United States v. Faulls

821 F.3d 502

UNITED STATES of America, Plaintiff–Appellee

v.Thomas Earl FAULLS, Sr., Defendant–Appellant.

No. 14–4595.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 28, 2015.

Decided: May 5, 2016.

ARGUED: Timothy Anderson, Anderson & Associates, PC, Virginia Beach, Virginia, for Appellant. Nancy Spodick Healey, Office of the United States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF: Anthony P. Giorno, United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellee.

Before SHEDD, DIAZ, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge SHEDD and Judge HARRIS joined. Judge SHEDD wrote a separate concurring opinion.

DIAZ, Circuit Judge:

Thomas Faulls was convicted of kidnapping in violation of 18 U.S.C. § 1201(a)(1), interstate domestic violence in violation of 18 U.S.C. § 2261(a)(2) and (b)(4), and possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). The district court sentenced Faulls to 295 months' imprisonment and also required him to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16911 et seq.

On appeal, Faulls contends that his counsel was ineffective in opening the door to testimony by a government expert, and in failing to object to the district court's decision to keep the jury late one evening. He also contends that the district court erred in admitting prior acts evidence and in requiring him to register as a sex-offender. For the reasons that follow, we affirm.

I.

We recite the relevant evidence in the light most favorable to the government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.1998).

A.

Thomas and Lori Faulls were married for about twenty-five years; they had two children. Their marriage was volatile, and they separated in June 2012.

Following their separation, the couple's interactions were marked by a series of violent episodes, three of which are relevant here. On June 28, 2012, Lori returned to the marital home in Mineral, Virginia, to gather some of her belongings (the “Mineral incident”). There, Faulls confronted her about the separation and expressed frustration that their children never answered his calls. He approached Lori with a gun and laughed when she asked if he was going to kill her. When Lori told Faulls that she was staying with a friend, Faulls called the friend to say that she ruined his marriage by allowing Lori to stay with her and that it would be her fault if Lori died. Faulls then began yelling at Lori, telling her that the marital home was her home and demanding to know why she was leaving. Instead of leaving immediately, Lori stayed with Faulls to calm him down. When she did leave, Faulls followed her and, at some point, hit her car with his truck.¹

Shortly after this incident, Lori moved to Williamsburg, Virginia, to live with her daughter Britnee. In mid-August 2012, Faulls came to Britnee's apartment and confronted her for not answering his calls (the “Williamsburg incident”). When Britnee tried to call 911, Faulls attacked the women and took their cell phones and car keys. Faulls allowed Britnee to leave, but he repeatedly demanded that Lori return home. Eventually, Lori was able to convince Faulls to leave the apartment.²

The third incident resulted in Faulls's convictions. On August 22, 2012, Lori drove Faulls to a repair shop, purportedly to pick up his truck. In fact, the truck was parked behind the marital home. On the way, Faulls pretended to call the shop to see if his truck was ready, but he actually called one of the couple's children, knowing that no one would answer. Faulls told Lori that the truck was not ready and they returned to the house, where Lori declined his invitation to come inside. Faulls became angry and revealed that his truck had been parked behind the house the whole time. He took Lori's cell phone and car keys, then showed her a pair of zip ties that had been fashioned into handcuffs. He asked Lori whether she “wanted to do this the easy way or the hard way.” J.A. 215. Faulls then ordered her into the truck, where Lori saw his shotgun in the backseat. Faulls locked the passenger door, and before driving away, threw Lori's cell phone out the window. That night, Faulls and Lori stayed at a hotel in Elkins, West Virginia, nearly 200 miles from Mineral.

The next morning, Faulls sought to have sex with Lori. Lori told him that she was uncomfortable but eventually acquiesced out of fear. That day, Faulls and Lori went to several stores, where Lori bought clothes and hygiene products. They also stopped at a liquor store and purchased a bottle of vodka.

