                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5197


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DAVID DIETZ,

                Defendant - Appellant.



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)


Argued:   May 10, 2011                    Decided:   August 18, 2011


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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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        had

                                              2
started       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 that

                                             3
day.       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   and


       1
       Dietz was released on bail, and the charge was eventually
dropped.



                                            4
Burgess 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


     2
       At trial, Dietz testified to a very different version of
events.   According to Dietz, two hundred dollars were missing
from a briefcase in his house, and he confronted Burgess about
the missing money during the car ride from the store.   Burgess
initially denied knowing anything about the money.      Burgess
eventually admitted taking the money, but she was unable to pay
it back.    After Dietz threatened to kill Burgess, she became
(Continued)
                                         5
         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’s



frightened and offered to satisfy the debt with sex.        Dietz
“didn’t initially agree with that” but ultimately “said okay.”



                                          6
family   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 night




                                          7
of 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 of


     3
       In his testimony, Dietz denied ever using zip ties to
restrain Burgess.4 At trial, Dietz admitted to placing GPS
tracking devices on Eva’s car and phone.
     4
       At trial, Dietz admitted to placing GPS tracking devices
on Eva’s car and phone.



                                          8
gasoline 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.

        Thereafter, Eva and her family arrived in two vehicles.

Adriana drove the first vehicle, a Ford Sport Trac, in which Eva

rode in the passenger’s seat with three children—Eva’s son and

Adriana’s two young boys—in the back seat.     Isai Sanchez (Eva’s

nephew) was in the second vehicle, a Ford Explorer, along with

three other adults and three children.

     When the vehicles arrived, Dietz emerged with his gun drawn

and ordered the occupants of the vehicles not to move.      Burgess

followed closely behind Dietz.     While Adriana removed one of her

sons from the back seat, Eva approached Dietz, trying to calm

him and convince him to lower the gun.      As Adriana carried her

son toward the apartment, Dietz stepped in front of her, put the

gun to her forehead, and demanded the keys to the Sport Trac.

Adriana gave Dietz the keys, and Dietz told Eva to “get in the

car.”     Dietz permitted Adriana to remove her other child from

                                  9
the backseat.      In the vehicle, Dietz sat in the driver’s seat

with Eva beside him and Burgess sitting on her lap and their son

in the back seat.          As Dietz pulled away, he fired “several

shots”   through   the    closed    passenger-side      window,   inches    away

from the bodies of Eva and Burgess, into the fully occupied

Explorer.      The shots passed through the Explorer, shattering

windows, but no one was struck. 5

     Dietz drove toward Barnwell, South Carolina, with frigid

January air blowing through the broken window.               Dietz would not

allow Eva into the back seat to check on the baby; he sent

Burgess instead.         During the drive, Dietz pulled over so Eva

could use the bathroom.            A Barnwell police officer approached

during   the   stop.      Still    cloaked   in   his   police    gear,    Dietz

“continued with the persona that [he] was a police officer.”                 As

a result, the police officer left the scene.               Thereafter, Dietz

drove to a Wal-Mart store in Barnwell that was closed.                     Dietz

then drove “across the Savannah River Bridge to Georgia, because


     5
       At trial, Dietz explained that he fired the shots because
he believed Isai Sanchez was raising a gun to shoot at him.
Before Dietz got into the Sport Trac, he saw “Isai had something
in his hand, in his pocket, that looked like a gun.     It was a
handle just like a gun.”    When Dietz “got in the [Sport Trac]
Isai raised the shiny weapon-looking object”; Dietz panicked and
started shooting. Isai testified that he was unarmed during the
incident, but that he slid his cell phone, which illuminates,
out of his pocket and lifted it to his face to call 911 as Dietz
was driving away. The shots rang out as Isai raised the phone.



                                       10
[he]       knew    .     .     .    Augusta,      Georgia,         had     a   24-hour        Wal-Mart.”

Dietz then rented a motel room in Marion, Georgia on the morning

of January 4, 2009.

       On that afternoon, the police arrived and demanded entry to

the room.           Dietz responded by firing two shots out of a glass

pane       beside       the        door,    striking     no    one.            During     the      hostage

negotiations             that       followed,      Dietz      made       various      demands.            He

requested a solicitor, or Georgia state prosecutor, “to agree to

not make any charges.”                      Dietz surrendered around 8:00 a.m. the

next day, after more than twelve hours of negotiations.

