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United States v. Smith, 09-4654 (2010)

Court: Court of Appeals for the Fourth Circuit Number: 09-4654 Visitors: 25
Filed: Jun. 18, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4654 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY DANIEL SMITH, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (7:07-cr-00101-BR-1) Submitted: June 3, 2010 Decided: June 18, 2010 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Lee Ann Anderson
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                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4654


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTHONY DANIEL SMITH, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (7:07-cr-00101-BR-1)


Submitted:   June 3, 2010                  Decided:    June 18, 2010


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lee Ann Anderson McCall, Maggie L. Lassack, Jay Schwarz, Laura
D’Allaird, Morgan Daniel Ditch, Washington, D.C., for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Anthony Daniel Smith, Jr., appeals his convictions for

conspiring      to    distribute          marijuana,        possessing    a     firearm    in

furtherance of a drug trafficking crime, and being a convicted

felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1), 924 (2006) and 21 U.S.C. § 846 (2006).                            On appeal,

Smith    argues      the     district        court      plainly   erred    by    admitting

evidence of his co-defendant’s out-of-court statement without a

limiting instruction, the district court abused its discretion

by admitting evidence of Smith’s prior cocaine convictions, and

the Government did not present sufficient evidence to support

his convictions.           For the reasons that follow, we affirm.

              This court typically reviews evidentiary rulings for

abuse of discretion.                  United States v. Perkins, 
470 F.3d 150
,

155 (4th Cir. 2006).                  However, because Smith did not object in

the   district       court       to    the   hearsay        testimony,    we    review    the

admission of evidence for plain error.                        United States v. Olano,

507 U.S. 725
, 731 (1993).                    To show plain error, the appellant

must demonstrate “that an error occurred, that the error was

plain,   and    that       the    error      affected       his   substantial     rights.”

United States v. Muhammad, 
478 F.3d 247
, 249 (4th Cir. 2007).

              Hearsay is generally not admissible in evidence.                           Fed.

R.    Evid.    802.        An     exception        is   a    statement    against    penal

interest “which was at the time of its making so far contrary to

                                               2
the declarant’s pecuniary or proprietary interest, or so far

tended to subject the declarant to civil or criminal liability,

or to render invalid a claim by the declarant against another,

that a reasonable person in the declarant’s position would not

have made the statement unless believing it to be true.”                          Fed.

R.   Evid.   804(b)(3).        A    statement        is   admissible      under   this

exception if: (1) the speaker is unavailable; (2) the statement

is actually adverse to the speaker’s penal interest; and (3)

“corroborating          circumstances              clearly          indicate       the

trustworthiness of the statement.”                 United States v. Bumpass, 
60 F.3d 1099
,   1102     (4th   Cir.        1995)    (internal       quotation     marks

omitted).

             We note that all three requirements are met.                      Clearly,

the statement was against the declarant’s penal interests.                          See

Williamson v. United States, 
512 U.S. 594
, 603 (1994).                         We also

note   there     was     sufficient             corroboration       indicating     the

truthfulness of the statement.             
Bumpass, 60 F.3d at 1102
.

             Smith   also   argues     that        the    admission    of    Waldron’s

statement    violated    his       Sixth    Amendment       right    to     confront   a

witness.     The Confrontation Clause of the Sixth Amendment bars

“admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.”

Crawford v. Washington, 
541 U.S. 36
, 53-54 (2004).                            For such

                                            3
evidence to be excludable under the confrontation clause, it

must be “testimonial,” United States v. Udeozor, 
515 F.3d 260
,

268 (4th Cir. 2008), and offered for the truth of the matter

asserted, 
Crawford, 541 U.S. at 59-60
n.9 (the Confrontation

Clause   does   not    bar   the   use   of   “testimonial     statements       for

purposes   other      than   establishing      the   truth     of    the   matter

asserted”).     We    find   the   offered    statement      was    clearly    non-

testimonial.    See United States v. Smalls, __ F.3d __, 
2010 WL 1745123
, *8-10 (10th Cir. May 3, 2010) (statement made by co-

conspirator     to     fellow      inmate     implicating      defendant       was

nontestimonial); United States v. Spotted Elk, 
548 F.3d 641
, 662

(2d Cir. 2008) (holding that a co-defendant’s in-jail statements

made to a co-conspirator were not testimonial, and thus did not

violate the defendant’s Sixth Amendment rights).

           Smith contends that his prior cocaine convictions were

irrelevant to proper Rule 404(b) purposes.             He reasons that his

defense was that he did not possess the drugs or guns at all,

not that he did not have the intent to distribute, and thus the

issue of his intent to distribute was not at issue.                           Smith

further argues that his prior convictions were not sufficiently

similar to the present charges to have probative value, and that

any probative value was outweighed by the unfair prejudice.

           Rule 404(b) of the Federal Rules of Evidence prohibits

the admission of evidence of other wrongs or acts solely to

                                         4
prove a defendant’s bad character.                        Although not admissible to

prove the defendant’s character, evidence of other wrongs may be

admitted       to   prove     “motive,         opportunity,        intent,          preparation,

plan, knowledge, identity, or absence of mistake or accident.”

