United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4012

RICHARD A. BROWN,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CR-99-346)

Submitted: September 13, 2001

Decided: October 16, 2001

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Jason Tighe Easterly, EASTERLY & BERLING, P.C., Richmond,

Virginia, for Appellant. Kenneth E. Melson, United States Attorney,

Laura A. Colombell, Assistant United States Attorney, Richmond,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

2 UNITED STATES v. BROWN

OPINION

PER CURIAM:

Richard A. Brown appeals his forty-six month sentence imposed

upon his conviction after a jury trial for possession of a firearm by a

convicted felon, in violation of 18 U.S.C.A. § 922(g)(1) (West 2000).

The district court sentenced him to forty-six months incarceration,

two years supervised release, and a $100 special assessment. Brown

noted a timely appeal. Brown’s attorney filed a brief in accordance

with Anders v. California, 386 U.S. 738 (1967).

On appeal, Brown charges the district court with error in denying

his motion to exclude evidence pursuant to Fed. R. Evid. 404(b) and

admitting evidence relating to an assault with a firearm committed by

Brown against his girlfriend, Natasha Williams. We review the dis-

trict court’s evidentiary rulings for abuse of discretion. See United

States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995); United States v.

Clark, 986 F.2d 65, 68 (4th Cir. 1993).

Prior to trial, Brown moved to exclude evidence of his assault on

Williams as an irrelevant and unduly prejudicial bad act. The district

court denied his motion, noting that the temporal proximity of the

assaults to Brown’s arrest made the evidence highly probative. At

trial, Brown objected to the Government’s reference in its opening

statement as to an assault by Brown on Williams with a gun the day

prior to his arrest. The district court overruled the objection. Thereaf-

ter, on cross-examination Sandy Leadbetter, a detective for the Rich-

mond Police Department, testified that Williams had been struck by

Brown with a gun the evening before his arrest. Williams, Cameron

Reed, and Denita Ridley testified about Brown’s assault of Williams

with Brown’s gun the prior evening.

We find that evidence of Brown’s assault on Williams on the prior

evening was an integral part of the res gestae and meets all the criteria

of the four-part test set forth in United States v. Queen, 132 F.2d 991,

994-95 (4th Cir. 1997). Evidence of Brown’s use and handling of the

weapon in the course of the assault was necessary to complete the

story and prove that Brown possessed the gun. Moreover, we find that

the district court’s limiting jury instructions provided additional pro-

UNITED STATES v. BROWN 3

tection to defendants. Id. at 998. Thus, we find that the district court

did not abuse its discretion in admitting the evidence.

We further find that the district court did not err in denying

Brown’s motion for judgment of acquittal made pursuant to Fed. R.

Crim. P. 29. This Court reviews de novo the district court’s decision

to deny a motion for judgment of acquittal. United States v. Romer,

148 F.3d 359, 364 (4th Cir. 1998). Where, as here, the motion is

based on a claim of insufficient evidence, the relevant question is

whether the evidence, viewed in the light most favorable to the Gov-

ernment, was sufficient for a rational trier of fact to have found the

essential elements of the crime beyond a reasonable doubt. Id.; United

States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996). If substantial

evidence exists to support a verdict, the verdict must be sustained.

Burgos, 94 F.3d at 862 (citing Glasser v. United States, 315 U.S. 60,

80 (1942)). In evaluating the sufficiency of the evidence, this Court

does not review the credibility of the witnesses and assumes that the

jury resolved all contradictions in the testimony in favor of the Gov-

ernment. Romer, 148 F.3d at 364.

The Government presented ample credible evidence of Brown’s

possession of the gun through the testimony of Natasha Williams,

James Reed, Cameron Reed, and Denita Ridley. Thus, we conclude

that the district court properly denied the motion for judgment of

acquittal.

Brown also alleges prosecutorial misconduct. In the absence of fac-

tual findings from the trial court, allegations of prosecutorial miscon-

duct are subject to plenary review. United States v. Golding, 168 F.3d

700, 702-03 (4th Cir. 1999). To evaluate whether prosecutorial mis-

conduct occurred, we must determine whether the prosecutor’s

remarks or conduct were improper and prejudicially affected Brown’s

rights so as to deprive him of a fair trial. See United States v. Mitchell,

1 F.3d 235, 240 (4th Cir. 1993).

In his closing argument, Brown asserted that because several peo-

ple had access to the home and bedroom where the gun was located,

near which Brown was sleeping, that other people could have had

access to and control of the weapon. In rebuttal, the Government

responded:

4 UNITED STATES v. BROWN

Other people coming in and out of the house. Again, does

that matter? Was there any evidence that any of them kept

a gun on the closet shelf in the back bedroom? No. The only

person who, the only evidence you have before you about

who might have kept a gun in that back closet shelf was the

defendant sitting here before you.

(J.A. at 127-28). This language was not intended to be, nor could the

jury have naturally and necessarily taken it to be, a comment on the

failure of Brown to testify. See United States v. Whitehead, 618 F.2d

523, 527 (4th Cir. 1980). Thus, we find that Brown’s claim of pro-

secutorial misconduct lacks merit.

As required by Anders, we have independently reviewed the entire

record and all pertinent documents. We have considered all possible

issues presented by this record and concluded that there are no non-

frivolous grounds for this appeal. This court requires that counsel

inform his client, in writing, of his right to petition the Supreme Court

for further review. If requested by the client to do so, counsel should

prepare a timely petition for writ of certiorari, unless counsel believes

that such a petition would be frivolous. In that case, counsel may

move in this court for leave to withdraw from representation. Coun-

sel’s motion must state that a copy thereof was served on the client.

Brown’s conviction and sentence are affirmed. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED