Filed: Mar. 21, 2011
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4134 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. GEORGE EDWARD MITCHUM, Defendant – Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:08-cr-01174-TLW-1) Submitted: February 25, 2011 Decided: March 21, 2011 Before SHEDD, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. William W. Watkins, Sr., WILLI
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4134 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. GEORGE EDWARD MITCHUM, Defendant – Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:08-cr-01174-TLW-1) Submitted: February 25, 2011 Decided: March 21, 2011 Before SHEDD, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. William W. Watkins, Sr., WILLIA..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4134
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GEORGE EDWARD MITCHUM,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-01174-TLW-1)
Submitted: February 25, 2011 Decided: March 21, 2011
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, A. W. Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, Greg D. Andres, Acting
Deputy Assistant Attorney General, Lanny A. Breuer, Assistant
Attorney General, Washington, D.C., Thomas E. Booth, DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Edward Mitchum was convicted of: conspiracy to
traffic in cocaine, cocaine base, and marijuana; two counts of
possession of cocaine with intent to distribute; using and
carrying a firearm during a drug trafficking crime; and
possession of a firearm by a convicted felon. He was sentenced
to 420 months in prison. Mitchum now appeals. In his formal
brief, he contends that certain Fed. R. Evid. 404(b) evidence
was improperly admitted at trial. He also raises three
sentencing errors under Anders v. California, 386 U.S. 738
(1967), but states that none has merit. Mitchum has filed a pro
se brief raising three additional claims.
I
Mitchum contends that the district court admitted
certain evidence in violation of Fed. R. Evid. 404(b). We
review decisions to admit evidence for abuse of discretion.
United States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005). An
abuse of discretion “occurs only when it can be said that the
trial court acted arbitrarily or irrationally in admitting
evidence.” United States v. Williams,
445 F.3d 724, 732 (4th
Cir. 2006) (internal quotation marks omitted).
“Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
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action in conformity therewith.” Fed. R. Evid. 404(b). Such
evidence “may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id.
Further, “[t]o be admissible under Rule 404(b), evidence must be
(1) relevant to an issue other than character; (2) necessary;
and (3) reliable.” United States v. Siegel,
536 F.3d 306, 317
(4th Cir. 2008) (internal quotation marks omitted). “Rule
404(b) is . . . an inclusive rule, admitting all evidence of
other crimes or acts except that which tends to prove only
criminal disposition.” United States v. Young,
248 F.3d 260,
271-72 (4th Cir. 2001) (internal quotation marks omitted). “As
a rule of inclusion, the rule’s list is not exhausting.” United
States v. Queen¸
132 F.3d 991, 994-95 (4th Cir. 1997).
“Evidence sought to be admitted under Rule 404(b) must
also satisfy [Fed. R. Evid.] 403 . . . ,” Siegel, 536 F.3d at
319, such that its probative value is not “substantially
outweighed” by its prejudicial quality.
Queen, 132 F.3d at 995.
Under Rule 403, “damage to a defendant’s case is not a basis for
excluding probative evidence” because “[e]vidence that is highly
probative invariably will be prejudicial to the defense.”
United States v. Grimmond,
137 F.3d 823, 833 (4th Cir. 1998).
“Rule 403 requires exclusion of evidence only in those instances
where the trial judge believes that there is a genuine risk that
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the emotions of the jury will be excited to irrational behavior,
and that this risk is disproportionate to the probative value of
the offered evidence.” United States v. Mohr, 318 F.3d 613, 618
(4th Cir. 2003) (internal quotation marks omitted).
Mitchum contends that the district court admitted the
following evidence in violation of Rule 404(b): (1) evidence
that he shot into the home of a deputy sheriff who previously
served him with an arrest warrant; and (2) evidence that he
abused his girlfriend. We hold that, under the above
authorities, the evidence was admissible under Rule 404(b) to
show Mitchum’s consciousness of guilt: i.e., to show that he
believed his case was weak and that he needed to threaten or
intimidate potential witnesses in order to prevail. See United
States v. Young, 248 F.3d 260, 272 (4th Cir. 2001). Further,
the evidence was not unduly prejudicial under Rule 403: its
presentation occupied only a brief part of the four-day trial;
other evidence against Mitchum overwhelmingly established his
guilt; and the court instructed the jury as to the limited
purpose of the evidence.
