Filed: Mar. 20, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4248 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSEPH SAMUEL HALL, Defendant – Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:11-cr-00034-FPS-JES-1) Argued: February 1, 2013 Decided: March 20, 2013 Before KING, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished opinion. Judge Shedd wrote the
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4248 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSEPH SAMUEL HALL, Defendant – Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:11-cr-00034-FPS-JES-1) Argued: February 1, 2013 Decided: March 20, 2013 Before KING, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished opinion. Judge Shedd wrote the ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4248
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH SAMUEL HALL,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cr-00034-FPS-JES-1)
Argued: February 1, 2013 Decided: March 20, 2013
Before KING, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge King and Judge Thacker joined.
ARGUED: Edward Lee Gillison, Jr., GILLISON LAW OFFICES, Weirton,
West Virginia, for Appellant. David J. Perri, OFFICE OF THE
UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
ON BRIEF: William J. Ihlenfeld, II, United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Joseph Samuel Hall appeals his conviction for being a felon
in possession of firearms in violation of 18 U.S.C. § 922(g).
Finding no merit in his appellate contentions, we affirm.
I.
Because the government prevailed at trial, we review the
evidence in the light most favorable to the government. United
States v. Jefferson, 674 F.3d 332, 341 n.14 (4th Cir. 2012). On
February 19, 2011, Hall, a convicted felon, entered a Cabela’s
retail store near Wheeling, West Virginia, with an acquaintance
named Airiel Underwood. There, Underwood attempted to buy two
guns. Cabela’s ran a background check on Underwood through the
National Instant Criminal Check System (“NICS”), which did not
immediately approve the transaction. Consequently, Cabela’s
refused to complete the sale. However, because it did not
receive notification from NICS within three business days that
Underwood was ineligible to purchase the guns, Cabela’s
eventually allowed Underwood to purchase the guns. Underwood
and Hall returned to Cabela’s on February 27 to make the
purchase.
During the February 27 visit, Cabela’s sales clerk Miranda
Cordery noticed that Hall stayed very close to Underwood. Then,
after Underwood purchased the guns, Hall stated that they would
2
need ammunition. Cordery then discussed different types of
ammunition with Hall, and he selected ammunition for Underwood
to purchase. After leaving Cabela’s with Hall, Underwood placed
the guns and ammunition in the trunk of Hall’s car and rode with
him to her apartment, where he dropped her off and drove away
with the guns and ammunition. Hall gave Underwood the money to
purchase the guns and additional money for her assistance.
Shortly thereafter, NICS determined that Underwood was
prohibited from purchasing the guns because of a recent drug
offense. Accordingly Joe Price, an agent of the Bureau of
Alcohol, Tobacco, and Firearms (“A.T.F”), attempted to retrieve
the guns from Underwood, but she told Price that she had given
the guns to her boyfriend. Underwood gave Price a fictitious
name for her boyfriend, but Price determined that Underwood had
given the guns to Hall and arranged for Hall to be arrested near
his home in Detroit, Michigan. Eventually, one of the guns,
identified by serial number, was found approximately eight miles
from Hall’s home.
Hall was indicted for aiding and abetting a false statement
in acquisition of a firearm in violation of 18 U.S.C. §
922(a)(6) and for being a felon in possession of firearms in
violation of 18 U.S.C. § 922(g) & 2(a). A jury acquitted him on
the first count but convicted him on the second. He now appeals
that conviction.
3
II.
A.
We turn first to Hall’s contention that the district court
erred by denying his motion for acquittal, in which he argued
that the evidence was insufficient to establish that he
possessed the guns. We review challenges to the sufficiency of
the evidence de novo, United States v. Alerre, 430 F.3d 681, 693
(4th Cir.2005), and we must sustain the verdict if there is
substantial evidence, viewed in the light most favorable to the
government, to support it. Burks v. United States,
437 U.S. 1,
17 (1978). Here, we find that the evidence was sufficient to
support Hall’s conviction.
To sustain a conviction for being a felon in possession of
firearms, constructive possession is sufficient. United States
v. Gallimore, 247 F.3d 134, 136-37 (4th Cir. 2001). “A person
has constructive possession over contraband when he has . . .
control over the . . . vehicle in which it is concealed.”
United States v. Armstrong,
187 F.3d 392, 396 (4th Cir. 1999).
As noted, evidence at trial established that Underwood and Hall
purchased the guns together in Cabela’s. They left the store
together and proceeded to Hall’s car, where Underwood placed the
guns in the trunk. Hall then took Underwood to her apartment
and drove away with the guns. This evidence is sufficient to
establish that Hall had constructive possession of the guns.
