United States v. Michael Ecklin , 528 F. App'x 357 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4323
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ANGELO ECKLIN,
Defendant - Appellant.
No. 12-4324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KHALLID MUHUMMED CARTER, a/k/a Khallid Muhamad Carter,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:11-cr-00139-RGD-DEM-1; 2:11-cr-00139-RGD-
DEM-2)
Argued: March 20, 2013 Decided: June 14, 2013
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Chief Judge Traxler and Senior Judge Hamilton
concurred.
ARGUED: Kim Michelle Crump, Norfolk, Virginia; Paul Granville
Watson, PAUL G. WATSON IV, PC, Eastville, Virginia, for
Appellants. Benjamin L. Hatch, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Neil H.
MacBride, United States Attorney, Alexandria, Virginia, Cameron
M. Rountree, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
WYNN, Circuit Judge:
After a joint jury trial, Defendants Michael Ecklin and
Khallid Carter each were convicted of possession of a firearm by
a felon in violation of 18 U.S.C. § 922(g)(1). At trial,
neither defendant disputed that Ecklin fired an AK-47, that
Carter gave him the loaded weapon, or that both defendants were
convicted felons. Instead, each defendant contended that his
gun possession was justified in response to an armed third
person.
On appeal, Defendants argue that the district court erred
by improperly interfering with their trial and by imposing
obstruction of justice sentencing enhancements. Further, Ecklin
separately contends that the government knowingly offered false
testimony and that the district court erred by admitting certain
evidence. Carter separately argues that the government’s
remarks during closing argument prejudiced him and that there
was insufficient evidence to support his conviction. For the
reasons addressed below, we disagree and affirm Defendants’
convictions.
I.
On March 13, 2011, Ecklin had an altercation with Tiara
Faulcon. Faulcon reported the fight to her mother, Shannel
Bonds, who responded by confronting Ecklin in the parking lot of
3
London Oaks apartment complex in Portsmouth, Virginia. Faulcon
and her cousin, Drean Wallace, accompanied Bonds.
At some point during the dispute, Carter gave Ecklin a
loaded AK-47. The incident eventually escalated into a shoot-
out between Wallace and Ecklin. The shooting resulted in
extensive property damage, but no one was physically injured.
Subsequently, Ecklin and Carter each were charged with
possession of a firearm by a convicted felon and with aiding and
abetting each other’s possession of a firearm.
The cases were jointly tried before a jury in December 2011
in the United States District Court for the Eastern District of
Virginia. At trial, Defendants did not dispute that Ecklin
fired an AK-47 while at London Oaks. Nor did they dispute that
Carter handed Ecklin the loaded weapon. Rather, each defendant
relied on a justification defense-that Ecklin and Carter
possessed the gun only in response to Wallace’s threatening
Ecklin with a gun.
At trial, the government presented testimony from three
eyewitnesses: Bonds, Faulcon, and Wallace. Bonds and Wallace
testified that Ecklin had a gun before Wallace and that Ecklin
began shooting before Wallace got his gun out of his car. Bonds
and Wallace also testified that they saw Carter give the gun to
Ecklin. Faulcon testified that she did not see Wallace with a
4
gun. Faulcon did, however, see Ecklin with a gun, and she ran
when Ecklin began shooting.
The government also presented testimony from Dyron James, a
federal prisoner. James stated that while in jail with Ecklin,
he told Ecklin about the “necessity law” that allows a convicted
felon to possess a firearm when his life is in danger or when
another person is in danger. J.A. 481.
Defendants countered with eyewitness testimony. Tymetria
Smith and Katina Tucker each testified that they ran after
seeing Wallace with a gun, but neither saw Ecklin with a gun.
Eric Jones stated that he saw Wallace pull out a gun and point
it at Ecklin and that Ecklin was not holding a weapon at that
time. Aquelah Moore testified that she saw Wallace and another
individual-Dequan-struggling over a gun, but that she did not
see Ecklin with a weapon.
Additionally, both Ecklin and Carter testified at trial.
Ecklin stated that after Wallace pointed a gun at his face and
threatened to kill him, Dequan, a friend of Ecklin’s, tussled
with Wallace while Ecklin backed up. Carter then handed Ecklin
a gun, and Ecklin started shooting it in the air. Ecklin
explained that once Wallace began shooting back, Ecklin “fired a
lot of rounds real fast” in Wallace’s direction. J.A. 448.
