                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5156


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSEPH CHARLES FALCO,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:08-cr-00042-F-1)


Submitted:   February 24, 2010            Decided:   March 9, 2010


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Stephen J. Britt, Blue Bell, Pennsylvania, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 A jury convicted Joseph Charles Falco of conspiring to

transport in interstate commerce stolen goods valued in excess

of $5000, in violation of 18 U.S.C. § 371 (2006).                           Falco appeals

his    conviction,        contending      that       federal       agents   violated     his

Fifth      Amendment      rights   and    that      the    district     court    erred   by

admitting certain testimony.                   Finding no reversible error, we

affirm.

                 Falco first argues that officers violated his Fifth

Amendment rights by questioning him after his arrest without

giving him Miranda 1 warnings and by continuing to question him

after he invoked his right to counsel.                         The Government asserts,

however, that Falco waived the right to raise his claims on

appeal      by    failing    to    assert      them       in   a    pretrial    motion   to

suppress.         We agree with the Government.                    See Fed. R. Crim. P.

12(b)(3)(C), (e); United States v. Whorley, 550 F.3d 326, 337

(4th       Cir.   2008)     (collecting        cases      enforcing     waiver),    cert.

denied, __ U.S. __, available at 2010 WL 58479 (Jan. 11, 2010).

                 Falco also contends that the district court violated

Rules      403    and   404(b)     of    the       Federal     Rules   of    Evidence    by

admitting testimony that characterized items federal agents saw

in his new home as evidence of mail fraud where he did not

       1
           Miranda v. Arizona, 384 U.S. 436 (1966).



                                               2
operate out of that home during the course of the conspiracy

alleged in the indictment.                   Because defense counsel lodged no

objection to the witness’s reference to mail fraud, we review

the district court’s admission of the testimony for plain error.

See United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir.

2009) (establishing that plain-error review requires defendant

to “show: (1) an error was made; (2) the error is plain; and

(3) the    error       affects       substantial        rights”).           The     Government

concedes on appeal that the witness’s reference to mail fraud

was not relevant to the issues before the district court.                                    See

United    States       v.    Siegel,       536   F.3d    306,      317,    319    (4th    Cir.)

(providing       standard          for     admission      of    evidence          under     Rule

404(b)), cert. denied, 129 S. Ct. 770 (2008).                             In light of that

concession,       we    assume,          without      deciding,      that     the    district

court’s    admission          of    that    testimony        was    plain     error.         See

Massenburg, 564 F.3d at 342-43.

            Turning to whether the district court’s admission of

the    testimony            affected       Falco’s       substantial          rights,        see

Puckett v.       United      States,       129   S.    Ct.   1423,     1429       (2009),    our

review of the record discloses that the witness’s reference to

mail     fraud    was       an     isolated      comment,       that      defense      counsel

elicited on cross-examination that Falco had not been charged

with mail fraud, that testimony established Falco used items

similar to those agents saw in his new home when he operated in

                                                 3
his prior residence during the course of the conspiracy, and

that the evidence overwhelmingly demonstrated Falco agreed to

transport     stolen     goods    across       state      lines.      Moreover,      the

district    court       reduced     the     risk     of      unfair    prejudice      by

instructing      the    jury    that     Falco    was   on    trial   only     for   the

offense charged in the indictment, see Whorley, 550 F.3d at 338,

and    we   presume      the      jury     followed        the     court’s    limiting

instructions.       United States v. Johnson, 587 F.3d 625, 631 (4th

Cir. 2009).       We therefore conclude that the district court’s

admission of the testimony did not affect Falco’s substantial

rights. 2

            Accordingly, we affirm the district court’s judgment.

We    dispense   with    oral     argument       because     the   facts     and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                              AFFIRMED




       2
        Even if we were to conclude, as Falco argues, that he
preserved his objection in the district court to the witness’s
reference to mail fraud, we would have to conclude that any
error in admitting such testimony was harmless.   For the same
reasons that we find Falco’s substantial rights unaffected by
the testimony’s admission, we find that “the judgment was not
substantially swayed” by this alleged error. Johnson, 587 F.3d
at 637.



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