Filed: May 13, 2010
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4640 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRAVIS DENORRIS ARNOLD, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. Thomas D. Schroeder, District Judge. (1:08-cr-00322-TDS-1) Submitted: April 22, 2010 Decided: May 13, 2010 Before KING, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Eugene E. Lester, II
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4640 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRAVIS DENORRIS ARNOLD, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. Thomas D. Schroeder, District Judge. (1:08-cr-00322-TDS-1) Submitted: April 22, 2010 Decided: May 13, 2010 Before KING, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Eugene E. Lester, III..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4640
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRAVIS DENORRIS ARNOLD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. Thomas D.
Schroeder, District Judge. (1:08-cr-00322-TDS-1)
Submitted: April 22, 2010 Decided: May 13, 2010
Before KING, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Paul Alexander Weinman, OFFICE
OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following trial, a jury convicted Travis Denorris
Arnold of bank robbery in violation of 18 U.S.C. § 2113(a)
(2006). Arnold was sentenced as a career offender to 230
months’ imprisonment. Arnold’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that, in his opinion, there are no meritorious issues for
appeal, but questioning the admission of certain evidence.
Arnold has filed a pro se supplemental brief arguing: (1) his
arrest was illegal and his subsequent confession was fruit of
the poisonous tree; (2) his confession was involuntary; (3) he
was denied the right to a speedy trial; (4) his indictment was
defective; (5) his counsel was ineffective for failing to file a
motion to suppress his confession; and (6) the testimony of
Masear and Shulenberger was not credible. The Government has
elected not to file an appellate brief. We affirm.
Counsel for Arnold asserts that the district court
erred (1) in admitting the portion of Arnold’s confession
stating that wearing ski masks and kicking in doors is not
Arnold’s “MO”; (2) in allowing Detective Shulenberger to testify
as to Shulenberger’s understanding of the meaning of the term
“MO”; and (3) in identifying Masear as a probation officer. He
contends that these evidentiary rulings violated Fed. R. Evid.
404(b), and were unfairly prejudicial under Fed. R. Evid. 403.
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We review evidentiary rulings for abuse of discretion. United
States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009), petition
for cert. filed, __ S. Ct. __,
78 U.S.L.W. 3341 (U.S. Nov. 23,
2009) (No. 09-617).
Rule 404(b) of the Federal Rules of Evidence provides
that “[e]vidence of other crimes . . . is not admissible to
prove the character of a person in order to show action in
conformity therewith.” The evidence may, however, be admissible
for other purposes, such as proof of motive, intent,
preparation, plan, or knowledge. Basham, 561 F.3d at 326.
“Rule 404(b) is an inclusive rule, admitting all evidence of
other crimes or acts except that which tends to prove only
criminal disposition.”
Id. (internal citation and quotation
marks omitted). Rule 403 of the Federal Rules of Evidence
provides that “relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice.” The damage that probative evidence can
inflict on a defendant’s case is no basis for excluding the
evidence, however; only when the evidence results in unfair
prejudice, such as an appeal to the jury’s emotion, and that
prejudice “substantially outweighs the probative value of the
evidence,” must it be excluded.
Id. at 327. Where the jury is
given a limiting instruction, any fear that the jury will
improperly use the evidence subsides. United States v. Branch,
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537 F.3d 328, 342 (4th Cir. 2008), cert. denied,
129 S. Ct. 943
(2009).
We find the district court did not abuse its
discretion in admitting the disputed portion of Arnold’s
statement to police, or in allowing Detective Shulenberger to
testify as to his understanding of the term “MO.” This portion
of Arnold’s confession constituted an explanation of the
planning and preparation of the bank robbery, and therefore was
admissible under Rule 404(b). Further, there was no inordinate
prejudice from its admission under Rule 403. As to Detective
Shulenberger, Arnold contests his brief explanation that the
term “modus operandi” can be used to describe “the way someone
acts or evidence they leave behind when they commit a crime.”
This testimony was probative, in that it helped explain part of
Arnold’s confession, and was not unduly prejudicial. The
district court gave a limiting instruction, directing the jury
that it was not to assume the truth of the current charged
conduct in light of any prior bad conduct. Therefore, the
district court did not abuse its discretion in admitting this
evidence.
The district court also strictly controlled the
testimony of Masear, Arnold’s probation officer for a prior
offense. The district court instructed Masear outside the
presence of the jury that she “should not indicate at any time
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that [she is] a probation officer with respect to defendant in
any way,” although she could reveal that she worked as a
probation officer. No reference was made during Masear’s
testimony to the fact that she was Arnold’s probation officer.
The district court instructed the jury: “You must not conclude
from the fact that Ms. Masear is employed as a probation officer
that the defendant may have committed a crime or engaged in any
bad conduct in the past.” Further, the district court repeated
this warning in its final instructions to the jury. Therefore,
the district court did not abuse its discretion in admitting the
disputed evidence.
Arnold alleges in his pro se supplemental brief that
his trial counsel was ineffective for failing to file a motion
to suppress his confession on the bases that it was obtained as
a result of an unlawful arrest and that it was involuntary.
Because the record does not conclusively establish that
counsel’s performance in failing to file a motion to suppress
Arnold’s confession was deficient, this claim is not cognizable
on direct appeal. United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008). We have reviewed the other issues raised in
Arnold’s pro se brief and find them without merit.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
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This court requires that counsel inform his client in writing of
his right to petition the Supreme Court of the United States for
further review. If the client 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 the client.
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
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