Carter similarly testified that when he saw Wallace tussling
with Dequan and pointing a gun at Ecklin, he picked up a gun
5
that was lying on the ground under a stairwell and gave it to
Ecklin.
At the close of the government’s case and also at the close
of all the evidence, Defendants’ counsel made Rule 29 motions
for judgment of acquittal based, in part, on sufficiency of the
evidence. The district court denied these motions with respect
to the gun possession charges.
The jury found Ecklin and Carter guilty of possession of a
firearm by a convicted felon. 1 Consistent with each defendant’s
Presentence Investigation Report, the district court imposed a
two-level obstruction of justice sentencing enhancement for
giving false testimony. Specifically, as to Ecklin, the
district court increased Ecklin’s offense level from 26 to 28
based upon its finding that Ecklin’s testimony that he fired in
self-defense conflicted with the jury’s guilty verdict. The
district court, however, announced that it would have given
Ecklin the same sentence even without the obstruction of justice
enhancement. As to Carter, the district court increased
Carter’s offense level from 22 to 24 based upon its finding that
Carter falsely testified that he found the gun lying on the
1
The jury also found Ecklin guilty of aiding and abetting
Carter’s weapon possession, but the district court subsequently
granted Ecklin’s motion for acquittal on that charge. And
before the jury retired, the district court dismissed the aiding
and abetting charge against Carter.
6
ground. The district court sentenced both Ecklin and Carter to
120 months’ imprisonment.
II.
On appeal, Ecklin and Carter contend that the district
judge deprived them of a fair trial by improperly interfering in
their trial and that the district court’s findings of fact did
not support an obstruction of justice sentencing enhancement.
Ecklin separately contends that the government knowingly offered
false testimony and that the district court erred by admitting
certain evidence. Carter separately argues that the
government’s remarks during closing argument prejudiced him and
that there was insufficient evidence to support his conviction.
We address each issue in turn.
A.
With their primary argument on appeal, Ecklin and Carter
both contend that the district judge’s repeated interruptions
and extensive involvement in the questioning and impeachment of
witnesses deprived them of a fair trial. When a defendant
raises a timely objection to judicial interference, we review
for harmless error. United States v. Godwin, 272 F.3d 659, 673
(4th Cir. 2001). But when a defendant fails to object at trial,
we review only for plain error. Id. Under plain error review,
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a defendant must show that “the error affects substantial
rights, actually changing the outcome of the trial proceedings.”
Id. at 672 (citation omitted).
Both Ecklin and Carter cite numerous instances of the
district judge’s interference and questioning. Yet, with the
exception of one objection by Ecklin, neither Ecklin nor Carter
objected to the district judge’s participation at trial. See
Fed. R. Evid. 614(c). Thus, we review the incident Ecklin
challenged below for harmless error and the remaining instances
of alleged interference for plain error. Godwin, 272 F.3d at
672-73.
A trial judge possesses broad authority to interrogate
witnesses. Fed. R. Evid. 614(b); Godwin, 272 F.3d at 672.
Trial judges have the right, and often the obligation, to
“interrupt the presentations of counsel in order to clarify
misunderstandings.” United States v. Smith, 452 F.3d 323, 332
(4th Cir. 2006) (citation and quotation marks omitted); see also
Fed. R. Evid. 611(a). Further, trial judges may “intercede
[with questions] because of seeming inadequacy of examination or
cross-examination by counsel, or to draw more information from
reluctant witnesses . . . who are inarticulate or less than
candid.” United States v. Cassiagnol, 420 F.2d 868, 879 (4th
Cir. 1970) (citation omitted).
8
Despite this broad discretion, a trial judge occupies a
position of preeminence and special persuasiveness in the eyes
of the jury and must thus ensure that “his participation during
trial—whether it takes the form of interrogating witnesses,
addressing counsel, or some other conduct—never reaches the
point at which it appears clear to the jury that the court
believes the accused is guilty.” United States v. Parodi, 703
F.2d 768, 775 (4th Cir. 1983) (citations and quotation marks
omitted). For example, “when a judge cross-examines a defendant
and his witnesses extensively and vigorously, he may present to
others an appearance of partisanship and, in the minds of
jurors, so identify his high office with the prosecution as to
impair the [jury’s] impartiality[.]” Wallace v. United States,
281 F.2d 656, 666 (4th Cir. 1960) (citations and quotation marks
omitted). “[A] judge’s apparent disbelief of a witness is
potentially fatal to the witness’s credibility. And the
credibility of a testifying defendant is often of crucial
importance in a criminal trial.” Godwin, 272 F.3d at 678.
