US v. Antonio Barbee, No. 12-4197 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4197 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO BARBEE, Defendant - Appellant. No. 12-4260 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID RICARDO STEWART, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:11-cr-00156-JAB-1; 1:11-cr-00156-JAB2) Submitted: April 23, 2013 Before MOTZ and Circuit Judge. SHEDD, Decided: Circuit Judges, and May 3, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. C. Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham, North Carolina; J. David James, SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro, North Carolina, for Appellants. Ripley Rand, United States Attorney, Graham T. Green, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In these consolidated appeals, Antonio Barbee and David Ricardo Stewart challenge their convictions on one count each of attempted interference with commerce by robbery, in violation of 18 U.S.C. §§ 2, 1951(a) (2006), and carrying, using or brandishing a firearm during and in relation to a crime of violence, in violation (West Supp. 2012). of 18 U.S.C.A. §§ 2, 924(c)(1)(A)(ii) After a jury trial, Barbee was sentenced to 156 months in prison and Stewart was sentenced to 360 months in prison. Although Defendants do not challenge their respective sentences, Defendants convictions. lodge several challenges against their Finding no reversible error, we affirm. Stewart first asserts that the district court erred when it failed to consider his pre-sentencing pro se motion to dismiss his According attorney complained to Stewart, about for his trial ineffective pro se counsel s assistance motion, in alleged of counsel. which Stewart mistakes, was essentially an inartfully drawn motion for a new trial for which he should have been appointed new counsel. Although Stewart s sentencing was scheduled for March 20, 2012, the pro se motion to dismiss was drafted by Stewart on March 10, 2012, and filed in the district court on March 13, 2012, nearly five months after his guilty verdict. When Stewart raised the motion at his sentencing, the district 3 court afforded Stewart an opportunity to explain the reasons for his motion, complaints during about which trial time Stewart counsel s reiterated performance. The several district court explained that it would not entertain Stewart s complaints about his attorney s trial strategy at that juncture, and inquired whether Stewart believed he could continue with his attorney during sentencing. Stewart assured the district court that he could, that he just wanted to go on record to let [the district court] know how [he felt] about [his] counsel[,] and that he [d]efinitely did not have a problem with his attorney representing him during his sentencing hearing. Given Stewart s assurances that he wished to proceed with sentencing, we discern no error in the district court s decision to move forward with Stewart s sentencing. Moreover, although Stewart s motion did not actually request a new trial, we conclude that even assuming for the sake of argument the district court should have construed Stewart s pro se motion as a motion for a new trial, such a motion would have been untimely. motion for a new According to Fed. R. Crim. P. Rule 33, a trial based on grounds other than newly discovered evidence 1 must be filed within fourteen days after a 1 Although a motion for a new trial predicated on newly discovered evidence may be filed within three years of a guilty (Continued) 4 finding of guilty. Fed. R. Crim. P. 33(b)(2). [T]he time limits set forth in Rule 33 are jurisdictional[.] See United States v. Smith, 62 F.3d 641, 648 (4th Cir. 1995). Thus, we conclude that had the district court construed the motion as one seeking a new trial, the district court would have been required to deny the motion. 2 See id. at 651 (holding that a motion for a new trial based on ineffective assistance must be filed within seven (now fourteen) days of a jury verdict). Defendants also raise several district court s evidentiary rulings. objections to the In particular, Stewart asserts that the district court erred when it allowed: (1) recordings of his telephone conversations into evidence; (2) a Government witness to testify before the jury, even though she had a head injury and was medicated; and (3) a Government witness to testify about Stewart s alleged attempts to secure a false alibi. it admitted Barbee asserts that the district court erred when into evidence Stewart s statements incriminating verdict, Fed. R. Crim. P. 33(b)(1), Stewart did not argue newly discovered evidence in his motion. 2 Notably, if Stewart wished to pursue his allegations of ineffective assistance of counsel, he could have done so on this appeal which he did not or may do so by way of a collateral challenge under 28 U.S.C.A. § 2255 (West Supp. 2012). See id. 5 Barbee because admission of those statements allegedly violated Barbee s right to confront witnesses against him. We review the preserved evidentiary rulings for abuse of discretion and will only reverse if we determine that the rulings were arbitrary and irrational. United States v. Cloud, 680 F.3d 396, 401 (4th Cir.) (internal quotation marks omitted), cert. denied, 133 S. Ct. 218 (2012). Thus, under Fed. R. Crim. P. 52(a), the preserved evidentiary rulings are subject to harmless error review, such that in order to find a district court s error harmless, we need only be able to say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error. Johnson, 617 F.3d 286, 292 (4th Cir. 2010) United States v. (quoting United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)). As to unpreserved for plain error. evidentiary objections, we review See United States v. Cabrera-Beltran, 660 F.3d 742, 751 (4th Cir. 2011) ( An objection to the admission of evidence must be both specific and timely. ); United States v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983) ( Timeliness of objection under [Fed. R. Evid. 103] requires that it be made at the time the evidence is offered[.] ) (internal quotation marks omitted). Under this standard of review, Fed. R. Crim. P. 52(b) authorizes an appeals court to correct a forfeited error only 6 if (1) there is an error, (2) the error is plain, and (3) the error affects substantial rights. 