UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4544


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

DWIGHT CHRISTOPHER BROWN,

                     Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:16-cr-00166-FL-1)


Submitted: August 29, 2018                                        Decided: March 28, 2019


Before TRAXLER and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North Carolina, for
Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Jake D. Pugh, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Dwight Christopher Brown appeals his conviction following a jury trial for being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (2012), and his 120-

month sentence. Brown contends that the district court improperly allowed the jury to

reach a verdict after declaring a mistrial, improperly admitted extrinsic bad-acts evidence

under Fed. R. Evid. 404(b), erroneously instructed the jury, and imposed an unreasonable

sentence. We affirm.

       The evidence at trial established that on March 3, 2016, Raleigh Police Officers

Corey Hervey and Alexander Santaniello attempted to stop the car Brown was driving in

a parking lot after discovering that the vehicle had been reported stolen. 1 Instead of

stopping, Brown jumped out of the moving car and fled through the parking lot. Hervey

pursued Brown on foot while Santaniello remained with the car and called for backup.

Both officers testified that they had been trained to distinguish firearms from other objects,

such as cell phones, and they were certain that they saw a handgun in Brown’s right hand

when he jumped out of the car. Santaniello also reported that Brown was armed when he

called for backup. Santaniello saw Brown throw an object from his right hand during the

chase, and the object was heavy enough to kick up dirt when it landed in the parking lot’s

median. After Brown surrendered and was taken into custody, officers found a handgun

in the parking lot median near where Santaniello saw Brown throw the object. When the

officers ran a database search on the serial number of the handgun, they discovered that it

had been reported stolen in Durham, North Carolina. Santaniello and Hervey both testified


       1
           The patrol car’s dashboard video camera recording was played at trial.

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that the firearm found after the chase was the firearm they saw in Brown’s hand when he

jumped from the car.

       Brown first argues on appeal that he is entitled to a new trial because the district

court improperly allowed the jury to reach a verdict after having declared a mistrial, and

because the court’s final instruction was coercive. On the second day of jury deliberations,

the jury notified the district court that it had reached an impasse and needed direction as to

how to proceed. The court gave the jury an Allen charge to which both parties agreed. 2

Later that afternoon, the jury sent the court another note asking about the procedure for

substituting an alternate juror for one of the venire panel members. During a colloquy

between the jury foreperson and the court, the foreperson stated that one juror had become

emotional and was not going to change his or her mind. Brown moved for a mistrial, and

over Brown’s objection, the district court spoke further with the foreperson regarding the

nature of the impasse. The foreperson told the court that the juror in question had been

participating in discussions and looking at evidence, but that the foreperson was convinced

that the jury would not be able to reach a unanimous verdict.

       At this point, the Government withdrew its opposition to Brown’s motion for a

mistrial, and the district court told the parties that it planned to bring the jury into the

courtroom, declare a mistrial, and discharge the jury. Before the jury entered, however,

one of Brown’s lawyers asked if the court would consider giving the jury one more Allen

charge. When the jury entered, the court told the jurors that the court was inclined to

discharge them, but asked them to return to the jury room one more time to determine, in


       

. United States, 

(1896).

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their collective view, whether they could reach a unanimous verdict.                 The court

admonished the jury to remember the court’s previous instructions. Brown did not object

to either the court’s decision to instruct the jury to continue discussions or to the instruction

the court gave. Shortly after the jury returned to the jury room, it notified the court that it

had reached a verdict.

       We review a district court’s decision to grant or deny a motion for a mistrial for

abuse of discretion. United States v. Johnson, 

, 631 (4th Cir. 2009). In this

case, before the district court proceeded with its stated intention to declare a mistrial and

discharge the jury, one of Brown’s attorneys asked if the court would be willing to give

one more Allen charge to the jury. Given that the judge had not yet discharged the jury, it

was not error for the court to grant counsel’s request. Furthermore, the court was not

required to ensure that Brown personally understood the consequences of and assented to

this tactical decision. See United States v. Chapman, 

, 368 (4th Cir. 2010)

(“[D]ecisions regarding a mistrial are tactical decisions entrusted to the sound judgment of

counsel, not the client.”). The district court therefore did not commit reversible error when

it allowed the jury to continue deliberating.

       Brown next argues that the court’s final jury instruction was coercive. Because

Brown did not object to this instruction, we review it for plain error. See United States v.

Keita, 

, 189 (4th Cir. 2014). Under this standard, Brown must show “there

was an error, the error was plain, and the error affected [his] substantial rights.” 

coercion because the instruction caused a juror to change positions, but he

does not point to any specific coercive language. The court’s instruction referenced the


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possibility that the jury would not be able to reach a unanimous verdict, and the court told

the jurors to have one final discussion about the possibility of reaching a verdict before the

court dismissed them. We discern no coercion, and thus no error.

