Professional Documents
Culture Documents
No. 08-5056
No. 10-6648
Appellee,
v.
BENNIE A. MACK, JR.,
Defendant - Appellee.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:08-cr-00267-WLO-1)
Submitted:
Decided:
PER CURIAM:
Bennie
A.
Mack,
Jr.
appeals
his
conviction
and
California,
there
are
386
no
U.S.
738
(1967),
meritorious
numerous issues.
asserting,
grounds
for
in
appeal,
his
but
opinion,
raising
discretion.
Cir. 2003).
567,
(4th
Cir.
2011).
He
should
also
disqualify
and
when
he
has
financial
interest
in
the
subject
United
[R]ecusal
judge,
thereby
potentially
manipulating
strategic reasons.
the
system
for
We have reviewed
the record and conclude that the district court judge did not
abuse his discretion in not recusing himself.
Mack next claims he was prejudiced by the conflict of
interest of his former standby counsel.
lawyers
record.
ineffectiveness
conclusively
appears
from
the
Cir. 2006).
Id.
We conclude the
It is well-
district
courts
conclusions
on
United States v.
Deference is due to
that
question,
and
the
United
We
guilty
verdict
favorable
to
evidence.
Cir.
the
viewing
the
prosecution,
evidence
is
in
supported
the
light
most
by
substantial
2008)
(internal
Substantial
evidence
that,
evidence
that
quotation
in
the
reasonable
marks
and
citations
context
of
criminal
finder
of
fact
could
omitted).
action
is
accept
as
review
credibility
of
witnesses
and
assume
the
jury
Cir. 2007).
the
rare
case
where
the
prosecutions
failure
is
clear.
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(quoting Burks v. United States, 437 U.S. 1, 17 (1978)).
The
(2006) are:
elements
of
wire
fraud
under
18
U.S.C.
1343
must prove that the defendant acted with the specific intent to
defraud,
which
may
be
inferred
from
the
totality
of
the
United
A persons
See United States v. Hawkey, 148 F.3d 920, 924 (8th Cir. 1998).
The intent to repay eventually is irrelevant to the question
of
guilt
for
omitted).
fraud.
Allen,
491
F.3d
at
186
(citations
next
contends
that
law
enforcement
officer
his
motion
to
dismiss
the
indictment.
After
an
399
F.3d
590,
594
(4th
Cir.
United States v.
2005).
The
duty
to
value
that
was
apparent
before
the
evidence
was
to
obtain
available means.
(1984).
comparable
evidence
by
other
reasonably
Arizona
v.
requires
Youngblood,
that
the
488
officer
U.S.
51,
have
58
(1988).
intentionally
Bad
faith
withheld
the
Jean v. Collins,
and conclude that the district court did not err in denying
Macks motion to dismiss the indictment.
Mack next contends he was denied complete discovery or
adequate access to discovery, and the district court erred in
denying him a second continuance to review discovery materials.
We review a district courts decision under Fed. R. Crim. P. 16
for abuse of discretion.
616,
621-22
(4th
Cir.
defendant
must
establish
Cir. 1999).
Cir. 2006).
jeopardy
Government
for
when
the
prosecution.
state
We
8
referred
conclude
his
that
case
this
to
the
claim
is
without merit.
United
v.
States
Lanza,
260
U.S.
377,
384
(1922);
United
States v. Alvarado, 440 F.3d 191, 196 (4th Cir. 2006); United
States v. Jackson, 327 F.3d 273, 295 (4th Cir. 2003).
Mack next claims that he was denied the right to call
and cross-examine witnesses due to the district courts denial
of his requests under Fed. R. Crim. P. 17(b) and its evidentiary
rulings.
of
witnesses
who
cannot
offer
relevant
evidence.
United States v. Bennett, 675 F.2d 596, 598 (4th Cir. 1982).
We review a district courts evidentiary rulings for
abuse of discretion and will only overturn an evidentiary ruling
that is arbitrary and irrational.
F.3d 146, 153 (4th Cir. 2011).
issues,
and
interrogation
marginally relevant.
(1986).
We
have
that
is
repetitive
or
only
reviewed
the
record
and
conclude
that
the
remaining
issues
are
sentencing
issues.
He
sophisticated
means
under
USSG
2B1.1(b)(9)(C);
in
review
discretion standard.
(2007).
that
under
deferential
abuse-of-
the
error,
sentence
district
such
as
court
committed
improperly
no
significant
calculating
the
procedural
Guidelines
range,
reasonable,
we
then
United States v.
If the sentence is
consider
the
substantive
determining
whether
the
district
court
properly
novo
and
its
factual
findings
for
clear
error.
sentence
reasonable.
within
Allen,
properly
491
calculated
F.3d
at
198.
Guidelines
In
United
We presume
range
sentencing,
is
the
Id.
When rendering a
sentence, the district court must make and place on the record
an individualized assessment based on the particular facts of
the case.
district
have
court
reviewed
properly
the
record
calculated
Macks
the
district
courts
and
conclude
advisory
that
the
Guidelines
decision
to
deny
downward
To the
We
of
his
right
to
petition
the
Supreme
Court
of
the
contentions
the
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
12