United States v. Williams ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5808
WALTER E. WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-95-58)
Submitted: January 28, 1997
Decided: February 13, 1997
Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Hunt L. Charach, Federal Public Defender, Charleston, West Vir-
ginia, for Appellant. Rebecca A. Betts, United States Attorney, Steph-
anie D. Thacker, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Walter E. Williams was convicted by a jury of possessing a firearm
while a convicted felon in violation of 18 U.S.C.§ 922(g)(1) (1994).
He appeals his conviction and his 115-month sentence, alleging that
the district court erred in rejecting his proposed jury instruction, in
admitting certain evidence, in refusing to dismiss a juror who recog-
nized a government witness, and in enhancing his sentence for reck-
less endangerment. United States Sentencing Commission, Guidelines
Manual, § 3C1.2 (Nov. 1994). We affirm.
In January 1995, while Walter E. Williams was on supervised
release after serving a term of imprisonment for a drug offense, Dep-
uty United States Marshal William Snodgrass found him in posses-
sion of a .38 caliber bullet and a black nylon holster. In February
1995, after the court received information that Williams had violated
the conditions of his supervised release, a warrant issued for Wil-
liams' arrest. His probation officer ordered Williams to surrender but
he failed to do so.
On February 23, 1995, Probation Officer Tom Lewis saw Williams
drive his black Mercury into a hotel parking lot. Lewis contacted the
United States Marshal's Service. Shortly afterward, Deputy Marshal
William Snodgrass arrived at the parking lot. Williams was gone from
the car; however, looking through the window, Snodgrass observed
a gun partially concealed under the floor mat on the driver's side. The
gun proved to be a .38 special, a derringer. It had two bullets in it and
was in the same black nylon holster which Snodgrass found attached
to Williams' belt in January.
Williams was taken into custody the next day. Early in the after-
noon, he eluded capture after a footrace in a residential area. Just
before dark, while Williams was riding with a confidential informant,
deputy marshals and Kanawha County deputy sheriffs surrounded his
car on a main highway. Williams got out of the car, jumped the
median barrier, ran across the oncoming traffic lanes, and went down
a brushy hillside toward the Kanawha River. The deputies chased him
with guns drawn because they believed he was armed. One deputy
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accidentally discharged his weapon during the chase. When Williams
was confronted on the river bank, he refused to surrender, went into
the water and refused to come out. Two deputies were forced to sub-
due Williams in the water to take custody of him.
When the bullet seized on January 9 from Williams was examined
by C.R. Lane, the Firearms and Toolmarks Examiner for the West
Virginia State Police Forensic Laboratory, Lane found that it had fire
pin markings which indicated that it had been fired from the derringer
seized on February 24. Lane's report was provided to Williams prior
to trial. The government filed a motion in limine to determine whether
the evidence was admissible. The district court excluded evidence
linking the bullet seized on January 9 to the gun seized on February
24 from the government's case-in-chief because the defense had not
been given notice that expert testimony would be used. The court later
permitted the government to introduce this evidence in rebuttal.
At trial, Crystal Jones testified for the government that Williams
tried to sell her a .38 caliber derringer with a black holster on Febru-
ary 22, 1995, the day before the gun was found in his car. Williams'
girlfriend, Jane Fletcher, testified that the gun belonged to her, that
she had left it in the car the night before Williams' arrest, and that he
did not know it was in the car. In rebuttal, the government first had
Deputy Marshal Snodgrass testify about the bullet Williams possessed
in January 1995. Next, C.R. Lane testified that the bullet found in
Williams' pants pocket in January had been fired from the same der-
ringer seized from his car in February and reloaded for additional use.
On appeal, Williams first contends that the district court erred in
refusing to instruct the jury that, following the Supreme Court's deci-
sion in Lopez v. United States, ___ U.S. ___, 63 U.S.L.W. 4343 (U.S.
Apr. 26, 1995) (No. 93-1260), the government was required to prove
that the defendant's possession of the firearm had an explicit connec-
tion with or effect on interstate commerce. Williams argues that
Lopez heightened the burden of proof for all federal firearms offenses,
a position which is based on inferences drawn from the language of
the opinion rather than its explicit holding. The argument he makes
was rejected in United States v. Smith, 101 F.3d 202, 215 (1st Cir.
