US v. Travis Arnold

Filing 920100513

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4640

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRAVIS DENORRIS ARNOLD, Defendant - Appellant.

Appeal from the United States District Court for District of North Carolina, at Winston-Salem. Schroeder, District Judge. (1:08-cr-00322-TDS-1)

the Middle Thomas D.

Submitted:

April 22, 2010

Decided:

May 13, 2010

Before KING, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, North Carolina, for Appellant. Paul Alexander Weinman, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Following Arnold (2006). months' of bank Arnold trial, in a jury convicted of 18 Travis U.S.C. § Denorris 2113(a) to a 230

robbery was

violation as a

sentenced Arnold's

career has

offender filed

imprisonment.

counsel

brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that, in his but opinion, questioning there the are no meritorious of certain issues for

appeal,

admission

evidence. (1) his

Arnold has filed a pro se supplemental brief arguing:

arrest was illegal and his subsequent confession was fruit of the poisonous tree; (2) his confession was involuntary; (3) he was denied the right to a speedy trial; (4) his indictment was defective; (5) his counsel was ineffective for failing to file a motion to suppress his confession; and (6) the testimony of

Masear and Shulenberger was not credible. elected not to file an appellate brief. Counsel erred stating (1) in for Arnold the asserts portion and

The Government has

We affirm. that of the district court

admitting wearing ski

Arnold's in

confession is not

that

masks

kicking

doors

Arnold's "MO"; (2) in allowing Detective Shulenberger to testify as to Shulenberger's understanding of the meaning of the term "MO"; and (3) in identifying Masear as a probation officer. He

contends that these evidentiary rulings violated Fed. R. Evid. 404(b), and were unfairly prejudicial under Fed. R. Evid. 403. 2

We review evidentiary rulings for abuse of discretion.

United

States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009), petition for cert. filed, __ S. Ct. __, 78 U.S.L.W. 3341 (U.S. Nov. 23, 2009) (No. 09-617). Rule 404(b) of the Federal Rules of Evidence provides that "[e]vidence of other crimes . . . is not admissible to prove the character of a person in order to show action in conformity therewith." for other purposes, plan, or The evidence may, however, be admissible such as proof of motive, 561 F.3d intent, at 326.

preparation,

knowledge.

Basham,

"Rule 404(b) is an inclusive rule, admitting all evidence of other crimes or acts except Id. 403 that which tends to prove only

criminal marks

disposition." Rule

(internal of the

citation

and of

quotation Evidence if its

omitted). that

Federal may be

Rules

provides

"relevant

evidence

excluded

probative value is substantially outweighed by the danger of unfair prejudice." The damage that probative evidence can

inflict on a defendant's case is no basis for excluding the evidence, however; only when the evidence results in unfair

prejudice, such as an appeal to the jury's emotion, and that prejudice "substantially outweighs the probative value of the evidence," must it be excluded. given a limiting instruction, Id. at 327. any fear Where the jury is the jury will

that

improperly use the evidence subsides. 3

United States v. Branch,

537 F.3d 328, 342 (4th Cir. 2008), cert. denied, 129 S. Ct. 943 (2009). We discretion in find the district the court did not abuse of its

admitting

disputed

portion

Arnold's

statement to police, or in allowing Detective Shulenberger to testify as to his understanding of the term "MO." of Arnold's confession constituted an This portion of the

explanation

planning and preparation of the bank robbery, and therefore was admissible under Rule 404(b). Further, there was no inordinate As to Detective that the

prejudice from its admission under Rule 403. Shulenberger, Arnold contests his brief

explanation

term "modus operandi" can be used to describe "the way someone acts or evidence they leave behind when they commit a crime." This testimony was probative, in that it helped explain part of Arnold's confession, and was not unduly prejudicial. The

district court gave a limiting instruction, directing the jury that it was not to assume the truth of the current charged conduct in light of any prior bad conduct. Therefore, the

district court did not abuse its discretion in admitting this evidence. The testimony offense. of district Masear, court also strictly controlled for a the prior the

Arnold's court

probation instructed

officer Masear

The

district

outside

presence of the jury that she "should not indicate at any time 4

that [she is] a probation officer with respect to defendant in any way," although officer. she No could reveal was that made she worked as a

probation

reference

during

Masear's

testimony to the fact that she was Arnold's probation officer. The district court instructed the jury: "You must not conclude

from the fact that Ms. Masear is employed as a probation officer that the defendant may have committed a crime or engaged in any bad conduct in the past." Further, the district court repeated Therefore,

this warning in its final instructions to the jury.

the district court did not abuse its discretion in admitting the disputed evidence. Arnold alleges in his pro se supplemental brief that his trial counsel was ineffective for failing to file a motion to suppress his confession on the bases that it was obtained as a result of an unlawful arrest and that it was involuntary. Because the record does not conclusively establish that

counsel's performance in failing to file a motion to suppress Arnold's confession was deficient, this claim is not cognizable on direct appeal. (4th Cir. 2008). United States v. Benton, 523 F.3d 424, 435 We have reviewed the other issues raised in

Arnold's pro se brief and find them without merit. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the 5 district court's judgment.

This court requires that counsel inform his client in writing of his right to petition the Supreme Court of the United States for further filed, review. but If the client requests such a that a petition would be be

counsel

believes

that

petition

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 the client. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

6