United States v. John Pinke , 614 F. App'x 651 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4813
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN DAVID PINKE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:14-cr-00009-IMK-JSK-2)
Submitted: June 24, 2015 Decided: July 2, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deirdre Purdy, Chloe, West Virginia, for Appellant. Andrew R.
Cogar, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Pinke appeals the district court’s judgment sentencing
him to 275 months of imprisonment pursuant to his convictions
for assaulting with intent to commit murder, conspiring to do
the same, assaulting with a dangerous weapon with intent to do
bodily harm, and assaulting another inmate resulting in serious
bodily injury, in violation of 18 U.S.C. §§ 2, 7(3), 113(a)(1),
(a)(3), (6), 371 (2012). Pinke’s counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967). Counsel stated
that there are no meritorious grounds for appeal but questioned
whether the district court correctly admitted videos of the
assault and resulting injuries given their gruesome nature,
resentenced Pinke in order to apportion the sentence among the
four counts of conviction, and grouped Pinke’s offenses to
calculate his total offense level before stacking two of the
sentences as consecutive. Pinke filed a pro se brief arguing
that the district court plainly erred in admitting the videos
without a proper foundation and abused its discretion in
excluding testimony describing alleged statements by the victim
as hearsay. The Government declined to file a brief. After
careful review, we affirm.
We review for abuse of discretion the district court’s
decision to admit the videos of the assault and resulting
injuries despite their gruesome nature. United States v.
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Forrest, 429 F.3d 73, 79 (4th Cir. 2005). A district court may
exclude otherwise relevant evidence if “its probative value is
substantially outweighed by a danger of . . . unfair prejudice.”
Fed. R. Evid. 403.
We have reviewed the record, including the videos, and find
that, while gruesome, the videos were not so inflammatory that
their potential for prejudice substantially outweighed their
probative value. The first video refutes the victim’s testimony
that he instigated the conflict, and tends to demonstrate that
Pinke and his codefendants intended to murder the victim, given
the nature and duration of the assault. The second video
depicts the “serious bodily injury” element required to convict
Pinke under 18 U.S.C. § 113(a)(6). Consequently, the district
court did not abuse its discretion in admitting the videos.
We next review, also for abuse of discretion, the district
court’s decision to correct its sentence under Fed. R. Crim. P.
Rule 35(a). See United States v. Stump, 914 F.2d 170, 172 (9th
Cir. 1990). A district court may “correct a sentence that
resulted from arithmetical, technical, or other clear error”
within 14 days after sentencing. Fed. R. Crim. P. 35(a).
Here, the court did just that. Six days after Pinke was
sentenced, the court recognized that it failed to delineate the
specific sentences applicable to each count of conviction. We
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find no authority to suggest that the district court’s decision
to do so constituted an abuse of discretion.
We likewise conclude that the district court did not abuse
its discretion in grouping Pinke’s offenses to calculate his
total offense level before stacking the sentences for two
counts, so that the overall sentence would be within his
Guidelines range but no specific sentence would exceed the
statutory maximum for its corresponding offense. Gall v. United
States, 552 U.S. 38, 46 (2007) (providing standard of review).
Indeed, its decision to do so was entirely appropriate: “If the
sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run
consecutively, but only to the extent necessary to produce a
combined sentence equal to the total punishment.” U.S.
Sentencing Guidelines Manual § 5G1.2(d).
We next consider Pinke’s assertion that the district court
plainly erred by admitting the contested videos without a proper
foundation. See United States v. Perkins, 470 F.3d 150, 155
(4th Cir. 2006) (holding that plain-error review applies to
unopposed evidentiary admissions). * To meet this standard, Pinke
*
While Pinke did contest admission of the videos under Fed.
R. Evid. 403, he did not challenge their foundation.
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must demonstrate that an error (1) occurred, (2) was plain, and
(3) affected his substantial rights. United States v. Olano,
507 U.S. 725, 732 (1993). Even then, we may exercise our
discretion to correct such errors only if the errors “seriously
affect the fairness, integrity, or public reputation of judicial
proceedings.” Id.
“The factual determination of whether evidence is that
which the proponent claims is ultimately reserved for the jury.”
United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009).
The district court is merely obligated to assess whether the
proponent has offered a proper foundation from which “the jury
could reasonably find that the evidence is authentic.” Id.
Our review of the record indicates that the Government
presented sufficient evidence of authentication. As to the
first video, a Government witness explained the manner in which
the prison’s closed circuit video system operates, the means by
which he obtained the video, and that he downloaded it onto the
DVD that was played for the jury. Regarding the second video,
another prison employee explained that he responded to the
assault, witnessed a nurse videotaping the victim’s injuries,
and the video depicted injuries that were consistent with his
recollection. In light of this, we find no error, plain or
otherwise, in the district court’s decision to admit these
videos.
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Finally, we review the district court’s hearsay rulings for
abuse of discretion. United States v. Gonzales-Flores, 701 F.3d
112, 117 (4th Cir. 2012). “Hearsay” is any statement that the
declarant does not make at the current trial, offered in
evidence “to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801(c). Hearsay is inadmissible
except as otherwise provided by federal rule or statute. Fed.
R. Evid. 802.
Here, we hold that even if error occurred, it was harmless,
in view of high probability “that the error did not affect the
judgment.” See United States v. Nyman, 649 F.2d 208, 212 (4th
Cir. 1980) (providing the test for harmlessness). Pinke sought
to introduce threatening statements made before the assault by
the victim through a third party, and the district court
eventually admitted other testimony detailing just that.
In accordance with Anders, we have reviewed the record and
found no meritorious issues for appeal. Consequently, we affirm
the district court’s judgment. This court requires that counsel
inform Pinke, in writing, of his right to petition the Supreme
Court of the United States for further review. If Pinke
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 Pinke. We
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dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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