US v. Kenneth Graham

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00620-WDQ-1 Copies to all parties and the district court/agency. [999787711].. [15-4318]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4318

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH GRAHAM,
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-00620-WDQ-1)

Submitted:

March 15, 2016

Decided:

April 4, 2016

Before SHEDD, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jonathan A. Gladstone, Annapolis, Maryland, for Appellant.
Rod
J. Rosenstein, United States Attorney, Seema Mittal, Kenneth S.
Clark, Assistant United States Attorneys, Baltimore, Maryland,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kenneth Graham appeals his conviction for attempted Hobbs
Act

robbery,

in

violation

of

18

U.S.C.

§ 1951(a)

(2012);

possessing and discharging a firearm in furtherance of a crime
of

violence,

in

violation

of

18

U.S.C.

§ 924(c)

(2012);

and

possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2012).

Graham contends that the district

court abused its discretion in allowing the Government to ask a
leading question as to Graham’s intent to rob.

He also argues

there is insufficient evidence to support the jury’s finding
that he intended to commit a robbery.

We affirm.

We review for an abuse of discretion the district court’s
ruling

on

the

use

of

leading

questions.

United

States

v.

Durham, 319 F.2d 590, 592 (4th Cir. 1963); see United States v.
Hicks, 748 F.2d 854, 859 (4th Cir. 1984).

“The evil to be

avoided

memory

is

that

of

supplying

a

false

for

the

witness. . . . Generally, abuse of discretion is not found in
the absence of prejudice or clear injustice to the defendant.”
Durham, 319 F.2d at 592 (citations omitted); see also Winant v.
Bostic,

5

F.3d

767,

773

(4th

Cir.

1993)

(“[R]eversal

is

warranted on the basis of leading questions only if the judge’s
actions cause the denial of a fair trial.”).
Graham argues that the district court abused its discretion
in allowing the Government to ask the victim a leading question
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about Graham’s intent to commit a robbery.
district

court

did

Government

asked

summarizing

the

not
the

witness’

abuse

its

disputed
answer

We conclude that the

discretion.

question,
to

that

it

When
was

point.

the

merely

Thus,

the

Government’s question did not “supply[] a false memory for the
witness,” see Durham, 319 F.2d at 592, and Graham did not suffer
any “prejudice or clear injustice.”
We

review

de

novo

supporting a conviction.

the

See id.

sufficiency

of

the

evidence

United States v. Barefoot, 754 F.3d

226, 233 (4th Cir.), cert. denied, 135 S. Ct. 502 (2014).

We

will uphold a conviction if, viewing the evidence in the light
most favorable to the Government, “any rational trier of fact
could have found the essential elements of the crime charged
beyond

a

omitted).

reasonable
As

a

doubt.”

reviewing

Id.
court,

(internal
we

may

evidence or the credibility of witnesses,”

quotation

not

marks

“reweigh

the

United States v.

Roe, 606 F.3d 180, 186 (4th Cir. 2010), and must examine the
evidence in a “cumulative context” rather than “in a piecemeal
fashion,” United States v. Burgos, 94 F.3d 849, 863 (4th Cir.
1996)

(en

banc).

Consequently,

“[r]eversal

for

insufficient

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

United States v. Said, 798 F.3d 182, 194

(4th Cir. 2015) (citation and internal quotation marks omitted),

3

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petition for cert. filed,

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U.S.L.W.

(U.S. Dec. 8, 2015)

(No. 15-7332).
“A

Hobbs

Act

violation

requires

proof

of

two

elements:

(1) the underlying robbery or extortion crime, and (2) an effect
on interstate commerce.”

United States v. Strayhorn, 743 F.3d

917, 922 (4th Cir. 2014) (citation and internal quotation marks
omitted).

Under the Hobbs Act, “robbery” is defined as

the unlawful taking or obtaining of personal property
from the person or in the presence of another, against
his will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to
his person or property, or property in his custody or
possession, or the person or property of a relative or
member of his family or of anyone in his company at
the time of the taking or obtaining.
18 U.S.C. § 1951(b)(1).

In order to convict a defendant of

attempt to commit a crime, the Government must show, “beyond a
reasonable doubt, that (1) he had culpable intent to commit the
crime and (2) he took a substantial step towards completion of
the

crime

that

strongly

corroborates

that

intent.”

States v. Engle, 676 F.3d 405, 419-20 (4th Cir. 2012).

United
Here,

the parties dispute only whether Graham had the requisite intent
to commit a robbery.
Graham argues that the meaning of the phrase he spoke to
the victim—“Kick that shit out”—“cannot be easily deciphered.”
Appellant’s Br. at 7.
the

phrase

is

We conclude, however, that the meaning of

self-evident

in

4

the

context

in

which

it

was

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uttered, and it supports the jury’s finding that Graham intended
to rob the victims.

Graham was carrying a gun and wearing a ski

mask to hide his face when he knocked on the victims’ door near
midnight.

He hid so that Victim A could not see him when she

opened the door.

He then shoved a gun into her face and pushed

her back inside her home.

While pointing his gun at her face,

he said, “Kick that shit out.”
could

easily

conclude

from

J.A. 48.

these

facts

A reasonable jury

that

Graham

had

the

intent to commit a robbery.
Accordingly, we affirm the judgment of the district court.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

5