UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5003
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GEORGE M. LECCO, a/k/a Porgy,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:05-cr-00107-1)
Submitted: June 20, 2011 Decided: July 13, 2011
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia; Amy L. Austin, Assistant Federal Public Defender,
Richmond, Virginia, for Appellant. R. Booth Goodwin II, United
States Attorney, E. Gregory McVey, Assistant United States
Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Lecco appeals his conviction, following a jury
trial, of one count of conspiracy to distribute cocaine, in
violation of 21 U.S.C. § 846 (2006); one count of use of a
firearm in furtherance of drug trafficking, in violation of 18
U.S.C. § 924(c)(1) (2006); two counts of possessing a firearm as
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006);
four counts of distribution of cocaine, in violation of 21
U.S.C. § 841(a)(1) (2006); one count of murder with a firearm
during a cocaine conspiracy, in violation of 18 U.S.C.
§ 924(c)(1)(A), (j) (2006); one count of witness tampering by
killing, in violation of 18 U.S.C. § 1512(a)(1)(C) (2006); one
count of witness retaliation by killing, in violation of 18
U.S.C. § 1513(a)(1)(B) (2006); and one count of conspiracy to
destroy and conceal evidence, in violation of 18 U.S.C.
§ 1512(k) (2006). Lecco’s convictions arose from his cocaine
distribution and hiring of Patricia Burton and Valeri Friend to
murder Carla Collins in retaliation for her telling police that
Lecco continued to deal cocaine and carry firearms after
agreeing to assist police in their drug investigation.
On appeal, Lecco argues that (1) the district court
erred in admitting statements Burton or Friend made to Collins
during the murder implicating Lecco; (2) the district court
erred in excluding evidence that Lecco was a “fixer” in the
2
community; (3) the district court erred in excluding statements
made to police to show police misconduct during the
investigation; and (4) the Government violated Lecco’s Fifth
Amendment rights by presenting perjured testimony at trial.
Finding no reversible error, we affirm.
We review for abuse of discretion a trial court’s
rulings on the admissibility of evidence. United States v.
Cole, 631 F.3d 146, 153 (4th Cir. 2011). A statement is not
hearsay if it is offered against the defendant and is a
statement of a co-conspirator of the defendant made “during the
course and in furtherance of the conspiracy.” Fed. R. Evid.
801(d)(2)(E). For a statement to be admissible under Rule
801(d)(2)(E), the government must show by a preponderance of the
evidence that (1) a conspiracy existed of which the defendant
was a member; and (2) the co-conspirator’s statement was made in
furtherance of the conspiracy. United States v. Neal, 78 F.3d
901, 905 (4th Cir. 1996). A co-conspirator’s statement is made
“in furtherance of” a conspiracy “if it was intended to promote
the conspiracy’s objectives, whether or not it actually has that
effect.” United States v. Shores, 33 F.3d 438, 443 (4th Cir.
1994). We broadly construe the “in furtherance” requirement,
such that “even casual relationships to the conspiracy suffice
to satisfy the exception.” United States v. Smith, 441 F.3d
254, 262 (4th Cir. 2006) (upholding the admission of a co-
3
conspirator’s explanation, in a drug conspiracy, that he had
obtained drugs through a robbery); see also United States v.
Robinson, 367 F.3d 278, 292 (5th Cir. 2004) (upholding the
admission of a co-conspirator’s threat to kill a government
informant because he had “snitched” on the leader of the
conspiracy).
Lecco contends that the district court abused its
discretion in admitting Burton and Friend’s explanation to
Collins that they were killing her at Lecco’s request. We
disagree. The district court correctly held that the
explanation was in furtherance of the conspiracy because it
effectively furthered the retaliatory goal of the conspiracy.
Further, the explanation was intended to remind the co-
conspirators of the penalty for failing to carry out the
conspiracy’s goals, and it was not unduly prejudicial.
