US v. Antonio Davi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00002-WDQ-1 Copies to all parties and the district court/agency. [999814652]. Mailed to: Antonio Davis. [13-4845]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4845

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO DAVIS, a/k/a Tank Top,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:13-cr-00002-WDQ-1)

Submitted:

April 29, 2016

Before WILKINSON and
Senior Circuit Judge.

THACKER,

Decided:

Circuit

Judges,

May 6, 2016

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Arthur S. Cheslock, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, James Thomas Wallner,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A

jury

convicted

Antonio

Davis

of

conspiracy

to

affect

commerce by robbery, in violation of 18 U.S.C. §§ 2, 1951(a)
(2012);

conspiracy

to

distribute

and

possess

with

intent

to

distribute five kilograms or more of cocaine, in violation of
21 U.S.C.

§ 846

(2012);

conspiracy

to

possess

firearms

in

furtherance of a crime of violence or a drug trafficking crime,
in

violation

firearm

in

of

18

U.S.C.

furtherance

of

§ 924(o)

(2012);

a

of

crime

possession

violence

or

of

a

a

drug

trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c); and
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 2, 922(g)(1) (2012).

The district court sentenced

Davis to a total of 295 months’ imprisonment.
On

appeal,

counsel

for

Davis

filed

a

brief

pursuant

to

Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious issues for appeal but questioning whether the
district court erred in certifying the transcript for appeal,
whether

the

government’s

employment

of

a

stash

house

sting

operation constituted outrageous conduct, whether the district
court

abused

criminal

its

record,

discretion
and

in

evidence

sufficient

whether

admitting

evidence

Davis’ convictions for possession of a firearm.

of

Davis’

supported

Davis did not

file a supplemental pro se brief, despite notice of his right to

2

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do so.

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The government elected not to file a response to the

Anders brief.
I.
On appeal, Davis first contends that the district court
abused

its

discretion

by

certifying

the

trial

transcripts

without referring to the court reporter’s backup tapes.

Davis

asserts that the trial transcript is deficient because it does
not reflect (1) his statement to the court on the first day of
trial that he had not had time to prepare a defense and wanted a
new lawyer, and (2) defense counsel’s objection to the trial
court’s response to the jury’s question regarding entrapment.
The Court Reporter Act requires a verbatim recording of
“all

proceedings

in

criminal

28 U.S.C. § 753(b) (2012).

cases

had

in

open

court.”

“The public, including the parties

to a suit, have a right of access to the records of a judicial
proceeding.”

Smith v. U.S. Dist. Court Officers, 203 F.3d 440,

441 (7th Cir. 2000).

A defendant would have a right to access a

tape that is an original record of the proceeding.

Id. at 442.

However, “audiotapes that merely back up the court reporter’s
stenographic record” are the “personal property of the reporter”
and are not “judicial records, unless some reason is shown to
distrust the accuracy of the stenographic transcript.”

Id.

We have held that, when a portion of a trial transcript is
unavailable, “[t]he lack of a record does not warrant reversal
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. . . as long as the reviewing court is satisfied that no error
occurred

at

trial.

The

appellant

must

demonstrate

that

the

missing portion . . . specifically prejudices his appeal before
relief will be granted.”
554

(4th

Cir.

1985)

United States v. Gillis, 773 F.2d 549,

(internal

citation

omitted);

see

United

States v. Huggins, 191 F.3d 532, 537 (4th Cir. 1999) (when a
transcript is missing or less than complete, the “defendant must
show

that

ability

to

the

transcript

perfect

an

errors

specifically

appeal.”).

An

prejudiced

appellant

his

demonstrates

prejudice “when a trial transcript is so deficient that it is
impossible for the appellate court to determine if the district
court has committed reversible error.”

Huggins, 191 F.3d at 537

(internal quotation marks omitted).
Here, the district court conducted an evidentiary hearing
and

certified

the

transcripts

based

on

the

testimony

of

the

court reporter, trial counsel, and the court’s own recollection
of

events.

Davis

does

not

pursue

either

of

the

alleged

omissions substantively on appeal, nor does our review pursuant
to

Anders

find

any

purported omissions.

meritorious

issue

associated

with

the

Accordingly, we conclude that Davis fails

to establish prejudice.
II.
In

his

second

issue

on

appeal,

Davis

suggests

that

the

government’s employment of a stash house sting operation was
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outrageous conduct in violation of the Due Process Clause.

The

Supreme Court has held that there may be “a situation in which
the conduct of law enforcement agents is so outrageous that due
process

principles

would

absolutely

bar

the

government

invoking judicial processes to obtain a conviction.”
States v. Russell, 411 U.S. 423, 431 (1973).

from

United

However, “the

outrageous conduct doctrine is highly circumscribed and applies
only in rare cases.”
14-4758,

2016

(internal

WL

United States v. Hare, __ F.3d __, __, No.

1567051,

citations

government’s
traditional

and

actions
notions

must

of

outrageous

stings

as

an

for

*7

(4th

quotation
be

law

Cir.

marks

Apr.

19,

2016)

omitted).

shocking

fundamental

quotation marks omitted).
not

at

or

“The

offensive

fairness.”

Id.

to

(internal

We recently held in Hare that it is
enforcement

investigative

“to

tool.”

Id.

utilize
at

stash

*8.

house

Given

the

circumstances of the instant case, the government’s conduct here
was not “so outrageous as to shock the conscience of the court.”
Id. (internal quotations marks omitted).
III.
Next,

Davis

discretion
specifically

by

complains
admitting

Davis’

that
Fed.

criminal

the
R.

record.

trial
Evid.

court
404(b)

Fed.

