     Case: 19-30156      Document: 00515421938         Page: 1    Date Filed: 05/19/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                      No. 19-30156                           May 19, 2020
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


              Plaintiff - Appellee

v.

CODI DODGE,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:17-CR-323-1


Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
PER CURIAM:*
       A police officer arrested a person he suspected of stealing the officer’s
own property. Following an FBI investigation into the conduct, the officer was
indicted for violating the suspect’s rights and for then trying to cover up his
actions. After a jury trial, the officer was found guilty of all charges. We
AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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              FACTUAL AND PROCEDURAL BACKGROUND
      In August 2016, Codi Dodge, the Deputy Chief of Investigations for the
St. Martinville Police Department in Louisiana, was notified that a window-
mounted air-conditioning unit was stolen from a home he owned and rented.
Dodge and two other St. Martinville police officers, Kim Talley and Troy
LeBlanc, drove to Dodge’s rental property to investigate. When the officers
arrived, they saw that an air-conditioning unit was missing from the front
window of the home. Investigating the theft, Dodge asked neighbors whether
they saw anyone take the window unit. A neighbor told Dodge that Curtis
Ozenne was the thief. The officers then went to Ozenne’s house.
      Dodge and LeBlanc went to Ozenne’s front door, and Talley went to the
side of the house where the officers thought there was another door. Without
Ozenne’s consent, Dodge entered the home.         Neither LeBlanc nor Talley
accompanied Dodge inside the home. According to Ozenne, he was in the back
of the house when Dodge entered. When Dodge called Ozenne’s name, Ozenne
left the back room and entered the hallway. It was then that he saw Dodge
inside the home with his firearm drawn. Dodge began to question Ozenne
about the missing air-conditioning unit, and a physical altercation ensued.
Ozenne alleged that Dodge started by poking Ozenne in the face with Dodge’s
firearm, then hit Ozenne with the weapon, and also bit Ozenne on the chest.
LeBlanc and Talley, who remained outside, did not see this altercation.
      Following Ozenne’s arrest, he filed a complaint with the FBI about
Dodge’s conduct. The FBI investigated Dodge’s actions during Ozenne’s arrest
as well as Dodge’s conduct during an unrelated arrest of another individual.
As part of its investigation of Ozenne’s arrest, the FBI contacted Talley and
LeBlanc for interviews. Before those two officers spoke with the FBI, they met
Dodge at the police station to “get their stories straight.” During the meeting,
the officers concocted a story about Ozenne’s arrest. Dodge and LeBlanc told
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                                    No. 19-30156
the FBI the false story and drafted police reports to match their version of
events. Talley, however, did not tell the FBI the false story; she told the FBI
a sanitized version of the truth.
      The FBI’s investigation led to Dodge’s being charged in a seven-count
indictment. In Counts One and Two, Dodge was charged with deprivation of
rights under color of law; in Count Three, he was charged with conspiracy to
tamper with a witness and make false reports; in Counts Four and Five, he
was charged with false report; in Count Six, he was charged with tampering
with a victim witness or informant; and in Count Seven, he was charged with
destruction of records.
      Prior to trial, the Government filed two notices of intent to introduce
evidence of other acts under Federal Rule of Evidence 404(b). The district court
overruled Dodge’s objections to this Rule 404(b) evidence.          Dodge filed a
pretrial motion in limine seeking to cross-examine Ozenne regarding the
alleged theft of the air-conditioning unit. On the first day of trial, the district
court denied Dodge’s motion.
      After an eight-day trial, jurors convicted Dodge on Counts Two, Three,
Five, and Six. The presentence investigation report (“PSR”) assigned a total
offense level of 29. 1    This total offense level included multiple sentencing
Guidelines enhancements, including a four-level enhancement under U.S.S.G.
§ 2A2.2(b)(2)(B) for “otherwise using a dangerous weapon” during the
commission of the offense. Dodge objected to the PSR’s application of the
dangerous-weapon enhancement, arguing there were insufficient facts to
support the finding, but the district court overruled Dodge’s objection.




