United States v. Anderson , 249 F. App'x 982 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4234
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY ANDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:05-cr-00179-CMC)
Submitted: October 31, 2007 Decided: December 11, 2007
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Johnny E. Watson, Sr., WATSON LAW FIRM, Columbia, South Carolina,
for Appellant. Reginald I. Lloyd, United States Attorney, Robert
C. Jendron, Jr., Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Anderson was convicted by a jury of possession of
a firearm and ammunition by a felon, in violation of 18 U.S.C.
§§ 922(g)(1); 924(a)(2), (e) (2000). Anderson was sentenced to 235
months’ imprisonment. Finding no error, we affirm.
On appeal, Anderson first contends that the district court
erred in denying his motion for a mistrial. We review the grant or
denial of a motion for mistrial for abuse of discretion. United
States v. West, 877 F.2d 281, 287-88 (4th Cir. 1989); see also
United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997)
(disturbing a district court’s ruling “only under the most
extraordinary of circumstances”). “A defendant must show prejudice
in order for the court’s ruling to constitute an abuse of
discretion, and no prejudice exists if the jury could make
individual guilt determinations by following the court’s cautionary
instructions.” West, 877 F.2d at 288.
During a pre-trial hearing, the Government agreed that its
witnesses would not refer to the area in which Anderson was
discovered as a “high crime” or “problem” area. However, despite
this agreement, the Government’s first witness characterized the
area as “high crime.” Anderson objected to the characterization and
moved for a mistrial. The court responded: “Ladies and gentlemen,
I’m going to strike that testimony. It is not relevant to this case
at all whether or not this was a high crime area, and you should not
consider that in any manner in deciding the facts in this case.”
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The issue was revisited after the witness left the stand, and the
court once again denied Anderson’s motion.
The witness’ statement was an isolated remark made during
the course of the trial. Even if the remark could be said to have
prejudiced Anderson by misleading the jury or diverting its
attention, such prejudice was minimal when compared to the
compelling evidence introduced at trial to establish Anderson’s
guilt. Furthermore, any prejudice suffered by Anderson was cured by
the district court’s limiting instruction given immediately after
Anderson’s objection. See United States v. Francisco, 35 F.3d 116,
119-20 (4th Cir. 1994) (per curiam) (stating this court generally
follows the presumption that the jury obeyed the district court’s
instructions).
Relying on United States v. Lopez, 514 U.S. 549 (1995),
Anderson next contends that 18 U.S.C. § 922(g)(1) is
unconstitutional because it lacks a proper nexus to interstate
commerce. However, we have previously considered and rejected a
similar challenge in United States v. Wells, 98 F.3d 808, 810-11
(4th Cir. 1996). In Wells, this court determined that “[u]nlike the
statute at issue in Lopez, § 922(g) expressly requires the
Government to prove the firearm was shipped or transported in
interstate or foreign commerce; was possessed in or affected
commerce; or was received after having been shipped or transported
in interstate or foreign commerce.” Wells, 98 F.3d at 811 (internal
quotation marks omitted). Thus, “[t]he existence of this
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jurisdictional element, requiring the Government to show that a
nexus exists between the firearm and interstate commerce to obtain
a conviction under § 922(g), distinguishes Lopez and satisfies the
minimal nexus required for the Commerce Clause.” Id.
Anderson also contends that the district court erred in
admitting the firearm into evidence without the Government
establishing a complete chain of custody. He vaguely asserts that
there “were times” when the firearm was “handled” and not
documented. We review a district court’s decision regarding the
admission or exclusion of evidence for abuse of discretion. United
States v. Lancaster, 96 F.3d 734, 744 (4th Cir. 1996). “Rule 901(a)
of the Federal Rules of Evidence requires that a party introducing
evidence establish the authenticity of its evidence by demonstrating
that the matter in question is what its proponent claims.” United
States v. Jones, 356 F.3d 529, 535 (4th Cir. 2004) (internal
quotation marks omitted). Thus, the government must demonstrate a
sufficient chain of custody for the evidence. Id. To do so, the
government must “establish that the item to be introduced . . . is
what it purports to be . . . so as to convince the court that it is
improbable that the original item had been exchanged with another or
otherwise tampered with.” United States v. Howard-Arias, 679 F.2d
363, 366 (4th Cir. 1982).
At trial, Deputy Thomas Hamilton testified that he
observed a firearm fall out of Anderson’s waistband during his
pursuit of Anderson. Deputy Hamilton promptly retrieved the firearm
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after taking Anderson into custody, and placed it into evidence at
the Lexington County Sheriff’s Department. The firearm’s serial
number was recorded in the evidence log. Prior to its admission at
trial, Deputy Hamilton testified without ambiguity that Government’s
Exhibit 16 was the same firearm he retrieved on the date in question
and confirmed that the firearm contained the same serial number as
that recorded in the evidence log. Thus, we conclude the district
court did not abuse its discretion in admitting the firearm into
evidence.
Next, Anderson contends the district court improperly
refused to define reasonable doubt for the jury. The decision
whether or not to give a jury instruction as well as the content of
that instruction are reviewed for an abuse of discretion. United
States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). “The trial
court is not required to define reasonable doubt as a matter of
course so long as the jury is instructed that a defendant’s guilt
must be proven beyond a reasonable doubt . . . .” United States v.
Williams, 152 F.3d 294, 298 (4th Cir. 1998). This court neither
requires nor encourages trial courts to define reasonable doubt,
even upon request. Id. Therefore, because the jury was properly
instructed on the Government’s burden of proof, we conclude the
district court did not abuse its discretion in refusing to further
define the term reasonable doubt.
Anderson also contends that his counsel provided
ineffective assistance by failing to call additional defense
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witnesses to corroborate his girlfriend’s testimony. An ineffective
assistance of counsel claim is generally not cognizable on direct
appeal, but should instead be asserted in a post-conviction motion
under 28 U.S.C. § 2255 (2000). See United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999). However, we have recognized an
exception to the general rule when “it ‘conclusively appears’ from
the record that defense counsel did not provide effective
representation.” Id. (quoting United States v. Gastiaburo, 16 F.3d
582, 590 (4th Cir. 1994)). Because the record does not conclusively
establish that counsel was ineffective, Anderson’s claim is not
cognizable on direct appeal.
Finally, Anderson contends Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 543 U.S. 220 (2005),
require not only that the predicate convictions used for Armed
Career Criminal Act (“ACCA”) enhancement purposes be alleged in the
indictment, but also found by a jury beyond a reasonable doubt.
Anderson’s argument, however, is foreclosed by United States v.
Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005), in which we held prior
convictions used as a basis for enhancement under the ACCA need not
be charged in the indictment nor proven beyond a reasonable doubt.
Accordingly, we affirm the judgment of the district court.
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 in the decisional process.
AFFIRMED
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