United States v. Dietz

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.DAVID DIETZ, Defendant - Appellant.

No. 09-5197

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: May 10, 2011

Decided: August 18, 2011

UNPUBLISHED

Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:09-cr-00063-CMC-1)

Before MOTZ, DAVIS, and WYNN, Circuit Judges.

Affirmed by unpublished opinion. Judge Wynn wrote the opinion, in which Judge Motz and Judge Davis concurred.

ARGUED: Nicole Nicolette Mace, THE MACE FIRM, Myrtle Beach, South Carolina, for Appellant. Mark C. Moore, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Jimmie Ewing, Robert F. Daley, Jr., Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.WYNN, Circuit Judge:

David Dietz appeals his convictions and thirty-five year sentence for kidnapping, carjacking, and related offenses. On appeal, Dietz contends the district court erred by making certain evidentiary rulings, denying his motion to substitute counsel, and sentencing him to an unreasonable term. We find no error and therefore we affirm.

I.

In 2005, Dietz became romantically involved with Eva Arce-Perez and moved in with her in an apartment shared with her brother Israel Sanchez, his wife Adriana Sanchez, and their children. In 2006, Dietz graduated from the University of South Carolina with a degree in criminal justice, completed the police academy, and became a patrol officer for the Columbia Police Department. However, Dietz left that position after one week apparently because he was not able to cope with the stress related to his duties. Afterwards, he worked as a South Carolina probation officer for several months, and again resigned due to stress.

Soon after Dietz moved in with Eva, he began to fight with Israel about household issues, which led to Dietz and Eva moving into their own apartment. Eva, however, moved back in with her brother and his family after she suspected that Dietz hadstarted an affair with another woman. Thereafter, Dietz aggressively sought to reconcile with Eva and pursued her by making phone calls and unannounced visits to Eva's work, church, and home.

Eventually, Eva reconciled with Dietz, became pregnant with their child near the end of 2007, and allowed Dietz to visit her at an apartment that she shared with her brother and his family. On returning to the apartment, Dietz resumed his fights with Israel. Those fights came to a head when Israel confronted Dietz about Dietz's failure to take Eva to doctor's visits and provide her with money. During that argument, Dietz became angry and pointed a gun at Israel while Israel was holding his infant son and sitting next to his other two children. After this incident, Dietz was not allowed to visit with Eva at the apartment.

But Dietz persisted in his efforts to contact and visit Eva. In May 2008, while Eva and her family were in church, Dietz called thirteen times. When Eva returned Dietz's calls, Dietz requested a visit, but Eva declined and called the police. When Eva and her family reached their apartment, Dietz was waiting outside the apartment, but he left before the police arrived a short time later. Eva reported to the police that Dietz had struck her, pointed a gun at Israel a few weeks earlier, and made numerous harassing phone calls earlier thatday. Police officers later arrested Dietz, charging him with criminal domestic violence.¹

Thereafter, Eva made several unsuccessful attempts to obtain a protective order against Dietz. Eva nonetheless limited her contact with Dietz, particularly after she gave birth to their child in July 2008. Eva feared that Dietz would forcibly take the baby from her.

Shortly before Christmas in 2008, Eva agreed to allow Dietz to visit the baby at a guarded courthouse "because there [Dietz] wouldn't be able to take [the baby] away . . . ." The visit went as planned and without incident. Afterwards, Eva agreed to call Dietz on New Year's Day to arrange another visit.

But a day or two after Christmas, Dietz met seventeen-year-old Jamie Burgess as she was walking to a store. Dietz offered to give Burgess a ride and to purchase a pack of cigarettes for her. After spending much of the day and evening at Dietz's house, Dietz and Burgess exchanged phone numbers.

A few days later, Burgess called Dietz and visited Dietz at his house with her friend Ian. According to Burgess, she was discussing "belief in spirits and ghosts" with Ian when Dietz's demeanor changed and he threatened to shoot them. Ian andBurgess left a short time later, but Burgess agreed to spend time with Dietz again.

On January 1, 2009, Dietz picked Burgess up and they returned to Dietz's house to retrieve Burgess's MP3 player, which she had left there on the previous visit. Dietz then drove Burgess to a store. As they left the store, Dietz asked Burgess how she wanted to spend the day. Burgess replied that she "couldn't stay with him for too long" because she planned to spend the holiday with her family. Dietz became angry, accused Burgess of "using him," threatened to break her cell phone, and warned Burgess that she "shouldn't have done that." In response, Burgess opened the door and tried to jump out of the car but Dietz grabbed her, pulled her back into the seat, and told her to close the door. According to Burgess, Dietz then stated, "because you're using me I'm going to use you." Dietz drove to a wooded area where he demanded that "either [Burgess] was going to have sex with him or he was going to shoot [her]." According to Burgess, she "climbed into the back seat" and submitted to having sex with Dietz.²

Dietz then had a lengthy conversation with Burgess, which, unbeknownst to Dietz, Burgess recorded with her MP3 player. Dietz began by stating that "it was his word against [Burgess's] and no one would ever believe [Burgess]." He told Burgess, "I really don't know you enough to trust you to let you go alive." Burgess replied, "I don't want you to kill me so I don't want to tell[.]" Dietz stated later in the conversation, "I'm still not letting you off yet[.] I am still deciding what I'm gonna [sic] do with you."

Additionally, in the recording, Dietz discussed Eva, her family, and Dietz's son. At one point, Dietz told Burgess,

I will kill anyone for my child. My ex I probably wouldn't kill nobody for her because I don't love her no more. She done f*cked me over too much. Me and her, me and her broke up. But my son to this day I will f*cking kill for my son babe.

Moments later, Dietz explained to Burgess that he had cheated on Eva and "[t]hat's why I don't f*cking see my son now. She's getting back at me, she's getting revenge on me. You know how many times I wanted to f*cking kill her for that sh*t?" During the conversation, Dietz stated to Burgess, "please don't mess up my . . . visitation" by calling the police. Dietz stated thoughts that oscillated between killing Burgess, Eva, and Eva'sfamily on one hand, and of peacefully releasing Burgess and reconciling with Eva and her family on the other hand.

After the conversation, Dietz drove to a fast food restaurant and directed Burgess to remain in the back seat. When Dietz was not looking, Burgess signaled the drive-through attendant to call police. Dietz became suspicious and drove away.

Dietz then took Burgess to his house, where Burgess made two more unsuccessful efforts to escape. While at the house, Burgess saw Dietz's gun lying near his bed. Again, Dietz forced Burgess to have sexual intercourse with him. Thereafter, Dietz held the gun and discussed various plans to kidnap Eva.

Burgess stated that Dietz ultimately "went back to planning and he got up and he started getting things together." Dietz packed "police gear," which Burgess described as a hat, a badge, a holster, and a jacket with a probation logo on the back. This "police gear" was a hodgepodge of items Dietz collected from his law enforcement positions.

Afterwards, Dietz drove Burgess to a wooded area and again forced her to have sexual intercourse, this time while he was holding his gun. Dietz then rented a hotel room for the nightof January 1 and used zip ties to tie his wrist to Burgess's before they went to sleep.³

The next day, Dietz continued to discuss his plans to kidnap Eva. Dietz spoke of "going to a church . . . to kidnap her." Burgess stated that she attempted to dissuade Dietz, telling him "that if he really loved [Eva] than [sic] he wouldn't want to hurt her and he wouldn't want to do this." Dietz stated that "he was going to talk to [Eva] tomorrow" and "he was going to let [Burgess] go the next day."

However, Dietz later became irate after he demanded Burgess's social security card, and Burgess told him she did not have it. He drove Burgess back to a wooded area, held the gun to her head and, "started yelling about how [Burgess] shouldn't have lied to him . . . ." Dietz forced Burgess to perform oral sex and to have sexual intercourse with him at gunpoint. "And after that [Dietz] told [Burgess] the plan was back on and he decided - he started putting his police gear back on . . . ."

Dietz then tried, without success, to track Eva's location.⁴ When this failed, he drove to Eva's church with a canister ofgasoline and fire cubes, intending "to burn the church down." But the church was locked and according to Burgess, Dietz "said, okay, we're going to [Eva's] house."

Dressed in "police gear," Dietz drove to a wooded area near Eva's apartment and waited for Eva and her family to arrive. While there, Dietz instructed Burgess to "get [Eva's] sister[-in-law] out of the car and get Eva into the car." Dietz warned that he would shoot Burgess if she did not execute the plan as instructed, and he would shoot everyone if the police arrived.

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