      1   Because the counts of conviction were grouped together for the purposes of
Guidelines calculations, Dodge’s adjusted offense level for Count Two determined his
sentence range.
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                                 No. 19-30156
      Dodge was sentenced to 108 months of imprisonment as to Counts Two,
Five, and Six, and 60 months of imprisonment, to run concurrently, as to Count
Three, followed by three years of supervised release. This sentence was at the
high end of the Guideline range of 87 to 108 months. Dodge objected to the
substantive reasonableness of the sentence. This timely appeal followed.


                                DISCUSSION
      Dodge raises several arguments on appeal.           He first challenges
evidentiary decisions by the district court. He next asserts the district court
violated his Sixth Amendment right to confront and cross-examine a witness.
Dodge argues the requisite standard of proof for a district court to impose a
sentence enhancement is insufficient and, instead, should be heightened.
Finally, he challenges the substantive reasonableness of his within-Guidelines
sentence. We address the arguments in that order.


I.    Evidentiary rulings
      We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Kinchen, 729 F.3d 466, 470 (5th Cir. 2013). This “abuse-of-
discretion standard is heightened when evidence is admitted under Federal
Rule of Evidence 404(b), because evidence in criminal trials must be strictly
relevant to the particular offense charged.” Id. (quotation marks and brackets
omitted). A district court “abuses its discretion when its ruling is based on an
erroneous view of the law or a clearly erroneous assessment of the evidence.”
Id. at 470–71. Even so, “erroneous admissions under Rule 404(b) are subject
to a harmless error inquiry.” Id. at 471.
      “Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person
acted in accordance with the character,” but, “[t]his evidence may be
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admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
FED. R. EVID. 404(b)(1), (2). On the Government’s motion, the district court
considered whether evidence of six “other acts” by Dodge were admissible
under Rule 404(b). Of the six prior acts that the district court ruled were
admissible, the Government introduced evidence of four at trial.
      The Government was allowed to introduce testimony at trial of the
following prior acts, which Dodge claims in each case was error: (1) Dodge
attempted to pressure another police officer to lie in her official police report;
(2) he told a fellow police officer that he put his firearm in an arrestees mouth
in an attempt to coerce a confession; and (3) bragged about how, if he were still
at his job with the sheriff’s office, he would have broken an arrestee’s fingers.
The district court ruled all of this testimony was admissible under Rule 404(b)
because it was “probative of [Dodge’s] intent, knowledge, absence of mistake,
and lack of accident” and was not substantially outweighed by unfair prejudice
to Dodge. Last, the Government introduced testimony that Dodge located FBI
Agent Koger on Facebook and knew what Koger’s wife and children looked like.
The district court ruled testimony regarding threats Dodge made about
locating Agent Koger’s family was admissible as intrinsic evidence. Dodge does
not challenge the district court’s ruling that his conduct relating to Agent
Koger was intrinsic, and therefore admissible.
      We analyze Rule 404(b) admissions under a two-prong test. First, the
proposed extrinsic evidence must be “relevant to an issue other than the
defendant’s character,” and second, “the evidence must possess probative value
that is not substantially outweighed by its undue prejudice and must meet the
other requirements of [R]ule 403.” United States v. Beechum, 582 F.2d 898,
911 (5th Cir. 1978). Dodge does not argue the extrinsic evidence was not
relevant for a permissible purpose. Instead, he argues the evidence here fails
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                                  No. 19-30156
the second prong of the Beechum test because its probative value is
substantially outweighed by its undue prejudice.
      To determine whether undue prejudice substantially outweighs the
evidence’s probative value, we consider “(1) the government’s need for the
extrinsic evidence, (2) the similarity between the extrinsic and charged
offenses, (3) the amount of time separating the . . . offenses, and (4) the court’s
limiting instructions.” Kinchen, 729 F.3d at 473. Our determination affords
“great deference to the district court’s informed judgment in weighing the
factors.” Id.
      We conclude the district court did not err in finding the probative value
of the extrinsic evidence outweighs any unfair prejudice to Dodge.           First,
although the Government offered testimony from Ozenne and LeBlanc to prove
Dodge acted with the specific intent to deprive Ozenne of his constitutional
rights, one of Dodge’s defense theories at trial was that his actions were
justified and not excessive. Therefore, the Government’s use of Rule 404(b)
evidence of other acts by Dodge was more probative than prejudicial to prove
Dodge acted willfully. See United States v. Brugman, 364 F.3d 613, 620 (5th
Cir. 2004).
      Second, the similarities between the extrinsic offenses and charged
offenses are notable. Here, the extrinsic evidence involved the same conduct
— deprivation of constitutional rights, conspiracy to tamper with a witness and
make false reports, and tampering with a victim witness or informant — as
the charged conduct. Although “a close resemblance between the extrinsic
offense and the charged offense also increases the unfair prejudice to the
defendant,” Dodge’s “prior misconduct lacked the hallmarks of highly
prejudicial evidence.” United States v. Hernandez-Guevara, 162 F.3d 863, 872
(5th Cir. 1998).


