Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 10-4958
UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
CASEY COLEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District
Judge. (8:09-cr-00405-DKC-1)
Submitted:
September 21, 2011
Decided:
September 29, 2011
Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH,

Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Adam K. Ake, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Casey Coley of distribution
of benzylpiperazine (BZP), in violation of 21 U.S.C. 841(a)
(2006); distribution of marijuana, in violation of 21 U.S.C.
841(a); and possession with intent to distribute marijuana, in
violation of 21 U.S.C. 841(a).
The district court sentenced
Coley to fifty-one months of imprisonment and he now appeals.

For the reasons that follow, we affirm.
Coley
exculpatory
first
evidence
argues
in
that
violation
the
of
its
Brady v. Maryland, 373 U.S. 83 (1963).

Brady violation de novo.
Government
withheld
obligations
under
We review an alleged
United States v. Caro, 597 F.3d 608,
616 (4th Cir. 2010).

In Brady, the Supreme Court announced that the Due
Process
Clause
requires
the
government
to
disclose
evidence
favorable to an accused upon request . . . where the evidence is

material either to guilt or to punishment.
Brady,
373
U.S.
at
87).
In
order
to
Id. at 619 (citing

establish
Brady
violation, Coley must demonstrate that the evidence at issue is

favorable
to
him,
either
because
it
is
exculpatory
or
impeaching; the evidence was suppressed by the Government; and

he was prejudiced by that suppression.
U.S. 263, 281-82 (1999).
Strickler v. Greene, 527
Favorable evidence is material if the
defendant can demonstrate that there is a reasonable probability

2
that,
had
the
evidence
been
disclosed,
proceeding would have been different.
the
outcome
of
the
Caro, 597 F.3d at 619.
We have thoroughly reviewed the record and conclude that Coley

has failed to satisfy Bradys requirement of showing that the
requested evidence would be favorable to him.
Id. (internal
quotation marks, alteration, and citations omitted).

Coley next argues that the district court abused its
discretion
in
refusing
to
give
some
of
instructions on the defense of entrapment.
his
proposed
jury
The decision to
give or not to give a jury instruction is reviewed for an abuse

of discretion.
United States v. Hurwitz, 459 F.3d 463, 474
(4th Cir. 2006) (quoting United States v. Moye, 454 F.3d 390,
398 (4th Cir. 2006) (en banc)).
We review a jury instruction
to determine whether, taken as a whole, the instruction fairly

states the controlling law.
Id. (quoting Moye, 454 F.3d at
398).
Moreover, [a] district court commits reversible error
in refusing to provide a proffered jury instruction only when
the
instruction
(1)
was
correct;
(2)
was
not
substantially
covered by the courts charge to the jury; and (3) dealt with
some point in the trial so important, that failure to give the
requested instruction seriously impaired the defendants ability
to conduct his defense.
366
(4th
Cir.),
cert.
United States v. Lighty, 616 F.3d 321,

denied,
3
131
S.
Ct.
846
(2010).
We
conclude that Coley has failed to demonstrate that the district

courts charge to the jury on entrapment did not fairly cover
his requested instructions.
Accordingly, the district court did
not abuse its discretion in refusing the requested instructions.

Coley also argues that the district court erred in
refusing his instruction defining reasonable doubt and that this
issue should be reviewed de novo.
Coleys arguments, however,
are foreclosed by our binding precedent.

at 380.
See Lighty, 616 F.3d
As one panel of this court may not overrule another
panel, see Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271
n.2 (4th Cir. 2002), Coleys arguments must fail.
Coley next argues that the district courts admission
of recordings of transactions between Coley and a confidential
informant
violated
his
Sixth
Amendment
rights.
The
Sixth
Amendment to the United States Constitution . . . provides that

[i]n
all
criminal
prosecutions,
the
accused
shall
enjoy
the
right . . . to be confronted with the witnesses against him.

