UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4582
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARL DADAILLE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:07-cr-00039-NCT-2)
Submitted: March 22, 2010 Decided: April 13, 2010
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Anna Mills, Wagoner, United
States Attorney, L. Patrick Auld, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Carl Dadaille of one count of
conspiracy to commit offenses against the United States, in
violation of 18 U.S.C. § 371 (2006), by obstructing justice, by
influencing the testimony of a witness in an official
proceeding, and by suborning perjury. The jury also convicted
Dadaille of separate substantive counts of obstructing justice
in violation of 18 U.S.C. § 1503(a) (2006), and tampering with a
witness in violation of 18 U.S.C. § 1512 (2006). The jury
acquitted Dadaille of two objects of the conspiracy charge,
uttering counterfeit securities and using counterfeit access
devices.
On appeal, Dadaille contends that (1) the district
court violated his Sixth Amendment right to confront witnesses
when it admitted, over his objection, documentary evidence of
the purchase of travelers checks through a witness who had no
involvement with the transaction; (2) the district court erred
in improperly admitting character evidence; and (3) the district
court violated his Sixth Amendment right to trial by jury by
considering evidence of acquitted conduct in sentencing him. We
affirm.
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I. Evidentiary Issues
Generally, we review decisions to admit evidence for
abuse of discretion. United States v. Forest, 429 F.3d 73, 79
(4th Cir. 2005). Under the abuse of discretion standard, we may
not substitute our judgment for that of the district court;
rather, we must determine whether the district court’s exercise
of discretion, considering the law and facts, was arbitrary or
capricious. United States v. Mason, 52 F.3d 1286, 1289 (4th
Cir. 1995). However, where evidentiary issues relate to an
asserted violation of the Sixth Amendment, the appropriate
standard of review is de novo. United States v. Robinson, 389
F.3d 582, 592 (6th Cir. 2004). Whether reviewed only for abuse
of discretion or de novo, any error in the admission or
exclusion of evidence is subject to the harmless error test.
See Delaware v. Van Arsdall, 475 U.S. 673, 680-84 (1983); United
States v. Pendergraph, 388 F.3d 109, 112 (4th Cir. 2004). We
review for plain error issues that Dadaille failed to preserve
in the district court. See Fed. R. Crim. P. 52(b).
A. Confrontation Clause
Dadaille claims that the district court violated his
Sixth Amendment right to confrontation when it admitted the
business records of American Express through an employee at
American Express who had no involvement with the transaction.
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The Confrontation Clause of the Sixth Amendment bars
“admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 53-54 (2004). For a
statement to be excludable under the Confrontation Clause, it
must be “testimonial,” United States v. Udeozor, 515 F.3d 260,
268 (4th Cir. 2008), and offered for the truth of the matter
asserted, Crawford, 541 U.S. at 59-60 n.9 (the Confrontation
Clause does not bar the use of “testimonial statements for
purposes other than establishing the truth of the matter
asserted”).
Our review of the record leads us to conclude that the
purchase agreement documents, as business records, were not
hearsay and were not testimonial. Crawford, 541 U.S. at 56;
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539 (2009).
Therefore, the district court did not err in allowing their
admission through a records custodian who was not involved in
the transaction that led to their creation.
B. Character Evidence
Dadaille next argues that the district court erred in
improperly admitting character evidence under Fed. R. Evid.
404(b).
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First, Dadaille argues that the Government’s cross-
examination of him elicited improper character evidence.
However, this complaint overlooks the fact that “by taking the
stand, his credibility became subject to attack on cross-
examination. Matters affecting the credibility of the witness
are always open to cross examination.” United States v. Zandi,
769 F.2d 229, 236 (4th Cir. 1985) (internal quotation marks
omitted).
We conclude that the Government’s cross-examination of
Dadaille was related to matters affecting his credibility, and
its scope was properly within the subject matter that Dadaille
himself raised on direct examination. See Fed. R. Evid. 611(b)
(“Cross-examination should be limited to the subject matter of
the direct examination and matters affecting the credibility of
the witness.”). Thus, the district court did not abuse its
discretion in overruling the objections that Dadaille made to
the Government’s questions. For the questions to which Dadaille
made no objection, we find no plain error.
Further, Dadaille has not shown that the travelers
checks purchase agreement constituted character evidence, or
that relevant evidence provided by a civil court document was
unfairly prejudicial. Thus, we conclude the district court did
not abuse its discretion in admitting the contested evidence.
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II. Sentence
We review a sentence for reasonableness, using an
abuse of discretion standard of review. Gall v. United States,
552 U.S. 38, 51 (2007). The first step in this review requires
the court to ensure that the district court committed no
significant procedural error. United States v. Evans, 526 F.3d
155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008).
Procedural errors include “(improperly calculating) the
Guidelines range.” Gall, 552 U.S. at 51. The Court then
considers the substantive reasonableness of the sentence, taking
into account the totality of the circumstances. Id. A sentence
within the properly calculated Guideline range is presumptively
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
Our review of the record convinces us that the
district court did not violate Dadaille’s Sixth Amendment right
to trial by jury in sentencing him. The district court did not
sentence Dadaille based on its consideration of acquitted
conduct. It properly calculated Dadaille’s offense level under
U.S. Sentencing Guidelines Manual (“USSG”) § 2X3.1 (2008) using
a cross-reference from USSG §§ 2J1.2(c)(1), 2J1.3(c)(1), the
Guideline for the obstruction and perjury offenses for which
Dadaille was convicted. Under USSG § 2X3.1, the district court
incorporated the underlying offense level for the counterfeit
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offenses because Dadaille was convicted of obstructing the
investigation into those offenses.
Further, a sentencing court may consider acquitted
conduct in sentencing, even after of the decision in United
States v. Booker, 543 U.S. 220 (2005), as long as the conduct is
established by a preponderance of the evidence. United States
v. Perry, 560 F.3d 246, 258-59 (4th Cir.), cert. denied, 130 S.
Ct. 177 (2009). Here, the Government established Dadaille’s
involvement in the counterfeit travelers check and counterfeit
credit card scheme by a preponderance of the evidence. We
therefore conclude that the district court did not err in
sentencing Dadaille.
Therefore, we affirm Dadaille’s conviction 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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