United States v. Shelton Ketter

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4329
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHELTON DEMOND KETTER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:09-cr-00851-TLW-1)
Submitted: September 28, 2011 Decided: December 2, 2011
Before GREGORY, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Derek Joseph Enderlin, ROSS AND ENDERLIN, PA, Greenville, South
Carolina, for Appellant. Carrie Fisher Sherard, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury indicted Shelton Demond Ketter on
two counts of possession of a firearm and ammunition after
having been convicted of a crime punishable by imprisonment for
a term exceeding one year, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 924(e) (2006). After a jury trial,
Ketter was acquitted of Count One and convicted of Count Two.
The court sentenced Ketter to 192 months’ imprisonment. Ketter
timely appealed.
Ketter’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), asserting there are no
meritorious arguments for appeal, but questioning whether the
district court erred by failing to sever Counts One and Two for
trial, failing to suppress evidence and statements relevant to
Count One, and permitting the collection of a second DNA sample.
Ketter filed a pro se supplemental brief reiterating claims
raised in the Anders brief.
Turning first to Ketter’s claim that the district
court erred by refusing to sever Counts One and Two for trial,
Rule 8(a) of the Federal Rules of Criminal Procedure provides
that two or more offenses may be charged in the same indictment
when the offenses “are of the same or similar character, or are
based on the same act or transaction, or are connected with or
constitute parts of a common scheme or plan.” This court
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reviews de novo whether the initial joinder of the offenses was
proper under Rule 8(a). United States v. Mackins, 315 F.3d 399,
412 (4th Cir. 2003). If joinder was proper, review of the
denial of a motion to sever is for abuse of discretion under
Fed. R. Crim. P. 14. Id. If joinder was improper, the court
“review[s] this nonconstitutional error for harmlessness, and
reverse[s] unless the misjoinder resulted in no ‘actual
prejudice’ to the defendants ‘because it had [no] substantial
and injurious effect or influence in determining the jury’s
verdict.’” Id. (emphasis in original). Because of the prospect
of duplicating witness testimony, impaneling additional jurors
or wasting limited judicial resources, joinder is the rule
rather than the exception. United States v. Hawkins, 589 F.3d
694, 700–01 (4th Cir. 2009). Joinder of multiple charges
involving the same statute is “unremarkable.” Id. at 702-03
(citing United States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995)
(courts routinely allow joinder of bank robbery charges against
the same defendant)).
We conclude that joinder of the counts was proper.
Both counts charged similar conduct, namely possession of
firearms and ammunition by a convicted felon, and occurred only
months apart. Accordingly, the charges stemming from each
arrest involved conduct of the same or similar character. See
United States v. Quilling, 261 F.3d 707, 714 (7th Cir. 2001)
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(finding joinder proper where counts were temporally related and
charged under the same statute).
Since joinder of the counts was proper, Ketter must
show that he was clearly prejudiced by the district court’s
denial of his motion to sever. See Acker, 52 F.3d at 514. The
evidence presented at trial in support of Count Two showed that
on July 29, 2009, Ketter was shot several times. ∗ Police
officers found Ketter lying on the ground bleeding, wearing a
shirt and boxer shorts, but no pants. A pair of bloody shorts
or pants was found nearby. A revolver was sticking out of the
shorts or pants, and officers found Ketter’s identification and
four bullets in the pocket. Ketter admitted that the pants or
shorts were his but denied ever owning or possessing the pistol.
However, DNA samples taken from the garment and the gun matched
Ketter’s DNA. Moreover, the district court gave a limiting
instruction, informing the jury that it must consider each count
separately. The jury apparently followed these instructions
because Ketter was found not guilty on Count One and guilty on
Count Two. Under these circumstances, we conclude that Ketter
cannot show prejudice and that the district court did not abuse
its discretion in denying the motion to sever the counts.
∗
The parties stipulated that Ketter had a prior conviction
punishable by more than a year in prison and that he could not
lawfully possess a firearm or ammunition.
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Next, Ketter argues that the district court erred by
refusing to suppress evidence seized and incriminating
statements he made pertaining to Count One. However, because
Ketter was acquitted on Count One, his claims are moot. Cf.
United States v. Moussaoui, 591 F.3d 263, 303 (4th Cir. 2010)
(holding that jury’s rejection of death penalty rendered moot
claim that district court erroneously denied motion for
acquittal on death eligibility). To the extent that Ketter
argues that the evidence he sought to suppress unfairly
prejudiced the jury in regard to Count Two, in light of the
overwhelming evidence of guilt as to Count Two, any error was
harmless. See Fed. R. Crim. P. 52(a) (“Any error . . . that
does not affect substantial rights must be disregarded.”).
Over Ketter’s objections, the court permitted the
Government to obtain a second DNA sample via a cheek swab
because there was no clear chain of custody for the first
sample. On appeal, counsel questions the collection of the
second cheek swab. It is well established that collection of
DNA evidence is not testimonial and therefore does not implicate
the Fifth Amendment. Schmerber v. California, 384 U.S. 757,
761-65 (1966). We discern no basis for concluding that the
taking of the second sample calls into question the validity of
Ketter’s conviction.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Ketter, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Ketter requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Ketter. 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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