UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4608
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDOLPH HARRIS AUSTIN, a/k/a Randolph Harris, a/k/a
Matarbus Raynard Fewell,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00213-RJC-DCK-1)
Submitted: October 15, 2009 Decided: October 19, 2009
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randolph Harris Austin was convicted by a jury of
conspiracy to possess with intent to deliver cocaine and crack
cocaine, in violation of 21 U.S.C. §§ 841(B)(1)(A), 846 (2006)
(Count One), and attempt to possess with intent to deliver
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006)
(Count Two). The district court sentenced Austin as a career
offender to life imprisonment on Count One, and 360 months’
imprisonment on Count Two, to run concurrently with Count One.
Austin’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), claiming the district court
erred in allowing Agent Terry Tadeo to testify as both a fact
witness and as an expert witness, but concluding that there are
no meritorious issues for appeal. Austin has raised a number of
additional issues in his supplemental pro se brief, including
the sufficiency of the evidence, prosecutorial misconduct,
judicial error in the admission of evidence of flight and in the
denial of Austin’s motion for a new trial, and ineffective
assistance of counsel. Finding no reversible error, we affirm.
By counsel and pro se, Austin claims error in the
district court’s allowing Agent Tadeo to testify both as a fact
witness and as an expert witness. Specifically, Agent Tadeo
testified at the beginning of the trial with regard to his
personal observations and the electronic monitoring of a
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transaction whereby an undercover police officer undertook to
“sell” nine ounces of “sham” cocaine to Austin. Agent Tadeo
also was qualified and testified at the conclusion of the
Government’s case as an expert witness as to drug amounts, which
Austin objected to pursuant to Fed. R. Evid. 403, and which he
asserts on appeal confused the jury and bolstered the testimony
of Austin’s co-conspirator, Jerry Starr.
We review the district court’s decision to admit
expert testimony under Fed. R. Evid. 702 for an abuse of
discretion. United States v. Wilson, 484 F.3d 267, 273 (4th
Cir. 2007). Austin has not demonstrated how Agent Tadeo’s dual
role confused the jury, and his conclusory claims in support of
his position are insufficient. Nor did he request a cautionary
jury instruction, and we find no plain error in the failure of
the district court to give one. See United States v. Olano, 507
U.S. 725, 732-34 (1993).
We have reviewed the additional issues raised by
Austin pro se and find them to be without merit. * In accordance
with Anders, we have reviewed the record in this case and have
*
Austin’s pro se claim of ineffective assistance of counsel
is not cognizable on direct appeal unless such ineffectiveness
appears conclusively on the face of the record, which it does
not. See United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006).
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found no meritorious issues for appeal. We therefore affirm
Austin’s conviction and sentence.
This court requires that counsel inform Austin, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Austin requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Austin. 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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