       Brown also contends that his conviction must be reversed because the district court

erroneously admitted the testimony of three witnesses. Brown’s ex-girlfriend testified that

she had given Brown permission to use her car in January 2016, but reported it stolen when

Brown did not return the car and did not answer her telephone calls. The lawful owner of

the handgun identified it in court and testified that it had been stolen from his home in

November 2015. He also testified that he had supervised Brown as a corrections officer

while Brown was an inmate at the Durham County Jail. Finally, a Durham County

Sheriff’s Deputy testified that during a 2012 traffic stop of a car in which Brown was a

passenger, he had found a firearm wrapped in a shirt on the seat where Brown had been

sitting. Brown subsequently pled guilty to being a felon in possession of a firearm in

violation of North Carolina law.

       We review the district court’s evidentiary rulings for abuse of discretion. United

States v. Faulls, 

, 508 (4th Cir. 2016). “Rule 404(b) [, Fed. R. Evid.,] allows

admission of evidence of the defendant’s past wrongs or acts, as long as the evidence is

not offered to prove the defendant’s predisposition toward criminal behavior.” United

States v. Sterling, 

, 246 (4th Cir. 2017). The list of permissible uses for

evidence admitted under Rule 404(b), “including motive, opportunity, and intent, is not

exhaustive.” 

admissible under Rule 404(b), evidence must be: (1) relevant to

an issue other than the defendant’s character; (2) necessary to prove an element of the


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charged offense; (3) reliable; and (4) admissible under Fed. R. Evid. 403, in that the

probative value of the evidence must not be substantially outweighed by its prejudicial

nature. United States v. Queen, 

, 997 (4th Cir. 1997).

         The Rule 404(b) inquiry, however, applies only to evidence of other acts that
         are extrinsic to the one charged. Acts intrinsic to the alleged crime do not
         fall under Rule 404(b)’s limitations on admissible evidence. Evidence of
         uncharged conduct is not other crimes evidence subject to Rule 404 if the
         uncharged conduct arose out of the same series of transactions as the
         charged offense, or if evidence of the uncharged conduct is necessary to
         complete the story of the crime on trial.

United States v. Basham, 

, 326 (4th Cir. 2009) (citations, brackets, and

internal quotation marks omitted); see also United States v. Chin, 

, 88 (4th Cir.

1996).

         The district court properly admitted the testimony regarding the theft of the car and

theft of the firearm. 3 The officers testified that they attempted to pull Brown over because

the car had been reported stolen. The testimony about the car was necessary to complete

the story of the crime on trial, and was therefore intrinsic.

         The testimony regarding the theft of the gun was admissible under Rule 404(b).

The Government used the identity of the firearm’s owner, who had a previous connection

to Brown, to argue the implausibility of the defense theory that the firearm was already at

the scene before the chase occurred. The testimony was therefore relevant and necessary

under the first two Queen prongs. The district court also gave a proper limiting instruction,

telling the jury that Brown was not on trial for burglary and it could consider the testimony

about the theft of the firearm only to the extent it bore on whether Brown possessed the


         3
             Brown does not challenge the reliability of this testimony.

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firearm on March 3, 2016. Finally, the fact that the firearm owner testified that he had

supervised Brown while Brown was incarcerated did not present an undue risk of unfair

prejudice because the parties had already stipulated that Brown was a convicted felon.

Because the testimony was relevant and necessary, and its probative value was not

substantially outweighed by the potential of unfair prejudice, the district court properly

admitted it under Rule 404(b).

       We need not decide whether the district court abused its discretion in admitting the

testimony about Brown’s 2012 conviction for being a felon in possession of a firearm. This

is so because any such error is harmless.

      Under Rule 52 of the Federal Rule of Criminal Procedure, evidentiary rulings are

subject to harmless error review. In conducting harmless error review in the context of an

alleged Rule 404(b) error, we decide whether we can say with fair assurance, after

pondering all that happened without stripping the erroneous action from the whole, that

the judgment was not substantially swayed by the alleged error. United States v. Hall, 

, 279 (4th Cir. 2017). The burden of establishing that an evidentiary error was

harmless falls on the Government. 

“The overall strength of the government’s

evidence constitutes an important factor in this inquiry.” United States v. Recio, 

, 238 (4th Cir. 2018). We also look to whether the Government used the evidence for

a purpose other than that for which the district court admitted it. 

.

       The Government presented convincing and overwhelming evidence of guilt in this

case. Two police officers testified unequivocally that they saw the defendant carry and

subsequently throw away a firearm during flight, one of the officers made


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contemporaneous radio communications stating that the defendant was armed, and the

officers found a firearm near the defendant’s flightpath. See 

.

Moreover, none of the jury’s questions suggested that the 2012 conviction played a

determinative role in the verdict.

       During its closing argument the Government did make one reference to the 2012

conviction that went beyond the scope of the court’s limiting instruction. This reference

was isolated, however, and was not based on propensity or bad character. Because the

Government’s evidence, independent of the 2012 conviction, was convincing and

overwhelming, and the reference to the conviction during closing arguments likely did not

sway the jury’s ultimate decision, we conclude that the Government has met its burden of

showing that this evidentiary error was harmless.

       Brown’s third contention is that the district court erroneously refused to give the

jury an instruction that his mere presence near the firearm did not constitute constructive

possession, and to specifically tell the jury that it was legitimate for counsel to attack the

credibility of law enforcement witnesses, as opposed to witnesses generally. We review

the district court’s jury instructions for abuse of discretion. United States v. Sonmez, 

, 688 (4th Cir. 2015). The district court’s refusal to give Brown’s proposed

instructions is not reversible error unless the proposed instructions: “(1) were correct, (2)

were not substantially covered by the charge that the district court actually gave to the jury,

and (3) involved some point so important that the failure to give the instruction[s] seriously

impaired the defendant’s defense.” 

marks omitted).




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       The district court properly instructed the jury. The central issue in the case was the

credibility of the officers’ testimony that they were certain that they saw a handgun in

Brown’s hand when he jumped from the car, and that he threw the gun into the median

during the chase. Although the Government contended that Brown’s proximity to the spot

where the firearm was later found provided strong evidence that he threw it there, the

Government did not allege that Brown constructively possessed the firearm because he

was close to it. The district court therefore did not impede Brown’s case by refusing to

give a “mere presence” or “constructive possession” instruction.

       The district court also did not abuse its discretion in refusing the requested

instruction regarding the cross-examination of law enforcement witnesses. The court

instructed the jury on evaluating the credibility of witnesses generally, including the fact

that it was perfectly legitimate for the lawyers to attack the credibility of witnesses. The

district court determined that it need not, as Brown requested, separately tell the jury that

it was legitimate for the lawyers to attack the credibility of law enforcement witnesses. In

light of the fact that most of the Government’s witnesses were law enforcement officers,

and that the district court instructed the jury to treat law enforcement witnesses the same

as any other witness, the court’s instructions were proper.

       Finally, Brown challenges the reasonableness of his sentence. He asserts first that

the district court erroneously applied Sentencing Guidelines enhancements for possession

of a firearm in connection with another felony and reckless endangerment during flight

from a law enforcement officer, respectively. U.S. Sentencing Guidelines Manual §§

2K2.1(b)(6)(B), 3C1.2 (2016).      “In assessing the district court’s calculation of the


                                             9
Guidelines range, we review its legal conclusions de novo and its factual findings for clear

error.” United States v. Cox, 

, 308 (4th Cir. 2014). The Government must

show that a Guidelines enhancement applies by a preponderance of the evidence.

United States v. Blauvelt, 

, 293 (4th Cir. 2011).

       We conclude that the district court properly applied both enhancements.              A

defendant who “used or possessed any firearm or ammunition in connection with another

felony offense is subject to a four-level enhancement.            USSG § 2K2.1(b)(6)(B).

“Subsection[] (b)(6)(B) . . . appl[ies] if the firearm or ammunition facilitated, or had the

potential of facilitating, another felony offense.” USSG § 2K2.1 cmt. n.14(A). “This

requirement is satisfied if the firearm had some purpose or effect with respect to the other

offense, including if the firearm was present for protection or to embolden the actor.”

United States v. Jenkins, 

, 162 (4th Cir. 2009) (citation and internal quotation

marks omitted). Although the evidence at trial did not show that Brown used the gun to

gain physical possession of the car in the first instance, the district court could reasonably

conclude that Brown’s possession of the firearm emboldened him to maintain possession

of the car for over a month.

       A defendant who “recklessly created a substantial risk of death or serious bodily

injury to another person in the course of fleeing from a law enforcement officer” is subject

to a two-level enhancement. USSG § 3C1.2. This enhancement requires “active, willful

behavior” as opposed to “mere flight from an arresting officer” or “disagreeableness during

an encounter.” United States v. John, 

, 648 (4th Cir. 1991). The evidence at

trial showed that instead of stopping the car after seeing the patrol car’s blue lights, Brown


                                             10
jumped out of the still-moving car with a firearm in his hand, fled on foot, and threw the

firearm away. Brown’s conduct created a substantial risk of death or serious injury to the

officers who were required to pursue and apprehend Brown. His conduct also created a

risk that the officers would have to use deadly force to defend themselves, which would

have put any bystanders at risk. The district court did not err in applying § 3C1.2.

       Brown’s final argument is that his 120-month sentence is substantively

unreasonable.

       We review a court’s sentencing decisions for abuse of discretion only. Any
       sentence that is within or below a properly calculated Guidelines range is
       presumptively reasonable. Such a presumption can only be rebutted by
       showing that the sentence is unreasonable when measured against the 18
       U.S.C. § 3553(a) factors.

United States v. Louthian, 

, 306 (4th Cir. 2014) (citations and internal

quotation marks omitted).       Here, the district court imposed the statutory maximum

sentence, which was also the Guideline sentence. USSG § 5G1.2(a). The district court

properly considered the § 3553(a) factors and determined that in light of the seriousness

of the offense, Brown’s extensive criminal history, and the need to protect the public, the

120-month sentence was appropriate. Accordingly, we conclude that Brown has not

rebutted the presumption of reasonableness attached to his Guidelines sentence, and the

district court did not abuse its discretion.

       We therefore affirm Brown’s conviction and sentence. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                              AFFIRMED


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