United States v. Bailey ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4459
ERNEST BAILEY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Joseph Robert Goodwin, District Judge, sitting by designation.
(CR-00-152)
Submitted: January 30, 2002
Decided: February 21, 2002
Before NIEMEYER, LUTTIG, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Roland Walker, Baltimore, Maryland, for Appellant. Thomas M.
DiBiagio, United States Attorney, A. David Copperthite, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BAILEY
OPINION
PER CURIAM:
Ernest Bailey was convicted by a jury of one count of possession
of a firearm after having been convicted of a crime punishable by
imprisonment in excess of one year, in violation of 18 U.S.C.A.
§ 922(g) (West 2000). The district court determined that Bailey quali-
fied as an armed career criminal under 18 U.S.C.A. § 924(e) (West
2000), and sentenced him to 210 months imprisonment. He appeals
his conviction and sentence.
Bailey first asserts that the district court erred in denying his
motion to suppress his post arrest statement. Bailey argues his state-
ment was rendered involuntary because the detective induced Bailey
to confess by offering money to Bailey. In reviewing the denial of a
motion to suppress, this court "reviews the district court’s factual
findings for clear error, and its legal conclusions de novo." United
States v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 237 (4th
Cir. 2001), petition for cert. filed, 70 U.S.L.W. 3373 (U.S. Oct. 26,
2001) (No. 01-722). In assessing whether a statement was voluntary,
"[t]he existence of a threat or an implied promise does not automati-
cally render a confession involuntary. The proper inquiry is whether
the confession was ‘extracted’ by the threats or implied promises,
‘however slight.’" United States v. Braxton, 112 F.3d 777, 783 (4th
Cir. 1997) (emphasis in original). A confession is extracted by threats
or promises when the defendant’s will is overborne and his capacity
for self-determination is critically impaired. Id. Our review of the
record convinces us that the district court correctly concluded that,
even if the detective informed Bailey of the existence of monetary
rewards for information pertaining to armed robberies in the local
area, that information was conveyed after Bailey admitted purchasing
the firearm in question, and did not influence Bailey’s decision to
make this admission.
Bailey next argues that the district court erred in admitting evi-
dence of a shooting incident that occurred several days prior to his
arrest, because that evidence was not relevant, not necessary, and its
probative value was outweighed by its prejudicial effect. We review
a district court’s determination of the admissibility of evidence under
UNITED STATES v. BAILEY 3
Federal Rule of Evidence 404(b) for abuse of discretion. See United
States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). A district court
will not be found to have abused its discretion unless its decision to
admit evidence under Rule 404(b) was arbitrary or irrational. See
United States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990).
Evidence of other crimes is not admissible to prove bad character
or criminal propensity. Fed. R. Evid. 404(b). Such evidence is admis-
sible, however, to prove "motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident." Id.; see
Queen, 132 F.3d at 994. Rule 404(b) is an inclusive rule, allowing
evidence of other crimes or acts except that which tends to prove only
criminal disposition. Queen, 132 F.3d at 994-95; United States v.
Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). Evidence of prior acts
is admissible under Rules 404(b) and 403 if the evidence is: (1) rele-
vant to an issue other than the general character of the defendant, (2)
necessary, (3) reliable, and (4) if the probative value of the evidence
is not substantially outweighed by its prejudicial value. Queen, 132
F.3d at 997.
We have reviewed the evidence in question and conclude that the
district court’s decision to admit it was not arbitrary or irrational. The
evidence was probative of Bailey’s relationship with his girlfriend
and his connection to her residence, where the firearm was found.
Moreover, the evidence was necessary in light of Bailey’s not guilty
plea and the Government’s burden to prove his possession of the fire-
arm. Finally, the district court carefully limited the evidence to that
necessary to demonstrate this connection.
Bailey also contends the district court erred in determining that his
three previous convictions for robbery with a deadly weapon were
separate convictions for purposes of sentencing him under the Armed
Career Criminal Act. Bailey asserts his crimes were part of one crimi-
nal episode, directed at a single corporate entity. Review of a district
court’s application of a statutory sentencing enhancement is de novo.
United States v. Letterlough, 63 F.3d 332, 334 (4th Cir. 1995). We
have held that "convictions occur on occasions different from one
another ‘if each of the prior convictions arose out of a "separate and
distinct criminal episode."’" Id. at 335 (quoting United States v. Hud-
speth, 42 F.3d 1015, 1019 (7th Cir. 1994)); see also United States v.
4 UNITED STATES v. BAILEY
Hobbs, 136 F.3d 384, 388-89 (4th Cir. 1998) ("It does not matter for
sentencing purposes if the several crimes are part of a larger criminal
venture, as long as each constitutes, by itself, a ‘complete and final
transaction.’").
In analyzing whether convictions are from separate and distinct
criminal episodes, we consider, among other factors, whether the time
interval between the crimes underlying the convictions allowed the
accused sufficient time to "make a conscious and knowing decision
to engage in another" crime. Letterlough, 63 F.3d at 337. In this case,
the span of five days between Bailey’s first two robberies, and almost
nine months until the third crime, was more than adequate for Bailey
to reconsider his conduct and decide whether to engage in further
criminal activity. See United States v. Williams, 187 F.3d 429, 431
(4th Cir. 1999) (interval of ten to fifteen minutes between assaults
sufficient for defendant to reflect and desist).
Moreover, the fact that Bailey pled guilty and was sentenced for all
three robberies in the same proceedings does not mandate that the
convictions be counted as only one conviction. See United States v.
Allen, 50 F.3d 294, 298-99 (4th Cir. 1995) (requiring formal consoli-
dation order for trial or sentencing for convictions to be considered
related under USSG* § 4A1.2(a)(2)); United States v. Samuels, 970
F.2d 1312, 1315 (4th Cir. 1992) ("Nothing in § 924(e) or the Guide-
lines suggests that offenses must be tried or sentenced separately in
order to be counted as separate predicate offenses."). We conclude
that the district court did not err in finding that the three armed rob-
bery convictions were separate for purposes of invoking § 924(e).
Bailey’s final argument on appeal is that the evidence was insuffi-
cient to prove that he possessed the firearm. The elements of a viola-
tion of § 922(g)(1) are that: "(1) the defendant previously had been
convicted of a crime punishable by a term of imprisonment exceeding
one year; (2) the defendant knowingly possessed . . . the firearm; and
(3) the possession was in or affecting commerce, because the firearm
had traveled in interstate or foreign commerce." United States v.
Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc). Bailey stipulated
to a disqualifying prior conviction and does not contest the interstate
*U.S. Sentencing Guidelines Manual (2000).
UNITED STATES v. BAILEY 5
or foreign commerce element. He argues the evidence did not show
he possessed the shotgun found in the bedroom closet of his girl-
friend’s residence.
A jury’s verdict must be upheld on appeal if there is substantial
evidence in the record to support it. See Glasser v. United States, 315
U.S. 60, 80 (1942). In determining whether the evidence in the record
is substantial, this court views the evidence in the light most favorable
to the government, and inquires whether there is evidence that a rea-
sonable finder of fact could accept as adequate and sufficient to sup-
port a conclusion of a defendant’s guilt beyond a reasonable doubt.
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
In evaluating the sufficiency of the evidence, this court does not
review the credibility of the witnesses and assumes that the jury
resolved all contradictions in the testimony in favor of the govern-
ment. See United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
Our review of the evidence, including Bailey’s admission that he
purchased the firearm in question four or five months prior to his
arrest, convinces us that substantial evidence supports the jury’s ver-
dict.
Accordingly, we affirm Bailey’s conviction and sentence. We dis-
pense 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