USA v. Charles Curry
UNPUBLISHED OPINION FILED. [10-50829 Affirmed ] Judge: PEH , Judge: WED , Judge: JWE Mandate pull date is 12/27/2011 for Appellant Charles Edward Curry [10-50829]
Date Filed: 12/05/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
December 5, 2011
Lyle W. Cayce
UNITED STATES OF AMERICA,
CHARLES EDWARD CURRY,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:09-CR-211-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
Charles Edward Curry was convicted of four counts of wire fraud and four
counts of aggravated identity theft and was sentenced to serve 126 months in
prison and a three-year term of supervised release. In this direct appeal, Curry
first argues that his rights under the Confrontation Clause were infringed when
one of the victims of his offenses was not called to testify at trial and by certain
testimony of that victim’s sister. These arguments, which are reviewed for plain
error only due to his failure to present them to the district court, are unavailing.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 12/05/2011
See United States v. Acosta, 475 F.3d 677, 680-81 (5th Cir. 2007). Curry’s
argument with respect to the victim is misplaced because “there is no
constitutional right to confront the victim of a crime.” See United States v.
Santos, 589 F.3d 759, 763 n.2 (5th Cir. 2009).
His challenge to certain
attestations fails because he has not shown that the disputed testimony is best
classed as a testimonial statement.
Rather, this attestation concerns a
statement that may fairly be considered “a casual remark to an acquaintance,”
and there is no indication that it was meant to “bear testimony” against Curry.
See Ramirez v. Dretke, 398 F.3d 691, 695 n.3 (2005).
Next, Curry argues that the evidence does not support his conviction on
the charges involving the non-testifying victim because there was no evidence
to show that this victim did not authorize Curry to take the actions underlying
the disputed charges. Although there was no direct testimony concerning this
issue, the evidence brought forth at trial, when viewed in support of the
judgment, suffices to make the required showing, and the jury’s verdict is
supported by a reasonable construction of the trial evidence. See United States
v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009); United States v. Guerra-Marez,
928 F.2d 655, 674 (5th Cir. 1991).
Finally, Curry relies upon Federal Rules of Evidence 403 and 404(b) to
argue that reversible error resulted from the admission of evidence pertaining
to his prior crimes. Our review of the record refutes this argument and shows
no abuse of discretion in connection with the district court’s ruling. The evidence
of Curry’s prior convictions was relevant, and any prejudicial effect was
minimized by the district court’s instructions to the jury. See United States v.
Pompa, 434 F.3d 800, 805 (5th Cir. 2005); United States v. Taylor, 210 F.3d 311,
318 (5th Cir. 2000).
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