That evening, Faulls and Lori went to a restaurant and bar. Faulls got drunk and told patrons sitting nearby that Lori was his wife and that he had kidnapped her. The pair left shortly thereafter and, after discovering that there were no rooms available at a nearby hotel, began walking back toward the truck. At that point, Lori fled. She saw two women getting into a car and asked them to take her to the police. The women drove her to the sheriff's office, where Lori reported what had happened to her.

B.

Prior to trial, the district court preliminarily denied the government's motion to allow a domestic violence expert to testify in the government's case-in-chief, stating that admission would depend on the scope of defense counsel's examination of the witnesses. At trial, the government called the bartender at the restaurant where Faulls and Lori stopped for the evening. On cross-examination, Faulls's counsel asked the bartender whether Lori was free to leave and whether he believed Lori was being held against her will. The bartender answered that Lori was free to leave and that, from what he observed, she was not being held against her will. Although Faulls's counsel insisted that he merely asked the questions to help the jury understand how close Lori was to the bar's exit, the court concluded that counsel had opened the door to the government's expert because the issue of whether Lori could have fled had “both a physical and a psychological component.” J.A. 392.

The expert's testimony focused on her research regarding intimate partner violence, risk factors involved with this type of violence, and the psychological components of abuse. She did not testify that Lori had been a victim of domestic violence, and the court addressed the jury before the testimony to emphasize that the expert had never interviewed or examined Lori.

The district court also allowed the government to introduce evidence of the Mineral and Williamsburg incidents under Federal Rule of Evidence 404(b). The court twice gave the jury a limiting instruction regarding this evidence, stating that it could be considered only to prove “the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in connection with” Faulls's charges, but not as evidence of Faulls's character or propensity to commit the offenses. J.A. 200, 402.

At the end of the first day of trial, weather reports forecast a snowstorm that threatened a delay in the proceedings. The lawyers did not want Lori to testify over two days, so the court asked the jurors if they would be willing to stay late to complete her testimony. Faulls's counsel did not object, and though at least one juror did not want to stay late, the court chose to complete the testimony that evening. The court adjourned at 7:40 PM.

The jury convicted Faulls of kidnapping, interstate domestic violence, and possessing a firearm in furtherance of a crime of violence. The jury also determined that Faulls committed aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(2), which served as the predicate crime of violence for the interstate domestic violence charge and also enhanced Faulls's sentencing range. The district court further enhanced Faulls's sentencing range after it determined that Faulls obstructed justice when he called his mother from jail and asked her to convince Lori not to testify.

II.

A.

We first consider Faulls's argument that he was denied effective assistance of counsel, an issue we review de novo. United States v. Hall, 551 F.3d 257, 266 (4th Cir.2009). Faulls contends that his counsel was ineffective during his cross-examination of the bartender, thereby opening the door to allow the government to call its domestic violence expert. Faulls also contends that his counsel was ineffective when he failed to object to the court's decision to keep the jury late to complete Lori's testimony.

We decline to reach Faulls's claim. Unless an attorney's ineffectiveness conclusively appears on the face of the record, such claims are not addressed on direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th Cir.2008). Because there is no conclusive evidence of ineffective assistance on the face of this record, we conclude that Faulls's claim should be raised, if at all, in a 28 U.S.C. § 2255 motion. See United States v. Baptiste, 596 F.3d 214, 216 n. 1 (4th Cir.2010).

B.

Next, we consider whether the district court correctly admitted prior acts evidence under Rule 404(b). We review evidentiary rulings for abuse of discretion, United States v. Queen, 132 F.3d 991, 995 (4th Cir.1997), and will not reverse a district court's decision to admit prior acts evidence unless it was “arbitrary or irrational,” United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988) (citing United States v. Greenwood, 796 F.2d 49, 53 (4th Cir.1986) ).

Faulls asserts that the district court should not have admitted testimony regarding the Mineral and Williamsburg incidents because the evidence was neither relevant nor necessary to the charges. Alternatively, Faulls argues that the probative value of the evidence was substantially outweighed by its prejudicial effect because the evidence (if believed) demonstrated a pattern of domestic violence.

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