Fed. R. Evid. 404(b).                    Rule 404(b) is an inclusionary rule,

allowing evidence of other crimes or acts to be admitted, except

that which tends to prove only criminal disposition.                                        United

States v. Queen, 
132 F.3d 991
, 994-95 (4th Cir. 1997).                                    For such

evidence to be admissible, it must be “(1) relevant to an issue

other than the general character of the defendant; (2) necessary

to prove an element of the charged offense; and (3) reliable.”

United    States      v.    Hodge,       
354 F.3d 305
,    312    (4th       Cir.    2004).

Additionally, under Fed. R. Evid. 403, the probative value of

the    evidence       must    not        be    substantially         outweighed            by     its

prejudicial effect.           
Id. To prove
    a    conspiracy        to     possess      a    drug        with    the

intent    to    distribute,         the       Government      must      establish          that    an

agreement to possess drugs with intent to distribute existed

between    two      or     more     persons,         that     defendant            knew    of     the

conspiracy,         and     that     defendant          knowingly            and     voluntarily

participated in the conspiracy.                        United States v. Burgos, 
94 F.3d 849
,     857    (4th       Cir.    1996).        The      Government         offered       the

evidence       of     Smith’s       past       convictions         related          to     cocaine

distribution          to     show        knowledge,         lack        of     mistake,           and

                                                 5
opportunity.         Thus, the evidence was relevant to an issue other

than Smith’s general character.                         As in United States v. King,

768 F.2d 586
, 588 (4th Cir. 1985), the evidence made it “more

likely that [the defendant] intended to distribute drugs and was

not   an    innocent       friend       of    [a    co-conspirator,]             caught   in   the

wrong      place    at    the     wrong      time.”        Moreover,        by    pleading      not

guilty, Smith placed his state of mind at issue, making his

prior      similar        acts        both        relevant     and        necessary       to   the

Government's effort to prove a conspiracy.                                 United States v.

Mark,      
943 F.2d 444
,       448    (4th       Cir.   1991);       see    also    United

States v. Sanchez, 
118 F.3d 192
, 196 (4th Cir. 1997) (not guilty

plea puts one’s intent at issue); United States v. Matthews, 
431 F.3d 1296
(11th Cir. 2005) (in every conspiracy case, a not

guilty     plea     puts    the       defendant’s        intent      at    issue     unless    the

defendant affirmatively removes intent as an issue).                                  For these

reasons,     the     district         court       did   not    abuse      its     discretion    by

admitting         the      evidence          of     Smith’s        prior        cocaine-related

convictions.

                 Smith    argues      that        the   Government        failed    to    present

evidence      sufficient         to    prove        beyond     a   reasonable       doubt      that

Smith or Waldron had dominion and control over the trailer.                                      “A

defendant challenging the sufficiency of the evidence faces a

heavy burden.”            United States v. Foster, 
507 F.3d 233
, 245 (4th

Cir. 2007).          We review a sufficiency of the evidence challenge

                                                    6
by determining whether, viewing the evidence in the light most

favorable to the Government, any rational trier of fact could

find the essential elements of the crime beyond a reasonable

doubt.      United States v. Collins, 
412 F.3d 515
, 519 (4th Cir.

2005).     This court will uphold the jury’s verdict if substantial

evidence supports it, and will reverse only in those rare cases

of   clear   failure     by     the   prosecution.        
Foster, 507 F.3d at 244-45
.      The     court    does    not   review     the   credibility   of     the

witnesses and assumes that the jury resolved all contradictions

in the testimony in favor of the Government.                 
Id. at 245.
             Again, to meet its burden of proof on the conspiracy

charge, the Government had to establish that an agreement to

possess drugs with intent to distribute existed between two or

more persons, that Smith knew of the conspiracy, and that Smith

knowingly and voluntarily participated in the conspiracy.                         See

Burgos, 94 F.3d at 857
.           To establish the 18 U.S.C. § 924(c)(1)

violation, the Government had to present evidence “indicating

that the possession of [the] firearm furthered, advanced, or

helped     forward   a   drug    trafficking      crime.”       United   States    v.

Lomax, 
293 F.3d 701
, 705 (4th Cir. 2002).

             Smith contends he did not possess either the marijuana

or   the   firearms.         Possession     may   be   actual   or   constructive.

United States v. Rusher, 
966 F.2d 868
, 878 (4th Cir. 1992).

When the Government seeks to establish constructive possession,

                                            7
it   must   prove      that    the   defendant    intentionally     exercised

dominion and control or “had the power and the intention to

exercise    dominion     and   control”    over   the   item   in   question.

United States v. Scott, 
424 F.3d 431
, 435-36 (4th Cir. 2005).

Here, viewing the evidence in the light most favorable to the

Government, the combined evidence was sufficient for the jury to

reach the conclusion that Smith entered into an agreement to

possess and sell marijuana, and further, Smith possessed the

guns found in the trailer for use in furtherance of a drug

trafficking crime.       See 
Lomax, 293 F.3d at 705
.

            Accordingly, we affirm the district court’s judgment.

We   dispense   with    oral   argument    because   the   facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                     AFFIRMED




                                       8

Source:  CourtListener

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