II
Mitchum raises three sentencing issues pursuant to
Anders v. California, but states that none has merit. He first
contends that his offense level was erroneously enhanced by
4
three levels pursuant to U.S. Sentencing Guidelines Manual
§ 3C1.1 (2008) for obstruction of justice. The enhancement is
authorized for, among other things, “threatening, intimidating,
or otherwise unlawfully influencing a . . . witness . . . ,
directly or indirectly, or attempting to do so.” USSG § 3C1.1,
comment. (n.4(a)). In light of testimony that Mitchum
threatened Joe Lewis Burgess and Jermaine Greene when he learned
they would testify against him, the enhancement was proper.
Further, because the evidence established that Mitchum
fired into the deputy sheriff’s residence, the enhancement under
USSG § 3A1.2(a) (“Official Victim”) was appropriate. Finally,
while the district court acknowledged that it had some
discretion to vary from the powder-to-crack cocaine ratio in the
sentencing guidelines, see Spears v. United States, 129 S. Ct.
840, 843-44 (2009), the court declined to adopt the 1:1 ratio
proposed by Mitchum. The court’s decision to abide by the ratio
incorporated into the Guidelines was not an abuse of discretion.
III
In his pro se brief, Mitchum contends that there was
insufficient evidence to convict him on the conspiracy charge.
A jury’s verdict “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).
5
“Substantial evidence is that evidence which 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. Cardwell, 433 F.3d 378, 390 (4th Cir.
2005) (quoting United States v. Burgos,
94 F.3d 849, 862 (4th
Cir. 1996) (en banc)). We review both direct and circumstantial
evidence and permit the “[G]overnment the benefit of all
reasonable inferences from the facts proven to those sought to
be established.” United States v. Tresvant,
677 F.2d 1018, 1021
(4th Cir. 1982). We do not review the credibility of witnesses,
and we assume the factfinder resolved all contradictions in the
testimony in favor of the Government. United States v. Sun,
278
F.3d 302, 313 (4th Cir. 2002).
To convict Mitchum of conspiracy to distribute cocaine
and marijuana under 21 U.S.C. § 846 (2006), the Government had
to establish beyond a reasonable doubt that: (1) two or more
persons agreed to distribute the drugs; (2) Mitchum knew of the
conspiracy; and (3) he “knowingly and voluntarily became a part
of” the conspiracy. See United States v. Yearwood, 518 F.3d
220, 227 (4th Cir. 2008). We have never held that a criminal
enterprise must have a rigid structure or be the only criminal
enterprise its members are a part of before conspiratorial
criminal liability can attach. Cf.
Burgos, 94 F.3d at 858
(“while many conspiracies are executed with precision, the fact
6
that a conspiracy is loosely-knit, haphazard, or ill-conceived
does not render it any less a conspiracy—or any less unlawful”).
Testimony at trial overwhelmingly established
Mitchum’s violation of 21 U.S.C. § 846 (2006). Mitchum obtained
significant quantities of drugs from a variety of sources,
including Jody Pearson, Frederick Burgess, Matthew Brown,
Charlie Redden, Jr., and Darrel Torel Mouzon. He then sold
drugs he had purchased to many customers, including Clarissa
Rogers, Roderick Ford, and Tony Brown. Shantel Cunningham,
Mitchum’s girlfriend at the time, testified that Mitchum
typically sold crack to twenty persons a day. The fact that he
had multiple suppliers who were not connected with one another
in a tightly knit network is irrelevant because “[e]vidence of a
buy-sell transaction, when coupled with a substantial quantity
of drugs, would support a reasonable inference that the parties
were coconspirators.” United States v. Mills, 995 F.2d 480, 485
n.1 (4th Cir. 1993). Here, there was ample evidence of numerous
buy-sell transactions involving significant amounts of drugs.
Mitchum accordingly was properly found guilty of conspiracy.
IV
In his pro se brief, Mitchum raises two Fourth
Amendment issues. He complains that there was no probable cause
to support a search warrant for his home and that a traffic stop
7
was unconstitutional. No motion to suppress the evidence seized
pursuant to the search warrant or during the traffic stop was
filed prior to trial. Accordingly, under Fed. R. Crim. P.
12(e), Mitchum has waived his right to raise this issue on
appeal. See United States v. Whorley, 550 F.3d 326, 337 (4th
Cir. 2008); United States v. Ricco,
52 F.3d 58, 62 (4th Cir.
1995).
V
We find no merit in the issues raised in the formal
and pro se briefs. Further, in accordance with Anders, we have
reviewed the entire record for meritorious issues and have found
none. We therefore affirm. This court requires that counsel
inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy was served on the
client. 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
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