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009)
(internal
quotation
marks
and
citation
omitted).
The
Confrontation Clause guarantees a defendants right to confront

those
who
bear
testimony
against
him,
and,
therefore,
witness testimony is inadmissible unless the witness appears

at trial or, if the witness is unavailable, the defendant had a
prior
opportunity
for
cross-examination.
4
Id.
(quoting
Crawford v. Washington, 541 U.S. 36, 51, 54 (2004)) (internal

quotation marks omitted).
However, [t]he [Confrontation] Clause . . . does not
bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.
Crawford, 541
U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414

(1985)).
Here, the district court correctly concluded that the
informants statements on the recordings were not admitted to

prove the truth of the matters asserted.
Rather, the statements
were admissible to put [Coleys] admissions on the tapes into

context,
making
the
admissions
intelligible
for
the
jury.
United States v. Tolliver, 454 F.3d 660, 666 (4th Cir. 2006)
(finding
defendants
statements
in
recorded
transaction
with
informant admissible as admissions, and informants statements

admissible as not offered for their truth).
Coleys
penultimate
argument
is
that
the
district
court erred in denying his motion to dismiss the charges in the

indictment related to BZP.
We review a district courts denial
of a motion to dismiss an indictment de novo where the denial

depends only on a question of law.
560 F.3d 222, 224 (4th Cir. 2009).
United States v. Hatcher,

We have thoroughly reviewed
the record and the relevant legal authorities and conclude that
the district court did not err in denying Coleys motion to
dismiss.
5
Coley finally posits that the district court erred in

including
acquitted
Guidelines range.
conduct
in
calculating
the
advisory
However, as Coleys argument is foreclosed by
United States v. Perry, 560 F.3d 246 (4th Cir.), cert. denied,
130 S. Ct. 177 (2009), it also must fail.
See Scotts, 315 F.3d
at 271 n.2.
Accordingly, we affirm the judgment of the district
court.
legal
before
We dispense with oral argument because the facts and

contentions
the
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

September 21, 2011

September 29, 2011

Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH,

Unpublished opinions are not binding precedent in this circuit.

The district court sentenced

Coley to fifty-one months of imprisonment and he now appeals.

Brady v. Maryland, 373 U.S. 83 (1963).

United States v. Caro, 597 F.3d 608,

616 (4th Cir. 2010).

favorable to an accused upon request . . . where the evidence is

Id. at 619 (citing

violation, Coley must demonstrate that the evidence at issue is

impeaching; the evidence was suppressed by the Government; and

Strickler v. Greene, 527

Favorable evidence is material if the

defendant can demonstrate that there is a reasonable probability

proceeding would have been different.

Caro, 597 F.3d at 619.

We have thoroughly reviewed the record and conclude that Coley

quotation marks, alteration, and citations omitted).

instructions on the defense of entrapment.

give or not to give a jury instruction is reviewed for an abuse

United States v. Hurwitz, 459 F.3d 463, 474

We review a jury instruction

to determine whether, taken as a whole, the instruction fairly

Id. (quoting Moye, 454 F.3d at

United States v. Lighty, 616 F.3d 321,

conclude that Coley has failed to demonstrate that the district

Accordingly, the district court did

not abuse its discretion in refusing the requested instructions.

Coleys arguments, however,

are foreclosed by our binding precedent.

See Lighty, 616 F.3d

As one panel of this court may not overrule another

Amendment to the United States Constitution . . . provides that

right . . . to be confronted with the witnesses against him.

Confrontation Clause guarantees a defendants right to confront

witness testimony is inadmissible unless the witness appears

Crawford v. Washington, 541 U.S. 36, 51, 54 (2004)) (internal

U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414

Here, the district court correctly concluded that the

informants statements on the recordings were not admitted to

Rather, the statements

were admissible to put [Coleys] admissions on the tapes into

informant admissible as admissions, and informants statements

court erred in denying his motion to dismiss the charges in the

We review a district courts denial

of a motion to dismiss an indictment de novo where the denial

United States v. Hatcher,

Coley finally posits that the district court erred in

However, as Coleys argument is foreclosed by

See Scotts, 315 F.3d

We dispense with oral argument because the facts and