US v. Rico Cole, III

Filing 920100506

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4196

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICO DUVALL COLE, III, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:07-cr-00257-AW-1)

Submitted:

April 16, 2010

Decided:

May 6, 2010

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Sapna Mirchandani, Staff Attorney, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Mara B. Zusman, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Rico Duvall Cole appeals his conviction and sentence for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2006) (Count 1), and possession of a firearm with the serial number obliterated, in violation of 18 U.S.C. § 922(k) (2006) (Count 2). On appeal, Cole asserts that the

district court abused its discretion in admitting facts under Fed. R. Evid. 404(b) regarding Cole's prior gun charges and

abused its discretion in denying Cole's motions for continuance and motion to reopen the case. We affirm.

Cole first challenges the district court's reliance on Rule 404(b) to admit into evidence two handguns seized during a prior search of Cole's apartment, which formed the basis of a prior state gun conviction. serial number scratched off. One of the seized handguns had its Cole contends that because the

Government's theory of the case was that Cole had actual, not constructive, possession of the handgun, Cole's prior possession of a handgun with an obliterated serial number was irrelevant, and unduly prejudicial. Under Fed. R. Evid. 404(b), evidence of a defendant's prior bad acts, and though "action inadmissible in to prove a defendant's may be

character

conformity

therewith,"

admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." 2

Therefore,

such

evidence

is

admissible

"if

the

evidence

is

(1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an element of the charged

offense; and (3) reliable." 305, 312 (2004). 404(b) record, for we abuse find

United States v. Hodge, 354 F.3d

We review the admission of evidence under Rule of that discretion. the district Id. court After did reviewing not abuse the its

discretion in admitting this evidence under Rule 404(b). Next, Cole argues that the district court abused its discretion in denying two motions for a continuance. The first

such motion was raised in the morning of the first day of trial immediately before the trial was to commence, in order to secure the presence of Antonia Chambers, a witness who allegedly would testify to the presence of several youths in the vicinity of Cole's arrest. The second motion was raised on the third day of car while he slept inside, immediately prior to his

trial, immediately prior to closing arguments. motion, Cole sought a one-week continuance,

In the second to secure the

testimony of both Chambers and Gale Walls.

Cole argued that

Cole's sister had just been contacted by Chambers, informing her that Chambers was back in town. if the trial was continued Additionally, Cole argued that, for another week, Walls's own

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criminal trial would have concluded and she would have been able to testify without fear of incriminating herself. "A trial court's denial of a continuance is reviewed for abuse of discretion; even if such an abuse is found, the defendant must show that the error specifically prejudiced her case in order to prevail." 724, 739 (4th Cir. 2006). United States v. Williams, 445 F.3d Where a defendant seeks a continuance

to secure the presence of a witness, the defendant must prove (1) the identity of the witness; (2) what his testimony will be; (3) that the witness may likely be secured if the court grants a continuance; and (4) the defendant has exercised due diligence to obtain the witness's attendance for the trial. See United After

States v. Clinger, 681 F.2d 221, 223 (4th Cir. 1982).

reviewing the record, we find that the district court did not abuse its discretion in denying Cole's motions for continuances. Finally, Cole challenges the district court's denial of his motion to reopen the evidence. court's decision whether to reopen We review the district a case for abuse of

discretion. Cir. 1996).

United States v. Abbas, 74 F.3d 506, 510-11 (4th In order to determine whether a district court

abused its discretion in declining to reopen a case to admit new evidence, this court considers: (1) whether the party moving to reopen provided a reasonable explanation for failing to present the evidence in its case-in-chief; (2) whether the 4

evidence was relevant, admissible, or helpful to the jury; and (3) whether reopening the case would have infused the evidence with distorted importance, prejudiced the opposing party's case, or precluded the opposing party from meeting the evidence. Id. at 511; see also United States v. Nunez, 432 F.3d 573, 579 (4th Cir. 2005) (setting out standard); United States v. Peay, 972 F.2d 71, 73 (4th Cir. 1992) (same). record, we find that the district court After reviewing the did not abuse its

discretion in refusing to reopen the case after the court had issued its instructions to the jury. Accordingly, we affirm the district court's judgment. 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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