United States v. Loflin , 91 F. App'x 873 ( 2004 )

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4619
JOHN WILLIAM LOFLIN,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-02-5)
Submitted: August 26, 2003
Decided: March 29, 2004
Before WILKINSON, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Patricia A. Kurelac, Moundsville, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Shawn Angus Morgan,
Robert H. McWilliams, Jr., Assistant United States Attorneys, Clarks-
burg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LOFLIN
OPINION
PER CURIAM:
John William Loflin appeals his convictions for traveling in inter-
state commerce to engage in a sexual act with a juvenile, in violation
of 18 U.S.C. § 2423(b) (2000), Counts One, Three and Five, and his
convictions of transporting a minor in interstate commerce with intent
to engage in criminal sexual activity, in violation of 18 U.S.C.
§ 2423(a) (2000), Counts Two, Four and Six. Loflin received a 144-
month sentence of imprisonment.
On appeal, Loflin raises five issues: (1) the district court errone-
ously sentenced him; (2) the Government engaged in prosecutorial
misconduct; (3) the Government’s failure to DNA test a pair of pants
and provide him with a "mirror" copy of computer hard drive evi-
dence was prejudicial error; (4) the district court erred by failing to
conduct a jury inquiry following the dismissal of a juror; and (5) the
Government failed to prove venue on two counts was proper in the
Northern District of West Virginia. For the reasons that follow, we
affirm.
First, we do not find that the district court clearly erred in sentenc-
ing Loflin. See United States v. Daughtrey, 874 F.2d 213, 218 (4th
Cir. 1989) (providing review standard). The court properly enhanced
Loflin’s sentence for undue influence over the victim, here a thirteen-
year-old girl, under U.S. Sentencing Guidelines Manual ("USSG")
§ 2A3.2(b)(2)(B) (2000), for use of a computer to entice the victim
under USSG § 2A3.2(b)(3), and for obstructing and impeding the
administration of justice by perjuring himself at trial under USSG
§ 3C1.1. See United States v. Dunnigan, 507 U.S. 87, 95 (1993)
(holding that defendant who commits perjury qualifies for an obstruc-
tion of justice enhancement).
Second, Loflin alleges three instances of prosecutorial misconduct,
which he concedes this court reviews for plain error, as he did not
make a timely objection thereto in the district court. See Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 734 (1993) (discuss-
UNITED STATES v. LOFLIN 3
ing elements of plain error). We have reviewed the record and the
parties’ arguments and find no plain error.
Third, Loflin alleges that his due process rights were violated
because the Federal Bureau of Investigation did not have a pair of
gray sweatpants tested for the presence of his DNA and because he
did not receive a "mirror" copy of the victim’s computer hard drive.
Loflin provides no relevant authority to support his allegation that the
Government’s above-described conduct constitutes a violation of his
due process rights. We agree with the Government that there was no
violation of Brady v. Maryland, 373 U.S. 83 (1963), regarding the
sweatpants and that Loflin has failed to show plain error regarding the
hard drive. See United States v. Maxton, 940 F.2d 103, 105 (4th Cir.
1991) (noting that failure to object at trial to evidence precludes a
defendant from raising the issue on appeal, absent plain error). Thus,
this claim also lacks merit.
Next, we do not find that the district court committed reversible
error when it failed to conduct an inquiry into possible jury bias fol-
lowing the dismissal of juror Thomas Vogler. We find that United
States v. Davis, 177 F.3d 552 (6th Cir. 1999), is factually distinguish-
able from the instant case and not binding on this court in any event.
We have held that a trial judge may decline to question a jury where
there is no substantial reason to fear prejudice. United States v. Jones,
542 F.2d 186, 194-95 (4th Cir. 1976); United States v. Hankish, 502
F.2d 71, 77 (4th Cir. 1974). Accordingly, this claim fails.
Loflin styles his final issue on appeal as an allegation of insuffi-
cient evidence to support his convictions for Counts Five and Six. In
his brief, however, Loflin actually argues that the Government failed
to show venue was proper for these convictions. Loflin’s own testi-
mony at trial reveals that the Government met its burden of showing
that venue was proper in the Northern District of West Virginia. See
United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001), cert.
denied, 535 U.S. 1053 (2002) (noting that if timely challenged, the
Government must show venue is proper by a preponderance of the
evidence).
Accordingly, we affirm Loflin’s convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
4 UNITED STATES v. LOFLIN
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED