United States v. West

U.S. Court of Appeals for the Fourth Circuit
United States v. West, 98 F. App'x 259 (4th Cir. 2004)

United States v. West

Opinion

OPINION

PER CURIAM:

Harry Nolan Moody and Walter Anthony West appeal from their convictions and *260 sentences for conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841, 846 (2000). Finding no error, we affirm.

Moody and West first claim that a pattern of prosecutorial misconduct, evidenced in the closing remarks of counsel for the Government, violated their due process rights. We review a claim of prosecutorial misconduct to determine whether the conduct complained of so infected the trial with unfairness as to make the resulting conviction a denial of due process. 1 United States v. Scheetz, 298 F.3d 175, 185 (4th Cir.), cert. denied, 537 U.S. 963, 123 S.Ct. 397, 400, 154 L.Ed.2d 320 (2002). To prevail under this standard, West and Moody must show that “the prosecutor’s remarks or conduct were improper and, second ... that such remarks or conduct prejudicially affected [their] substantial rights” so as to deprive them of a fair trial. Id. We have reviewed the several claims presented in their brief and conclude that Moody and West have failed to demonstrate the requisite degree of misconduct. Accordingly, we conclude their right of due process was not infringed.

Moody next claims that the district court erred in allowing the Government to solicit hearsay testimony from an investigator about a statement made by Moody’s wife that inculpated Moody. Because the evidence was submitted in compliance with Moody’s qualified objection, we likewise review this claim for plain error. Even if Moody could demonstrate that the admission of the statement was erroneous, he can demonstrate no infringement of a substantial right because his wife subsequently corroborated this testimony. See United States v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). Accordingly, we find no plain error.

Moody also claims that the district court’s consideration of statements made by his co-conspirator outside of the scope of the conspiracy amount to plain error. We have reviewed the record with regard to this claim and conclude that overwhelming and independent evidence supports Moody’s conviction. Accordingly, even if the challenged statements were inappropriately admitted into evidence, Moody can demonstrate no prejudice. See id.

Moody claims next that the district court failed to appropriately instruct the jury with respect to evidence of prior crimes or bad acts that fall within the purview of Fed.R.Evid. 404(b). We have reviewed the instructions to the jury and conclude that the substance of Rule 404(b) was “substantially covered by the court’s charge to the jury.” United States v. Patterson, 150 F.3d 382, 388 (4th Cir. 1998). Accordingly, this claim lacks merit.

West next assigns error to the district court’s enhancement of his sentence for “unlawful discharge, emission, or release into the environment of a hazardous or toxic substance.” See U.S. Sentencing Guidelines Manual § 2D1.1(b)(5)(A) (2001). Our review of the transcript supports the application of this enhancement. The district court heard testimony regarding the release of anhydrous ammonia as well as other noxious and hazardous materials into the environment. Accordingly, we find no error.

West likewise claims that the district court erred in applying a three-level enhancement for his role as a manager or supervisor in the conspiracy. See USSG § 3Bl.l(b). Again, our review of the rec *261 ord discloses nothing to question the application of this enhancement.

Finally, we have reviewed the supplemental claims contained in Moody’s informal brief relating to his status as a career criminal within the context of USSG § 4B1.1. 2 Finding no error in the district court’s application of the enhancement, we deny relief on this final claim.

We affirm West’s and Moody’s convictions and sentences. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.

1

. To the degree that Moody and West failed to preserve these claims at trial, the standard is modified in that they must demonstrate plain error. See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

2

. The other claims in Moody’s pro se brief were duplicative of those raised in counsel’s brief, so we do not discuss them separately.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Walter Anthony WEST, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Harry Nolan Moody, Defendant-Appellant
Cited By
7 cases
Status
Unpublished