US v. Otis Waldron, No. 09-4682 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4682 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OTIS WALDRON, a/k/a Bruce Millington, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior District Judge. (7:07-cr-00101-BR-2) Submitted: July 14, 2010 Decided: July 26, 2010 Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas R. Wilson, GREENE & WILSON, P.A., New Bern, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Otis Waldron appeals his convictions of conspiring to distribute marijuana, possessing a firearm in furtherance of a drug trafficking possession of crime, a firearm, §§ 922(g)(1), 924(c) appeal, Waldron and (2006) contends being in and that a convicted violation 21 U.S.C. the felon of § 846 district 18 U.S.C. (2006). court in On erred in failing to pose Waldron s requested question to the jury during voir dire, the evidence was insufficient to support his convictions, and the district court erred in allowing admission into evidence of Waldron s prior drug and firearms convictions. We affirm. I. Voir dire Waldron first argues that the district court erred in refusing to dire. ask a question requested by Waldron during voir Prior to trial, Waldron requested for the court to pose the following question to the potential jurors: his Rastafarian his hair in religious what are association commonly and called Defendant, by requirements, wears dreadlocks. Does Defendant s choice in this appearance, by his religion, disable or prejudice innocence district of any the court juror crime agreed in deciding alleged to Defendant s guilt or by the [G]overnment. The question the jury any regarding prejudice toward dreadlocks, but refused to raise the issue of 2 Waldron s trial. religion, finding that it was not relevant to the Waldron challenges this refusal on appeal. The conduct of voir dire is committed to the sound discretion of the district court, and thus it is only a rare case in which a reviewing court will find error in the trial court s conduct. Cir. 2004) United States v. Hsu, 364 F.3d 192, 203 (4th (internal quotation marks and citation omitted). Therefore, there are only limited circumstances in which the Supreme Court has dictated the subject matter of voir dire. See United States v. Lancaster, 96 F.3d 734, 739 (4th Cir. 1996). For example, [w]hen racial issues are inextricably bound up with the conduct of the trial, the constitutional guarantee of a trial by an impartial jury requires that a court not refuse a request for voir dire directed to racial prejudice. States v. Barber, 80 F.3d 964, 968 (4th Cir. 1996). United Conversely, where the proposed question does not address issues of racial or ethnic prejudice, . . . the district court need not pursue a specific line of questioning on voir dire, provided the voir dire as a whole is reasonably sufficient to uncover bias or partiality in the venire. Id. at 739-40. courts posed will the find an abuse of discretion venire do not yield a However, appellate where reasonable the questions assurance that prejudice would be discovered if present. Id. at 740 (internal citation After and quotation marks omitted). 3 reviewing the record, we conclude that the district court did not abuse its discretion in refusing to question the jury regarding Waldron s religion. II. Sufficiency of the evidence Waldron sufficient to challenging next challenges convict the him of sufficiency whether the evidence each offense. A the evidence faces of was defendant a heavy burden. United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). This court reviews a sufficiency of the evidence challenge by determining whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005); see Glasser v. United States, 315 U.S. 60, 80 (1942). This court reviews both direct and circumstantial evidence, and accords the government all reasonable inferences from the facts shown to those sought to be established. States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). United This court will uphold the jury s verdict if substantial evidence supports it, and will reverse only in those rare cases of clear failure by the prosecution. Foster, 507 F.3d at 244-45. A. Conspiracy In order to support Waldron s conviction for conspiracy to distribute marijuana, the Government had to prove: 4 (1) that Waldron agreed with one or more individuals to possess with intent to distribute marijuana; (2) that [he] had knowledge of that conspiracy; and (3) that [he] knowingly and United States v. voluntarily participated in the conspiracy. Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007); see United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). A defendant may have constructive possession of contraband even if it is not in his immediate possession or control. States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003). to demonstrate prove that exercise, constructive the defendant dominion and possession, exercised, control over the or the United In order government had the item. must power Id. to After reviewing the record, we conclude the evidence was sufficient to allow a rational trier of fact to find Waldron guilty of conspiracy to possess with intent to distribute marijuana. B. Possession of a firearm in furtherance of a drug trafficking crime Waldron also challenges his conviction for possession of a firearm in furtherance of a drug trafficking crime. To establish the 18 U.S.C. § 924(c)(1) violation, the Government had to present evidence indicating that the possession of [the] firearm furthered, advanced, or helped forward a drug trafficking crime. United States v. Lomax, 293 F.3d 701, 705 (4th As Cir. 2002). noted above, 5 a defendant may have possession of the firearm even if it is outside his immediate control, as long as he had the power to exercise dominion or control over the firearm. Shorter, 328 F.3d at 172. Additionally, Lomax provides further guidance when determining whether the possession was in furtherance of a drug trafficking crime: When making this factual determination, the fact finder is free to consider the numerous ways in which a firearm might further or advance drug trafficking. For example, a gun could provide a defense against someone trying to steal drugs or drug profits, or it might lessen the chance that a robbery would even be attempted. Additionally, a gun might enable a drug trafficker to ensure that he collects during a drug deal. And a gun could serve as protection in the event that a deal turns sour. Or it might prevent a transaction from turning sour in the first place. Furthermore, a firearm could help a drug trafficker defend his turf by deterring others from operating in the same area. 293 F.3d at 705. connection Additionally, several factors may suggest a between the possession of firearms and drug trafficking, including the accessibility of the firearm, the type of weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to circumstances drugs under or drug which profits, the gun is and the time Id. found. and After reviewing the record, we conclude that a rational trier of fact could find Waldron guilty of possession furtherance of a drug trafficking crime. 6 of a firearm in C. Possession of a firearm by a felon Finally, possession of violation Waldron challenges a by 18 of firearm U.S.C. § his a In felon. 922(g)(1), the conviction order to for prove a had to Government demonstrate (1) that Waldron was a convicted felon at the time of the offense; (2) he possessed the firearm intentionally and voluntarily; (3) the firearm had traveled in interstate United States v. Gallimore, 247 F.3d 134, 136 (4th commerce. Cir. and 2001). Waldron largely contends that, because the Government never presented evidence that the firearm found in the car travelled in interstate commerce, he could not have been convicted of stipulated violating both that travelled in convicted felon. § 922(g)(1). the firearms found in commerce, interstate (JA However, and that 43-44). the the parties trailer Waldron Additionally, the was had a evidence clearly demonstrates that Waldron constructively possessed the firearms in question. Accordingly, we conclude that the evidence was sufficient to allow a rational trier of fact to find the elements of this crime beyond a reasonable doubt. III. Prior convictions Waldron next challenges the district court s denial of his motion in limine to exclude his prior convictions for possession of cocaine and discharging a weapon into an occupied dwelling. Waldron contends that, because he did not place his 7 intent at issue during trial, his past convictions irrelevant, not probative, and highly prejudicial. R. Evid. 404(b), evidence of a defendant s are Under Fed. prior bad acts, though inadmissible to prove a defendant s character and action in conformity therewith, may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident. Therefore, such evidence is admissible if the evidence is (1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an United element States of v. the Hodge, charged 354 offense; F.3d 305, and 312 (3) (4th reliable. Cir. 2004). Additionally, under Fed. R. Evid. 403, the probative value of the evidence must not prejudicial effect. Id. This Rule 404(b) court for occurs arbitrarily or substantially reviews abuse discretion be of when the admission discretion. of by evidence An court evidence. its under judge admitting in Id. district the irrationally outweighed abuse of acted United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009) (internal quotation marks omitted). After reviewing the record, we conclude that the district court did not abuse its discretion in allowing the convictions. admission of evidence of Waldron s prior Moreover, in light of the overwhelming evidence of Waldron s guilt, any Rule 404(b) error was clearly harmless. 8 Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument expressed would not in aid the the materials decisional process. AFFIRMED 9

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