US v. Diarra Jermaine Boddy

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999602048-2], denying Motion to appoint/assign counsel [999598881-2]; denying Motion for abeyance (Local Rule 12(d)) [999598881-3]; denying Motion to file supplemental brief(s) [999598881-4] Originating case number: 2:14-cr-00038-1 Copies to all parties and the district court/agency. [999648668].. [15-4031]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4031

UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
DIARRA JERMAINE BODDY,
Defendant − Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
John T. Copenhaver,
Jr., District Judge. (2:14−cr−00038−1)

Submitted:

June 5, 2015

Decided:

August 27, 2015

Before WYNN, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Wesley P. Page, FLAHERTY SENSABAUGH
West Virginia, for Appellant.
R.
States Attorney, C. Haley Bunn,
Attorney, OFFICE OF THE UNITED STATES
Virginia, for Appellee.

BONASSO PLLC, Charleston,
Booth Goodwin II, United
Assistant United States
ATTORNEY, Charleston, West

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Diarra Jermaine Boddy appeals his conviction for unlawful
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924 (2012).
the

charge,

contending

that

Boddy seeks a dismissal of
the

government

insufficient evidence to support his conviction.

presented

Alternatively,

he requests a new trial, arguing that a government witness’s
testimony was unfairly prejudicial.

For the reasons set forth

below, we affirm.

I.
A.
On appeal from a criminal conviction, we view the evidence
in the light most favorable to the government.

United States v.

Herder, 594 F.3d 352, 358 (4th Cir. 2010).
On

September

Charleston,
speeding

West

on

10,

2013,

Virginia

Kanawha

Patrolman
Police

Boulevard.

Brian

Department
Lightner

Lightner
observed
followed

of

the

Boddy
Boddy’s

vehicle and saw him throw a firearm from the car as it turned
left onto Veazey Street.
street

where

Lightner

Boddy pulled slowly to the side of the
stopped

him

and

called

for

backup.

Corporal Jarl Taylor arrived and located the firearm in a nearby
driveway.

Lightner detained Boddy and then secured the firearm.

2

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B.
Prior to trial, Boddy filed a motion in limine to exclude
extrinsic offense evidence related to his arrest.
to

exclude

substance,

evidence
(2)

that

drove

under

he

(1)

the

possessed

influence,

Boddy sought
a

and

supervised release at the time of his arrest.

counterfeit
(3)

was

on

The district

court granted his motion.
At trial, Lightner testified that Boddy was the vehicle’s
sole occupant and that he saw Boddy throw the firearm.

Lightner

also testified that he called for backup and directed Taylor to
the firearm’s location.

Taylor testified that he located the

firearm in the driveway to which Lightner directed him.

The

government also introduced the firearm itself, pictures of the
firearm, and video footage from the camera mounted on Lightner’s
dashboard.

The video shows Boddy’s driver’s side door wide open

as Lightner followed on Veazey Street, but does not show Boddy
throw the firearm.

The video otherwise corroborates Lightner’s

testimony.
At the close of the government’s case, Boddy moved for a
judgment

of

acquittal

district court denied.
sold

the

vehicle

to

under

Fed.

R.

Crim.

P.

29,

which

the

Boddy’s sole witness testified that he
Boddy

and

occasionally opened on its own.

that

the

driver’s

side

door

At the close of his case, Boddy

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renewed

his

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Rule

29

motion,

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which

the

district

court

again

denied.
Following his conviction, Boddy moved for a judgment of
acquittal and for a new trial under Fed. R. Crim. P. 33.

He

argued that Lightner gratuitously testified on cross-examination
to matters that Boddy had successfully moved to exclude, thus
denying him a fair trial.

Specifically, Lightner told the jury

that (1) he testified at Boddy’s parole hearing at the jail, (2)
Boddy smelled of alcohol during the traffic stop, and (3) he
pulled “what appeared to be crack” from Boddy’s pocket after the
arrest.

J.A. 140. 1

Boddy also challenged Lightner’s credibility

and the weight of the evidence.