133 S. Ct. 1121, 1126 brackets omitted). (2013) Henderson v. United States, (internal quotation marks and Because Rule 52 is permissive, we should correct the error only if it seriously affects the fairness, integrity or public reputation of judicial proceedings[.] Id. at 1127 (internal quotations marks and brackets omitted). With these standards in mind, we reject Stewart s summary argument that the district court abused its discretion when it allowed the Government to present recordings of Stewart s telephone conversations. that the four constitute lack[ed] an recordings admission sufficient about or context which he declaration and into Stewart argues complains against specificity evidence did not interest[,] to make them relevant under [Fed. R. Evid.] 401 and 402[,] and that their probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury in violation of [Fed. R. Evid.] 403[.] However, the four conversations about which Stewart complains need not constitute admissions or declarations against interest which are exceptions to the rule against hearsay because, as the Government correctly asserted in the district court, since they were statements made by Stewart and offered by an opposing party, all four conversations contained statements that were properly admitted 7 as non-hearsay under Fed. R. Evid. 801(d)(2)(a). See United States v. Wills, 346 F.3d 476, 489-90 (4th Cir. 2003) (holding that recordings admissible brother s as of defendant s admissions statements by on telephone a those conversations party-opponent recordings were and that also were his properly admitted to put defendant s statements into context). Although Stewart summarily argues that the statements were irrelevant and unfairly prejudicial, we district court s decision to the contrary. defer to the We agree that the challenged telephone conversations were relevant to the issues at trial. Moreover, a district court may, under Rule 403, exclude otherwise relevant evidence if the probative value of the evidence is substantially outweighed by the danger of . . . unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. We will not overturn a district court s Rule 403 judgment except under the most extraordinary of circumstances, plainly abused. where a trial court s discretion has been United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998) (internal brackets and quotation marks omitted). We must examine the evidence in the light most favorable to its proponent, maximizing prejudicial effect. Given the deference its probative value and minimizing its Id. (internal quotation marks omitted). we afford the 8 district court s Rule 403 determination, we conclude that the district court s decision to admit the telephone conversations was not an abuse of discretion. We also discern no error in the district court s decision to allow the Government to introduce in its case-inchief testimony about Stewart s alleged attempts to secure an alibi. In this regard, Stewart asserts that the district court erred because he presented no evidence at trial about an alibi and there was no reliable evidence that he sought to procure a false alibi. According to Stewart, although evidence showing consciousness of guilt may be introduced, the Government in this case made no showing that Stewart coerced or instigated the witness s testimony. Fed. crimes violate or bad the R. Evid. acts law. to 404(b) show prohibits bad However, evidence character evidence of and other of other propensity bad acts to is admissible for certain purposes unrelated to a defendant s bad character, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Rule 404(b) Fed. R. Evid. 404(b). is viewed as an This court has noted that inclusive rule, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition. F.3d 227, 239 (4th Cir. 2005). 9 United States v. Gray, 405 For instance, [e]vidence of witness intimidation is admissible to prove consciousness of guilt and criminal intent under Rule 404(b), if the evidence (1) is related to the offense charged and (2) is reliable. F.3d 153, 159 (4th Cir. See United States v. Hayden, 85 1996). Moreover, fabrications of evidence by a defendant or the submission of false explanations in an attempt to aid a defense defendant s state of mind. are have considered the to prove a See United States v. Hughes, 716 F.2d 234, 240-41 (4th Cir. 1983). and admissible We have reviewed the record parties arguments and find no reversible error in the district court s decision to admit the challenged statements into evidence. 3 Stewart also summarily argues that the district court erred when it allowed a Government witness to testify at trial because she was medicated at the time of her testimony due to a head injury she sustained the day before. to be competent unless it is shown 3 A witness is presumed that she does not have Even if it was error for the district court to allow the Government to present evidence of Stewart s attempts to secure a false alibi during its case-in-chief, given the remaining evidence establishing that Stewart committed the attempted robbery, we find any error to be harmless. See United States v. Grooms, 2 F.3d 85, 89 (4th Cir. 1993) (concluding that evidence of defendant s false alibi was inadmissible as irrelevant, but finding error harmless [g]iven the one-sided nature of the evidence presented ). 