US v. Kevin Johnson, No. 12-4258 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4258 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN JERMAINE JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson Everett Legg, District Judge. (1:10-cr-00703-BEL-1) Submitted: November 26, 2012 Decided: December 13, 2012 Before GREGORY, SHEDD, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. David W. Lease, SMITH, LEASE & GOLDSTEIN, LLC, Rockville, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Brooke Carey, Assistant United States Attorney, Kenneth Clark, Special Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kevin possessing a Jermaine firearm as Johnson a appeals felon, in his conviction violation of 18 for U.S.C. § 922(g)(1) (2006), for which he was sentenced to 216 months imprisonment. Johnson evidence, propriety the constitutionality of evidentiary rulings. Johnson challenges of the the statute, the sufficiency and the instructions, jury of the the district court s For the following reasons, we affirm. asserts that § 922(g)(1), as interpreted, exceeds Congress s authority under the Commerce Clause because the fact that a firearm has crossed a state line is insufficient to demonstrate that the firearm affected interstate commerce. Our binding precedent holds otherwise. See United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001). Because a panel of this court may not overrule the precedent set by a prior panel, United States v. Rivers, 595 F.3d 558, 564 n.3 (4th Cir. 2010), Johnson s argument must fail. See, e.g., United States v. Smoot, 690 F.3d 215, 222-24 (4th Cir. 2012). Further, because district the statute is valid as interpreted, court s jury instructions were not erroneous. the See id. at 223. We review the denial of a motion for acquittal based on insufficient evidence de novo. F.3d 681, 693 (4th Cir. 2005). United States v. Alerre, 430 The verdict of a jury must be sustained if there is substantial evidence, taking the view 2 most favorable to the Government, to support it. United States v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008) (internal quotation marks and brackets omitted). [I]f the evidence supports different, reasonable interpretations, the jury decides which interpretation to believe. F.3d 143, 148 (4th Cir. 1994). United States v. Murphy, 35 After reviewing the record, we conclude that the Government presented sufficient evidence that the firearm had traveled across a state line to permit the jury to find a required element of the offense. We thus conclude that Johnson s challenge to the sufficiency of the evidence is without merit. We review evidentiary rulings for abuse of discretion. United States Although v. Hodge, 354 Johnson argues that F.3d his 305, 312 (4th exculpatory admissible, we conclude that it was not. Cir. 2004). statement was See, e.g., United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996). We therefore conclude that the district court did not abuse its discretion in denying his request for its admission. Johnson finally argues that the district court erred when it denied his motion for a mistrial based on an inadmissible reference during testimony for which the district court provided a curative instruction. is reviewed for an abuse of The denial of a mistrial discretion. Dorsey, 45 F.3d 809, 817 (4th Cir. 1995). 3 United States v. To show an abuse of discretion, the defendant must show prejudice. Id. In general, where there is no Government misconduct and a curative instruction is given, a mistrial is not warranted. 18. We because conclude the challenged that Johnson s Government statement, the did not district challenge is without purposefully court Id. at 817- elicit provided a merit the curative instruction, and there was no prejudice. Accordingly, we affirm the judgment of the district court. 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 4
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