R.

abused

its

evidence,
Evid.

404

“generally prohibits evidence of other crimes or bad acts to
prove the defendant’s character and conduct in accordance with
5

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his character.”

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United States v. McLaurin, 764 F.3d 372, 380

(4th Cir. 2014), cert. denied, 135 S. Ct. 1842 (2015).

However,

such evidence may be admissible for another purpose and “there
is no doubt that proving predisposition [to rebut an entrapment
defense] is one of the purposes for which bad-act evidence may
be admissible.”
prove

Id.

“To be admissible under Rule 404(b) to

predisposition,

. . .

the

identical to the crime charged.

past

conduct

need

not

be

Rather, the conduct need only

be similar enough and close enough in time to be relevant to the
matter

at

omitted).

issue.”

Id.

at

382

(internal

quotation

marks

“Where the evidence is probative, the balance under

[Fed. R. Evid.] 403 should be struck in favor of admissibility,
and evidence should be excluded only sparingly.”

United States

v. Lentz, 524 F.3d 501, 525 (4th Cir. 2008) (internal quotation
marks

omitted).

admitting

Rule

A

district

404(b)

court

evidence

arbitrary and irrational.”

abuses

only

if

its
its

discretion
decision

by

“was

United States v. Weaver, 282 F.3d

302, 313 (4th Cir. 2002).
Davis’

criminal

record

established

that

he

had

been

convicted of attempted first-degree murder, two counts of firstdegree assault, and the use of a firearm in the commission of
those offenses.

Davis was on parole for these crimes at the

time of the instant offense.
court

did

not

abuse

its

We conclude that the district

discretion
6

in

finding

that

Davis’

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criminal record was relevant as to whether he was predisposed to
commit violent crimes with firearms.
IV.
Finally, Davis questions the sufficiency of the evidence
supporting

his

convictions

for

possession

of

a

firearm.

We

review de novo the denial of a Fed. R. Crim. P. 29 motion for a
judgment of acquittal.
762

(4th

Cir.

United States v. Hickman, 626 F.3d 756,

2010).

In

considering

a

challenge

to

the

sufficiency of the evidence, we view the evidence in the light
most

favorable

to

the

government

and

inquire

“whether

a

reasonable finder of fact could find the essential elements of
the crime beyond a reasonable doubt.”
F.3d

314,

322

(4th

Cir.

2013).

United States v. Min, 704
“Reversal

for

insufficient

evidence is reserved for the rare case where the prosecution’s
failure is clear.”

United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997) (internal quotation marks omitted).
To prove a violation of § 924(c)(1), the government must
demonstrate that: “(1) the defendant used or carried a firearm,
and (2) the defendant did so during and in relation to a drug
trafficking
Mitchell,

offense

104

F.3d

or

crime

649,

652

of

violence,”

(4th

Cir.

United

1997),

or

States
“that

v.
the

possession of a firearm furthered, advanced, or helped forward a
drug trafficking crime.”

United States v. Perry, 560 F.3d 246,

254 (4th Cir. 2009) (internal quotation marks omitted).
7

The

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government can prove the possession element of this offense by
establishing that the defendant “exercised, or had the power to
exercise, dominion and control over the firearm.”

United States

v. Wilson, 484 F.3d 267, 282 (4th Cir. 2007) (internal quotation
marks omitted).
Likewise, “[l]iability under § 922(g)(1) may arise from a
felon’s
whether

voluntary
the

and

felon

constructively,

intentional
possessed

exclusively

or

possession
the

of

weapon

jointly

with

a

firearm,

actually

others.”

or

United

States v. Graham, 796 F.3d 332, 376 (4th Cir. 2015), reh’g en
banc granted, 624 F. App’x 75 (4th Cir. Oct. 28, 2015) (granting
government’s

petition

for

rehearing

regarding

procurement of cell site location information).

warrantless
“Constructive

possession occurs when a person exercises, or has the power to
exercise, dominion and control over an item of property.”
(alterations and internal quotation marks omitted).
that

“a

vehicle

defendant
where

the

has
item

possession of the item.
Moreover,

a

dominion
is

and

control

located”

over

establishes

the

Id.

Evidence
.

.

.

constructive

Id.

defendant

is

liable

for

his

codefendant’s

reasonably foreseeable acts in furtherance of a conspiracy.

See

United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir. 2010)
(citing United States v. Pinkerton, 328 U.S. 640, 647 (1946))
(setting forth doctrine of vicarious coconspirator liability).
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Finally, “[a] defendant is guilty of aiding and abetting if he
has knowingly associated himself with and participated in the
criminal venture.”

United States v. Burgos, 94 F.3d 849, 873

(4th Cir. 1996) (en banc) (internal quotation marks omitted).
“An

active

participant

in

a

drug

transaction

has

the

intent

needed to aid and abet a § 924(c) violation when he knows [in
advance]

that

one

of

his

confederates

will

carry

a

gun.”

Rosemond v. United States, 134 S. Ct. 1240, 1249 (2014).
We have reviewed the evidence and conclude that, under any
theory, the evidence is sufficient to support Davis’ substantive
firearm convictions.
V.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
therefore

affirm

the

district

court’s

judgment.

This

We

court

requires that counsel inform Davis, in writing, of the right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Davis requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may

move

in

representation.

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Davis.

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We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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