United States v. Shaw ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4494
LAMAR SHAW,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-00-13)
Submitted: February 6, 2003
Decided: February 25, 2003
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Noell P. Tin, Charlotte, North Carolina, for Appellant. Robert J. Con-
rad, Jr., United States Attorney, Jill Westmoreland Rose, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SHAW
OPINION
PER CURIAM:
Lamar Shaw appeals his conviction and sentence on charge of con-
spiracy to possess with intent to distribute cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846 (2000). Following a jury trial, the district
court sentenced Shaw to 188 months’ imprisonment, three years of
supervised release, and ordered payment of the mandatory special
assessment. Shaw timely appealed.
On appeal, Shaw claims that he was denied a fair trial by allegedly
prejudicial comments made by a key government witness, Drug
Enforcement Agent Mark Bishop. Specifically, Shaw claims error by
the district court in allowing Agent Bishop to give lay opinion testi-
mony that Shaw was the head of the drug organization named in the
indictment, and was the major crack cocaine supplier to the Asheville
area suppliers during 1998 and 1999. He claims that because Agent
Bishop never witnessed any drug transactions, never seized drugs
from Shaw or his codefendant, and did not participate in Shaw’s
arrest, he had no personal knowledge of Shaw’s role in the organiza-
tion. He concludes that Agent Bishop’s opinion testimony was highly
prejudicial, violative of Fed. R. Evid. 701, and should not have been
admitted. Shaw further claims that Agent Bishop’s testimony con-
cerning Twijuana White, that White "had decided to tell the truth"
about being Shaw’s drug courier from the time of her arrest, was
improper bolstering of a government witness. The Government count-
ers that Agent Bishop was not rendering opinion testimony, but rather
providing background information concerning the investigation, and
that he was not bolstering White’s testimony, but rather commenting
on her willingness to cooperate with agents and further the investiga-
tion.
We review the trial court’s evidentiary rulings for abuse of discre-
tion. United States v. Patterson, 150 F.3d 382, 387 (4th Cir. 1998).
Because Shaw failed to object below to Agent Bishop’s comment
regarding White’s veracity, our review relative to that testimony is for
plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-32 (1993); United States v. Hastings, 134 F.3d 235, 239 (4th
Cir. 1998).
UNITED STATES v. SHAW 3
We have considered the statements made by Agent Bishop at issue
in the context of the testimony as a whole, and in light of the sum of
the other evidence against Shaw. This evidence included, but was not
limited to, the testimony of White, Eric Penland, and Harry McDan-
iels (coconspirators) as to White’s role as courier between Penland
and McDaniels on one end and Shaw on the other, the consistency of
the testimony between those three witnesses as to the procedure
which was followed in effecting the exchange of the drugs for money,
and the day timer and phone records which further corroborated the
contacts and testimony of the exchanges between Shaw and the Pen-
land organization during the relevant time period. We also note that,
with regard to Agent Bishop’s statement as to Shaw being the primary
supplier of crack cocaine to Asheville area suppliers, an adequate
curative instruction was given by the district court. Richardson v.
Marsh, 481 U.S. 200, 208 (1987) (presumption that jury will follow
instruction to disregard inadmissible evidence); United States v. Fran-
cisco, 35 F.3d 116, 120 (4th Cir. 1994). See also United States v.
Ham, 998 F.2d 1247, 1254 (4th Cir. 1993).
We conclude that, even assuming, arguendo, that Agent Bishop’s
remarks were improper, they did not prejudicially affect Shaw’s sub-
stantial rights or impugn the integrity of his trial, given the other evi-
dence against him. United States v. Mitchell, 1 F.3d 235, 240 (4th Cir.
1993). Accordingly, we affirm Shaw’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