United States v. Lewis , 274 F. App'x 259 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4989
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RHAMAL LAMAHR LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:03-cr-00044-BO)
Submitted: January 9, 2008 Decided: April 17, 2008
Before MOTZ and SHEDD, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rhamal Lamahr Lewis appealed his jury convictions of
possession with intent to distribute more than fifty grams of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (1999) (Count
One); possession of a firearm in furtherance of the drug
trafficking crime charged in Count One, in violation of 18 U.S.C.A.
§ 924(c)(1)(A) (West 2000 & Supp. 2007 (Count Two); and being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2000), 18 U.S.C.A. § 924 (West 2000 & Supp. 2007)
(Count Three). Lewis also pled guilty to a second count of being
a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2000), 18 U.S.C.A. § 924 (West 2000 & Supp. 2007)
(Count Four). He was sentenced to life plus sixty years’
imprisonment. For the reasons that follow, we affirm.
Lewis first challenges the district court’s decision to
limit his cross-examination of Detective Marshburn regarding the
confidential informant. A district court’s decision to limit
cross-examination is reviewed for abuse of discretion. United
States v. Scheetz, 293 F.3d 175, 184 (4th Cir. 2002). The
Confrontation Clause does not guarantee counsel the right to
unfettered, unlimited cross-examination, nor does it prevent a
trial judge from imposing reasonable limits on cross-examination
based upon concerns about harassment, prejudice, confusion of the
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issues, witness safety, repetition, or relevance. Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986).
We find Lewis’s first challenge without merit. Because
the confidential informant did not testify, his credibility was not
at issue. See United States v. Sanchez, 118 F.3d 192, 196-97 (4th
Cir. 1997). Lewis did not challenge the validity of the search
warrant. Nor was he charged with the sale to the confidential
informant, and the district court specifically instructed the jury
that “[t]he defendant is not on trial for any other act or any
other conduct or offense not specifically alleged in the
indictment.” While the marked twenty dollar bill acquired by Lewis
from the informant provided some proof of Lewis’s knowledge and
intent to distribute the 53.6 grams of crack discovered in his
vacuum cleaner, the testimony regarding the marking and discovery
of the bill was provided by the detective, who was fully subject to
cross-examination. For these reasons, we find the district court
did not abuse its discretion in restricting the cross-examination
of Detective Marshburn regarding the observations and actions of
the confidential informant.
Next, Lewis argues the district court erred in failing to
suppress statements he made in the bedroom of his apartment,
regarding his sole occupancy and ownership of the apartment’s
contents, without the benefit of Miranda* warnings. We find the
*
Miranda v. Arizona, 384 U.S. 436 (1966).
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district court did not err in distinguishing United States v.
Parker, 262 F.3d 415, 419 (4th Cir. 2001), and in determining that
the circumstances at 104 Seawell Avenue were sufficiently custodial
to necessitate Miranda warnings prior to the questioning of any
potential suspects. Nevertheless, we conclude the district court’s
erroneous admission of Lewis’s statement about occupancy and
ownership was harmless. See Fed. R. Crim. P. 52(a); United
States v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001). The
Government’s evidence at trial overwhelmingly established Lewis’s
possession of the gun and the crack cocaine discovered in the
vacuum cleaner.
Finally, Lewis argues the court’s jury instruction
regarding evidence of prior bad acts was erroneous. Because there
was no objection to the instruction during trial, we review the
claim only for plain error. Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993).
Evidence of prior bad acts is not admissible to prove bad
character or criminal propensity, but such evidence is admissible
to prove motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. See Fed. R. Evid.
404(b); United States v. Queen, 132 F.3d 991, 994-95 (4th Cir.
1997). Such evidence is admissible only when it is: (1) relevant
to an issue other than the general character of the defendant,
(2) necessary, (3) reliable, and (4) the probative value of the
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evidence is not substantially outweighed by its prejudicial value.
Queen, 132 F.3d at 997.
Consistent with the pretrial notice, the Government
introduced at trial evidence of Lewis’s other bad acts under Rule
404(b). We find Lewis has failed to demonstrate that the district
court’s jury instruction was erroneous, let alone plainly so. At
issue in the trial was Lewis’s knowledge and intent with respect to
the gun and drugs discovered in the vacuum cleaner of his
apartment. Evidence of prior drug sales was admissible under Rule
404(b) to prove Lewis’s knowledge and intent. See United States v.
Mark, 943 F.2d 444, 448 (4th Cir. 1991). The district court’s
instruction that evidence of prior similar conduct was offered to
show Lewis’s “familiarity with the drug business” referred to
Lewis’s knowledge and intent regarding crack distribution, rather
than to some general propensity for criminal conduct.
Accordingly, we affirm Lewis’s convictions. 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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