US v. Frank Bailey

Filing 920090522

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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. Maryland, Attorney, Baltimore,

Crowe, LAW OFFICES OF THOMAS L. CROWE, Baltimore, for Appellant. Rod J. Rosenstein, United States Debra L. Dwyer, Assistant United States Attorney, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: After distribution cocaine base, a jury trial, Frank with of 21 Bailey was convicted to of

and in

possession violation

the

intent

distribute (2006)

U.S.C.

§ 841(a)(1)

("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. United States v. Reid, 523 F.3d 310, 317 (4th Cir.), E.g., 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 We consider circumstantial as well 2

(4th Cir. 1996) (en banc).

as direct evidence, and we allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established. (4th Cir. 2008). In his sole challenge to count 1 and as part of his challenges evidence as is to counts 2 and 3, Bailey of contends that in the the United States v. Harvey, 532 F.3d 326, 333

insufficient

because

contradictions

testimony of the police officers concerning the location of the undercover surveillance vehicle from which they observed Bailey engaging in narcotics evidence, review transactions. however, witness this In resolving does issues of

substantial evidence or

court

not

reweigh v.

credibility.

United

States

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. v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). United States

And after review

of the record, we conclude that there was sufficient evidence from which a and jury could conclude with intent that to Bailey knowingly cocaine

distributed base.

possessed

distribute

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) 3 the firearm and ammunition

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. may prove constructive possession by

The government that the

demonstrating

defendant exercised, or had the power to exercise, dominion and control over the item. Jackson, 124 F.3d 607, Id. at 137 (quoting United States v. 610 may (4th be Cir. proved 1997)). by Further,

constructive evidence. Cir. 1980).

possession

circumstantial

United States v. Laughman, 618 F.2d 1067, 1077 (4th

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. is 18 U.S.C. § 924(c)(1)(A). to establish a In determining what evidence violation be of § 924(c), its or the plain helping

sufficient term

statutory meaning of

"furtherance" act of

should

afforded

"[t]he

furthering,

advancing,

forward." 2002)

United States v. Lomax, 293 F.3d 701, 705 (4th Cir. citation omitted; alteration in original).

(internal

Therefore, "§ 924(c) requires the government to present evidence indicating advanced, that or the possession forward a 4 of the firearm furthered, Id.

helped

drug

trafficking

crime."

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. limited to: the type Id. of These factors include, but are not activity being conducted, the

drug

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 Bailey door. The evidence was also the sufficient .22 to show firearm that in

constructively

possessed 5

caliber

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." (4th Cir. 1997). United States v. Dorlouis, 107 F.3d 248, 257 "A defendant must show prejudice in order for

the court's ruling to constitute an abuse of discretion, and no prejudice exists if by West, the jury could the at make individual guilt

determinations instructions."

following 877 F.2d

court's 288.

cautionary by the

Remarks

prosecutor in an opening statement will lead to reversal if "(1) 6

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 the v. Love, 134 F.3d 595, at 603 (4th was Cir. 1998). to

Moreover,

evidence

presented

trial

sufficient

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. dispense with oral argument because the facts and We

legal

conclusions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7