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       Third, the extrinsic acts were “not so remote in time to the charged
offense to depreciate [their] probity.” United States v. Moye, 951 F.2d 59, 62
(5th Cir. 1992). Of the three extrinsic acts admitted, the most remote in time
was Dodge’s attempt to pressure a fellow police officer to lie in her official police
report in June of 2015. We have “found that evidence of misconduct committed
less than three years prior to the charged crime is admissible, while suggesting
that ten years may be too remote.” United States v. Juarez, 866 F.3d 622, 628
(5th Cir. 2017). We conclude the temporal proximity between the extrinsic acts
and charged conduct was sufficient.
       Finally, the district court’s limiting instruction, both before Officer
LaGrange testified about being instructed to lie in a police report and in the
final jury instructions, sufficiently explained the “limited purpose for which
any evidence of other similar acts may be considered.” Kinchen, 729 F.3d at
474 (citation omitted). The limiting instruction reduced any risk of unfair
prejudice. There was no abuse of discretion in the district court’s admission of
extrinsic evidence of prior acts under Rule 404(b).


II.    Limitations of cross-examination
       Dodge argues the district court unconstitutionally limited the scope of
his cross-examination of Ozenne, thereby preventing Dodge from presenting a
complete defense. Dodge contends the district court should have allowed him
to question Ozenne about whether Ozenne stole the air-conditioning unit from
Dodge’s rental property. This testimony allegedly would have been relevant to
show Ozenne’s bias and character for untruthfulness.
       We review alleged violations of a defendant’s Sixth Amendment rights of
confrontation and to present a complete defense de novo and apply a harmless
error analysis. United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008). “If
there is no constitutional violation, then we review a district court’s limitations
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on cross-examination for an abuse of discretion, which requires a showing that
the limitations were clearly prejudicial.” Id.
      The Confrontation Clause provides a criminal defendant with the right
to cross-examine witnesses, but this right is not unlimited. United States v.
Jimenez, 464 F.3d 555, 559 (5th Cir. 2006). The district court may place limits
on “a criminal defendant’s right to cross-examine a witness based on concerns
about, among other things harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant.”
United States v. Hitt, 473 F.3d 146, 156 (5th Cir. 2006) (quotation marks
omitted).   “The relevant inquiry [here] is whether the jury had sufficient
information to appraise the bias and motives of the witness.” United States v.
Tansley, 986 F.2d 880, 886 (5th Cir. 1993).
      Prior to trial, Dodge filed a motion in limine seeking to cross-examine
Ozenne regarding the alleged theft of the air-conditioning unit. The district
court denied the motion, reasoning that whether Ozenne stole the air-
conditioning unit was irrelevant to show Dodge’s state of mind and, contrary
to Dodge’s argument, Ozenne’s alleged theft had no bearing on his character
for truthfulness. Further, the district court held any argument that Ozenne’s
factual guilt was marginally probative as to his motive to fabricate was
substantially outweighed by the potential danger of misleading the jury.
According to the district court, testimony as to whether Ozenne stole the air
conditioner would distract the jury and place Ozenne on trial rather than
Dodge. The district court recognized that counsel should be afforded wide
latitude in cross-examining a witness about his motivation. The court’s only
prohibition was that Dodge could not ask whether Ozenne actually broke into
the rental house or stole any property.
      At trial, Dodge was permitted to explore Ozenne’s motivations for
alleging Dodge used excessive force. Dodge failed to take advantage of the
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district court’s allowance of questions regarding Ozenne’s motives for alleging
Dodge used excessive force. The failure to use the opportunity does not assist
