United States v. Ponds , 53 F. App'x 233 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4312
NAVRON PONDS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-01-101)
Submitted: November 22, 2002
Decided: December 16, 2002
Before NIEMEYER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
John Kenneth Zwerling, Lisa B. Kemler, ZWERLING & KEMLER,
P.C., Alexandria, Virginia, for Appellant. Thomas M. DiBiagio,
United States Attorney, Sandra Wilkinson, Assistant United States
Attorney, Stuart A. Berman, Assistant United States Attorney, Green-
belt, Maryland, for Appellee.
2 UNITED STATES v. PONDS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Navron Ponds appeals his conviction for criminal contempt in vio-
lation of 18 U.S.C. § 401(1) (2000). The contempt charge arose from
Ponds’ failure to disclose ownership information about an automobile
given to him as payment for representation of a defendant in a drug
trafficking case. Absent Ponds’ concealment of the ownership of the
automobile, it might have been subject to forfeiture as proceeds of
illegal activity, or it might have been used for restitution or a fine in
the drug trafficking case. On appeal, Ponds contends that the district
court erred in refusing to permit him to present testimony of his
accountant; Ponds asserts this testimony would have rebutted the
Government’s evidence that Ponds was attempting to conceal his
ownership of the vehicle. Ponds further contends this rebuttal testi-
mony would have supported his assertions that he was not aware that
the vehicle was proceeds from illegal activity.
This court reviews a district court’s rulings admitting or excluding
evidence for an abuse of discretion. United States v. Carter, 300 F.3d
415, 423 (4th Cir.), petition for cert. filed, (U.S. Oct. 28, 2002) (Nos.
02-655, 02-7173). Ponds asserts that the proferred testimony was not
hearsay, but was admissible as a prior consistent statement under Fed.
R. Evid. 801(d)(1)(B). For testimony to be admissible as a prior con-
sistent statement, the declarant must testify at trial and be subject to
cross-examination about the statement, and the statement must be
"consistent with the declarant’s testimony and [must be] offered to
rebut an express or implied charge against the declarant of recent fab-
rication." Fed. R. Evid. 801(d)(1)(B). Although Ponds testified in his
defense, he made no mention of the conversation with his accountant,
nor did he otherwise testify that he intended to report the value of the
vehicle on his tax returns for the years in question. We therefore con-
clude that the proffered testimony is not consistent with Ponds’ in-
court testimony.
UNITED STATES v. PONDS 3
In addition to the requirement that the proferred statement be con-
sistent with in-court testimony, the Supreme Court has interpreted
Rule 801(d)(1)(B) to require that the out-of-court statement have been
made "before" the charged recent fabrication. Tome v. United States,
513 U.S. 150, 167 (1995). Although the accountant was uncertain of
the date on which the discussion with Ponds occurred, the evidence
indicates that it clearly must have occurred at some point after Ponds
received title to the vehicle in question. Thus, any motive to fabricate
the origin of the vehicle arose before Ponds’ discussion with his
accountant. Ponds’ testimony supported this timing, as he admitted
that he was aware that he could not receive proceeds from illegal
activity as payment for legal representation, and his retainer agree-
ment in the underlying criminal case contained language warning cli-
ents of that fact. Because the evidence indicated that the proferred
statement was made after Ponds’ motive to conceal the origin of the
vehicle arose, we conclude that the district court did not abuse its dis-
cretion in ruling that the accountant’s testimony relating the substance
of the conversation with Ponds was inadmissible hearsay.
We also conclude that the evidence in question was properly
excluded because it was not relevant. Relevant evidence is defined as
"evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R. Evid.
401. At trial, Ponds never denied that he received the vehicle in ques-
tion as payment for representing a client, but contested whether he
knew that the vehicle was forfeitable. Therefore, the proffered testi-
mony of his accountant is not relevant to a fact in issue.
We affirm Ponds’ conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED