UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4958
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CASEY COLEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:09-cr-00405-DKC-1)
Submitted: September 21, 2011 Decided: September 29, 2011
Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH,
Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Adam K. Ake, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Casey Coley of distribution
of benzylpiperazine (“BZP”), in violation of 21 U.S.C. § 841(a)
(2006); distribution of marijuana, in violation of 21 U.S.C.
§ 841(a); and possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841(a). The district court sentenced
Coley to fifty-one months of imprisonment and he now appeals.
For the reasons that follow, we affirm.
Coley first argues that the Government withheld
exculpatory evidence in violation of its obligations under
Brady v. Maryland, 373 U.S. 83 (1963). We review an alleged
Brady violation de novo. United States v. Caro, 597 F.3d 608,
616 (4th Cir. 2010).
“In Brady, the Supreme Court announced that the Due
Process Clause requires the government to disclose ‘evidence
favorable to an accused upon request . . . where the evidence is
material either to guilt or to punishment.’” Id. at 619 (citing
Brady, 373 U.S. at 87). In order to establish a Brady
violation, Coley must demonstrate that the evidence at issue is
favorable to him, either because it is exculpatory or
impeaching; the evidence was suppressed by the Government; and
he was prejudiced by that suppression. Strickler v. Greene, 527
U.S. 263, 281-82 (1999). Favorable evidence is material if the
defendant can demonstrate that there is a reasonable probability
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that, had the evidence been disclosed, the outcome of the
proceeding would have been different. Caro, 597 F.3d at 619.
We have thoroughly reviewed the record and conclude that Coley
has failed to “satisfy Brady’s requirement of showing that the
requested evidence would be favorable to him.” Id. (internal
quotation marks, alteration, and citations omitted).
Coley next argues that the district court abused its
discretion in refusing to give some of his proposed jury
instructions on the defense of entrapment. “‘The decision to
give or not to give a jury instruction is reviewed for an abuse
of discretion.’” United States v. Hurwitz, 459 F.3d 463, 474
(4th Cir. 2006) (quoting United States v. Moye, 454 F.3d 390,
398 (4th Cir. 2006) (en banc)). “‘We review a jury instruction
to determine whether, taken as a whole, the instruction fairly
states the controlling law.’” Id. (quoting Moye, 454 F.3d at
398).
Moreover, “[a] district court commits reversible error
in refusing to provide a proffered jury instruction only when
the instruction (1) was correct; (2) was not substantially
covered by the court’s charge to the jury; and (3) dealt with
some point in the trial so important, that failure to give the
requested instruction seriously impaired the defendant’s ability
to conduct his defense.” United States v. Lighty, 616 F.3d 321,
366 (4th Cir.), cert. denied, 131 S. Ct. 846 (2010). We
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conclude that Coley has failed to demonstrate that the district
court’s charge to the jury on entrapment did not fairly cover
his requested instructions. Accordingly, the district court did
not abuse its discretion in refusing the requested instructions.
Coley also argues that the district court erred in
refusing his instruction defining reasonable doubt and that this
issue should be reviewed de novo. Coley’s arguments, however,
are foreclosed by our binding precedent. See Lighty, 616 F.3d
at 380. As one panel of this court may not overrule another
panel, see Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271
n.2 (4th Cir. 2002), Coley’s arguments must fail.
Coley next argues that the district court’s admission
of recordings of transactions between Coley and a confidential
informant violated his Sixth Amendment rights. “The Sixth
Amendment to the United States Constitution . . . provides that
[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009)
(internal quotation marks and citation omitted). The
Confrontation Clause “guarantees a defendant’s right to confront
those ‘who bear testimony’ against him,” and, therefore, a
witness’ testimony is “inadmissible unless the witness appears
at trial or, if the witness is unavailable, the defendant had a
prior opportunity for cross-examination.” Id. (quoting
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Crawford v. Washington, 541 U.S. 36, 51, 54 (2004)) (internal
quotation marks omitted).
However, “[t]he [Confrontation] Clause . . . does not
bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.” Crawford, 541
U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414
(1985)). Here, the district court correctly concluded that the
informant’s statements on the recordings were not admitted to
prove the truth of the matters asserted. Rather, the statements
“were admissible to put [Coley’s] admissions on the tapes into
context, making the admissions intelligible for the jury.”
United States v. Tolliver, 454 F.3d 660, 666 (4th Cir. 2006)
(finding defendant’s statements in recorded transaction with
informant admissible as admissions, and informant’s statements
admissible as not offered for their truth).
Coley’s penultimate argument is that the district
court erred in denying his motion to dismiss the charges in the
indictment related to BZP. We review a district court’s denial
of a motion to dismiss an indictment de novo where the denial
depends only on a question of law. United States v. Hatcher,
560 F.3d 222, 224 (4th Cir. 2009). We have thoroughly reviewed
the record and the relevant legal authorities and conclude that
the district court did not err in denying Coley’s motion to
dismiss.
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Coley finally posits that the district court erred in
including acquitted conduct in calculating the advisory
Guidelines range. However, as Coley’s argument is foreclosed by
United States v. Perry, 560 F.3d 246 (4th Cir.), cert. denied,
130 S. Ct. 177 (2009), it also must fail. See Scotts, 315 F.3d
at 271 n.2.
Accordingly, we affirm the judgment of the district
court. 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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