United States v. Johnson , 258 F. App'x 510 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5105
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MATTHEW JOHNSON, a/k/a Michael Roy Johnson,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:04-cr-00065)
Submitted: October 31, 2007 Decided: December 10, 2007
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Matthew G. Pruden, Sr., TIN FULTON GREENE & OWEN, PLLC, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Matthew Johnson of possession with
intent to distribute more than five kilograms of cocaine (Count 1),
in violation of 21 U.S.C. § 841(a)(1) (2000); possession of a
firearm in furtherance of a drug trafficking crime (Count 2), in
violation of 18 U.S.C.A. § 924(c)(1) (West Supp. 2007); and
possession of a firearm by an illegal alien (Count 3), in violation
of 18 U.S.C. § 922(g)(5) (2000). On appeal, he challenges the
sufficiency of the evidence on Count 2 and asserts that the
district court erred by denying the motion to suppress evidence,
allowing the government to constructively amend the indictment, and
permitting the jury to hear he was an illegal alien. Finding no
reversible error, we affirm.
Johnson first asserts that the district court erred by
denying his motion to suppress the six kilograms of cocaine and the
firearm found in secret compartments of the car he was driving when
he was stopped for a traffic violation on a North Carolina
interstate. This court reviews the district court’s factual
findings underlying a motion to suppress for clear error, and the
district court’s legal determinations de novo. United States v.
Gray, 491 F.3d 138, 143-44 (4th Cir. 2007) (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)). When a suppression
motion has been denied, we review the evidence in the light most
favorable to the Government. United States v. Uzenski, 434 F.3d
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690, 704 (4th Cir. 2006). With these standards in mind, and having
reviewed the transcript of the suppression hearing and the parties’
briefs, we conclude that the district court did not err in denying
the motion to suppress.
Next, Johnson asserts that the district court erred in
allowing the Government to amend the indictment before trial by
deleting “base” from the reference to “cocaine base” in the
indictment. Johnson correctly notes that “only the grand jury may
broaden or alter the charges in [an] indictment.” United States v.
Randall, 171 F.3d 195, 203 (4th Cir. 1999) (citing Stirone v.
United States, 361 U.S. 212, 215-16 (1960)). To amend an
indictment requires “resubmission to the grand jury, unless the
change is merely a matter of form.” Russell v. United States, 369
U.S. 749, 770 (1962). As the district court found, the case
against Johnson involved six kilograms of cocaine and never
involved any cocaine base. Thus, the district court’s deletion of
the word “base” was merely a matter of form and did not “broaden[]
the possible bases for conviction beyond those presented by the
grand jury.” United States v. Floresca, 38 F.3d 706, 710 (4th Cir.
1994) (en banc). Thus, no Fifth Amendment violation occurred.
Johnson also contends on appeal that the district court
erred in allowing the jury to hear that he was an illegal alien at
the time he was found in possession of the firearm. His claim is
foreclosed by our decision in United States v. Milton, 52 F.3d 78,
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81 (4th Cir. 1995). To the extent that Johnson alleges the
reference to his status as an illegal alien prejudiced him, the
district court questioned the jurors before they were impaneled and
determined that such status would not affect their ability to
render an impartial decision. Thus, we conclude that Johnson is
not entitled to relief on this claim.
Finally, Johnson challenges the district court’s denial
of his Fed. R. Crim. P. 29 motion for a judgment of acquittal,
asserting that the evidence was insufficient to convict him under
§ 924(c). He contends that the government failed to prove that he
carried the firearm during and in relation to a drug trafficking
offense. We review the district court’s decision to deny a Rule 29
motion de novo. United States v. Smith, 451 F.3d 209, 216 (4th
Cir.), cert. denied, 127 S. Ct. 197 (2006). Where, as here, the
motion was based on a claim of insufficient evidence, “[t]he
verdict of a jury 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);
Smith, 451 F.3d at 216. This court “can reverse a conviction on
insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir.)
(internal quotation marks and citation omitted), cert. denied, 127
S. Ct. 452 (2006).
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Here, the district court explicitly instructed the jury
only on the possession prong of § 924(c), to which Johnson did not
object. Despite Johnson’s failure to preserve this claim, we find
that the evidence was sufficient to convict. See United States v.
Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (stating that “statutory
term ‘furtherance’ . . . requires the government to present
evidence indicating that the possession of a firearm furthered,
advanced, or helped forward a drug trafficking crime”).
Accordingly, we affirm the judgment of the district
court. 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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