       As a result of these events, Dietz was charged and tried in

the    United          States        District     Court       for     the       District       of    South

Carolina          for     1)       kidnapping      Eva,       in    violation        of       18    U.S.C.

§ 1201(a)(1);                2)      carjacking,         in    violation            of     18       U.S.C.

§ 2119(1);          3)       using     a    firearm     in    furtherance           of    a    crime      of

violence,          in        violation       of    18     U.S.C.           § 924(c)(1);            and    4)

knowingly transporting a stolen motor vehicle, in violation of

18 U.S.C. § 2312. 6                  A jury convicted Dietz of all charges, and

the district court sentenced him to 300 months in prison for the

kidnapping          charge,          with    concurrent            terms       of   180   months         for


       6
        Dietz was also charged with resisting a law enforcement
officer in connection with an incident during his pretrial
incarceration.   This charge was dismissed on the Government’s
motion.



                                                    11
carjacking and 120 months for knowingly transporting a stolen

vehicle, and a consecutive 120-month term for using a firearm in

furtherance of a crime of violence.                    Dietz now appeals to this

Court.



                                           II.

       On appeal, Dietz first argues that the district court erred

by    excluding     the   expert    psychiatric        testimony        of   Dr.   Harold

Morgan,       who     opined    that    Dietz         suffered        from   borderline

personality disorder.           In a pretrial evidentiary hearing, Dr.

Morgan testified that because of this condition, Dietz “could

not    form     the    specific     intent       to     commit        [kidnapping    and

carjacking] because it was all driven by panic and impulsivity.”

The district court admitted Dr. Morgan’s testimony as to the

carjacking charge, but excluded it as to the kidnapping charge.

Dietz contends that excluding the testimony as to the kidnapping

charge was error and unfairly limited his defense.                       We disagree.

       Dr. Morgan testified that borderline personality disorder

is      characterized          by      “[i]nstability            in      interpersonal

relationships,         instability         in    mood      and        emotion,      [and]

instability in thinking and behavior . . . .”                            In situations

perceived, or misperceived, as “rejection, abandonment, or . . .

fear,”    someone      suffering    from    borderline      personality        disorder

may “overreact, . . . get panicky, [or] become very impulsive.”

                                           12
Dr. Morgan opined that Dietz’s misperception of a man raising a

gun was the “trigger that threw [Dietz] into this panic and this

very impulsive behavior that from which everything else ensued.”

On    this   theory,   Dr.    Morgan       concluded      that    Dietz   lacked   the

specific intent necessary to commit kidnapping and carjacking.

       Dr.   Morgan,   however,       candidly       admitted     that    “[a]t    some

point . . . [Dietz’s] contact with reality began to kick in.”

Dr. Morgan could not pinpoint the dividing line “from the point

where    [Dietz]    overreacted       in    that     situation     because    of   his

misperceptions to the time that he regained some control and

better understanding of the reality . . . , but it did happen,

obviously.”        Further,     the    scope    of    Dr.    Morgan’s     review   was

limited to Dietz’s conduct in South Carolina; his testimony did

not go to Dietz’s conduct in Georgia.

       The district court interpreted the kidnapping statute as

requiring      specific       intent        only     as      to    the    interstate

transportation element, or at the time of crossing state lines.

See 18 U.S.C. § 1201(a)(1) (requiring that the abducted person

“is willfully transported in interstate or foreign commerce”).

Because Dr. Morgan offered no opinion on Dietz’s mental state at

the time he drove from South Carolina into Georgia, the district

court concluded that Dr. Morgan’s testimony would not assist the

jury in determining whether Dietz had the mental state required

for     kidnapping.       See    Fed.      R.   Evid.       702   (allowing   expert

                                           13
testimony that “will assist the trier of fact to understand the

evidence   or   to   determine   a   fact   in   issue”).      Dr.    Morgan’s

testimony was therefore excluded as to the kidnapping charge. 7

Dietz argues that this ruling was erroneous because kidnapping

is a specific intent crime generally, and not only as to the

interstate transportation element.