1.
Ecklin noted one objection to the district judge’s
questioning during Ecklin’s cross-examination:
THE WITNESS: . . . At first I wasn’t shooting at
[Wallace][.] I was shooting in the air, and he
started shooting at me.
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. . .
THE COURT: So that’s how all the shots got in the
automobile which he had, correct?
. . .
THE WITNESS: I wouldn’t say so. I would think that
he shot his own car.
. . .
THE COURT: . . . You’re saying [Wallace] shot up his
own car while you were shooting at him, correct?
THE WITNESS: I wouldn’t know how he shot his car, but,
yes, he shot it.
THE COURT: . . . [Wallace] shot up his own car while
you were shooting at him. Is that correct?
THE WITNESS: No.
. . .
THE COURT: He shot up his own car when?
THE WITNESS: I don’t . . . I know he had to shoot his
own car. Like I couldn’t do that.
THE COURT: All I asked you is when.
THE WITNESS: I don’t know.
J.A. 456-57. At that point, Ecklin’s counsel objected, and the
court overruled the objection.
The district judge’s questions highlighted the apparent
implausibility of Ecklin’s response about how bullet holes got
into Wallace’s car. But even if the district judge’s inquiry
was sharper and more extensive than necessary, any error was
10
harmless. The district judge’s initial questions for Ecklin
were meant to clarify an apparently confusing factual situation
about who first fired a weapon. And the court’s questions were
not so hostile as to indicate prejudgment of guilt. Cf.
Cassiagnol, 420 F.2d at 877-79. Moreover, Ecklin admitted
shooting into the air and towards Wallace. Whether Ecklin
caused the bullet holes in Wallace’s car does not bear on
whether Ecklin acted in self-defense.
2.
Notwithstanding their failure to object at trial to any
other alleged interference by the district judge, Ecklin and
Carter argue that the district judge’s extensive involvement
indicated a disbelief of their defense. In support of their
allegation, Defendants point to several exchanges between the
district judge and certain witnesses. Defendants contend, among
other things, that the district judge interfered with cross-
examination of government witnesses and rehabilitated them,
cross-examined defense witnesses at length-most importantly
Ecklin and Carter-and impeached them, and generally showed
favoritism to the government.
Our review of the trial transcript shows that both parties
exhibited some difficulty with proper cross-examination and
focusing on the relevant issues. The district judge was
11
therefore understandably frustrated, and he properly intervened
to instruct both sides. See, e.g., J.A. 178-82, 233-35, 271;
see also Smith, 452 F.3d at 333 (“[E]ven a stern and short-
tempered judge’s ordinary efforts at courtroom administration do
not establish bias or partiality. . . . A tart remark or two
might be what is needed to keep a lengthy trial on track.”)
(quotation marks omitted)). And at other points during the
trial, the district judge properly questioned witnesses to
clarify confusing factual issues or misunderstandings. See,
e.g., J.A. 190, 227-29, 351, 365-71, 376-78, 459-61; see also
Smith, 452 F.3d at 332-33.
Some of the district judge’s questions, however, seem to
undermine the substance and credibility of Ecklin’s and Carter’s
testimonies. For example, during direct examination of Ecklin,
the district judge questioned him extensively about what he did
with the gun after the shooting. After Ecklin said that he
threw the gun away, the judge asked, “So you just – you came
back and threw this gun away? Do you know how much it’s worth?”
J.A. 455. When Ecklin responded that he would not care how much
the gun was worth, the district judge asked how much Ecklin paid
before for a different firearm and whether the gun he “shot up
in the air was an automatic[.]” J.A. 455.
The district judge also asked some problematic questions
during Carter’s testimony. For example, when Carter testified
12
that he picked the gun up “[f]rom under the stairway, off the
ground[,]” J.A. 463, the judge responded, “Off the ground? . . .
It was just laying [sic] there? . . . You mean there was a – do
you know what kind of gun it was?” J.A. 463. When Carter
stated that he did not know the gun type, the district judge
repeated, “You don’t know what kind of gun it was?” and asked if
the gun looked like the photographs shown during trial. J.A.
