendment privilege against self-incrimination.
During Minder’s direct testimony, Minder’s counsel
attempted to introduce into evidence as an exception to the
hearsay rule pursuant to Fed. R. Evid. 803(3) “instant messages”
from McNulty to Minder. These messages indicated “Donald” was a
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fictitious character. Counsel argued that the messages
constituted evidence that Minder, until that revelation,
believed the investment program was legitimate rather than
fraudulent. Following the Government’s objection, the district
court excluded the evidence as hearsay. On appeal, Minder
acknowledges the district court properly excluded the evidence
under Fed. R. Evid. 803(3), but contends that the district court
should have allowed it under Fed. R. Evid. 804(b)(3).
Because Minder justifies the admissibility of the
proposed evidence before this court under a different
evidentiary theory than advanced below, we review the district
court’s evidentiary ruling for plain error. See United State v.
Lowe, 65 F.3d 1137, 1144 (4th Cir. 1995). Under Fed. R. Crim.
P. 52(b), this court may correct: (1) error; (2) that is plain;
(3) that affects substantial rights; and (4) that seriously
affects the fairness, integrity or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 732-34
(1993); Lowe, 65 F.3d at 1144.
The parties agree the instant messages are hearsay.
Hearsay is generally not admissible in evidence. Fed. R. Evid.
802. However, Fed. R. Evid. 804(b)(3) provides an exception to
the rule when an unavailable declarant has made a statement
against penal interest. A statement is admissible under this
exception if: (1) the speaker is unavailable; (2) the statement
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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). The party seeking to introduce
the statement has a formidable burden of establishing these
prerequisites. Id. We find Minder fails to establish the
requisite elements to this hearsay exception. We further find
that even if the district court’s exclusion of the proffered
statements was erroneous, such exclusion does not constitute
plain error because the district court’s ruling was not so
prejudicial as to deny Minder a fair and impartial trial.
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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