     The pertinent portion of the kidnapping statute provides:

     (a) Whoever unlawfully seizes, confines, inveigles,
     decoys, kidnaps, abducts, or carries away and holds
     for ransom or reward or otherwise any person . . . ,
     when—

           (1) the person is willfully transported                     in
           interstate or foreign commerce . . . ;

     shall be punished by imprisonment             for   any   term    of
     years or for life . . . .

18 U.S.C. § 1201(a)(1).          “The [basic] elements of kidnapping

under § 1201 are twofold: ‘the kidnapped victim shall have been

(1) unlawfully seized, confined, inveigled, decoyed, kidnapped,

abducted, or carried away by any means whatsoever and (2) held

for ransom or reward or otherwise.’”             United States v. Lewis,

662 F.2d 1087, 1088 (4th Cir. 1981) (quoting Chatwin v. United


     7
       On the other hand, the Government conceded that carjacking
requires specific intent at the time the vehicle is taken. See
18 U.S.C. § 2119 (requiring that the motor vehicle is taken
“with the intent to cause death or serious bodily harm”).
Because Dr. Morgan’s testimony was probative of Dietz’s mental
state at the time he took the Sport Trac, the district court
admitted the testimony as to the carjacking charge.



                                     14
States, 326 U.S. 455, 459 (1946)) (quotation marks and footnote

omitted); cf. United States v. Childress, 26 F.3d 498, 501-02

(4th Cir. 1994) (describing the basic elements of subsection

(a)(1)      kidnapping        as     interstate        transportation              of    an

unconsenting       victim).          Subsection      (a)(1)’s         requirement        of

willful     interstate       transportation       is     one     of    the     “separate

federal jurisdictional bases for” the substantive crime defined

in § 1201(a).      Lewis, 662 F.2d at 1089.

       Following    the      Insanity      Defense     Reform         Act    (IDRA),      a

defendant may offer psychiatric testimony to show that he acted

under a mental disease or defect short of legal insanity only if

the evidence “‘negates an essential element of the government’s

prima facie case.’”          United States v. Worrell, 313 F.3d 867, 873

(4th   Cir.   2002)    (quoting      United     States    v.     Cameron,      907      F.2d

1051, 1065 (11th Cir. 1990)).              Stated differently, “psychiatric

testimony     regarding        a     defendant’s       mental         condition”         is

admissible if it is relevant “to disprove specific intent for

specific intent crimes.”           Id.     On the other hand, IDRA abolished

mental disease or defect defenses short of legal insanity that

are offered merely to justify or excuse a defendant’s otherwise

criminal conduct.        See 18 U.S.C. § 17; Worrell, 313 F.3d at 872.

In short, the evidence must be offered to show the defendant

“did not do it, not that he could not help it.”                             Worrell, 313

F.3d   at   874.      This    sort    of   psychiatric         testimony      is    rarely

                                           15
admissible because “‘[m]ental illness rarely, if ever, renders a

person incapable of understanding what he or she is doing.’”

United   States   v.     Pohlot,     827    F.2d   889,   900   (3d   Cir.    1987)

(quoting H.R. Rep. No. 98-577, at 15 n.23).

     In this case, assuming, without deciding, that kidnapping

under § 1201(a)(1) requires specific intent as to all elements, 8

we conclude that Dr. Morgan’s testimony was not admissible to

negate   any   element    of   the    kidnapping     charge.        Although    Dr.

Morgan opined that Dietz was in a panicked and impulsive mental

state when he abducted Eva, Dr. Morgan limited his opinion to a

short temporal window, including only the time of the abduction

and carjacking and a short time thereafter.                 Dr. Morgan stated

unequivocally     that    Dietz    “regained       some   control     and    better

understanding of the reality,” even though Dr. Morgan could not

pinpoint the transition.

     Considering that Dietz kept Eva in his custody for more

than twenty-four hours after the abduction on January 3, Dr.

Morgan’s testimony would not negate that Dietz abducted Eva with

the requisite mental state.            In other words, even if Dietz did

not have the requisite mental state at the moment of abduction,

Dr. Morgan’s testimony does not refute the evidence that Dietz

     8
       We note that the operative indictment charged that Dietz
“knowingly and unlawfully did seize, confine, inveigle, decoy,
kidnap, abduct, and carry away” Eva.



                                           16
formed     the    requisite       mental     state        before    the     offense      was

complete.        Cf. United States v. Dupre, 339 F. Supp. 2d 534, 544

(S.D.N.Y. 2004) (expert’s acknowledgment that the defendant “has

the    capacity     to     perceive    things        realistically         and      exhibits

cognitive flexibility,” substantially reduced “the usefulness of

the expert testimony in determining whether [the defendant] was

lucid    during     the    course     of   her   participation        in        a    complex,

multi-year scheme”), aff’d in part, vacated in part, 462 F.3d

131, 137-38 (2d Cir. 2006); cf. also United States v. Hughes,

716 F.2d 234, 239 (4th Cir. 1983) (victim was “inveigled” under

§ 1201(a)(1) where she consented to travel with the defendant

from    West     Virginia    to   Ohio     as    a    result   of    the     defendant’s

misrepresentations          but     victim       no       longer    consented          after

discovering       his     true    intentions         in    Ohio).         Indeed,      Dietz

testified that he “continued with the persona” that he was a law

enforcement        officer—purposefully               misleading      the           inquiring

Barnwell police officer—long before he drove into Georgia.                               Dr.

Morgan’s       testimony    therefore      would       not   negate       the       abduction

element.

       Nor would Dr. Morgan’s testimony negate that the abduction

was for “ransom or reward or otherwise.”                       18 U.S.C. § 1201(a).

This element is construed broadly; it is “sufficient for the

government to show that the defendant acted for any reason which

would in any way be of benefit.”                       Childress, 26 F.3d at 503

                                           17
(citing Gooch v. United States, 297 U.S. 124, 128 (1936)).            Dr.

Morgan’s own testimony undercut the theory that Dietz abducted

Eva as an impulsive retreat from a threat rather than for his

own   benefit.     During   his   cross-examination   at   the   pretrial

evidentiary hearing, Dr. Morgan testified as follows:

      Q: You also—did you see evidence in the reports that
      indicated that when [Dietz] went over to that
      apartment he was dressed as a police officer with a
      probation badge and all of that?   Did you see that
      evidence doctor?

      A: Yes.    He told me himself.

      Q: All right.    And that would—could be viewed as an
      indication that he went over there with garb that
      indicated authority so that he could perhaps get
      people to do what he wanted, correct?

      A: I think that was indeed a part of it.        He wanted to
      be in charge.

      Q: He wanted to be in charge.      Well, in charge of his
      own suicide, is that—

      A: In charge of seeing the child.     He wanted to see
      the child, talk to the mother, and he felt that the
      policeman’s uniform would enable him to do that.

J.A. 79-80. 9     Dr. Morgan thus acknowledged the benefits Dietz

sought from Eva’s abduction.        And, again, even if impulsivity

initially motivated the abduction, Dr. Morgan’s testimony would

not negate Dietz’s motivation to confine Eva for his own benefit


      9
       Citations herein to “J.A.” refer to the Joint Appendix
filed by the parties.      Citations to “S.J.A.” refer to the
Supplemental Joint Appendix.



                                    18
once he regained touch with reality.               Accordingly, Dr. Morgan’s

testimony was inadmissible to negate that Dietz abducted Eva

“for ransom or reward or otherwise.”            18 U.S.C. § 1201(a).

     Finally, Dr. Morgan’s testimony was plainly irrelevant to

whether Dietz willfully transported Eva from South Carolina to

Georgia.      Because    Dr.    Morgan   limited    his    opinion   of   Dietz’s

mental    state   to   the   temporal    proximity    of   the   abduction    and

carjacking, the testimony had no relevance to Dietz’s mental

state at the time he drove across state lines.

     In sum, Dr. Morgan’s testimony would not negate any element

of the kidnapping charge even if each element required specific

intent.      The evidence could only have served as a prohibited

diminished capacity defense and was therefore properly excluded.



                                        III.

     Dietz    next     argues    that    the   district     court    abused   its

discretion by admitting two categories of evidence under Federal

Rule of Evidence 404(b): 1) Dietz’s history of domestic violence

with Eva and her family; and 2) the sexual assaults on Burgess.

Dietz argues that the Rule 404(b) evidence was irrelevant to the

charged crimes, needlessly cumulative, and unfairly prejudicial.

We disagree.

     Rule 404(b) is “‘an inclusive rule, admitting all evidence

of other crimes or acts except that which tends to prove only

                                         19
criminal disposition.’”               United States v. Powers, 59 F.3d 1460,

1464 (4th Cir. 1995) (quoting United States v. Percy, 765 F.2d

1199, 1203 (4th Cir. 1985)).                    Evidence is admissible under Rule

404(b)   if    it   is:       1)     relevant        to    show    something       other     than

character,     such      as    motive,       intent,        or    plan;    2)    necessary       to

prove    either     an    element          of   the       crime     charged       or    relevant

context; and 3) reliable.                  United States v. Byers, ___ F.3d ___,

___, 2011 WL 1718895, *6 (4th Cir. May 6, 2011).                                       “Evidence

admissible     under          Rule    404(b)         must     still       meet     Rule     403’s

requirement       that        its     prejudicial           value     not        outweigh    its

probative value.”             United States v. Chin, 83 F.3d 83, 88 (4th

Cir. 1996).         The district court’s decision to admit evidence

under Rule 404(b) is reviewed for abuse of discretion and will

not be reversed unless it is “arbitrary and irrational.”                                  Id. at

87 (quotation marks omitted).

     Dietz first complains that evidence that he pointed a gun

at Israel during April 2008 was inadmissible under Rule 404(b).

This evidence demonstrated to the jury that Israel and Dietz had

had confrontations approaching the brink of violence prior to

the charged crimes.            The April 2008 confrontation showed Dietz’s

motive   and   intent         to     use    deadly        force   during     the       January    3

incident to ensure that Israel and the rest of Eva’s family

would comply with his demands.                   The evidence also tended to show

that Dietz took the keys from Adriana through intimidation, by

                                                20
brandishing      the    gun,   contrary       to   Dietz’s      assertion         that    he

politely requested the keys.               See 18 U.S.C. § 2119 (requiring

that   a    motor   vehicle     is    taken     from    another     “by    force         and

violence or by intimidation”).

       Similarly, evidence that Dietz was arrested for criminal

domestic violence on May 3, 2008 was relevant to Eva’s non-

consent to traveling with Dietz on January 3, 2009.                        That Dietz

struck Eva on her back while she was pregnant and made harassing

phone calls to Eva while she was in church—compelling Eva to

call police and leading to Dietz’s arrest—showed, at a minimum,

that Eva sought to keep her distance from Dietz.                        This evidence

was therefore probative of the abduction element of kidnapping.

       Further, the domestic violence evidence was not needlessly

cumulative or unfairly prejudicial under Rule 403.                                Although

multiple      witnesses    testified       about    Dietz      pointing       a    gun   at

Israel and about Dietz’s arrest for criminal domestic violence,

many of the testifying witnesses were members of Eva’s family

who were present during the January 3 incident.                         Dietz’s prior

acts   of    violence     against,    or   known    to,     these      witnesses     were

directly probative of whether Dietz achieved the abduction and

carjacking     by   threat     of    deadly     force    and    intimidation.            We

cannot      conclude    that   the    “probative        value    [of    the       domestic

violence evidence was] substantially outweighed by the danger of



                                           21
unfair prejudice, confusion of the issues, or misleading the

jury . . . .”       Fed. R. Evid. 403.

       Dietz’s     complaint    about      the    sexual      assault     evidence       is

similarly     unavailing.           Rule   404(b)        places       limits    on     “the

admission of other acts extrinsic to the one charged.”                          Chin, 83

F.3d    at   87.        “[A]cts      intrinsic          to   the      alleged     crime,”

conversely,      “do   not   fall    under       Rule    404(b)’s      limitations       on

admissible evidence.”          Id. at 87-88.            A prior act is intrinsic

to the charged criminal act if it is “inextricably intertwined

or both acts are part of a single criminal episode or the other

acts were necessary preliminaries to the crime charged.”                             Id. at

88 (quotation marks omitted).

       Here, the evidence showed that Dietz sexually assaulted and

threatened to kill Burgess to establish control over her.                               The

first sexual assault occurred on January 1, 2009, after Dietz

became angry because he believed Burgess took advantage of him.

Dietz responded by driving Burgess to a wooded area and sexually

assaulting her.        Burgess testified that she did not feel free to

leave and that she feared Dietz.                  Dietz brandished the gun and

became even more threatening during subsequent sexual assaults.

Accordingly, this evidence showed that Dietz used the sexual

assaults to intimidate and establish control over Burgess.

       Ultimately,      of     course,      Burgess          became     an      unwilling

accomplice in the kidnapping and carjacking.                       Absent the ability

                                           22
to    control     Burgess’s       actions       through      fear     and    intimidation,

created in part by the sexual assaults, Dietz likely would have

been unable to enlist Burgess as an accomplice.                                  The sexual

assaults,      which     helped      to    create     control       over    Burgess,       were

therefore      “necessary       preliminaries          to    the     crime[s]      charged.”

Id.    This evidence was accordingly not subject to the strictures

of Rule 404(b).

       For similar reasons, even if it had been subject to Rule

404(b),     the      sexual      assault        evidence      would        nonetheless      be

admissible      to     show     plan      and   intent.        Because       the    evidence

clearly     showed       that    the      sexual      assaults       instilled      fear    in

Burgess     and      permitted       Dietz      to    dictate       her     actions,     this

evidence was relevant to show that Dietz planned and intended to

use Burgess during the kidnapping and carjacking.                            Indeed, after

several of the sexual assaults, Dietz made comments to Burgess

such as, “I am still deciding what I’m gonna [sic] do with you.”

S.J.A. 59.        When Dietz decided on the kidnapping, he expected

Eva   and   her      family     to   arrive      as    a    group,    so    he     instructed

Burgess “to get the people away from Eva and get Eva to him.”

J.A. 284.       Dietz used the sexual assaults to establish dominance

over Burgess and to make her an unwilling accomplice in his plan

to    kidnap      Eva.        This     evidence       therefore       would      have      been

admissible      to     show     plan      and    intent      even     if    Rule    404(b)’s

limitations applied.

                                                23
     Dietz    lastly    contends    that,      pursuant    to   Rule   403,   the

sexual assault evidence was needlessly cumulative of a letter

Dietz wrote prior to January 3, 2009.                 In the letter, Dietz

stated that Burgess “is not my willing accomplice, but she has

been forced to help me through fear of her life.                   I will kill

her if she refuses my demands.”               J.A. 450.     The letter would

have left more questions unanswered about Burgess’s involvement

than it answered.         The sexual assault evidence explained how

Burgess came to be under Dietz’s control.                  We agree with the

district court that the sexual assault evidence was “necessary

to provide context relevant to the” kidnapping and carjacking

charges.



                                        IV.

     Dietz    next     argues   that    the    district    court   abused     its

discretion in denying his motions to substitute counsel and his

attorney’s motion to withdraw.          We disagree.

     At various points throughout the trial proceedings, Dietz

informed     the   district     court   that    he   was   dissatisfied       with

defense counsel. 10      First, on August 4, 2009, Dietz wrote to the


     10
        Dietz complained at a pretrial status conference on June
2, 2009, which, not involving a motion to substitute counsel,
was a harbinger of subsequent conflicts between Dietz and
defense counsel.   Defense counsel had provided Dietz’s medical
records to Dr. Morgan and had contacted other individuals in
(Continued)
                                        24
district judge, complaining that defense counsel had raised his

voice    in    a   discussion    concerning     Dietz’s     mental     evaluation,

making    Dietz     feel   “uncomfortable       heeding     [defense   counsel’s]

legal advice from this point on.”                  Dietz further asked that

defense counsel be “removed from [his] case.”                     J.A. 39.          The

district      court   heard     and    addressed      Dietz’s    concerns      at     a

pretrial motions hearing.              Primarily, Dietz distrusted defense

counsel because he did not always explain to Dietz why he was

making    certain     tactical    decisions.          But   in   the   end,    Dietz

stated:       “I   think   we    can     work    it    through.”        J.A.        45.

Accordingly, Dietz withdrew his motions to proceed pro se and to

substitute counsel.

     Dietz had another conflict with defense counsel during a

pretrial evidentiary hearing.             Between Eva’s direct and cross-

examinations, the district court held an ex parte hearing at

defense counsel’s request.            Defense counsel explained that Dietz

requested a particular line of questioning, and defense counsel




connection with the case without Dietz’s prior approval. Dietz
felt as though he was “not really being represented by” defense
counsel and that defense counsel was “actually working against”
Dietz. Therefore, Dietz asked that defense counsel be required
to obtain Dietz’s signed approval before making future decisions
concerning his case. The district court denied Dietz’s request
for prior approval, instructing Dietz that defense counsel “is
not bound to have to have your permission to properly prepare
what he thinks needs to be done in your case.” J.A. 33-35.



                                         25
responded that he “may or may not ask it.”                       J.A. 402.      Dietz

then   retorted:      “Well,   you’ll    be    sorry.”     Later       during   Eva’s

examination, Dietz stated: “I better not lose this case.”                        When

defense counsel asked what Dietz meant, Dietz replied, “Use your

imagination.”         J.A. 403.      Taking these statements as threats,

defense counsel moved to withdraw.

       Responding to the district court, Dietz denied making all

of    the   alleged    statements,      or    intending    any    of    them    to   be

threatening, and he expressed frustration that defense counsel

was not listening.         Dietz believed that, because of the problems

he was having with defense counsel, “he’s not going to be able

to effectively try this case.”                J.A. 404.     The district court

elicited an apology from Dietz and proposed a solution to the

conflict:

       [W]hen [defense counsel] asks questions, he can check
       them off. And then he can hand [Dietz] back the paper.
       And if there are some that weren’t checked off and
       [Dietz] think[s] that they should have been asked,
       then at the next break [Dietz] can bring that to [the
       court’s] attention.

J.A. 407.       When Dietz agreed to this proposal, the district

court ruled that defense counsel lacked a basis to believe he

was    being   threatened,      or   any      basis   on   which       to   withdraw.

Therefore, the motion was denied.

       Finally,    Dietz    raised      two    additional        complaints     about

defense counsel during trial.                 Dietz complained that defense


                                         26
counsel      did    not   object        to    questions       implying    that    Dietz     was

terminated as a probation officer for “being overly aggressive,”

and that he was convicted for criminal domestic violence.                                Dietz

believed those questions lacked an evidentiary basis.                                 Because

defense       counsel        did        not        contemporaneously      object,        Dietz

complained that defense counsel was not “zealously representing”

him.    J.A. 810.

       However, Dietz was unaware that defense counsel previously

requested a sidebar conference in which he moved to strike the

testimony         about   Dietz’s         “overly         aggressive”     behavior     as     a

probation officer.            The district court overruled the objection

and informed Dietz that his objection had been preserved in the

record       by    defense    counsel’s            motion    to    strike.       As   to    the

criminal domestic violence issue, the district court explained

that    there      had    been     no     evidence        introduced     that    Dietz      was

convicted.          Moreover, Dietz was free to offer evidence on the

issue during his own case-in-chief.

       Dietz argues that the cumulative effect of his conflicts

with counsel impeded his ability to present an adequate defense,

and that the district court abused its discretion by refusing to

allow    a    substitution         of    counsel.           In    evaluating    whether     the

district court “abused its discretion in denying a defendant’s

motion for substitution, we consider three factors: ‘Timeliness

of     the    motion;     adequacy            of    the     court’s    inquiry    into      the

                                                   27
defendant’s complaint; and whether the attorney/client conflict

was so great that it had resulted in total lack of communication

preventing an adequate defense.’”               United States v. Mullen, 32

F.3d 891, 895 (4th Cir. 1994) (quoting United States v. Gallop,

838 F.2d 105, 108 (4th Cir. 1988)).

      First,     the     timeliness    factor    weighs     in   Dietz’s      favor

because he moved early in the proceedings to replace defense

counsel.       However, the second and third factors clearly weigh

against permitting a substitution in this case.

      As to the second factor—adequacy of the court’s inquiry—the

district court went out of its way to mediate conflicts between

Dietz and defense counsel.             As to each of the three conflicts

raised during the proceedings, the court thoroughly heard Dietz

out of the jury’s presence, in open court, and on the record.

Further, the court proposed a strategy that permitted defense

counsel to exercise his independent professional judgment, while

also allowing Dietz to voice his concerns.                 The district court’s

inquiry into Dietz’s complaints was adequate by any measure.

      Most     importantly,     there     is     no   indication       that   “the

attorney/client conflict was so great that it had resulted in

total   lack    of     communication    preventing    an    adequate    defense.”

Id.     Generally, the nature of the conflict between Dietz and

defense counsel was that defense counsel made certain tactical

decisions without Dietz’s agreement or prior approval.                     Dietz’s

                                        28
dissatisfaction with defense counsel’s tactical decisions does

not indicate a lack of communication.                  To the contrary, Dietz

was very engaged in his defense throughout the proceedings, and

defense     counsel      ably     conducted         Dietz’s     lengthy     direct

examination.     See United States v. Hanley, 974 F.2d 14, 17 (4th

Cir. 1992) (finding no total lack of communication where defense

counsel     vigorously    cross-examined           government    witnesses        and

appropriately conducted the defendant’s direct examination).                       In

sum, this argument lacks merit.



                                         V.

      Finally, Dietz contends that his thirty-five year sentence

is unreasonable because defendants in South Carolina’s courts

receive lower sentences for similar conduct.                    Specifically, he

relies on South Carolina cases, see State v. Young, 378 S.C.

101, 661 S.E.2d 387 (2008); Pelzer v. State, 378 S.C. 516, 662

S.E.2d    618   (Ct.   App.     2008),        to   contend    that   his   federal

kidnapping sentence should have been “twenty years or less.”                       We

disagree.

      “In reviewing any sentence, ‘whether inside, just outside,

or   significantly     outside    the    Guidelines      range,’     we    apply    a

‘deferential abuse-of-discretion standard.’”                   United States v.

Carter,   564   F.3d   325,     328   (4th     Cir.   2009)   (quoting     Gall    v.

United States, 552 U.S. 38, 40 (2007)).                      We first determine

                                         29
whether the district court committed any procedural error such

as     “‘failing   to   calculate      (or    improperly    calculating)       the

Guidelines range, treating the Guidelines as mandatory, failing

to consider the § 3553(a) factors, selecting a sentence based on

clearly    erroneous    facts,    or    failing     to    explain    the   chosen

sentence—including      an    explanation     for   any   deviation    from    the

Guidelines range.’”          Id. (quoting Gall, 552 U.S. at 51).               If

there is no procedural error, we “then consider the substantive

reasonableness of the sentence imposed,” “tak[ing] into account

the totality of the circumstances, including the extent of any

variance from the Guidelines range.”            Gall, 552 U.S. at 51.

       Dietz does not argue that the district court committed any

particular procedural error and, having thoroughly reviewed the

record, we find none.           The district court calculated Dietz’s

total offense level at 43, his criminal history category at I,

and the resulting Guidelines range of life imprisonment.                    After

articulating the relevant characteristics of this case and this

defendant, the district court imposed a variance sentence of

thirty-five years.        See 18 U.S.C. § 1201(a) (authorizing, for a

kidnapping that does not result in a death, any term of years or

life     imprisonment).        Dietz’s       thirty-five-year       sentence    is

comprised of 300 months (twenty-five years) on the kidnapping

conviction, and a consecutive sentence of 120 months (ten years)

for using a firearm in furtherance of a crime of violence.                     The

                                       30
district court found a thirty-five year sentence appropriate for

deterrence, to account for the seriousness of this crime, and to

ensure mental health treatment for Dietz.

     Relying      on   sentences    imposed    in   similar     South   Carolina

cases, Dietz essentially argues that the extent of the variance

is not large enough.            We recently rejected a similar argument

because a central aim of the Federal Sentencing Guidelines is to

eliminate sentencing disparities among federal defendants.                    See

United States v. Clark, 434 F.3d 684, 686-87 (4th Cir. 2006).

The Guidelines, we explained, are not concerned with disparities

between   state    and   federal    defendants.      Id.   at    687    (“Indeed,

concurrent jurisdiction in federal and state fora contemplates

and accepts that there may well be different sentences imposed

for similar or identical offenses by the two different justice

systems.”).       To   accord    weight   to   sentences   imposed      by   state

courts would foster disparities among federal defendants, whose

federal sentences would vary depending upon the state in which

they committed their federal crimes.                Thus, as in Clark, we

reject Dietz’s invitation to look to state law in analyzing the

reasonableness of Dietz’s federal sentence.            See id.




                                       31
                                     VI.

    In      sum,   we   find   no   error   in   Dietz’s   convictions   or

sentence.     Accordingly, the judgment of the district court is

affirmed.

                                                                  AFFIRMED




                                     32
