United States v. Antonio Davis , 648 F. App'x 295 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4845
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO DAVIS, a/k/a Tank Top,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:13-cr-00002-WDQ-1)
Submitted: April 29, 2016 Decided: May 6, 2016
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Arthur S. Cheslock, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, James Thomas Wallner,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Antonio Davis of conspiracy to affect
commerce by robbery, in violation of 18 U.S.C. §§ 2, 1951(a)
(2012); conspiracy to distribute and possess with intent to
distribute five kilograms or more of cocaine, in violation of
21 U.S.C. § 846 (2012); conspiracy to possess firearms in
furtherance of a crime of violence or a drug trafficking crime,
in violation of 18 U.S.C. § 924(o) (2012); possession of a
firearm in furtherance of a crime of violence or a drug
trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c); and
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 2, 922(g)(1) (2012). The district court sentenced
Davis to a total of 295 months’ imprisonment.
On appeal, counsel for Davis filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious issues for appeal but questioning whether the
district court erred in certifying the transcript for appeal,
whether the government’s employment of a stash house sting
operation constituted outrageous conduct, whether the district
court abused its discretion in admitting evidence of Davis’
criminal record, and whether sufficient evidence supported
Davis’ convictions for possession of a firearm. Davis did not
file a supplemental pro se brief, despite notice of his right to
2
do so. The government elected not to file a response to the
Anders brief.
I.
On appeal, Davis first contends that the district court
abused its discretion by certifying the trial transcripts
without referring to the court reporter’s backup tapes. Davis
asserts that the trial transcript is deficient because it does
not reflect (1) his statement to the court on the first day of
trial that he had not had time to prepare a defense and wanted a
new lawyer, and (2) defense counsel’s objection to the trial
court’s response to the jury’s question regarding entrapment.
The Court Reporter Act requires a verbatim recording of
“all proceedings in criminal cases had in open court.”
28 U.S.C. § 753(b) (2012). “The public, including the parties
to a suit, have a right of access to the records of a judicial
proceeding.” Smith v. U.S. Dist. Court Officers, 203 F.3d 440,
441 (7th Cir. 2000). A defendant would have a right to access a
tape that is an original record of the proceeding. Id. at 442.
However, “audiotapes that merely back up the court reporter’s
stenographic record” are the “personal property of the reporter”
and are not “judicial records, unless some reason is shown to
distrust the accuracy of the stenographic transcript.” Id.
We have held that, when a portion of a trial transcript is
unavailable, “[t]he lack of a record does not warrant reversal
3
. . . as long as the reviewing court is satisfied that no error
occurred at trial. The appellant must demonstrate that the
missing portion . . . specifically prejudices his appeal before
relief will be granted.” United States v. Gillis, 773 F.2d 549,
554 (4th Cir. 1985) (internal citation omitted); see United
States v. Huggins, 191 F.3d 532, 537 (4th Cir. 1999) (when a
transcript is missing or less than complete, the “defendant must
show that the transcript errors specifically prejudiced his
ability to perfect an appeal.”). An appellant demonstrates
prejudice “when a trial transcript is so deficient that it is
impossible for the appellate court to determine if the district
court has committed reversible error.” Huggins, 191 F.3d at 537
(internal quotation marks omitted).
Here, the district court conducted an evidentiary hearing
and certified the transcripts based on the testimony of the
court reporter, trial counsel, and the court’s own recollection
of events. Davis does not pursue either of the alleged
omissions substantively on appeal, nor does our review pursuant
to Anders find any meritorious issue associated with the
purported omissions. Accordingly, we conclude that Davis fails
to establish prejudice.
II.
In his second issue on appeal, Davis suggests that the
government’s employment of a stash house sting operation was
4
outrageous conduct in violation of the Due Process Clause. The
Supreme Court has held that there may be “a situation in which
the conduct of law enforcement agents is so outrageous that due
process principles would absolutely bar the government from
invoking judicial processes to obtain a conviction.” United
States v. Russell, 411 U.S. 423, 431 (1973). However, “the
outrageous conduct doctrine is highly circumscribed and applies
only in rare cases.” United States v. Hare, __ F.3d __, __, No.
14-4758, 2016 WL 1567051, at *7 (4th Cir. Apr. 19, 2016)
(internal citations and quotation marks omitted). “The
government’s actions must be shocking or offensive to
traditional notions of fundamental fairness.” Id. (internal
quotation marks omitted). We recently held in Hare that it is
not outrageous for law enforcement “to utilize stash house
stings as an investigative tool.” Id. at *8. Given the
circumstances of the instant case, the government’s conduct here
was not “so outrageous as to shock the conscience of the court.”
Id. (internal quotations marks omitted).