463. Later, the district judge again asked Carter if the gun
was lying on the ground, how Carter knew it was under the
stairway, and if a child could have picked it up.
Additionally, when Carter testified that he did not
remember stating that he was a member of the Bloods gang, the
judge acknowledged Carter’s lack of memory, but then asked
Carter, “Was the statement true or not true?” J.A. 467.
Finally, Carter testified that he had been convicted of gang
participation in a criminal act. The judge subsequently
inquired if “the gang that you were convicted of, does it have
guns?” J.A. 473.
These questions can be construed to reflect the court’s
skepticism or disbelief of Ecklin and Carter-sentiments that
should not have been expressed to the jury. See Godwin, 272
F.3d at 678. But, to succeed on plain error review, “‘the trial
judge’s comments [must be] so prejudicial as to deny a party an
opportunity for a fair and impartial trial.’” Id. (citation
13
omitted). Thus, Ecklin and Carter must establish that the jury
actually convicted them based upon the trial court’s error. See
id. at 680.
Given the evidence presented in this case, we are convinced
that, had the district court’s problematic questioning not
occurred, any reasonable jury still would have rejected Ecklin’s
and Carter’s justification defense. The government presented
three eyewitnesses, all of whom were directly involved in the
confrontation with Ecklin. Bonds and Wallace testified that
Ecklin fired the gun before Wallace retrieved his gun from his
car. Faulcon testified that she did not see Wallace approach
Ecklin with a gun or point a gun at Ecklin. The government also
called James, who testified that he told Ecklin about the
“necessity law.” J.A. 481.
Although the defense presented evidence to counter the
government’s case, Ecklin and Carter’s justification defense was
fated to fail given the inconsistencies in, and implausibility
of, their evidence. At trial, the defense called several
eyewitnesses, all of whom testified that they saw Wallace, but
not Ecklin, with a gun. By contrast, both Ecklin and Carter
testified that Ecklin had a gun. Moreover, Ecklin and Carter
gave several patently incredible responses to the government’s
questions. For example, when asked what he did with the gun
after the shooting, Ecklin testified that he “threw it[.]” J.A.
14
454. And when the government asked Carter where he found the
firearm and when he first saw it, Carter testified that he found
the weapon “[u]nder the stairway” and first saw it as he walked
“through the hallway[.]” J.A. 468-69. Carter explained that he
then saw the altercation involving Ecklin and ran back to get
the firearm that he had just seen.
Moreover, the district court took steps to mitigate any
possible prejudice that may have resulted from its problematic
questioning. After the district judge interrogated a witness,
he gave the parties a chance to address any newly raised issues.
See, e.g., J.A. 229, 371, 378, 461, 473. And the judge
instructed the jury that
[d]uring the course of the trial I occasionally asked
questions of witnesses in order to bring out facts on
issues that may have to be determined by me or to
bring forth information that I feel had not been fully
covered in the testimony. Do not assume that I hold
any opinion on the matters to which my questions may
have related. Whatever you think my opinion is or may
be is not to be considered by you. It’s not my
province to judge the guilt or innocence of the
defendant, it’s yours.
J.A. 554; see Smith, 452 F.3d at 333-34 (finding no plain error
when the judge gave a similar jury instruction).
In sum, based on the record before us, we cannot conclude
that the trial judge’s comments were so prejudicial as to deny
Ecklin or Carter an opportunity for a fair and impartial trial.
See Godwin, 272 F.3d at 679. Nor can we conclude that the jury
15
actually convicted Ecklin or Carter based upon the trial court’s
error. Id. at 680. 2
B.
Ecklin and Carter next contend that the district court
erred by imposing an obstruction of justice sentencing
enhancement under United States Sentencing Guidelines § 3C1.1.
Appellate courts conduct a reasonableness inquiry coupled
with an abuse-of-discretion standard of review to determine
whether a district court properly imposed a sentence. United
States v. Perez, 661 F.3d 189, 192 (4th Cir. 2011) (citations
2
As part of his judicial interference argument, Ecklin
asserts that the district judge interfered during jury
instructions by commenting to the jury about the unusual nature
of the justification defense and by failing to give a requested
reasonable doubt, presumption of innocence, and burden of proof
instruction. Ecklin, however, does not challenge these jury
instructions as a separate issue on appeal. Nor does he
specifically argue that the district court erred in its jury
instructions. This issue is therefore not properly before us.
Fed. R. App. P. 28(a).