10 personal knowledge of the matter about which she testifies, does not have the ability to recall, or does not understand the oath. United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982). [A] district judge has great latitude in the procedure he may follow in determining the competency of a witness to testify. United States v. Odom, 736 F.2d 104, 111 (4th Cir. 1984). In this case, the district court sua sponte conducted a thorough voir dire outside of the jury s presence to determine whether the Government s witness despite her medicated state. was competent to testify, Although the witness expressed a desire not to testify and, after inquiry by the district court, stated that the inconsistency, we medication have she found was nothing taking could in testimony her cause to indicate that she did not have personal knowledge of the matters at hand, that she did not have the ability to recall the events, or that she did not understand the oath under which she was testifying. Given the absence of evidence in the record supporting Stewart s summary assertion to the contrary, and in light of the district court s instruction to the jury that the witness was medicated at the time of her testimony and that the medication could have an effect on her recollection and ability to understand what was taking place, we conclude that the district court did not clearly err in finding that witness was competent to testify. See Odom, 736 F.2d at 112-13 ( Whether 11 the witness has such competency is a matter for determination by the trial judge after such examination as he deems appropriate and his exercise of discretion in this regard is to be reversed only for clear error. ). Barbee asserts that his constitutional right to confront witnesses against him was violated because the district court allowed into incriminated Barbee. evidence statements made by Stewart that According to Barbee, it was reversible error for the district court to allow a Government witness to testify about conversations statements Stewart regarding made Barbee s in recorded telephone telephone because those statements linked Barbee to Stewart and counsel was unable to cross-examine Stewart regarding those statements. Barbee also asserts that it was reversible error for the district court to allow into evidence a recorded telephone conversation Stewart had with his mother, during which Stewart said the Government had us on camera in the area. referenced directly and Because Barbee was allegedly explicitly on the face of these statements[,] Barbee summarily asserts that their introduction constituted constitutional error under Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the Supreme Court held that admission of a statement inculpating a co-defendant in a joint trial violates the co-defendant s rights under the Confrontation Clause if the 12 statement directly incriminates the co-defendant. A Bruton problem exists only to the Id. at 126. extent that the codefendant s statement in question, on its face, implicates the defendant. United States v. Locklear, 24 F.3d 641, 646 (4th Cir. 1994). Thus, redaction of the co-defendant s incriminating statement, combined with a limiting instruction, may satisfy the Confrontation Clause. 211 (1987). evidence Clause. See Richardson v. Marsh, 481 U.S. 200, This Court reviews de novo whether the admission of violated Barbee s rights under the Confrontation United States v. Lighty, 616 F.3d 321, 376 (4th Cir. 2010). We have reviewed the record and find that: Government witness s testimony before the jury was (1) the facially benign as it related to Barbee and, thus, did not implicate Bruton, see Marsh, 481 U.S. at 211 (holding that Confrontation Clause is not violated even when the confession inferentially incriminates defendant and other evidence admitted subsequently at trial clearly links the defendant to the statement in an inculpatory manner); (2) the use of the word us to refer to the existence of another person who may be a co-defendant did not render Stewart s conversation with his mother inadmissible, see United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir. 1999) (holding that redacted statements that refer to the existence of another person who may be a co-defendant through the use of 13 symbols or neutral pronouns may be admissible); see also United States v. Min, 704 F.3d 314, 320-21 (4th Cir. 2013) (holding that co-defendant s statement that contained general references without facial incrimination to others who may (or may not) be co-defendants did not violate Bruton); and (3) the district court s instructions that the recorded telephone conversations should only be used against Stewart helped guard against any constitutional error, see United States v. Chong Lam, 677 F.3d 190, 204 (4th Cir. 2012) ( [J]uries are presumed to follow their instructions. ) omitted). (internal quotation marks and citations Accordingly, we find no violation of Barbee s rights under the Confrontation Clause. Last, decision Because to we deny no error Defendants Defendants insufficient discern to assert Fed. that establish R. the they in the district Crim. P. Government s were the 29 court s motions. evidence individuals was who attempted to rob the coin store, the jury s verdict will be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. v. Whitfield, 695 F.3d 288, 310 (4th Cir. United States 2012) (internal quotation marks and citation omitted), cert. denied, 133 S. Ct. 1461 (2013). reasonable Substantial finder of fact evidence could is accept evidence as that adequate a and sufficient to support a conclusion of a defendant s guilt beyond 14 a reasonable doubt. United States v. King, 628 F.3d 693, 700 (4th Cir. 2011) (internal quotation marks omitted). In resolving issues of substantial evidence, we may not reweigh the evidence or reassess the factfinder s determination of witness credibility, and we must assume that the jury resolved all contradictions in testimony in favor of the Government. See United States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010). Thus, a defendant challenging the sufficiency of the evidence faces a heavy burden. See United States v. Bonner, 648 F.3d 209, 213 (4th Cir. 2011). We have reviewed the record de novo, see Cloud, 680 F.3d at 403, and have considered the parties arguments and conclude that the Government produced sufficient evidence to support the jury s convictions. Based on the foregoing, we affirm the district court s judgments. 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 15

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