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Accordingly, we affirm the district court’s denial of the motion
for acquittal.
B.
We turn next to Hall’s challenge to the district court’s
decision to allow Cordery to testify about Underwood and Hall
purchasing ammunition. Hall contends that Cordery’s testimony
was evidence of other crimes offered to prove bad character,
which should have been excluded under Fed. R. Evid. 404(b). The
district court disagreed for several reasons, including that the
testimony was not admitted to show bad character but rather to
provide context for the gun purchase. The district court
concluded that, under United States v. Kennedy, 32 F.3d 876,
885-86 (4th Cir. 1994), the testimony was admissible for that
purpose. We review the district court’s decision to admit this
testimony for abuse of discretion. United States v. Lighty,
616
F.3d 321, 351 (4th Cir. 2010).
Fed. R. Evid. 404(b) limits the circumstances under which
“[e]vidence of a crime, wrong, or other act” may be admitted,
but “evidence of uncharged conduct is not considered other
crimes evidence [and falls outside the scope of Rule 404(b)] if
it arose out of the same series of transactions as the charged
offense, or if it is necessary to complete the story of the
crime on trial.” Kennedy, 32 F.3d at 885 (internal quotations
and alterations omitted). Here, the ammunition purchase arose
5
out of the same series of events as the gun purchase. Further,
since the government’s case depended upon proving that Underwood
was a straw buyer for Hall, showing that Hall asked to buy
ammunition and chose the type of ammunition to buy was
“necessary to complete the story of the crime on trial.” Id.
(internal quotations and alterations omitted). Therefore, this
testimony was admissible under Kennedy, and the district court
did not abuse its discretion by allowing it.
C.
Hall next challenges the district court’s decision to admit
into evidence the gun recovered near his home in Detroit. On
that point, Hall argues that the district court should have
excluded the gun under Fed. R. Evid. 403 because its probative
value was substantially outweighed by the danger of unfair
prejudice. We review evidentiary rulings for abuse of
discretion. Lighty, 616 F.3d at 351. Here, we find no abuse of
discretion and affirm the district court’s ruling.
Fed. R. Evid. 403 states that relevant evidence may be
excluded if its “probative value is substantially outweighed by
a danger of . . . unfair prejudice.” Hall argues that the
unfair prejudicial value of the gun was high in relation to its
probative value because the gun was not recovered in his
possession. However, there was ample evidence linking the gun
to Hall, including the fact that its serial number matched the
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serial number on one gun Underwood purchased for Hall at
Cabela’s. With that evidence linking the gun to Hall, the fact
that it was recovered in someone else’s possession does little,
if anything, to diminish its probative value or increase the
danger of unfair prejudice. Therefore, we find no abuse of
discretion in the district court’s decision to admit the gun,
and we affirm that ruling.
D.
We now turn to Hall’s challenge to the district court’s
decision to deny his motion for a mistrial. In that motion,
Hall contended that the government improperly argued to the jury
that Underwood had no motive to lie to inculpate him.
Specifically, the government stated in its closing argument:
Defense counsel has gone to great lengths to try to
suggest to you that [Underwood] – her credibility is
suspect and you can’t believe what she says. Well,
what has the defense suggested to you as to her motive
to incriminate this guy? Why? What motive?
J.A. 609. The court denied the motion for a mistrial, after
which the government continued to encourage the jury to question
what motive Underwood had to inculpate Hall. We review whether
allegedly improper remarks from counsel require a mistrial de
novo. United States v. Collins, 415 F.3d 304, 307 (4th Cir.
2005). Finding no error, we affirm.
To obtain a new trial based on improper remarks from the
government, a defendant must show that the remarks were improper
7
and that they affected the defendant’s substantial rights to
such a degree that they deprived him of a fair trial. United
States v. Chorman, 910 F.2d 102, 113 (4th Cir. 1990). Here,
Hall argues that the government’s remarks were improper because
there was evidence that Underwood had a motive to lie, but Hall
points to no such evidence. In fact, the only evidence he
points to is testimony from Underwood that she initially lied to
the A.T.F. in an attempt to exonerate, not inculpate, herself
and Hall. Therefore, the government’s remarks questioning what
motive Underwood had to inculpate Hall were not inconsistent
with the evidence or improper in any way. Accordingly, we
affirm the district court’s decision to deny the motion for the
mistrial.
