US v. John Pinke
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00009-IMK-JSK-2. Copies to all parties and the district court/agency. [999613774]. [14-4813]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4813
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN DAVID PINKE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.
Irene M. Keeley,
District Judge. (1:14-cr-00009-IMK-JSK-2)
Submitted:
June 24, 2015
Decided:
July 2, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deirdre Purdy, Chloe, West Virginia, for Appellant. Andrew R.
Cogar, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
John Pinke appeals the district court’s judgment sentencing
him to 275 months of imprisonment pursuant to his convictions
for assaulting with intent to commit murder, conspiring to do
the same, assaulting with a dangerous weapon with intent to do
bodily harm, and assaulting another inmate resulting in serious
bodily injury, in violation of 18 U.S.C. §§ 2, 7(3), 113(a)(1),
(a)(3), (6), 371 (2012).
Pinke’s counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967).
Counsel stated
that there are no meritorious grounds for appeal but questioned
whether
the
district
assault
and
court
resulting
correctly
injuries
given
admitted
their
videos
gruesome
of
the
nature,
resentenced Pinke in order to apportion the sentence among the
four
counts
of
conviction,
and
grouped
Pinke’s
offenses
to
calculate his total offense level before stacking two of the
sentences as consecutive.
Pinke filed a pro se brief arguing
that the district court plainly erred in admitting the videos
without
a
proper
foundation
and
abused
its
discretion
in
excluding testimony describing alleged statements by the victim
as hearsay.
The Government declined to file a brief.
After
careful review, we affirm.
We
review
for
decision
to
admit
injuries
despite
abuse
the
their
of
discretion
videos
of
gruesome
2
the
the
district
assault
nature.
and
United
court’s
resulting
States
v.
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Forrest, 429 F.3d 73, 79 (4th Cir. 2005).
A district court may
exclude otherwise relevant evidence if “its probative value is
substantially outweighed by a danger of . . . unfair prejudice.”
Fed. R. Evid. 403.
We have reviewed the record, including the videos, and find
that, while gruesome, the videos were not so inflammatory that
their
potential
probative value.
for
prejudice
substantially
outweighed
their
The first video refutes the victim’s testimony
that he instigated the conflict, and tends to demonstrate that
Pinke and his codefendants intended to murder the victim, given
the
nature
and
duration
of
the
assault.
The
second
video
depicts the “serious bodily injury” element required to convict
Pinke under 18 U.S.C. § 113(a)(6).
Consequently, the district
court did not abuse its discretion in admitting the videos.
We next review, also for abuse of discretion, the district
court’s decision to correct its sentence under Fed. R. Crim. P.
Rule 35(a).
Cir.
See United States v. Stump, 914 F.2d 170, 172 (9th
1990).
resulted
from
A
district
court
arithmetical,
may
“correct
technical,
within 14 days after sentencing.
or
a
other
sentence
clear
that
error”
Fed. R. Crim. P. 35(a).
Here, the court did just that.
Six days after Pinke was
sentenced, the court recognized that it failed to delineate the
specific sentences applicable to each count of conviction.
3
We
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find no authority to suggest that the district court’s decision
to do so constituted an abuse of discretion.
We likewise conclude that the district court did not abuse
its discretion in grouping Pinke’s offenses to calculate his
total
offense
counts,
so
level
before
stacking
the
overall
range
Guidelines
that
but
no
the
sentence
specific
sentences
for
two
be
within
his
would
exceed
the
would
sentence
statutory maximum for its corresponding offense.
Gall v. United
States, 552 U.S. 38, 46 (2007) (providing standard of review).
Indeed, its decision to do so was entirely appropriate: “If the
sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence
imposed
on
one
or
more
of
the
other
counts
shall
run
consecutively, but only to the extent necessary to produce a
combined
sentence
equal
to
the
total
punishment.”
U.S.
Sentencing Guidelines Manual § 5G1.2(d).
We next consider Pinke’s assertion that the district court
plainly erred by admitting the contested videos without a proper
foundation.
(4th
Cir.
See United States v. Perkins, 470 F.3d 150, 155
2006)
(holding
that
plain-error
unopposed evidentiary admissions). *
*
review
applies
to
To meet this standard, Pinke
While Pinke did contest admission of the videos under Fed.
R. Evid. 403, he did not challenge their foundation.
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must demonstrate that an error (1) occurred, (2) was plain, and
(3) affected his substantial rights.
507
U.S.
725,
732
(1993).
Even
United States v. Olano,
then,
we
may
exercise
our
discretion to correct such errors only if the errors “seriously
affect the fairness, integrity, or public reputation of judicial
proceedings.”
“The
Id.
factual
determination
of
whether
evidence
is
that
which the proponent claims is ultimately reserved for the jury.”
United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009).
The district court is merely obligated to assess whether the
proponent has offered a proper foundation from which “the jury
could reasonably find that the evidence is authentic.”
Our
review
presented
of
the
sufficient
record
evidence
indicates
of
that
the
authentication.
Id.
Government
As
to
the
first video, a Government witness explained the manner in which
the prison’s closed circuit video system operates, the means by
which he obtained the video, and that he downloaded it onto the
DVD that was played for the jury.
Regarding the second video,
another
that
prison
employee
explained
he
responded
to
the
assault, witnessed a nurse videotaping the victim’s injuries,
and the video depicted injuries that were consistent with his
recollection.
In light of this, we find no error, plain or
otherwise,
the
in
district
court’s
videos.
5
decision
to
admit
these
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Finally, we review the district court’s hearsay rulings for
abuse of discretion.
United States v. Gonzales-Flores, 701 F.3d
112, 117 (4th Cir. 2012).
declarant
evidence
does
“to
not
prove
statement.”
Fed.
make
the
R.
“Hearsay” is any statement that the
at
the
truth
Evid.
of
current
the
801(c).
trial,
matter
Hearsay
offered
asserted
is
in
in
the
inadmissible
except as otherwise provided by federal rule or statute.
Fed.
R. Evid. 802.
Here, we hold that even if error occurred, it was harmless,
in view of high probability “that the error did not affect the
judgment.”
See United States v. Nyman, 649 F.2d 208, 212 (4th
Cir. 1980) (providing the test for harmlessness).
Pinke sought
to introduce threatening statements made before the assault by
the
victim
through
a
third
party,
and
the
district
court
eventually admitted other testimony detailing just that.
In accordance with Anders, we have reviewed the record and
found no meritorious issues for appeal.
the district court’s judgment.
Consequently, we affirm
This court requires that counsel
inform Pinke, in writing, of his right to petition the Supreme
Court
of
the
United
States
for
further
review.
If
Pinke
requests that a petition be filed, but counsel believes that
such a petition would be 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 Pinke.
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We
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dispense
with
contentions
are
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oral
argument
adequately
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because
presented
in
the
the
facts
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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