1996) (proof of minimal nexus to interstate commerce still sufficient
for § 922(g) conviction after Lopez); see also United States v. Lewis,
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100 F.3d 49, 50-53 (7th Cir. 1996) (same). Consequently, we find that
the district court did not err in refusing Williams' requested jury
instruction.
Next, Williams contends that C.R. Lane's testimony was improp-
erly admitted because it concerned another bad act (Williams' posses-
sion of the bullet seized in January) and no notice of his testimony
was provided until the eve of trial. Fed. R. Evid. 404(b) provides that
evidence of other crimes, wrongs, or bad acts may be admissible at
trial if the government gives reasonable notice before trial. Other
criminal acts are intrinsic to the charged crime (and therefore are not
excludable under Rule 404(b)) if they are inextricably intertwined
with it or are necessarily preliminary to it or if both are part of a sin-
gle criminal episode. United States v. Chin, 83 F.3d 83, 87-88 (4th
Cir. 1996). Possession of a firearm and possession of ammunition for
the firearm are acts which are inextricably intertwined even though
each may be charged as a separate crime. The district court's exclu-
sion of Lane's testimony from the government's case-in-chief was
based on the government's failure to identify Lane as an expert wit-
ness in pretrial disclosure as required by Fed. R. Crim. P. 16(a)(1)(E),
not because his testimony concerned a prior bad act. Lane's testimony
was not excludable under Rule 404(b).
Williams also argues that Lane's expert testimony was inadmissi-
ble because the government failed to list him as an expert witness or
provide a summary of his expected testimony during discovery. How-
ever, Rule 16(a)(1)(E) requires the government to disclose a summary
of expert witness testimony which it intends to use during its case-in-
chief. Lane's testimony became necessary only after Fletcher's testi-
mony that the gun found in Williams' car in February belonged to
her. Because Rule 16 did not prevent Lane's testimony in rebuttal, no
error occurred.
In the middle of the trial, juror Harold Boggess notified the court
that he saw government witness C.R. Lane in the hall and recognized
him as an assistant scoutmaster known to him as"Rocky" Lane. The
district court questioned juror Boggess about his acquaintance with
Lane and permitted both attorneys to do so. Boggess said he and Lane
had gone on camping trips with the scouts two or three times a year
for the last three years. Boggess said he respected Lane's opinion but
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would be able to reach a fair and impartial verdict nonetheless and
would not give undue weight to Lane's testimony. Although an alter-
nate was available and defense counsel asked that Boggess be dis-
missed, the district court decided to keep him on the panel.
A determination of impermissible bias is "essentially one of credi-
bility, and therefore largely one of demeanor," and thus a trial court's
evaluation of a juror is entitled to "special deference." Patton v.
Yount, 467 U.S. 1025, 1038 (1984). Williams argues that, because
Lane's testimony was improperly admitted, the damage was "cumula-
tive." However, Lane's testimony was properly admitted. Conse-
quently, we find that the district court did not abuse its discretion in
refusing to dismiss Boggess.
Finally, Williams challenges the finding that a sentence enhance-
ment for reckless endangerment was appropriate because of his
attempt to elude capture on the highway and the riverbank. The guide-
line provides for a two-level adjustment if the defendant recklessly
created a substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.
"Reckless" is used as it is defined in USSG§ 2A1.4 to mean that "the
defendant was aware of the risk created by his conduct and the risk
was of such a nature and degree that to disregard that risk constituted
a gross deviation from the standard of care that a reasonable person
would exercise in such a situation." The district court's factual finding
is reviewed for clear error. See United States v. John, 935 F.2d 644,
648 (4th Cir. 1991).
The court found that Williams earned the adjustment by running
across four lanes of traffic, causing the marshals to follow him, caus-
ing them to run after him over uneven terrain with weapons drawn,
and finally forcing them to remove him from the river. Williams
argues that he did no more than flee. However, the circumstances of
his flight created obvious risks to all concerned from the traffic and
the danger of firearms being discharged. The district court did not
clearly err in finding that Williams had created a serious risk of death
or serious bodily injury to another in the course of his flight.
The conviction and sentence are therefore affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
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quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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