United States v. Barron ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5241
KENNETH EUGENE BARRON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-94-306-WN)
Submitted: January 30, 1996
Decided: February 16, 1996
Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Benjamin A. Neil, Baltimore, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Andrew C. White, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Kenneth Eugene Barron appeals from a district court judgment of
conviction on four counts of being a felon in possession of weapons
and ammunition in violation of 18 U.S.C.A. #8E8E # 921, 922(g)(1) (West
1976 & Supp. 1995). We affirm.
Barron first contends that the district court violated his constitu-
tional right to privacy by allowing Barron's cellmate, Anthony Green,
to testify regarding statements Barron made while a pre-trial detainee
about ownership of the two guns involved in the four counts. The
claim is meritless.
We review only for plain error because Barron did not object to the
testimony at trial. United States v. Olano, 507 U.S. 725, ___, 61
U.S.L.W. 4421, 4423 (U.S. Apr. 26, 1993) (No. 91-1306). Green con-
tacted the Government himself after Barron made incriminating state-
ments to him while the two shared a cell. Green obtained a United
States Marshals Service address by looking at Barron's mail. Barron
made the statements voluntarily, and even though Green may have
obtained the address through which he contacted the Government by
looking at Barron's mail, this did not violate any constitutional pro-
tection. Testimony revealed that Barron showed Green a detainer he
received from the Marshals Service; thus, he waived any privacy
interest in that piece of paper. Further, if Green obtained the address
by looking at the envelope in which the detainer arrived, Barron can
hardly assert a privacy interest in the exterior of an envelope. Thus,
we find no error in the admission of the testimony; and, even if the
admission was in error, it had no effect on the fairness, integrity, or
public reputation of the proceedings below, cf. United States v.
Kinney, 953 F.2d 863, 864 (4th Cir.) (courts need not exclude evi-
dence illegally obtained by private actors), cert. denied, 504 U.S. 989(1992). For these two reasons, there was no plain error in the admis-
sion of the testimony. United States v. Hanno , 21 F.3d 42, 45 (4th Cir.
1994) (four-part plain error analysis).
Barron next contends that the evidence was insufficient to support
the convictions because it did not show his possession of the weapons
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and ammunition. See 18 U.S.C.A. §§ 921, 922 (elements of felon-in-
possession crime); United States v. Essick, 935 F.2d 28, 29-31 (4th
Cir. 1991) (same). We review the evidence in the light most favorable
to the Government to determine whether a reasonable trier of fact
could find all the elements of the crimes beyond a reasonable doubt.
Glasser v. United States, 315 U.S. 60, 80 (1942). The claim is without
merit.
Direct evidence (from Green) showed that Barron actually pos-
sessed the two guns by owning them. Circumstantial evidence showed
the Government found two types of ammunition openly stored in
common areas of Barron's residence that he shared with his girl-
friend. Inferences from Green's testimony that Barron owned weap-
ons showed Barron's intent to possess ammunition. Because the
evidence thus showed Barron's knowledge of the existence of ammu-
nition over which Barron had the power and intent to possess, the evi-
dence was sufficient to show constructive possession of the
ammunition. This was sufficient to support conviction on the ammu-
nition counts. United States v. Bell, 954 F.2d 232, 235 (4th Cir. 1992);
United States v. Garcia, 917 F.2d 1370, 1376 (5th Cir. 1990); United
States v. McCoy, 781 F.2d 168, 170-71 (10th Cir. 1985).
Finally, Barron contends that the district court improperly consid-
ered the substance of impeachment evidence. We find no reversible
error.
Detective Woodhouse testified at trial that he overheard Barron's
girlfriend, Laura Party, state during a search of Barron's residence
that Barron owned the gun found on the premises. The court stated
during its factual findings that this evidence was probative. Clarifying
its statement on suggestion of the Government, the court stated that
the evidence was probative of Party's truthfulness at trial and oper-
ated to undermine an attempt by the defense to show that Barron did
not possess the weapons because they belonged to Party.
While the district court might have been more thorough in its anal-
ysis of the impeachment evidence and more explicit in its limitation
of the evidence solely to impeachment, we believe the district court
did not err. The court ultimately made it clear that the evidence was
useful only to evaluate Party's veracity. Further, even if the court did
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err, the error was harmless. Fed. R. Crim. P. 52(a) (harmless error
provides no basis for reversal). The court expressly stated in its fac-
tual findings that Party's evidence was not the basis for his finding
of guilt; rather, the district court found Green's testimony sufficient
to establish guilt regarding the gun counts. The statements had no pro-
bative value regarding the ammunition counts. Thus, the claim of
error does not provide a substantive basis for attacking the judgment.
In conclusion we affirm the district court's judgment of conviction
on all four counts. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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