United States v. Gripper , 122 F. App'x 15 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4971
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANNY CARLTON GRIPPER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-03-4)
Submitted: November 30, 2004 Decided: January 28, 2005
Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William E. Loose, WILLIAM E. LOOSE ATTORNEY AT LAW, P.A.,
Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Jerry W. Miller, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Danny C. Gripper appeals his conviction and sentence for
bank robbery, in violation of 18 U.S.C. § 2113(a) (2000); armed
bank robbery, in violation of 18 U.S.C. § 2113(d) (2000); use and
carry of a firearm during a crime of violence, in violation of 18
U.S.C. § 924(c) (2000), and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g) (2000).
On appeal, Gripper asserts that the district court erred
by denying his request to subpoena alibi witnesses at the
Government’s expense, because the current version of Fed. R. Crim.
P. 17(b) does not require the contact information of potential
witnesses, a factor noted by the court for its decision to deny the
motion. The grant or denial of a request for subpoenas under Rule
17(b) is vested in the sound discretion of the trial judge, and the
denial of such is not tantamount to a denial of rights guaranteed
by the Sixth Amendment. United States v. Sellers, 520 F.2d 1281,
1285-86 (4th Cir. 1975). An indigent party seeking a Rule 17(b)
subpoena must allege facts that, if true, demonstrate “the
necessity of the requested witness’ testimony.” Fed. R. Crim. P.
17(b), (c); United States v. Webster, 750 F.2d 307, 329-30 (5th
Cir. 1984). Gripper made no such showing. His motion simply lists
the names of several individuals who “may be witnesses for
Defendant.” It makes no mention of the substance of their
testimony, or that they would provide an alibi. Accordingly, we
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conclude that the district court’s denial of this motion was a
sound exercise of discretion. Sellers, 520 F.2d at 1281.
Gripper next contends that the district court erred by
refusing to admit several pieces of exculpatory evidence at trial.
This Court reviews a district court’s evidentiary rulings for abuse
of discretion. United States v. Leftenant, 341 F.3d 338, 342 (4th
Cir. 2003), cert. denied, 124 S. Ct. 1183 (2004). “[This Court]
will find that discretion to have been abused only when the
district court acted ‘arbitrarily or irrationally.’” United States
v. Moore, 27 F.3d 969, 974 (4th Cir. 1994) (quoting United States
v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993)). After careful review
of the record, we find no abuse of discretion.
Gripper also contends that the district court erred by
denying his motions for a judgment of acquittal because the
evidence was insufficient to support his conviction. This Court
reviews the district court’s decision to deny a motion for judgment
of acquittal de novo. United States v. Gallimore, 247 F.3d 134,
136 (4th Cir. 2001). If the motion was based on insufficiency of
the evidence, the verdict must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
“[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
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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 government. United States v. Romer, 148 F.3d 359, 364 (4th
Cir. 1998). After careful review of the record, we conclude there
was sufficient evidence to support Gripper’s conviction. Glasser,
315 U.S. at 80; Romer, 148 F.3d at 364.
Gripper next argues that the district court abused its
discretion by refusing to sever the § 922(g) count from the
remaining counts because it is not probative as to Count I, and
because the § 922(g) charge prejudicially “allowed the jury to hear
[that] Gripper had been convicted [of] . . . a similar crime.” A
court of appeals may reverse a denial of a motion for relief from
prejudicial joinder only if the district court abused its
discretion or there was clear prejudice. United States v. Acker,
52 F.3d 509, 514 (4th Cir. 1995). To obtain a severance under Fed.
R. Crim. P. 14, a defendant must show that the joinder is “‘so
manifestly prejudicial that it outweighed the dominate concern with
judicial economy.’” Id. (quoting United States v. Armstrong, 621
F.2d 951, 954 (9th Cir. 1980)). After careful review of the
record, we conclude that all four counts were properly joined, Fed.
R. Crim. P. 8(a), and that the district court’s denial of Gripper’s
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motion for severance was neither an abuse of discretion nor clearly
prejudicial. Acker, 52 F.3d at 514.
Gripper’s penultimate claim is that the district court
erred by rejecting his proposed jury instruction. In general, the
decision to give, or not to give, a jury instruction and the
content of that instruction are reviewed for an abuse of
discretion. United States v. Burgos, 55 F.3d 933, 935 (4th Cir.
1995). To be entitled to a requested jury instruction, the party
urging the instruction must establish a sufficient evidentiary
foundation to support the instruction. United States v. Lewis, 53
F.3d 29, 32 n.8 (4th Cir. 1995). “[T]his court must view the
evidence in the light most favorable to [the party requesting the
instruction] in determining if there is sufficient evidentiary
foundation for a requested instruction.” United States v. Giraldi,
86 F.3d 1368, 1376 (5th Cir. 1996) (citing United States v. Lewis,
592 F.2d 1282, 1286 (5th Cir. 1979)). The denial of a requested
instruction is reversible only if the proposed instruction: (1)
was correct, (2) was not substantially covered by the court’s
charge to the jury, and (3) dealt with a point so important that
failure to issue the requested instruction seriously impaired the
defendant’s ability to conduct his defense. Lewis, 53 F.3d at 32.
After careful review of the evidence presented at trial, we
conclude that Gripper has not established that the evidence
supported his proposed instruction. Accordingly, the district
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court did not abuse its discretion in denying the request. Id.;
Burgos, 55 F.3d at 935.
Finally, Gripper contends that the district court
impermissibly enhanced his sentence from five to seven years for
violating 18 U.S.C. § 924(c), in violation of the Supreme Court’s
recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).
However, Blakely involves the use of the federal Sentencing
Guidelines to enhance a defendant’s sentence based upon facts not
presented to the jury. Here, the indictment specifically charged
Gripper with brandishing a firearm in violation of
§ 924(c)(1)(A)(ii), an offense that carries a seven-year penalty.
Because the charge of brandishing a weapon was presented to and
found by the jury, we conclude that Gripper’s sentence does not run
afoul of the reasoning set forth in Blakely.
Accordingly, we affirm Gripper’s sentence and conviction.
We dispense 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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