United States v. Stevens ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4741
HENRY STEVENS, a/k/a Henry M.
Stephens,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-94-136)
Submitted: March 11, 1997
Decided: March 27, 1997
Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Elgine H. McArdle, PHILLIPS, GARDILL, KAISER & ALT-
MEYER, Wheeling, West Virginia, for Appellant. William D. Wil-
moth, United States Attorney, Paul T. Camilletti, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Henry Stevens appeals his jury conviction for conspiring to distrib-
ute crack cocaine in violation of 21 U.S.C. § 846 (1994), and distrib-
uting crack cocaine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2(1994). Stevens claims that insufficient evidence supports his conspir-
acy conviction, that the government deprived him of a fair trial, and
the trial court erred in denying his two motions for mistrial. We
affirm.
We find that the government presented sufficient evidence from
which a reasonable jury could determine that he joined a conspiracy
to distribute crack cocaine prior to his eighteenth birthday with Shawn
Stanton and others and that this same conspiracy continued after Ste-
vens became eighteen years old. We thus reject his argument based
on United States v. Spoone, 741 F.2d 680, 687 (4th Cir. 1984).
Stevens also contends that the government deprived him of his
right to a fair trial when, minutes before trial, it changed the identity
of speakers in the transcript of the tape recording of a drug transaction
which formed the basis for the distribution count. Because the tape
recording itself was timely disclosed, we find this case distinguishable
from the one relied upon by Stevens, United States v. Ible, 630 F.2d
389, 397 (5th Cir. 1980). The trial court gave the jury a limiting
instruction which made clear that the tape recording itself was the evi-
dence in the case and not the transcript. The court also gave Stevens
the opportunity to submit a different transcript, and Stevens cross-
examined the government's witness to the transaction. We find no
denial of a fair trial under these circumstances.
Finally, we find no abuse of discretion in the trial court's denial of
Stevens' motions for mistrial. We find no error in the district court's
conclusion that Stevens had not shown any prejudice resulting from
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his momentary appearance in the courtroom in handcuffs as the jury
was being admitted into the room. See United States v. Diamond, 561
F.2d 557, 559 (4th Cir. 1977) (per curiam) (requiring prejudice). Sim-
ilarly, we find no abuse of discretion in the trial court's denial of his
motion for mistrial due to the probation officer's statement during her
testimony that Stevens had been incarcerated in Georgia. The jury
knew that Stevens had been detained in juvenile detention centers, the
statement resulted from defense counsel's question, and the trial court
gave a limiting instruction for the jury not to consider the portion of
the testimony regarding incarceration.
For all of these reasons, we affirm Stevens' convictions. 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
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