United States v. Kevin Mormon ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4899
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN LEON MORMON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:12-
cr-00592-PWG-1)
Submitted: October 31, 2014 Decided: November 12, 2014
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas M. Donnelly, Bennett J. Wills, LAW OFFICES OF THOMAS M.
DONNELLY, LLC, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Adam K. Ake, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Kevin Leon Mormon of conspiracy to
distribute and possess with intent to distribute 280 grams or
more of cocaine base, in violation of 21 U.S.C. § 846 (2012).
Mormon appeals his conviction on several grounds. We affirm.
Mormon first challenges the district court’s refusal
to suppress certain statements that he made to law enforcement.
When considering a district court’s ruling on a motion to
suppress, we review the district court’s legal conclusions de
novo and its factual findings for clear error. United States v.
McGee, 736 F.3d 263, 269 (4th Cir. 2013), cert. denied, 134 S.
Ct. 1572 (2014). Where the district court denied the
suppression motion, “we view the facts in the light most
favorable to the Government,” United States v. Black, 707 F.3d
531, 534 (4th Cir. 2013), and “defer to the district court’s
credibility findings.” United States v. Griffin, 589 F.3d 148,
150 n.1 (4th Cir. 2009). “In considering whether a defendant’s
waiver [under Miranda v. Arizona, 384 U.S. 436 (1966),] is
voluntary, the Court must determine whether the confession was
extracted by any sort of threats or violence, [or] obtained by
any direct or implied promises, however slight, [or] by the
exertion of any improper influence.” United States v. Holmes,
670 F.3d 586, 591 (4th Cir. 2012) (internal quotation marks
omitted). “The proper inquiry is whether the defendant’s will
2
has been overborne or his capacity for self-determination
critically impaired.” Id. (internal quotation marks omitted).
Mormon claims that his statements were involuntary
because he was under emotional stress and because the federal
law enforcement agents allegedly promised that he would be
released if he cooperated. However, while the agents indicated
that cooperation could result in Mormon’s release, they
expressly informed him that they could not make any promises.
Moreover, Mormon’s refusal to identify his supplier without an
attorney present demonstrated his understanding of and ability
to assert his rights. Accordingly, the district court did not
err in denying the motion to suppress.
Mormon next challenges the admission of a video
recording containing statements by alleged co-conspirator Ron
Jura Beason. Mormon claims that this recording was not properly
authenticated and that the admission of Beason’s statements
violated the hearsay rule and the Confrontation Clause. “We
review a trial court’s rulings on the admissibility of evidence
for abuse of discretion, and we will only overturn an
evidentiary ruling that is arbitrary and irrational.” United
States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011) (internal
quotation marks omitted). “We review alleged Confrontation
Clause violations under the de novo standard of review.” United
States v. Lighty, 616 F.3d 321, 376 (4th Cir. 2010).
3
We conclude that the district court did not abuse its
discretion in admitting the challenged recording. The testimony
offered by the Government provided an adequate foundation to
show that the recording was what the Government said it was.
Fed. R. Evid. 901(a), (b)(1); see United States v. Vidacak, 553
F.3d 344, 349 (4th Cir. 2009) (holding that Rule 901 requires
only a prima facie showing of authenticity). Next, Beason’s
statements were admissible under the co-conspirator exception to
the hearsay rule. United States v. Graham, 711 F.3d 445, 453
(4th Cir.) (discussing Fed. R. Evid. 801(d)(2)(E)), cert.
denied, 134 S. Ct. 449 (2013). The district court also
correctly determined that Beason’s statements were not
testimonial statements to which the Confrontation Clause
applied. Crawford v. Washington, 541 U.S. 36, 51-52, 56 (2004).
Mormon’s final claim is that the district court erred
by failing to grant a mistrial in response to the Government’s
allegedly improper statements during closing argument. “We
review a district court’s denial of a motion for a mistrial for
abuse of discretion.” United States v. Johnson, 587 F.3d 625,
631 (4th Cir. 2009). When the motion concerns the Government’s
closing arguments, “the defendant must show (1) that the
prosecutor’s remarks or conduct were improper and (2) that such
remarks or conduct prejudicially affected [the defendant’s]
substantial rights so as to deprive him of a fair trial.”
4
United States v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010)
(internal quotation marks omitted); see United States v. Woods,
710 F.3d 195, 203 (4th Cir.) (discussing factors courts consider
in determining if remarks were prejudicial), cert. denied, 134
S. Ct. 312 (2013).
The Government concedes that the challenged remarks
were improper but argues that they were not prejudicial. We
agree. The remarks bore little risk of misleading the jury and
constituted a brief, isolated episode. The Government’s proof
absent the remarks was strong, and there is no evidence that the
remarks were part of a deliberate plan to mislead the jury. We
therefore conclude that the district court did not abuse its
discretion in denying a mistrial.
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 this court and argument would not aid the decisional
process.
AFFIRMED
5