United States v. Montague ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4787
DIA APRIL MONTAGUE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-98-205-DKC)
Submitted: November 23, 1999
Decided: December 28, 1999
Before WILKINS and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Randolph O. Gregory, Sr., LAW OFFICES OF RANDOLPH O.
GREGORY, SR., Baltimore, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Rod J. Rosenstein, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Dia April Montague appeals her conviction and sentence for armed
robbery of a credit union in violation of 18 U.S.C.§ 2113(a) and (d)
(1994), and using a firearm during and in relation to a crime of vio-
lence, in violation of 18 U.S.C.A. § 924(c) (West Supp. 1999). Find-
ing no reversible error, we affirm.
Montague asserts that the district court erred in admitting evidence
of the guilty plea of a nontestifying co-defendant and admitting evi-
dence of a prior specific instance of conduct relevant to Montague's
credibility. Evidentiary rulings are reviewed by this court for abuse
of discretion and are subject to harmless error review. See United
States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997).
We find that the district court did not abuse its discretion in admit-
ting evidence of the guilty plea of a nontestifying co-defendant. As
a general rule, we have held that evidence of a nontestifying defen-
dant's guilty plea should be avoided whenever possible because the
defendant on trial cannot probe the motivations for the guilty plea,
and there is significant concern that the "defendant might be con-
victed based upon the disposition of the charges against the co-
defendants, rather than upon an individual assessment of the remain-
ing defendant's personal culpability." United States v. Blevins, 960
F.2d 1252, 1260 (4th Cir. 1992). In the instant case, however, Monta-
gue first disclosed her co-defendant's guilty plea in her opening state-
ment as a defense strategy. We find that Montague's own disclosure
of the plea waives her right to subsequently complain of its admis-
sion. See United States v. Leach, 918 F.2d 464, 467 (5th Cir. 1990).
We also find that the district court did not abuse its discretion in
permitting cross-examination of Montague about a prior specific
instance of conduct. Under Fed. R. Evid. 608(b), a specific instance
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of conduct that is probative of Montague's character for truthfulness
or untruthfulness may be inquired into on cross-examination in the
discretion of the trial court. The court must balance the evidence's
probative value against the danger of unfair prejudice, confusion of
the issues, or misleading the jury. See Fed. R. Evid. 403. The
appraisal of the probative and prejudicial value of evidence is
entrusted to the sound discretion of the trial court and its appraisal,
absent extraordinary circumstances, will not be disturbed. See United
States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990). We have
reviewed the record and are satisfied that the district court made a
proper appraisal of the probative and prejudicial value of this evi-
dence.
Accordingly, we affirm Montague's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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