Dodge now, as “the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.” Delaware v. Fensterer,
474 U.S. 15, 20 (1985) (emphasis in original).
      Although Dodge could not ask Ozenne whether he stole the air-
conditioning unit, multiple witnesses testified that Dodge believed Ozenne
stole the air-conditioning unit. Further, the record reflects that the jury was
presented with sufficient information to evaluate Ozenne’s credibility
including: evidence of Ozenne’s prior criminal convictions; testimony that
Ozenne had altercations with police in the past; statements regarding
Ozenne’s prior unrelated civil suits against police officers for misconduct; and
questions about a prior inconsistent statement by Ozenne regarding the cause
of his injuries. We find no Confrontation Clause violation because Dodge was
“permitted to expose to the jury the facts from which jurors, as the sole triers
of fact and credibility, could appropriately draw inferences relating to the
reliability of the witness.” Skelton, 514 F.3d at 443.
      Because there was no constitutional violation, we next review the district
court’s limitation of Dodge’s cross-examination of Ozenne for an abuse of
discretion. See id. at 438. The district court’s ruling on Dodge’s motion in
limine, made during the first day of trial, was that Ozenne’s actual guilt
regarding the theft of the air-conditioning unit was either irrelevant or more
prejudicial than probative or risked confusing the jury. See FED. R. EVID. 402,
403. These are appropriate reasons for limiting Dodge’s cross-examination.
We find no abuse of discretion in the district court’s ruling. See Skelton, 514
F.3d 442–43.


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III.     Sentencing challenges
         Dodge first argues the district court should have applied a standard of
proof more stringent than the preponderance of the evidence in determining
whether to impose a sentencing enhancement because of how the enhancement
impacted the length of his sentence. This argument, however, is foreclosed by
circuit precedent that requires such a standard be used. United States v.
Anderson, 560 F.3d 275, 283 (5th Cir. 2009).
         Next, Dodge challenges the substantive reasonableness of his 108-month
sentence. We review the substantive reasonableness of a sentence under a
“highly deferential” abuse-of-discretion standard “because the sentencing court
is in a better position to find facts and judge their import under the [Section]
3553(a) factors with respect to a particular defendant.” United States v. Diehl,
775 F.3d 714, 724 (5th Cir. 2015). If a sentence is within the Guidelines range,
we may presume it is reasonable. See United States v. Diaz Sanchez, 714 F.3d
289, 295 (5th Cir. 2013). “Th[is] presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
         Dodge argues his sentence is unreasonable because the district court
failed to consider the impact of the conviction in protecting the public from
further crimes by Dodge and failed to fully consider Dodge’s history and
characteristics. Dodge’s argument is predicated on the fact that although the
district court “referenced” the sentencing factors enumerated in Section
3553(a), the district court “made note of only four of them.” The district court’s
ruling, though, came only after the court reviewed the PSR, sentencing
memorandum, and letters of reference, heard both a victim impact statement


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and a statement from Dodge himself, and expressly stated that it considered
the factors set forth in Section 3553(a).
      Dodge fails to rebut the presumption of reasonableness we afford to a
within-Guidelines sentence because the district court is not required to
“engage in robotic incantations that each statutory factor has been considered,”
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (quotation marks
omitted), or give the factors equal weight, United States v. Alvarado, 691 F.3d
592, 597 (5th Cir. 2012). The record reflects the district court considered the
Section 3553(a) factors. We find no abuse of discretion in the district court’s
within-Guidelines sentence.
      AFFIRMED.




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