III.
Next, Davis complains that the trial court abused its
discretion by admitting Fed. R. Evid. 404(b) evidence,
specifically Davis’ criminal record. Fed. R. Evid. 404
“generally prohibits evidence of other crimes or bad acts to
prove the defendant’s character and conduct in accordance with
5
his character.” United States v. McLaurin, 764 F.3d 372, 380
(4th Cir. 2014), cert. denied, 135 S. Ct. 1842 (2015). However,
such evidence may be admissible for another purpose and “there
is no doubt that proving predisposition [to rebut an entrapment
defense] is one of the purposes for which bad-act evidence may
be admissible.” Id. “To be admissible under Rule 404(b) to
prove predisposition, . . . the past conduct need not be
identical to the crime charged. Rather, the conduct need only
be similar enough and close enough in time to be relevant to the
matter at issue.” Id. at 382 (internal quotation marks
omitted). “Where the evidence is probative, the balance under
[Fed. R. Evid.] 403 should be struck in favor of admissibility,
and evidence should be excluded only sparingly.” United States
v. Lentz, 524 F.3d 501, 525 (4th Cir. 2008) (internal quotation
marks omitted). A district court abuses its discretion by
admitting Rule 404(b) evidence only if its decision “was
arbitrary and irrational.” United States v. Weaver, 282 F.3d
302, 313 (4th Cir. 2002).
Davis’ criminal record established that he had been
convicted of attempted first-degree murder, two counts of first-
degree assault, and the use of a firearm in the commission of
those offenses. Davis was on parole for these crimes at the
time of the instant offense. We conclude that the district
court did not abuse its discretion in finding that Davis’
6
criminal record was relevant as to whether he was predisposed to
commit violent crimes with firearms.
IV.
Finally, Davis questions the sufficiency of the evidence
supporting his convictions for possession of a firearm. We
review de novo the denial of a Fed. R. Crim. P. 29 motion for a
judgment of acquittal. United States v. Hickman, 626 F.3d 756,
762 (4th Cir. 2010). In considering a challenge to the
sufficiency of the evidence, we view the evidence in the light
most favorable to the government and inquire “whether a
reasonable finder of fact could find the essential elements of
the crime beyond a reasonable doubt.” United States v. Min, 704
F.3d 314, 322 (4th Cir. 2013). “Reversal for insufficient
evidence is reserved for the rare case where the prosecution’s
failure is clear.” United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997) (internal quotation marks omitted).
To prove a violation of § 924(c)(1), the government must
demonstrate that: “(1) the defendant used or carried a firearm,
and (2) the defendant did so during and in relation to a drug
trafficking offense or crime of violence,” United States v.
Mitchell, 104 F.3d 649, 652 (4th Cir. 1997), or “that the
possession of a firearm furthered, advanced, or helped forward a
drug trafficking crime.” United States v. Perry, 560 F.3d 246,
254 (4th Cir. 2009) (internal quotation marks omitted). The
7
government can prove the possession element of this offense by
establishing that the defendant “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).
Likewise, “[l]iability under § 922(g)(1) may arise from a
felon’s voluntary and intentional possession of a firearm,
whether the felon possessed the weapon actually or
constructively, exclusively or jointly with others.” United
States v. Graham, 796 F.3d 332, 376 (4th Cir. 2015), reh’g en
banc granted, 624 F. App’x 75 (4th Cir. Oct. 28, 2015) (granting
government’s petition for rehearing regarding warrantless
procurement of cell site location information). “Constructive
possession occurs when a person exercises, or has the power to
exercise, dominion and control over an item of property.” Id.
(alterations and internal quotation marks omitted). Evidence
that “a defendant has dominion and control over the . . .
vehicle where the item is located” establishes constructive
possession of the item. Id.
Moreover, a defendant is liable for his codefendant’s
reasonably foreseeable acts in furtherance of a conspiracy. See
United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir. 2010)
(citing United States v. Pinkerton, 328 U.S. 640, 647 (1946))
(setting forth doctrine of vicarious coconspirator liability).
8
Finally, “[a] defendant is guilty of aiding and abetting if he
has knowingly associated himself with and participated in the
criminal venture.” United States v. Burgos, 94 F.3d 849, 873
(4th Cir. 1996) (en banc) (internal quotation marks omitted).
“An active participant in a drug transaction has the intent
needed to aid and abet a § 924(c) violation when he knows [in
advance] that one of his confederates will carry a gun.”
Rosemond v. United States, 134 S. Ct. 1240, 1249 (2014).
We have reviewed the evidence and conclude that, under any
theory, the evidence is sufficient to support Davis’ substantive
firearm convictions.
V.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Davis, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Davis requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Davis.
9
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
10