Even if it were, we are not convinced that the district
court erred, much less committed plain error, in its jury
instructions. First, the district court repeatedly instructed
the jury that the government had the burden to prove guilt
beyond a reasonable doubt. The district court further
instructed the jury that “[t]he defendants are presumed to be
innocent of the crimes charged.” Transcript of Jury Charge at
135. And the district court’s comments about the unusual nature
of the justification defense are consistent with the law. See
Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011) (jury
instructions must be correct); United States v. Mooney, 497 F.3d
397, 406 (4th Cir. 2007) (justification defense applies in the
“rarest of occasions”).
16
omitted). We first determine whether the district court
committed a procedural error in sentencing. Gall v. United
States, 552 U.S. 38, 51 (2007). If the district court’s
sentencing decision is procedurally sound, we then consider the
substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard. Id.To impose a two-level enhancement for obstruction of
justice based on the defendant’s perjurious testimony, “the
sentencing court must find that the defendant (1) gave false
testimony; (2) concerning a material matter; (3) with willful
intent to deceive.” Perez, 661 F.3d at 192 (citation and
quotation marks omitted); see also U.S.S.G. § 3C1.1. The
sentencing court must “specifically identify the perjurious
statements and make a finding either as to each element of
perjury or that encompasses all of the factual predicates for a
finding of perjury.” United States v. Akinkoye, 185 F.3d 192,
205 (4th Cir. 1999) (citation and quotation marks omitted); see
also United States v. Dunnigan, 507 U.S. 87, 95 (1993).
Carter maintains that the district court failed to make
sufficient findings to establish that he obstructed justice. At
the sentencing hearing, the district court found that Carter
falsely testified that he found the gun lying on the ground.
Further, the district court explained to Carter that “[t]his
offense didn’t really involve you except that you got the
17
weapon. I don’t know where the weapon was hidden, but it wasn’t
under the stairs. You know it; I know it. It didn’t just
appear and then disappear.” J.A. 691. We conclude that these
findings establish that Carter’s false testimony was both
material to his firearm possession charge and made with willful
intent to deceive. See Perez, 661 F.3d at 193 (noting that with
respect to willfulness, it would be enough for the court to say,
“The defendant knew that his testimony was false when he gave
it”); United States v. Quinn, 359 F.3d 666, 681 (4th Cir. 2004)
(concluding that the defendant’s false testimony was material
because it concerned the essential facts of the crimes charged).
Ecklin similarly contends that the district court failed to
make sufficient findings to establish that he obstructed
justice. In sentencing Ecklin, however, the district court
announced that even without the obstruction of justice
enhancement, “the sentence this Court would impose would be
exactly the same.” J.A. 671. Further, the sentence the
district court imposed was reasonable, even if the enhancement
issue were decided in Ecklin’s favor.
In United States v. Savillon-Matute, we affirmed a sentence
based on an “assumed error harmlessness inquiry” consisting of
(1) “knowledge that the district court would have reached the
same result even if it had decided the guidelines issue the
other way,” and (2) “a determination that the sentence would be
18
reasonable even if the guidelines issue had been decided in the
defendant’s favor.” 636 F.3d 119, 123 (4th Cir. 2011) (citation
and quotation marks omitted). Because the district court
plainly stated that Ecklin’s sentence would be the same and
because we conclude that the sentence imposed was reasonable,
even if the district court failed to make sufficient findings to
support the enhancement, any error was harmless. See id.C.
With his final argument on appeal, Ecklin contends that he
did not receive a fair trial because the government knowingly
offered false testimony from James and because the district
court admitted evidence of Ecklin’s prior concealed weapon
conviction and gang affiliation. We review a district court’s
evidentiary rulings for abuse of discretion and will vacate a
conviction only if the district court acted arbitrarily or
irrationally in admitting evidence. United States v. Basham,
561 F.3d 302, 325-26 (4th Cir. 2009).
Citing Giglio v. United States, 405 U.S. 150 (1972), Ecklin
first contends that the government knew that James’s trial
testimony differed from his prior statement to the police, and
yet allowed him to testify falsely. Giglio held that “[a] new
trial is required if the false testimony could in any reasonable
19
likelihood have affected the judgment of the jury.” Id. at 154(citation and quotation marks omitted).