Lecco next argues that the district court abused its
discretion when it excluded evidence of his helpfulness. Rule
404(a), Fed. R. Evid., deems inadmissible evidence of a person’s
character “for the purpose of proving action in conformity
therewith,” excepting “evidence of a pertinent trait of
character offered by an accused.” Proof of such a trait may be
made by reputation or opinion testimony in all cases, and if the
trait is an essential element of the charge, claim, or defense,
specific instances of conduct also may be admitted. Fed. R.
4
Evid. 405; see also United States v. Gravely, 840 F.2d 1156,
1164 (4th Cir. 1988) (“Unless evidence of character is an
essential element of a charge, claim or defense, proof of
character is limited to general good character (reputation as a
good person and law abiding citizen).”).
Here, Lecco sought to introduce evidence that he had
helped people in his community on several occasions in an
attempt to show that he only helped his friends bury Collins
after the murder. Evidence of character, however, is not an
essential element of any of the charges that were brought
against Lecco, see 18 U.S.C. §§ 922(g)(1), 924(c)(1), (j)
1512(a)(1)(C), (k), 1513(a)(1)(B); 21 U.S.C. §§ 841(a)(1), 846,
nor did he raise a defense with a character element. Moreover,
as the district court held, Lecco’s status as a “fixer” is not a
pertinent character trait, as the fact that he helped members of
the community in noncriminal matters did not make it more likely
that he would bury a body after a murder for which he was not
otherwise culpable.
Lecco’s third claim is also without merit. Lecco
challenges the district court’s exclusion of a witness’s false
statements to police. At trial, Lecco argued that those
statements were similar enough to another witness’s concededly
false statements to suggest police misconduct during the
investigation. The district court excluded them, finding that
5
they were hearsay, “at best,” and that they were otherwise
irrelevant and immaterial.
Although we agree with Lecco that the proffered
evidence was not hearsay, as it was not offered for the truth of
the matter asserted, Fed. R. Evid. 801(c), we hold that it was
within the district court’s discretion to exclude the evidence
as irrelevant. Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Fed. R. Evid. 401.
“[R]elevance typically presents a low barrier to admissibility.”
United States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003).
Thus, to be relevant, “evidence need only be ‘worth
consideration by the jury,’ or have a ‘plus value.’” Id.
(quoting United States v. Queen, 132 F.3d 991, 998 (4th Cir.
1997)). However, relevancy must be determined “in relation to
the charges and claims being tried, rather than in the context
of defenses which might have been raised but were not.” United
States v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005).
Prior to his attempted introduction of the false
statements, Lecco did not argue police misconduct as a defense;
rather, his theory was that the murder was the result of an out-
of-control cocaine binge with which he was not involved.
Because police manipulation did not tend to prove Lecco’s claim
6
that the witnesses lied to police to protect themselves, we hold
that the district court did not abuse its discretion in
excluding the statements as irrelevant.
Finally, Lecco claims that the Government denied him
due process when it called Friend, but not Burton, to testify.
Essentially, Lecco argues that Friend’s testimony was so
“diametrically opposed” to Burton’s that the Government
knowingly presented perjured testimony by calling only Friend.
The government “may not knowingly use false evidence, including
false testimony, to obtain a tainted conviction.” Napue v.
Illinois, 360 U.S. 264, 269 (1959). In order to establish a due
process violation, a claimant must show “the falsity and
materiality of the testimony and the prosecutor’s knowledge of
its falsity.” Basden v. Lee, 290 F.3d 602, 614 (4th Cir. 2002).
Perjured testimony is material “if there is any reasonable
likelihood that the false testimony could have affected the
judgment of the jury.” Id. (internal quotation marks omitted).
Lecco has not shown that the Government deprived him
of due process by calling Friend to testify rather than Burton
because he has not shown that the Government knew of any falsity
in Friend’s testimony or that the testimony was material. Lecco
falsely characterizes the Government’s assertion at Burton’s
sentencing hearing that Burton “was the first to come forward
with at least the closest true story of what happened to
7
Collins,” and he has not established that Friend and Burton’s
slightly differing accounts of the murder could have affected
the judgment of the jury.
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
this court and argument would not aid the decisional process.
AFFIRMED
8