US v. Antonio Livingston

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:12-cr-00024-D-1. Copies to all parties and the district court/agency. [999360098].. [13-4566]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4566

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO LIVINGSTON,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00024-D-1)

Submitted:

May 14, 2014

Decided:

May 21, 2014

Before SHEDD and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Antonio Damonte Livingston appeals from his conviction
on two counts of being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1) (2012).

On

appeal, Livingston contests the district court’s denial of his
motion

for

judgment

possession,

as

a

of

acquittal

convicted

on

felon,

of

count
a

one:

Hi-Point

automatic handgun and ammunition on January 27, 2011.

unlawful
9mm

semi-

He also

asserts that the district court abused its discretion in using a
special verdict form.

Finding no error, we affirm.

Livingston first contends that his conviction on count
one was not supported by the evidence.
denial

of

a

Fed.

R.

Crim.

P.

29

We review de novo the

motion.

United

States

v.

Gillion, 704 F.3d 284, 294 (4th Cir. 2012), cert. denied, 133 S.
Ct. 2039 (2013).

“[T]he jury verdict must be upheld if there

exists substantial evidence [ ] to support the verdict, viewing
the

evidence

in

a

light

most

favorable

to

the

government.”

United States v. Stewart, 256 F.3d 231, 249 (4th Cir. 2001); see
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
“Substantial evidence is 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.”
Gillion, 704 F.3d at 294 (citing United States v. Palacios, 677
F.3d 234, 248 (4th Cir.), cert. denied, 133 S. Ct. 124 (2012)).
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This court will reverse on the basis of insufficient evidence
only

in

United

“cases

where

States v.

the

Burgos,

prosecution’s

94

F.3d

849,

failure
862

is

(4th

clear.”

Cir.

1996)

(internal quotations omitted).
To

support

a

conviction

for

being

a

felon

in

possession of a firearm under § 922(g)(1), the government must
prove the following elements: “(1) the defendant previously had
been

convicted

of

a

[felony];

(2)

the

defendant

knowingly

possessed . . . the firearm; and (3) the possession was in or
affecting

commerce,

interstate

or

existence.”

because

foreign

the

commerce

firearm
at

some

had

travelled

point

during

in
its

United States v. Moye, 454 F.3d 390, 395 (4th Cir.

2006) (en banc).
Livingston argues that his conviction on count one was
based

on

witness

significant

testimony

physical,

and

written,

was

or

not

supported

photographic

by

any

evidence.

He

does not contest, however, that the Government met its burden
with

respect

to

the

first

and

third

elements.

Rather,

he

contends that the Government did not demonstrate his knowing
possession of the firearm.
We conclude that, viewing the evidence in the light
most favorable to the Government, the evidence is sufficient for
a reasonable trier of fact to find that Livingston committed the
charged offense.

First, the Government sufficiently proved that
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the firearm was found within Livingston’s reach and in the area
of the vehicle where Livingston was seated.

The Government also

presented testimony that Livingston possessed ammunition in a
coat he was wearing that matched the ammunition in the gun.
Although Livingston argues that the investigation was lacking,
he did not put on any evidence to dispute the investigatory
findings.

We

therefore

conclude

that

substantial

evidence

supported the verdict.
Next,

Livingston

contends

that

the

district

court

abused its discretion in using a special verdict form.

The form

first

of

asked

the

jury

whether

Livingston

was

guilty

each

individual count, citing the elements of the offense as alleged
in the indictment.

Next, the verdict form asked, if in fact the

jury had found Livingston guilty, which items did Livingston
possess in relation to each count.
verdict

form

after

defense

counsel

The court used the special
objected

that

a

bag

of

ammunition related to count two was not proven to have been
involved in interstate commerce, and therefore the jury could
not convict based on that item alone.
Livingston asserts that the jury could have inferred
that Livingston was already found guilty of violating § 922(g)
and it was required to determine which items he possessed in
doing

so.

confusing.

He

also

summarily

states

that

the

wording

was

We review the district court’s decision to give a
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jury instruction and to use a special verdict form for abuse of
discretion.

United States v. Passaro, 577 F.3d 207, 221 (4th

Cir. 2009); United States v. Udeozor, 515 F.3d 260, 271 (4th
Cir. 2008).

“Without any evidence to the contrary, [this court]

must assume that the jury followed the instructions given to it
by the court.”

United States v. Hager, 721 F.3d 167, 189 (4th

Cir. 2013), cert. denied, 2014 WL 1659920 (U.S. Apr. 28, 2014).
The
unambiguous.

special

verdict

form

itself

was

clear

and

Further, the court more than amply instructed the

jury that Livingston was not presumed guilty of any crime and
that it need not find him guilty if the evidence did not support
it.

The jury is presumed to follow the court’s instruction

unless there is evidence otherwise.

See Hager, 721 F.3d at 189.

Applying the applicable standard of review, we must conclude
that the district court did not abuse its discretion by electing
to use the special verdict form in this case.
We therefore affirm the judgment.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.
AFFIRMED

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