UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5171
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GAVIN COLVIN, a/k/a Gouger,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:07-cr-00039-LHT-5)
Submitted: September 29, 2009 Decided: November 24, 2009
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
Edward R. Ryan, Acting United States Attorney, Adam Morris,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his conviction for conspiracy to distribute
and dispense methamphetamine, in violation of 21 U.S.C.A.
§ 841(a)(1), (b)(a)(A)(viii) (West Supp. 2009), and 21 U.S.C.
§ 846 (2006), Gavin Colvin noted his appeal. He contends that
the district court erred by limiting his cross-examination of
the Government’s witnesses, and by allowing the investigating
officer to testify as to statements made by the Government’s
witnesses prior to the trial. Finding no error, we affirm
Colvin’s conviction.
While cross-examining Colvin’s co-conspirators who
were testifying on behalf of the Government, Colvin asked about
their plea agreements and any benefits they sought to obtain by
pleading guilty and cooperating with the Government. Two other
Government witnesses had not been indicted on federal charges
with respect to this conspiracy, but had state charges pending
against them. Colvin cross-examined these witnesses to expose
any motive they had to fabricate testimony. During cross-
examination of the Government’s witnesses, Colvin asked several
questions to which the court sustained the Government’s
objections. These questions concerned irrelevant matters or the
witnesses’ discussions with their lawyers, and were properly
curtailed by the district court. See Fed. R. Evid. 501; United
States v. Moody, 923 F.2d 341, 352 (5th Cir. 1991).
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Further, in light of the extensive inquiry Colvin
conducted concerning the witnesses’ potential motives for
cooperating, the limitations imposed by the district court did
not violate Colvin’s Sixth Amendment right of confrontation.
See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). We find
no abuse of discretion by the district court not allowing the
inquiry into privileged areas. See United States v. Young, 248
F.3d 260, 266 (4th Cir. 2001).
Colvin also contends that the district court
erroneously allowed Task Force Officer Burrell to testify as to
prior, out-of-court statements made by the Government’s
witnesses. He asserts that the statements were admitted in
violation of Fed. R. Evid. 801(d)(1).
Pursuant to Rule 801(d)(1)(B), a statement is not
hearsay if “[t]he declarant testifies at the trial or hearing
and is subject to cross-examination concerning the statement,
and the statement is . . . consistent with the declarant’s
testimony and is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper
influence or motive.” Fed. R. Evid. 801(d)(1)(B). The
statement, however, must have been made before the declarant had
a motive to fabricate. See United States v. Henderson, 717 F.2d
135, 138 (4th Cir. 1983); see also Tome v. United States, 513
U.S. 150, 158, 167 (1995) (holding that the out-of-court
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statement “must have been made before the alleged influence, or
motive to fabricate, arose”).
Colvin lodged several objections to Burrell’s
testimony about statements the Government witnesses made to him
during his investigation, but before any charges were filed in
this case. The court overruled the objections, finding that the
statements constituted prior consistent statements that were
admitted to rebut Colvin’s implied claim that the witnesses
fabricated their testimony for the purpose of obtaining lesser
sentences. We have reviewed the record and find that the
district court did not abuse its discretion in allowing
Burrell’s testimony as to the Government’s witnesses’ prior,
out-of-court statements, which were consistent with their trial
testimony, and which were made before the motive to fabricate
arose. Accordingly, we affirm the district court’s ruling and
therefore affirm Colvin’s conviction.
We deny Colvin’s motions to file supplemental briefs.
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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