United States v. Rubio ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4853
PATRICIA RUBIO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CR-96-71)
Submitted: April 29, 1997
Decided: May 22, 1997
Before WIDENER, LUTTIG, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Hunt L. Charach, Federal Public Defender, Mary Lou Newberger,
First Assistant Federal Public Defender, Charleston, West Virginia,
for Appellant. Rebecca A. Betts, United States Attorney, Margaret A.
Hickey, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Patricia Rubio appeals her conviction and sentence for escape from
federal custody, in violation of 18 U.S.C. § 751(a) (1994). We affirm.
Rubio was arrested in the Southern District of New York and sen-
tenced to a term of imprisonment in January 1984. She was subse-
quently transferred to FCI Alderson in West Virginia, from which she
escaped in April 1984. In 1995, Rubio was arrested, and she used the
name Luz Vidadte. At the time of her arrest, Rubio provided law
enforcement agents with her fingerprints. The Federal Bureau of
Investigation ran a fingerprint check and determined that Vidadte was
Patricia Rubio. Following an indictment and a trial, Rubio was con-
victed.
On appeal, Rubio asserts that under Fed. R. Evid. 803(8)(B), the
district court erred in admitting into evidence two reports entitled
"Report of Escaped Federal Prisoner" and "Notice of Escaped Federal
Prisoner" ("escape reports"). She asserts that without these documents
the Government could not prove that she left FCI Alderson without
permission or authority. Because Rubio did not object on this ground
at trial we review for plain error. See United States v. Olano, 507 U.S.
725 (1993); United States v. Lowe, 65 F.3d 1137, 1144 (4th Cir.
1995) (citing United States v. Sims, 617 F.2d 1371, 1375-78 (9th Cir.
1980) (court applied plain error standard to defendant's argument on
appeal that FBI report was not hearsay or was admissible under Fed.
R. Evid. 803(8), where the defendant, after the government objected
to the report's admission, contended that the report was admissible as
a business record under Rule 803(6)); see generally United States v.
Wilkerson, 84 F.3d 692, 694 (4th Cir. 1996). Plain error occurs when
there is (1) an error, (2) which is plain and obvious under existing
law, (3) which is so prejudicial as to affect the outcome of the pro-
ceedings, and (4) which seriously affects the fairness, integrity, or
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public reputation of the proceedings. See United States v. Hanno, 21
F.3d 42, 45 (4th Cir. 1994).
Our review of the record discloses that regardless of whether the
district court erred in receiving the escape reports into evidence, such
an error would be harmless because admission of the reports did not
constitute a miscarriage of justice or substantially affect the outcome
of the trial. See United States v. Cedelle, 89 F.3d 181, 184 (4th Cir.
1996). The record shows that the Government presented sufficient
evidence beyond the facts contained in the reports to show that Rubio
did escape from FCI Alderson. The Government admitted testimony
of the FCI Alderson Records Custodian that Rubio was not present at
FCI Alderson after April 1984. Also, testimony from a Deputy United
States Marshal showed that Rubio's escape was on record in the
United States Marshal's Office and that she was a known fugitive.
The Government also presented evidence that Rubio's fingerprints
taken in 1984, upon entering FCI Alderson, matched the prints of
Vidadte taken outside FCI Alderson in 1995, showing that she is the
same individual.
Accordingly, we affirm Rubio's conviction and sentence. We dis-
pense 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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