Ecklin’s argument is unavailing because James’s allegedly
false testimony could not have reasonably affected the jury’s
judgment. See id. During an interview with a police detective
and a government attorney in December 2011, James reported that
Ecklin told him about his criminal charges and that James then
told Ecklin about the necessity defense. At trial, James
reversed the order of those events, testifying that he told
Ecklin about the necessity defense before Ecklin told him about
Ecklin’s charges. Because the chronological order of James’s
conversation with Ecklin is wholly irrelevant to Ecklin’s
justification defense and could not have reasonably affected the
jury’s judgment, we reject Ecklin’s argument that he did not
receive a fair trial on this basis.
Ecklin also contends that he did not receive a fair trial
because the district court admitted evidence of his prior
concealed weapon conviction. Under Rule 404(b), evidence of a
crime is not admissible to prove a person’s character, but may
be admitted to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. Rule 404(b). The district court
admitted evidence of Ecklin’s prior concealed weapons conviction
to show Ecklin’s “plan to conceal weapons, his knowledge of the
20
apartment complex, . . . the locations for concealment, [and]
his intent and his modus operandi in situations in which he
conceals weapons up until and after he brandishes them.” J.A.
327. The district court did not abuse its discretion by
admitting Ecklin’s prior conviction for these purposes.
Finally, Ecklin contends that he was denied a fair trial
because the district court admitted “improper evidence of gang
affiliation which was not substantiated.” Ecklin Br. at 29.
Other than one citation to the Joint Appendix, Ecklin does not
develop this argument. Based on his single citation, Ecklin
appears to argue that the government improperly asked him if he
is in a gang and why his nickname is “Blood.” J.A. 450. In
response to the government’s questions, Ecklin denied any gang
membership. This innocuous inquiry clearly did not deny Ecklin
a fair trial.
D.
Carter also raises several separate arguments on appeal.
Carter first challenges the government’s statement during
closing argument that the jury should believe its witnesses
because they had little or no criminal record.
21
Because Carter did not object to this statement at the time
it was made, 3 we must review only for plain error. See United
States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995). To reverse
for plain error, we must find that an error occurred, that the
error was plain, that the error affected substantial rights, and
that the error seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. Id. With regard
to his prosecutorial misconduct claim, Carter must show that the
government’s remarks were improper and so prejudiced his
substantial rights that he was denied a fair trial. See United
States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995). Several
factors are relevant to the prejudice determination, including:
(1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; and (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters.
Id. (citation and quotation marks omitted).
Carter’s claim fails under both the plain error and
prosecutorial misconduct standards. Even if the government
improperly stated that “Ms. Bonds, Ms. Faulcon, [and] Mr.
3
Carter’s counsel did not object to the statement during
the government’s closing argument. Instead, counsel requested a
sidebar following the government’s closing argument to object.
22
Wallace . . . have minimal or no criminal history[,]” J.A. 527,
this comment did not affect the fundamental fairness and
integrity of the proceedings. The government’s comment was
isolated, unlikely to mislead the jury—particularly given
Wallace’s testimony that he was not a convicted felon—and did
not divert the jury’s attention to extraneous matters.
Furthermore, even without the comment, there was substantial
evidence from which the jury could determine witness
credibility.
E.
With his last argument on appeal, Carter maintains that
there was insufficient evidence to support his conviction.
Carter essentially argues that because eyewitness testimony
supported his justification defense, no reasonable jury could
have rejected that defense. We review the denial of a Rule 29
motion de novo, construing the evidence and any inferences
therefrom in the light most favorable to the government. United
States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011). And
we must sustain the jury’s verdict if any reasonable trier of
fact could have found Carter guilty beyond a reasonable doubt.
See id.Carter argues that “[o]nly Wallace was unequivocal” that
Ecklin was armed first, Carter Br. at 17, whereas the remaining
23
eyewitnesses directly stated, or at least suggested, that Ecklin
and Carter possessed a gun only in response to Wallace’s gun
possession and threat. Carter, however, mischaracterizes
Faulcon’s and Bonds’s testimony. In fact, their testimony
contradicted the defense’s theory that Wallace threatened Ecklin
with a gun before Ecklin acquired a gun. And, in reviewing the
sufficiency of the evidence, we must assume that the jury
resolved all contradictions in the government’s favor. Id. at
572. Accordingly, there was sufficient evidence to support
Carter’s conviction.
III.
In sum, we conclude that the district court did not err in
its various rulings and therefore affirm.
AFFIRMED
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