United States v. Suggs

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4430
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICARDO M. SUGGS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:06-cr-00027)
Submitted: January 30, 2008 Decided: February 19, 2008
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew M. Robinson, ROBINSON & BRANDT, PSC, Cincinnati, Ohio, for
Appellant. Sharon L. Potter, United States Attorney, David J.
Perri, Assistant United States Attorney, Wheeling, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricardo M. Suggs, Jr. was indicted on one count of
possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1)
(2000). A superseding indictment was later returned charging him
with: the § 922(g)(1) offense (Count One); witness tampering with
intent to kill, 18 U.S.C. § 1512(a)(1)(A) (2000) (Count Two);
witness tampering by use of force, 18 U.S.C. § 1512(a)(2)(A) (2000)
(Count Three); and witness tampering through corrupt persuasion, 18
U.S.C. § 1512(b)(1) (2000) (Count Four). The district court
granted Suggs’ motion to bifurcate. At his first trial, Suggs was
convicted on Count One. At the subsequent trial, he was convicted
on Counts Two and Three and acquitted on Count Four. He was
sentenced to 324 months in prison. We affirm.
I
Suggs first contends that the evidence was insufficient
to convict him on any of the three counts. When addressing a
challenge to the sufficiency of the evidence, we consider whether
the evidence, when viewed in the light most favorable to the
Government, was sufficient for a rational trier of fact to have
found the essential elements of the crime beyond a reasonable
doubt. Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Stewart, 256 F.3d 231, 250 (4th Cir. 2001). If
substantial evidence exists to support a verdict, the verdict must
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be sustained. Glasser, 315 U.S. at 80. We do not review the
credibility of witnesses, and we assume the jury resolved all
contradictions in the testimony in favor of the Government. United
States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002).
Firearm Conviction
To establish a violation of § 922(g)(1), the Government
must prove that: the defendant was a convicted felon; he knowingly
possessed the firearm; and the firearm traveled in interstate
commerce. United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.
2001); United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995)
(en banc).1 Here, the parties stipulated that Suggs was a
convicted felon and that the firearm, a Phoenix Arms .22 handgun,
had the requisite interstate commerce nexus.
The disputed issue, therefore, is possession, which may
be actual or constructive. Gallimore, 247 F.3d at 136-37. Timothy
Sears testified that on March 1, 2006, he and Salih el Mohammad got
into a car with Suggs and Blair Thompson. Suggs was driving,
Thompson was in the front passenger seat, and Mohammad and Sears
were in the back seat. Sears observed both Suggs and Thompson with
handguns, “waving them around jokingly.” At one point, Suggs
placed his gun near Thompson’s face.
1
Contrary to Suggs’ argument on appeal, physical evidence
linking the defendant to the firearm is not necessary to convict
under 18 U.S.C. § 922(g)(1).
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Officer Steven Falbo, of the Weirton, West Virginia,
police department, testified that on March 1, 2006, at
approximately 3:30 a.m., he initiated a traffic stop of the car
Suggs was driving. Suggs was the sole occupant of the car.
Sergeant Bruce Marshall testified that he retrieved a Phoenix Arms
.22 handgun from under the driver’s seat of the vehicle.
Based on the above testimony, we find the evidence
sufficient to establish possession. Not only did Sears’ testimony
establish actual possession, but the officers’ testimony
established that Suggs constructively possessed the gun. See
United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992)
(constructive possession of contraband exists if defendant has
ownership, dominion, or control over the contraband or premises or
vehicle in which contraband discovered).
Witness Tampering
The Government’s theory at the second trial was that,
when Suggs learned that Sears had given a written statement to the
police and had been subpoenaed to testify at trial on Count One,
Suggs resolved to kill Sears before he could testify. Thus, on
July 21, 2006--five days before the trial on Count One was
originally scheduled to begin--Suggs broke into Sears’ home, where
he shot both Sears and Sears’ mother, Rhonda West, intending to
kill Sears.
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To establish a violation of 18 U.S.C. § 1512(a)(1)(A), the
United States had to prove that Suggs knowingly attempted to kill
Sears and that he did so in order to prevent Sears’ attendance or
testimony at the first trial. See United States v. Rose, 362 F.3d
1059, 1067 (8th Cir. 2004). To establish a violation of 18 U.S.C.
§ 1512(a)(1)(B), the United States had to prove that Suggs used the
threat of physical force with the intent of curtailing Sears’
involvement in the prosecution. See United States v. England, 507
F.3d 581, 588 (7th Cir. 2007).
