Filed: May 22, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4899 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. FRANK BAILEY, Defendant – Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:07-cr-00559-RDB-1) Submitted: April 24, 2009 Decided: May 22, 2009 Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas L. Crowe, LAW OFFICES OF THOMAS L.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4899 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. FRANK BAILEY, Defendant – Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:07-cr-00559-RDB-1) Submitted: April 24, 2009 Decided: May 22, 2009 Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas L. Crowe, LAW OFFICES OF THOMAS L. C..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4899
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANK BAILEY,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:07-cr-00559-RDB-1)
Submitted: April 24, 2009 Decided: May 22, 2009
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas L. Crowe, LAW OFFICES OF THOMAS L. CROWE, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Debra L. Dwyer, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Frank Bailey was convicted of
distribution and possession with the intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006)
(“count 1”), possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (2006)
(“count 2”), and possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006)
(“count 3”). He was sentenced to 264 months in prison. Bailey
appeals, asserting that the district court erred by denying his
Fed. R. Crim. P. 29 motions for judgment of acquittal and his
motions for a mistrial. Finding no error, we affirm.
We review de novo the district court’s denial of a
Fed. R. Crim. P. 29 motion for judgment of acquittal. E.g.,
United States v. Reid, 523 F.3d 310, 317 (4th Cir.), cert.
denied,
129 S. Ct. 663 (2008). In conducting this review, “the
verdict of the jury must be sustained if there is substantial
evidence, taking the view most favorable to the government, to
support it.” Glasser v. United States,
315 U.S. 60, 80 (1942).
This court has defined “substantial evidence” as “evidence that
a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Burgos,
94 F.3d 849, 862
(4th Cir. 1996) (en banc). We consider circumstantial as well
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as direct evidence, and we allow the government the benefit of
all reasonable inferences from the facts proven to those sought
to be established. United States v. Harvey, 532 F.3d 326, 333
(4th Cir. 2008).
In his sole challenge to count 1 and as part of his
challenges as to counts 2 and 3, Bailey contends that the
evidence is insufficient because of contradictions in the
testimony of the police officers concerning the location of the
undercover surveillance vehicle from which they observed Bailey
engaging in narcotics transactions. In resolving issues of
substantial evidence, however, this court does not reweigh
evidence or review witness credibility. United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Rather, it is the
role of the jury to judge the credibility of witnesses, resolve
conflicts in testimony, and weigh the evidence. United States
v. Manbeck,
744 F.2d 360, 392 (4th Cir. 1984). And after review
of the record, we conclude that there was sufficient evidence
from which a jury could conclude that Bailey knowingly
distributed and possessed with intent to distribute cocaine
base.
To establish a violation of 18 U.S.C. § 922(g)(1), the
Government was required prove beyond a reasonable doubt that:
(1) Bailey was a convicted felon; (2) he knowingly possessed the
firearm and ammunition; and (3) the firearm and ammunition
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traveled in interstate commerce. See United States v.
Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). As this court
held in Gallimore, 247 F.3d at 136-37, section 922(g)(1) does
not require proof of actual or exclusive possession;
constructive or joint possession is sufficient. The government
may prove constructive possession by demonstrating that the
defendant exercised, or had the power to exercise, dominion and
control over the item. Id. at 137 (quoting United States v.
Jackson,
124 F.3d 607, 610 (4th Cir. 1997)). Further,
constructive possession may be proved by circumstantial
evidence. United States v. Laughman,
618 F.2d 1067, 1077 (4th
Cir. 1980).
To convict Bailey of violating 18 U.S.C. § 924(c), the
government was required to prove that he (1) committed a drug
crime and (2) possessed a firearm in furtherance of that drug
crime. 18 U.S.C. § 924(c)(1)(A). In determining what evidence
is sufficient to establish a violation of § 924(c), the
statutory term “furtherance” should be afforded its plain
meaning of “[t]he act of furthering, advancing, or helping
forward.” United States v. Lomax, 293 F.3d 701, 705 (4th Cir.
2002) (internal citation omitted; alteration in original).
Therefore, Ҥ 924(c) requires the government to present evidence
indicating that the possession of the firearm furthered,
advanced, or helped forward a drug trafficking crime.” Id.
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Whether a firearm served such a purpose is a question of fact.
In Lomax, this court adopted a series of factors that might lead
a reasonable finder of fact to conclude the existence of a
connection between a defendant’s possession of a firearm and his
drug trafficking crime. Id. These factors include, but are not
limited to: the type of drug activity being conducted, the
accessibility of the firearm, the type of weapon, whether the
weapon is stolen, the status of possession, whether the firearm
is loaded, its proximity to drugs or drug profits, and the time
and circumstances under which the gun is found. Id. Possession
of a firearm in furtherance of a drug trafficking crime under
§ 924(c) may be shown through either actual or constructive
possession. See United States v. Booker, 436 F.3d 238, 241
(D.C. Cir. 2006); United States v. Maldonado-Garcia,
446 F.3d
227, 231 (1st Cir. 2006).
The evidence was sufficient to convict Bailey on
counts 2 and 3. Although Bailey was not in actual possession of
the loaded .22 caliber firearm seized from the living room of
the residence from which he was observed selling cocaine base,
the jury could infer his knowledge of and dominion and control
over the firearm, as it was found on the floor under a couch in
the residence’s living room, a room close to the residence’s
front door. The evidence was also sufficient to show that
Bailey constructively possessed the .22 caliber firearm in
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furtherance of a drug trafficking crime. The evidence showed
that the firearm was loaded and located in the living room not
far from the entrance to the residence through which Bailey had
been observed exiting to sell cocaine base on the front porch.
The firearm, although located beneath the couch, was accessible
to Bailey, the only occupant of the residence and a convicted
felon prohibited from possessing the firearm or ammunition.
Further, in light of the testimony from the government’s expert,
the jury could find that the firearm was of the type used by
drug traffickers for protection, and the firearm was found at
night under circumstances indicating that Bailey was involved in
drug distribution. Accordingly, the district court did not err
in denying Bailey’s Rule 29 motions for judgment of acquittal.
This court reviews the district court’s denial of a
motion for mistrial for abuse of discretion, United States v.
West, 877 F.2d 281, 287-88 (4th Cir. 1989), and will disturb a
district court’s ruling “only under the most extraordinary of
circumstances.” United States v. Dorlouis,
107 F.3d 248, 257
(4th Cir. 1997). “A defendant must show prejudice in order for
the court’s ruling to constitute an abuse of discretion, and no
prejudice exists if the jury could make individual guilt
determinations by following the court’s cautionary
instructions.” West, 877 F.2d at 288. Remarks by the
prosecutor in an opening statement will lead to reversal if “(1)
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the prosecutor’s remarks . . . [were] in fact . . . improper,
and (2) such remarks . . . prejudicially affected the
defendant’s substantial rights so as to deprive the defendant of
a fair trial.” United States v. Brockington, 849 F.2d 872, 875
(4th Cir. 1988) (internal citation marks omitted), overruled on
other grounds by Bailey v. United States,
516 U.S. 137 (1995).
In this case, the district court denied a mistrial on
the basis of the government’s improper remark because the remark
was made during an opening statement. However, the court
instructed the jury that the opening statements of the attorneys
were not to be considered evidence, and jurors are presumed to
follow the instructions delivered by the district court, see
United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998).
Moreover, the evidence presented at trial was sufficient to
sustain the jury’s verdict even without the improper remark in
the government’s opening statement. Accordingly, because the
government’s remark did not so prejudice Bailey’s substantial
rights as to deny him a fair trial, the district court did not
err in denying his requests for a mistrial.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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