United States v. Pannell , 77 F. App'x 188 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4492
MICHAEL SCOTT PANNELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-02-2)
Submitted: September 19, 2003
Decided: October 9, 2003
Before KING and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Marc L. Resnick, Washington, D.C., for Appellant. John L. Brownlee,
United States Attorney, Ruth E. Plagenhoef, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PANNELL
OPINION
PER CURIAM:
Michael Scott Pannell appeals his conviction by a jury of one count
of possession of a firearm after having been convicted of a crime pun-
ishable by more than one year of imprisonment, in violation of 18
U.S.C. § 922(g) (2000), one count of possession with intent to distrib-
ute marijuana, in violation of 21 U.S.C. § 841(a)(1) (2000), and one
count of possession of a firearm in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (2000). Finding no revers-
ible error, we affirm.
Pannell first argues that the district court erred in denying his
motion to suppress evidence seized after a traffic stop of the vehicle
he was driving, and statements he made to police during that stop.
Pannell argues that the police officer who stopped him did not possess
the requisite probable cause that he was committing a violation of the
traffic laws, and that the asserted justification for the stop was fabri-
cated. We review the legal conclusions underlying the denial of a
motion to suppress de novo, while the predicate factual conclusions
are reviewed for clear error when assessed in the light most favorable
to the party prevailing below. Ornelas v. United States, 517 U.S. 690,
699 (1996); United States v. Hamlin, 319 F.3d 666, 671 (4th Cir.
2003).
"As a general matter, the decision to stop an automobile is reason-
able where the police have probable cause to believe that a traffic vio-
lation has occurred." Whren v. United States, 517 U.S. 806, 810
(1996). The subjective intentions of the police are not relevant to the
analysis of whether probable cause existed to support the stop. Id. at
813; United States v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993). Our
review of the record leads us to conclude that the officer possessed
the requisite probable cause that a traffic violation was occurring, and
therefore the stop of Pannell’s vehicle was lawful.
Pannell next contends that the evidence was insufficient to estab-
lish that he knowingly possessed either the marijuana or the firearm
found in the vehicle. A jury’s verdict must be upheld on appeal if
there is substantial evidence in the record to support it. Glasser v.
UNITED STATES v. PANNELL 3
United States, 315 U.S. 60, 80 (1942). In determining whether the
evidence in the record is substantial, we view the evidence in the light
most favorable to the government, and inquire whether there is evi-
dence that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond a rea-
sonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc). In evaluating the sufficiency of the evidence, we do
not review the credibility of the witnesses and assume that the jury
resolved all contradictions in the testimony in favor of the govern-
ment. United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
Possession may be actual or constructive. United States v. Rusher,
966 F.2d 868, 878 (4th Cir. 1992). A person has constructive posses-
sion of an item if he knows of its presence and has the power to exer-
cise dominion and control over it. United States v. Schocket, 753 F.2d
336, 340 (4th Cir. 1985). Our review of the evidence in this case con-
vinces us that the evidence was sufficient to establish Pannell’s know-
ing possession of the marijuana and the firearm.
Pannell’s final argument on appeal is that the prosecutor’s
improper comments in closing argument violated his right to due pro-
cess and require that he be given a new trial. At the end of the initial
closing argument, the prosecutor asked that the jury "[h]elp us once
again to continue to protect our community." The district court judge
immediately admonished counsel that this remark was improper argu-
ment. Pannell did not object to the prosecutor’s comments at trial,
therefore our review is limited to whether the remarks constituted
plain error. United States v. Mitchell, 1 F.3d 235, 239 (4th Cir. 1993).
A prosecutor’s improper closing argument may "so infect[ ] the
trial with unfairness as to make the resulting conviction a denial of
due process." United States v. Wilson, 135 F.3d 291, 297 (4th Cir.
1998) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986))
(internal quotation marks omitted). In determining whether a defen-
dant’s due process rights were violated by a prosecutor’s closing
argument, we consider whether the remarks were, in fact, improper,
and, if so, whether the improper remarks so prejudiced the defen-
dant’s substantial rights that the defendant was denied a fair trial. Id.We conclude that the prosecutor’s request to the jury was
improper. The Supreme Court has held that a prosecutor may not "ex-
4 UNITED STATES v. PANNELL
hort the jury to ‘do its job’; that kind of pressure, whether by the pros-
ecutor or defense counsel, has no place in the administration of
criminal justice." United States v. Young, 470 U.S. 1, 18 (1985). The
comment in this case, however, was not so prejudicial as to deny Pan-
nell a fair trial. After analyzing the comment under the six factor test
articulated in Wilson, we conclude that the comment did not substan-
tially prejudice Pannell’s rights so as to deny him a fair trial. Wilson,
135 F.3d at 299.
Accordingly, we affirm Pannell’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED