                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4566


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

DANINE A. RYDLAND,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:10-cr-00053-JPB-DJJ-1)


Argued:   December 9, 2011                 Decided:   January 5, 2012


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: James T. Kratovil, KRATOVIL & KRATOVIL, Charles Town,
West Virginia, for Appellant.    Erin K. Reisenweber, OFFICE OF
THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for
Appellee.   ON BRIEF: William J. Ihlenfeld, II, United States
Attorney, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Dr. Danine Rydland appeals her conviction on 34 counts of

health care fraud.            See 18 U.S.C. § 1347.            We affirm.



                                               I

       Rydland was charged with 38 counts of health care fraud

arising    from        her    medical    office      billing     practices.        Before

trial, Rydland prepared notes that she intended to use at trial

to assist her while testifying.                    As Rydland prepared to take the

stand for her direct testimony, her attorney presented the notes

to the government, which then objected to her use of them.                             In

response to the objection, Rydland’s attorney explained that the

notes are        her    “recollection”      after        her   review   of   the   office

records.     J.A. 648.             When questioned by the court as to what

rule     would    permit       Rydland    to       use   the   notes,    her   attorney

responded that he did not know any rule that would not permit

her to use them.             Id.   After reviewing caselaw, the court orally

ruled that Rydland could not use the notes while she was on the

stand.     Rydland then testified on direct examination without the

notes.

       Before cross-examining Rydland, the government notified the

district court of its intention to use the notes in the cross-

examination.           During the ensuing discussion, Rydland’s attorney

asked the district court why the government would be permitted

                                               2
to use the notes.            When the court answered that the notes may

contain      prior      inconsistent          statements,     her     attorney      asserted

that the notes were “subsequent statements” rather than prior

statements.          J.A.   794-95.            Although      Rydland’s      attorney       then

noted that he did not understand why the notes contain prior

statements,        he    offered    no        substantive     basis    to    preclude       the

government from using the notes.                      The court then permitted the

government to use the notes during cross-examination for the

purpose of establishing that Rydland had made prior inconsistent

statements.

       The    jury      eventually       convicted      Rydland       on    34    counts    and

acquitted her on four counts.                    Thereafter, the court sentenced

her to 34 concurrent terms of imprisonment of 12 months plus one

day.



                                                II

       On    appeal,     Rydland        primarily      argues      that     the    notes    are

appropriate         material       for        refreshing     her      recollection         and,

therefore, the district court erred by denying her the use of

them during her direct testimony.                     We review the order excluding

the    notes    for      abuse     of    discretion.          See     United      States     v.

Cranson,     453     F.2d   123,        124    (4th   Cir.    1971)    (“The       matter    of

refreshing      a    witness’       recollection        and     the    manner      used     are

largely within the discretion of the Trial Judge.”).                              A district

                                                 3
court       abuses    its    discretion      when    it   acts      arbitrarily    or

irrationally,        fails   to   consider      judicially    recognized     factors

constraining         its   exercise    of   discretion,      relies   on   erroneous

factual or legal premises, or commits an error of law.                       United

States v. Thompson-Riviere, 561 F.3d 345, 348 (4th Cir. 2009).

        The district court did not elaborate on its reasoning in

sustaining the government’s objection, but its citation to three

cases       for   support    implies    that    it   based    its   ruling   on   two

principles: (1) a party may not attempt to introduce otherwise

inadmissible evidence under the guise of refreshing recollection

and (2) a witness may not use a document to refresh recollection

unless she has exhibited a failure of memory. 1                  This ruling is in

accord with the controlling law in this circuit:


        1
       The court cited the following cases, to which we have
added the accompanying text: United States v. Balthazard, 360
F.3d 309, 318 (1st Cir. 2004) (“It is hornbook law that a party
may not use a document to refresh a witness’s recollection
unless the witness exhibits a failure of memory.”); Goings v.
United States, 377 F.2d 753, 759-60 (8th Cir. 1967) (“Refreshing
a witness’s recollection by memorandum or prior testimony is
perfectly proper trial procedure and control of the same lies
largely in the trial court’s discretion.    However, if a party
can offer a previously given statement to substitute for a
witness’s    testimony   under   the   guise    of   ‘refreshing
recollection,’ the whole adversary system of trial must be
revised.”); Thompson v. United States, 342 F.2d 137, 140 (5th
Cir. 1965) (“The trial judge has a duty to prevent a witness
from putting into the record the contents of an otherwise
inadmissible writing under the guise of refreshing recollection,
. . . and . . . counsel should not be permitted to give a
witness a written statement, especially prepared for his use in
testifying, to obviate the necessity of introducing original
(Continued)
                                            4
     It is, of course, obvious from everyday experience
     that the latent memory of a witness may be revived by
     prior written statements which he or others may have
     made. Thus, most courts today hold that in examining
     a witness at trial, counsel may hand him a memorandum
     to inspect for the purpose of refreshing his memory,
     with the result that when he testifies, he does so on
     the basis of his own recollection, not the writing.
     Proper foundation for such procedure requires that the
     witness’ recollection be exhausted.         A contrary
     holding would permit a party to substitute the prior
     statement of a witness for his actual testimony.

United States v. Morlang, 531 F.2d 183, 190-91 (4th Cir. 1975)

(citations omitted).

     Although Rydland may have believed that it would have been

helpful to use her notes while testifying, she did not lay the

proper foundation for using them to refresh her recollection.

Therefore, under these circumstances, the district court did not

abuse its discretion in denying Rydland the use of her notes.



                                         III

     For   a   variety     of    reasons,      Rydland    also    argues   that   the

district     court    abused       its    discretion       by      permitting     the

government     to    use   the    notes       during     her     cross-examination.

Specifically, she appears to contend that the government’s use

of the notes (1) violated the procedure set forth in Rule 612 of

the Federal Rules of Evidence, (2) permitted the government to


records, on the assumption that anything can be used to refresh
recollection.”).


                                          5
introduce      otherwise      inadmissible         evidence,      (3)   violated     her

work-product privilege, and (4) is unfair.

     As       noted,   Rydland       asked       the    district    court    why     the

government could use the notes in its cross-examination.                           Even

if we construe her question as a proper objection, it is clear

that she did not object on any of the grounds she now asserts on

appeal.       See generally United States v. Parodi, 703 F.2d 768,

783 (4th Cir. 1983) (noting that in order to preserve appellate

review an objecting party must object with a reasonable degree

of specificity that would have adequately apprised the trial

court    of    the   true    basis    for    the   objection).          Therefore,    we

review for plain error.              United States v. Pratt, 239 F.3d 640,

644 (4th Cir. 2001).

     Interpreting Rule 52(b) of the Federal Rules of Criminal

Procedure, which governs plain error review, the Supreme Court

has instructed:

     [A]n appellate court may, in its discretion, correct
     an error not raised at trial only where the appellant
     demonstrates that (1) there is an error; (2) the error
     is clear or obvious, rather than subject to reasonable
     dispute; (3) the error affected the appellant’s
     substantial rights, which in the ordinary case means
     it affected the outcome of the district court
     proceedings; and (4) the error seriously affect[s] the
     fairness, integrity or public reputation of judicial
     proceedings.

United States v. Marcus, ––– U.S. –––, 130 S.Ct. 2159, 2164

(2010)    (internal         punctuation      and       citation    omitted).   “[T]he


                                             6
burden of establishing entitlement to relief for plain error is

on   the   defendant     claiming   it,”     United    States    v.   Dominguez

Benitez, 542 U.S. 74, 82 (2004), and “[m]eeting all four prongs

is difficult, as it should be,” Puckett v. United States, 556

U.S. 129, 129 S.Ct. 1423, 1429 (2009) (internal punctuation and

citation omitted).

     After    carefully    reviewing       Rydland’s   contentions,     we   are

unable to find that she has met her burden of establishing that

the district court plainly erred.                Moreover, because the jury

acquitted     Rydland      of   four        counts     notwithstanding       the

government’s use of the notes, we are not convinced that she was

unduly prejudiced by any such error or, in any event, that we

should exercise our discretion to notice any such error.



                                       IV

     Based    on   the     foregoing,       we    affirm   the   judgment     of

conviction.

                                                                       AFFIRMED




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