UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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 ArcePerez 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 
3

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 
4

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-yearold 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.
5

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)
6

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.” 
7

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 
8

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

 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.

 

When this failed, he drove to Eva’s church with a canister of 

4 At trial, Dietz admitted to placing GPS tracking devices 

on Eva’s car and phone.
9

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 
10

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.
11

[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

 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.

 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 
12

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.” 
13

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 
14

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

The pertinent portion of the kidnapping statute provides:

 

Dietz argues that this ruling was erroneous because kidnapping 

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

interstate transportation element. 

(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.
15

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 
16

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

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 

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. 

 8 We note that the operative indictment charged that Dietz 

“knowingly and unlawfully did seize, confine, inveigle, decoy, 

kidnap, abduct, and carry away” Eva.
17

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 
18

(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

 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.

 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
19

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
20

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 
21

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 nonconsent 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 
22

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 
23

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.
24

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

 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 

First, on August 4, 2009, Dietz wrote to the 

(Continued)
25

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 crossexaminations, 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.
26

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 
27

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 
28

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 
29

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 
30

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 
31

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. 
32

VI.

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

sentence. Accordingly, the judgment of the district court is 

affirmed. 

AFFIRMED