United States v. Miquan Smith , 637 F. App'x 708 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4008
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MIQUAN LIMIK SMITH, a/k/a Mike Smith, a/k/a Limik Smith,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:13-cr-00044-RLV-DSC-2)
Submitted: July 30, 2015 Decided: January 14, 2016
Before DUNCAN, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Jill Westmoreland Rose, Acting United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miquan Limik Smith appeals his convictions for conspiring
to commit an offense against the United States by committing
burglaries and stealing firearms, in violation of 18 U.S.C.
§ 371 (2012) (Count 1), aiding and abetting the receipt and
possession of stolen firearms, in violation of 18 U.S.C.
§§ 922(j), 924(a)(2) (2012) (Count 2), and unlawfully possessing
one or more firearms while a convicted felon, in violation of 18
U.S.C. § 922(g) (Count 3). On appeal, Smith argues that (1) the
district court abused its discretion by admitting hearsay
testimony, (2) the evidence was insufficient to sustain his
convictions, and (3) the Government violated his due process
rights by failing to call his coconspirator to testify. We
affirm.
First, we review the district court’s hearsay ruling for
abuse of discretion. United States v. Gonzales-Flores, 701 F.3d
112, 117 (4th Cir. 2012). “Hearsay” is any statement that the
declarant does not make at the instant trial that “a party
offers in evidence to prove the truth of the matter asserted in
the statement.” Fed. R. Evid. 801(c). Hearsay is inadmissible
except as otherwise provided by federal rule or statute. Fed.
R. Evid. 802.
Here, we conclude that any error in the admission of the
challenged testimony was harmless because “it appears ‘beyond a
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reasonable doubt that the error complained of did not contribute
to the verdict obtained.’” See United States v. Lovern, 293
F.3d 695, 701 (4th Cir. 2002) (quoting Neder v. United States,
527 U.S. 1, 15 (1999)). The complained-of statement was offered
to prove that Smith was a passenger in a car connected with one
of the burglaries. But even without the testimony, the evidence
was more than sufficient to sustain Smith’s connection with that
burglary, his coconspirator, and the stolen firearms.
Therefore, this claim entitles Smith to no relief.
Nor do we find merit in Smith’s contention that the
complained-of statement violates his rights under the
Confrontation Clause. The Confrontation Clause’s reach is
limited to testimonial statements. Crawford v. Washington, 541
U.S. 36, 68 (2004). Here, the challenged statement was
nontestimonial as it was obtained not to learn about past
events, but to apprehend a fleeing suspect. See Davis v.
Washington, 547 U.S. 813, 822 (2006) (explaining that statements
are “nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency”). Thus, the
Confrontation Clause is inapplicable.
We next review de novo the district court’s denial of
Smith’s Fed. R. Crim. P. 29 motion for judgment of acquittal.
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United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). We
will affirm if, when the evidence is viewed in the light most
favorable to the Government, “the conviction is supported by
substantial evidence.” United States v. Hickman, 626 F.3d 756,
762-63 (4th Cir. 2010) (internal quotation marks omitted).
“Substantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Green, 599 F.3d 360, 367 (4th Cir. 2015)
(internal quotation marks omitted). A defendant challenging
evidentiary sufficiency “faces a heavy burden.” United
States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). Reversal
of a conviction on these grounds is limited to “cases where the
prosecution’s failure is clear.” Id. at 244-45 (internal
quotation marks omitted).
To obtain a conviction under Count 1, the Government had to
show that Smith engaged in a conspiracy to violate 18 U.S.C.
§ 922(j), which requires an agreement between Smith and his
coconspirator, Johnson, to receive and possess stolen firearms,
and an overt act in furtherance of that conspiracy. United
States v. Cone, 714 F.3d 197, 213 (4th Cir. 2013). Notably, the
agreement may be inferred from circumstantial evidence. Cone,
714 F.3d at 213. Under Count 2, the Government had to
demonstrate that Smith aided and abetted Johnson in violating
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§ 922(j). Accordingly, to sustain Smith’s convictions under
both counts, a reasonable juror must be able to conclude that
Smith conspired, and aided and abetted Johnson, to knowingly
possess stolen guns that had been shipped in interstate
commerce. See United States v. Moye, 454 F.3d 390, 395 (4th
Cir. 2006) (en banc).
Under Count 3, the Government had to show that Smith
knowingly possessed a firearm, as Smith does not contest his
convicted-felon status. To prove possession, the Government
need only demonstrate that Smith’s “possession was constructive,
meaning that he exercised, or had the power to exercise,
dominion and control over the firearm.” United States v.
Wilson, 484 F.3d 267, 282 (4th Cir. 2007) (internal quotation
marks omitted).
Viewing the evidence in the light most favorable to the
Government, we conclude that a reasonable juror could make a
number of inferences critical to sustaining Smith’s conviction:
(1) Smith was present at the final burglary; (2) Smith threw a
duffel bag out of the car window as police pursued the car; and
(3) Smith knew that the bag contained stolen guns, which were
instantly recognizable by their distinct weight and shape.
Given these inferences, the jury could conclude, beyond a
reasonable doubt, that Smith conspired to possess a stolen gun,
and aided and abetted Johnson in possessing a stolen gun. That
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Smith fled from Johnson’s car makes the jury’s interpretation of
the evidence all the more reasonable: “It cannot be doubted that
in appropriate circumstances, a consciousness of guilt may be
deduced from evidence of flight and that a jury’s finding of
guilt may be supported by consciousness of guilt.” United
States v. Obi, 239 F.3d 662, 665 (4th Cir. 2001). Thus, we hold
that the evidence was sufficient to sustain the district court’s
judgment.
We conclude by reviewing Smith’s due process claims, which
were not raised at trial, for plain error. United States v.
Promise, 255 F.3d 150, 153 (4th Cir. 2001) (en banc). To
satisfy this standard of review, Smith must demonstrate that an
error (1) occurred, (2) was plain, and (3) affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). Even then, we may exercise our discretion to correct
such errors only if they “seriously affect the fairness,
integrity, or public reputation of judicial proceedings.” Id.
Smith essentially claims that the Government engaged in
prosecutorial misconduct by refusing to call Johnson to testify.
To show prosecutorial misconduct, Smith must demonstrate
“(1) that the prosecutors engaged in improper conduct, and
(2) that such conduct prejudiced the defendant’s substantial
rights so as to deny him a fair trial.” United States v.
Alerre, 430 F.3d 681, 689 (4th Cir. 2005).
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We find no evidence of prosecutorial misconduct on this
record. The Government had the right to call whomever they
pleased, as did Smith. Neither elected to call Johnson. In
short, we see no basis for reversal.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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