III.
The final two issues we address pertain to the government’s
investigation and trial preparation. We begin by recounting
additional facts and procedural history pertinent to these
issues.
Prior to Hall’s trial, Price showed Cordery a black and
white photograph of Hall and asked her whether the photograph
showed the person who had accompanied Underwood into Cabela’s on
the two occasions described above. Cordery responded that “the
picture was too bad. It was too grainy. [She] couldn’t really
8
tell.” 1 J.A. 280. Counsel for the government represented to
this Court at oral argument that Price made no notes pertaining
to this conversation with Cordery.
Under the district court’s Initial Scheduling Order, the
government was required to disclose all exculpatory evidence by
October 3, 2011, and was requested to disclose all “statements
or reports” from prospective witnesses by December 6, 2011.
(Dist. Ct. Doc. 18, ¶ 7, requesting disclosure of “material
described in 18 U.S.C. § 3500,” which requires disclosure of
“statements or reports” from witnesses.) The government did not
disclose the fact that Price had conducted the photo display or
that Cordery could not definitively identify Hall in it.
At trial, the government asked Cordery to identify the
person who had accompanied Underwood into Cabela’s. Hall’s
counsel, unaware that Cordery had been unable to identify Hall
in the photo display, objected and claimed that the in-court
identification was “cumulative.” J.A. 261. The district court,
also unaware of the display, overruled the objection, and
Cordery identified Hall as Underwood’s companion. Then, on
1
At sentencing, Price testified about the photo display and
explained that “Ms. Cordery stated that it was a grainy photo
and she was pretty sure. She gave, like, maybe 90 percent, but
she couldn’t say that she was 100 percent sure” that the
photograph depicted the person who accompanied Underwood into
the store. J.A. 692.
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cross examination, Hall’s counsel asked Cordery whether she had
ever seen a photo of Hall, and she testified about the photo
display and her inability to identify Hall in it. This
testimony was the first notice Hall or the court received of the
display. At this point, Hall’s attorney made no objection or
motion based on the government’s failure to disclose the photo
display. Further, at closing argument, Hall’s counsel admitted
that Hall was the person with Underwood in Cabela’s during at
least one of the visits. Also, at oral argument to this Court,
Hall’s counsel conceded that Hall’s identity as Underwood’s
companion is not contested. 2
On appeal, Hall raises two issues that involve the display.
First, he contends that Cordery’s in-court identification of
Hall was tainted by the display, which Hall contends was
improperly suggestive. Second, he contends that Cordery’s
inability to identify him in the photo display was exculpatory
evidence that the government should have disclosed under Brady
v. Maryland, 373 U.S. 83 (1963). The parties agree that plain
error review is appropriate for the Brady issue, but they argue
for different standards of review on the objection to the in-
2
There was ample evidence beyond Cordery’s testimony that
Hall was, in fact, Underwood’s companion in the store. This
evidence included but was not limited to Underwood’s testimony
and store video showing Hall with Underwood.
10
court identification. We need not resolve this dispute because,
with regard to both issues, the standard of review does not
affect our decision.
Fed. R. Cr. P. 52(a) directs that “[a]ny error, defect,
irregularity, or variance that does not affect substantial
rights must be disregarded.” “Under [this] harmless-error
standard, we will not reverse if 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 error.’” United States v. Byers,
649 F.3d 197, 211 (4th Cir. 2011) (quoting Kotteakos v. United
States,
328 U.S. 750, 765 (1946)). Here, even if we assume that
the photo display was improperly suggestive, 3 that it affected
Cordery’s in-court identification, and that the government
should have disclosed Cordery’s inability to identify Hall, none
of those points could have swayed the outcome of the trial
because Hall does not contest that he was, in fact, the person
with Underwood at Cabela’s. Accordingly, the alleged errors
3
The Supreme Court and this Court have stated that single-
photograph displays are unduly suggestive and should generally
be viewed with suspicion. See Manson v. Brathwaite, 432 U.S.
98, 116 (1977) (explaining that identifications “arising from
single-photograph displays may be viewed in general with
suspicion”); United States v. Johnson,
114 F.3d 435, 441-42 (4th
Cir. 1997) (concluding that the use of a “single photograph
display” for pretrial identification was unduly suggestive).
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concern an issue that is not in dispute—Hall’s presence at
Cabela’s—so they are harmless and do not entitle Hall to relief.
IV.
For the foregoing reasons, we affirm Hall’s conviction.
AFFIRMED
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