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UNPUBLISHED OPINION FILED.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]

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Case: 10-50829 Document: 00511685110 Page: 1 Date Filed: 12/05/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-50829 Summary Calendar December 5, 2011 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. CHARLES EDWARD CURRY, Defendant-Appellant 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. PER CURIAM:* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 10-50829 Document: 00511685110 Page: 2 Date Filed: 12/05/2011 No. 10-50829 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). AFFIRMED. 2

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