The district court again denied

Boddy’s motions.
Boddy filed a timely appeal.

II.
We first consider Boddy’s argument that he was entitled to
a

judgment

insufficient
felon

in

district

of

acquittal

evidence

possession
court’s

to
of

denial

because

support
a
of

the

conviction

for

firearm.

We

de

Boddy’s

Rule

1

his

government

review
29

motion.

offered
being
novo

a

the

United

For the first time on appeal, Boddy complains about three
additional aspects of Lightner’s cross-examination testimony,
which we discuss in more detail later.

4

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States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011).

In

assessing the sufficiency of evidence, we construe all evidence
in the light most favorable to the government and will uphold a
jury’s verdict if any rational trier of fact could have found
the crime’s essential elements beyond a reasonable doubt.

Id.

To meet its burden of proof on the charged offense, the
government

was

required

to

establish

that

(1)

Boddy

was

a

convicted felon, (2) Boddy knowingly possessed a firearm, and
(3) the firearm traveled in interstate commerce.

United States

v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).

Because

the parties stipulated to the first and third elements, we only
address

whether

the

evidence

was

sufficient

to

prove

Boddy

knowingly possessed the firearm.
Boddy insists the evidence was insufficient on this element
of the offense because the government failed to present DNA or
fingerprint evidence, non-law enforcement witnesses, or video of
Boddy throwing the gun.
testimony—that

he

According to Boddy, Lightner’s critical

observed

Boddy

throw

the

gun—stands

uncorroborated.
We have held, however, that the uncorroborated testimony of
a

single

United
1983).

witness

States

v.

is

sufficient

Arrington,

to

719

sustain

F.2d

701,

a

guilty

704-05

verdict.

(4th

Cir.

Moreover, the government’s case did not rest solely on

Lightner’s

testimony.

Rather,

it
5

was

also

based

on

Boddy’s

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being the sole occupant and owner of the vehicle, the video of
Boddy’s

open

car

door,

Lightner’s

contemporaneous

statement

requesting backup wherein he told the dispatcher that he saw
Boddy

throw

a

gun,

and

Lightner directed him.

Taylor

locating

the

firearm

where

We are satisfied that ample evidence

existed from which a jury could reasonably find Boddy knowingly
possessed the firearm. 2

We therefore reject Boddy’s first claim

of error.

III.
We next consider Boddy’s argument that the district court
erred in denying his motion for a new trial.

We review the

denial of a motion for a new trial for abuse of discretion.
United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).

In

assessing whether to grant a new trial, a district court need
not

view

the

evidence

in

the

light

most

favorable

government and may consider witness credibility.
v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985).

to

the

United States
However, the

district court must show deference to the jury’s verdict and
should grant a new trial only “[w]hen the evidence weighs so
2

Boddy also contends that we should reject Lightner’s
testimony because it was not credible. But “[w]e, of course, do
not weigh the evidence or review the credibility of witnesses in
resolving the issue of substantial evidence.”
Arrington, 719
F.2d at 704.

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heavily against the verdict that it would be unjust to enter
judgment.”
Boddy
presented

Id.
here

repeats

insufficient

again reject it.

his

argument

evidence

to

carry

that
its

the

government

burden,

and

we

Boddy also says that the district court was

not sufficiently skeptical of Lightner’s credibility given that
it

was

central

to

the

government’s

case.

Boddy,

however,

effectively challenged Lightner’s credibility at trial and, like
the district court, we find no basis for upsetting the jury’s
decision to nonetheless credit Lightner. 3
We turn next to Boddy’s separate contention that Lightner
made

a

number

of

prejudicial

that warrant a new trial.
Lightner

told

the

jury

statements

on

cross-examination

Specifically, Boddy complains that

that

(1)

he

previously

testified

at

Boddy’s parole hearing at the jail, (2) he pulled a substance
appearing to be crack cocaine from Boddy’s pocket, (3) Boddy
smelled of alcohol during the stop, (4) the government’s case

3

Boddy separately contends that opening a car door and
throwing a firearm across the street while turning left at a
high rate of speed, all in the five seconds his car was outside
the view of Lightner’s dashboard camera, is “a feat of
extraordinary dexterity and timing.”
Appellant’s Reply Br. 8
n.3. The video, however, supports a more reasonable version of
events, i.e., that Boddy turned left and reduced his speed
before opening the car door and tossing the firearm.

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was “clearcut,” (5) fingerprint analysis is unreliable, and (6)
arrestees who curse are no longer citizens.
Boddy’s counsel did not object to statements 3, 4, and 6 at
trial, and thus our review is confined to plain error. 4

United

States v. Chong Lam, 677 F.3d 190, 201 (4th Cir. 2012).

To meet

his

burden,

Boddy

must

show

that

(1)

the

district

court

committed error, (2) the error was plain, and (3) the error
affected his substantial rights.

Id.

district

not

court

plainly

erred

in

Even assuming that the
sua

sponte

striking

the

statements, we hold that Boddy has failed to show that the error
affected his substantial rights.
Counsel

did

object

to

the

remaining

affirmatively moved to strike them.
the

motions

and

later

instructed

statements

and

he

The district court granted
the

jury

that

it

was

to

disregard any evidence stricken by the court.
Limiting
committed

by

instructions
the

are

introduction

presumed
of

to

improper

cure

any

evidence.

States v. Johnson, 610 F.2d 194, 196 (4th Cir. 1979).

error
United
And we

generally will reverse a defendant’s conviction based on the

4

Boddy’s counsel not only failed to object to the statement
that Boddy smelled of alcohol during the stop, but he virtually
invited the answer when he asked Lightner, “[D]o you know what,
in terms of events that day, was there anything that occurred
that would—that might lead to Mr. Boddy appearing incoherent?”
J.A. 134.

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introduction of improper testimony only where the testimony was
central to the issue at trial and resulted from prosecutorial
misconduct. 5

See, e.g., Watkins v. Foster, 570 F.2d 501, 506

(4th Cir. 1978) (upholding habeas relief where prosecutor asked
prisoner, charged with burglary, detailed questions about six
prior burglaries); Lovely v. United States, 169 F.2d 386, 389
(4th

Cir.

introduced

1948)

(reversing

evidence

of

a

conviction

prior

rape

where

prosecutor

defendant

allegedly

committed just prior to the rape crime charged).
Lightner’s

references

on

cross-examination

to

Boddy’s

parole hearing, to finding what he thought was crack cocaine on
Boddy’s person, and his opinion regarding fingerprint evidence,
while improper, were tangential to the central issue in this
case: whether Boddy knowingly possessed a firearm.

And while we

do not condone improper testimony on crimes not charged in the
indictment, nothing in the record indicates that “the question
[or] the response carried the imprimatur of the [g]overnment.”
Johnson,

610

F.2d

at

197.

“[T]he

5

Constitution

entitles

a

Boddy urges us to employ the following four-factor test to
analyze Lightner’s statements: (1) the degree to which the
remarks misled the jury and prejudiced the defendant; (2)
whether the remarks were isolated or extensive; (3) the strength
of the government’s case; and (4) whether the remarks were
deliberate. United States v. Harrison, 716 F.2d 1050, 1052 (4th
Cir. 1983).
However, while these factors are generally
instructive, they are not directly applicable here because they
relate to statements made by a prosecutor rather than a witness.

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criminal defendant to a fair trial, not a perfect one,” Delaware
v. Van Arsdall, 475 U.S. 673, 681 (1986), and we are satisfied
that the court’s limiting instructions remedied any prejudice
caused by the statements.

IV.
We affirm the district court’s judgment.
pro

se

motion

requesting

appointment

of

We deny Boddy’s

counsel

to

pursue

a

motion for a new trial based on newly discovered evidence and
permission

to

file

a

supplemental

brief.

motion to hold this appeal in abeyance.

We

also

deny

his

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 in the decisional process.
AFFIRMED

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