US v. Kevin Mormon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cr-00592-PWG-1. Copies to all parties and the district court. [999472983]. [13-4899]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4899

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN LEON MORMON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:12cr-00592-PWG-1)

Submitted:

October 31, 2014

Decided:

November 12, 2014

Before WILKINSON, MOTZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas M. Donnelly, Bennett J. Wills, LAW OFFICES OF THOMAS M.
DONNELLY, LLC, Baltimore, Maryland, for Appellant.
Rod J.
Rosenstein, United States Attorney, Adam K. Ake, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Kevin Leon Mormon of conspiracy to
distribute and possess with intent to distribute 280 grams or
more of cocaine base, in violation of 21 U.S.C. § 846 (2012).
Mormon appeals his conviction on several grounds.

We affirm.

Mormon first challenges the district court’s refusal
to suppress certain statements that he made to law enforcement.
When

considering

a

district

court’s

ruling

on

a

motion

to

suppress, we review the district court’s legal conclusions de
novo and its factual findings for clear error.

United States v.

McGee, 736 F.3d 263, 269 (4th Cir. 2013), cert. denied, 134 S.
Ct.

1572

(2014).

suppression

motion,

Where
“we

the

view

district

the

facts

court
in

the

denied

the

light

most

favorable to the Government,” United States v. Black, 707 F.3d
531, 534 (4th Cir. 2013), and “defer to the district court’s
credibility findings.”

United States v. Griffin, 589 F.3d 148,

150 n.1 (4th Cir. 2009).
waiver

[under

Miranda

“In considering whether a defendant’s

v.

Arizona,

384

U.S.

436

(1966),]

is

voluntary, the Court must determine whether the confession was
extracted by any sort of threats or violence, [or] obtained by
any

direct

or

implied

promises,

however

exertion of any improper influence.”
670

F.3d

omitted).

586,

591

(4th

Cir.

2012)

slight,

[or]

by

the

United States v. Holmes,
(internal

quotation

marks

“The proper inquiry is whether the defendant’s will
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has

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overborne

critically impaired.”
Mormon

or

his

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capacity

for

self-determination

Id. (internal quotation marks omitted).

claims

that

his

statements

were

involuntary

because he was under emotional stress and because the federal
law

enforcement

agents

allegedly

released if he cooperated.
that

cooperation

could

promised

that

he

would

be

However, while the agents indicated
result

in

Mormon’s

release,

they

expressly informed him that they could not make any promises.
Moreover, Mormon’s refusal to identify his supplier without an
attorney present demonstrated his understanding of and ability
to assert his rights.

Accordingly, the district court did not

err in denying the motion to suppress.
Mormon
recording

next

containing

Jura Beason.

challenges
statements

the

by

admission

alleged

of

a

video

co-conspirator

Ron

Mormon claims that this recording was not properly

authenticated

and

that

the

admission

of

Beason’s

statements

violated the hearsay rule and the Confrontation Clause.

“We

review a trial court’s rulings on the admissibility of evidence
for

abuse

of

discretion,

and

we

will

only

overturn

evidentiary ruling that is arbitrary and irrational.”

an

United

States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011) (internal
quotation

marks

omitted).

“We

review

alleged

Confrontation

Clause violations under the de novo standard of review.”
States v. Lighty, 616 F.3d 321, 376 (4th Cir. 2010).
3

United

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We conclude that the district court did not abuse its
discretion in admitting the challenged recording.

The testimony

offered by the Government provided an adequate foundation to
show that the recording was what the Government said it was.
Fed. R. Evid. 901(a), (b)(1); see United States v. Vidacak, 553
F.3d 344, 349 (4th Cir. 2009) (holding that Rule 901 requires
only a prima facie showing of authenticity).

Next, Beason’s

statements were admissible under the co-conspirator exception to
the hearsay rule.
(4th

Cir.)

denied,

(discussing

134

correctly

S.

Ct.

Fed.

R.

Evid.

(2013).

449

determined

testimonial
applied.

United States v. Graham, 711 F.3d 445, 453

The

that

statements

to

cert.

district

court

also

statements

Beason’s
which

801(d)(2)(E)),

were

not

the

Confrontation

Clause

Crawford v. Washington, 541 U.S. 36, 51-52, 56 (2004).
Mormon’s final claim is that the district court erred

by failing to grant a mistrial in response to the Government’s
allegedly

improper

statements

during

closing

argument.

“We

review a district court’s denial of a motion for a mistrial for
abuse of discretion.”

United States v. Johnson, 587 F.3d 625,

631 (4th Cir. 2009).
closing

arguments,

When the motion concerns the Government’s
“the

defendant

must

show

(1)

that

the

prosecutor’s remarks or conduct were improper and (2) that such
remarks

or

substantial

conduct
rights

prejudicially
so

as

to

affected

deprive
4

him

[the
of

a

defendant’s]
fair

trial.”

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United States v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010)
(internal quotation marks omitted); see United States v. Woods,
710 F.3d 195, 203 (4th Cir.) (discussing factors courts consider
in determining if remarks were prejudicial), cert. denied, 134
S. Ct. 312 (2013).
The

Government

concedes

that

the

challenged

remarks

were improper but argues that they were not prejudicial.
agree.

We

The remarks bore little risk of misleading the jury and

constituted a brief, isolated episode.

The Government’s proof

absent the remarks was strong, and there is no evidence that the
remarks were part of a deliberate plan to mislead the jury.

We

therefore conclude that the district court did not abuse its
discretion in denying a mistrial.
Accordingly, we affirm the judgment of the district
court.
legal
before

We dispense with oral argument because the facts and
contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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