US v. Damain E. Bell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:16-cr-00068-REP-2 Copies to all parties and the district court/agency. [1000187903].. [17-4081]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-4081

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMAIN E. BELL,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:16-cr-00068-REP-2)

Submitted: October 31, 2017

Decided: November 7, 2017

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Laura P. Tayman, LAURA P. TAYMAN, PLLC, Williamsburg, Virginia, for Appellant.
Dana J. Boente, United States Attorney, Peter S. Duffey, Assistant United States Attorney,
Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Damain E. Bell of conspiracy to distribute and possess with intent
to distribute 500 grams or more of a mixture and substance containing a detectable amount
of cocaine, in violation of 21 U.S.C. § 846 (2012), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2012). The
district court sentenced Bell to 138 months’ imprisonment. On appeal, Bell challenges the
admission of certain evidence. Finding no error, we affirm.
I.
Bell first challenges the district court’s admission of evidence related to heroin,
emphasizing that he was not charged with a heroin-trafficking offense. Bell specifically
contends that this heroin evidence was impermissibly admitted as other crimes evidence
under Fed. R. Evid. 404(b).
The parties dispute the standard of review. A district court’s evidentiary ruling is
ordinarily reviewed for abuse of discretion, United States v. Sterling, 860 F.3d 333, 246
(4th Cir. 2017), and is subject to harmless error review, United States v. Hall, 858 F.3d
254, 279 (4th Cir. 2017). In the absence of a timely objection, however, we review a district
court’s evidentiary ruling for plain error. United States v. Moore, 810 F.3d 932, 939 (4th
Cir. 2016). Bell’s only objection was to the admission of a text message between two
coconspirators about the current price of heroin in Richmond. But Bell did not object on
the ground that the text message was inadmissible other crimes evidence under Rule
404(b), and it is not clear from the context of the objection that Bell sought to invoke this

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rule. See Fed. R. Evid. 103(a)(1)(B). Accordingly, we review Bell’s contention on appeal
that the heroin evidence was impermissibly admitted under Rule 404(b) for plain error.
“Rule 404(b) allows admission of evidence of the defendant’s past wrongs or acts,
as long as the evidence is not offered to prove the defendant’s predisposition toward
criminal behavior.” Sterling, 860 F.3d at 246. The rule “is a rule of inclusion, and its list
of permissible uses, including motive, opportunity, and intent, is not exhaustive.” Id. “The
Rule 404(b) inquiry, however, applies only to evidence of other acts that are extrinsic to
the one charged. Acts intrinsic to the alleged crime do not fall under Rule 404(b)’s
limitations on admissible evidence.” United States v. Palacios, 677 F.3d 234, 244-45 (4th
Cir. 2012) (internal quotation marks omitted). Uncharged conduct is intrinsic if it “arose
out of the same series of transactions as the charged offense, or if evidence of the uncharged
conduct is necessary to complete the story of the crime on trial.” United States v. Siegel,
536 F.3d 306, 316 (4th Cir. 2008) (brackets and internal quotation marks omitted).
Similarly, “[o]ther criminal acts are intrinsic when they are inextricably intertwined [with]
or . . . were necessary preliminaries to the crime charged.” United States v. Chin, 83 F.3d
83, 88 (4th Cir. 1996) (internal quotation marks omitted). “Evidence is inextricably
intertwined with the evidence regarding the charged offense if it forms an integral and
natural part of the witness’s accounts of the circumstances surrounding the offenses for
which the defendant was indicted.” United States v. Lighty, 616 F.3d 321, 352 (4th Cir.
2010) (brackets and internal quotation marks omitted).
We conclude that Rule 404(b) does not apply to the heroin evidence because the
evidence was intrinsic to the crime charged. The references to heroin in the record establish
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the relationship between the confidential informant and Bell’s coconspirators and
demonstrates the significance of the two addresses found in Bell’s cellphone, which
directly tied Bell to the conspiracy. The mere fact that the heroin transactions occurred
before Bell’s appearance in the conspiracy does not render the evidence extrinsic. See
United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994). We also reject Bell’s assertion
that the admission of the heroin evidence was unduly prejudicial under Fed. R. Evid. 403.
Accordingly, we conclude that the district court properly admitted the heroin evidence.
II.
Bell next challenges the court’s decision to allow a video with a synchronized
transcript prepared by the Government to be played for the jury. We review for abuse of
discretion the admission of transcripts to aid in the presentation of recorded evidence.
United States v. Collazo, 732 F.2d 1200, 1203 (4th Cir. 1984).
We conclude that the district court did not abuse its discretion in playing the video
with the synchronized transcript. Importantly, the court thrice provided a cautionary
instruction, advising the jury that the transcript prepared by the Government is not in
evidence, that the evidence is the video and audio recording, and that any variance between
the recording and the transcript had to be resolved in favor of the recording. The
Government also said as much in its closing argument. Although Bell is skeptical of the
effectiveness of such a cautionary instruction, we have approved of similar instructions on
more than one occasion. See United States v. Brandon, 363 F.3d 341, 345 (4th Cir. 2004)
(holding that court’s repeated cautionary instructions “ensured that the jury did not mistake
the transcripts, rather than the tapes, as the critical pieces of evidence”); United States v.
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Pratt, 351 F.3d 131, 140 (4th Cir. 2003) (same); Collazo, 732 F.2d at 1203 (same). The
Government also offered substantial support for the accuracy of the transcript through the
testimony of the confidential informant.

III.
Finally, Bell contends that the district court abused its discretion in admitting expert
testimony from Special Agent Alznauer without an explanation of the underlying principles
or methodology he used in reaching his opinion. Because Bell did not object to the
admission of the expert’s testimony, our review is for plain error. United States v.
Galloway, 749 F.3d 238, 243-44 (4th Cir. 2014).
We have consistently permitted law enforcement officers to testify as experts on the
drug trade based on their experience and training. See, e.g., id. at 243-45; United States v.
Wilson, 484 F.3d 267, 275-76 (4th Cir. 2007); United States v. Hopkins, 310 F.3d 145, 15051 (4th Cir. 2002). This case is no different. Special Agent Alznauer testified about his
extensive experience investigating large-scale drug cases and as a firearms instructor and,
based on this experience, he was able to testify about the tactics and techniques used by
drug traffickers in conducting their business. Accordingly, we conclude that the district
court properly admitted the expert testimony.

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IV.
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

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