Sears testified that on July 5, 2006, he ran into Suggs
at a bar. It was clear to Sears that Suggs knew that Sears had
made a statement to the police concerning the firearm offense. The
men argued. Suggs insisted to Sears that there had been no guns in
the car. Sears replied that he would not lie for Suggs.
Sears also testified that on July 21, 2006, he heard a
loud bang at the side door and saw an intruder enter his home. The
intruder had a silver handgun, which he pointed at Sears’ head.
Sears recognized the intruder as Suggs. Sears said, “No, Ricky,
you don’t got to do this, Man. I ain’t going to go down there. I
ain’t going to say nothing to the court.” Suggs replied, “I told
you.” Suggs then attempted to shoot Sears, but the gun jammed
several times. Rhonda West, Sears’ mother, also pleaded with
Suggs, saying that no one would testify. Suggs replied, “This
ain’t got nothing to do with you, Shorty.” There was testimony
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that Suggs often referred to women as “Shorty.” Suggs walked
around the room, attempting to get a clear shot at Sears, whom West
was trying to protect with her body. Suggs eventually fired two
shots, hitting Suggs in the forearm and West in the hand. Sears
testified that he was certain the intruder was Suggs. Similarly,
West knew that the assailant was Suggs, and she addressed him as
“Ricky” when begging him not to shoot and promising there would be
no testimony.
Jamol Alexander testified that on the night of July 20,
2006, he and Suggs went to a bar. Suggs mentioned that someone had
“snitched” on him. Alexander realized that Suggs was speaking of
Sears. Suggs informed Alexander that he would have to “murk” Sears
to prevent his testimony. “Murk” is slang for “murder.” Suggs
asked Alexander whether he had a gun, and when Alexander replied
that he did, Suggs asked to purchase it.
Suggs and Alexander left the bar and drove to Alexander’s
home, which is in Sears’ neighborhood. Suggs asked to ride by
Sears’ home. The men drove around Sears’ block twice, and Suggs
remarked that Sears was home. Alexander gave Suggs a gun. Suggs
told Alexander that he would be paid for the gun if Alexander
kicked Sears’ door in. Alexander kicked the door open and ran
away. A few minutes later, Suggs returned to Alexander and
announced, “I got him. I shot him and his mom. I think I murked
him.”
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This evidence was sufficient to convict Suggs on both Counts
Two and Three. There was overwhelming evidence that Suggs was the
assailant who broke into Sears’ home and shot both Sears and his
mother. Further, with respect to Count Two, the evidence
conclusively showed that Suggs attempted to kill Sears. He
announced to Alexander his intent to murder Sears in order to
prevent his testimony at the firearm trial, and he tried to shoot
Sears in the head. With respect to Count Three, the evidence
established that Suggs used physical force against both Sears and
West in an effort to prevent Sears’ imminent testimony.
II
Suggs contends that the district court erred at the trial
on Count One when it permitted the introduction of evidence that
officers found cocaine and marijuana in Suggs’ car and evidence
that Suggs shot Sears and West. Suggs further contends that the
district court erred at the second trial when it permitted the
introduction of certain crime scene photographs and a 911
recording. We review the admission of evidence for abuse of
discretion. United States v. Forrest, 429 F.3d 73, 79 (4th Cir.
2005). We find no merit to Suggs’ arguments.
Testimony about drugs found in Suggs’ car was intrinsic
to the charged offense and admissible to complete the story of the
crime. See United States v. Higgs, 353 F.3d 281, 311 (4th Cir.
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2003); United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994).
The drugs were found contemporaneously with and in the same
location as the gun. Additionally, Sgt. Marshall discovered the
gun after his canine officer alerted to the presence of drugs in
the car.
Sears’ testimony at the first trial about Suggs’ attempt
to persuade Sears not to testify and about the shootings was
admissible under Fed. R. Evid. 404(b). We have held that
“[e]vidence of witness intimidation is admissible to prove
conciousness of guilt and criminal intent under [Rule] 404(b), if
the evidence (1) is related to the offense charged and (2) is
reliable.” United States v. Hayden, 85 F.3d 153, 159 (4th Cir.
1996). Here, the evidence was related to the firearm offense
because it showed that Suggs was trying to dissuade Sears from
testifying. Further, the evidence was reliable, as it came from
Sears himself. Finally, given the overwhelming evidence that Suggs
possessed the gun, the introduction of testimony about the
shootings did not result in undue prejudice. See Fed. R. Evid.
403.
Suggs also contests the admission at the second trial of
a tape of Rhonda West’s 911 call. We conclude that the recording
was admissible under Fed. R. Evid. 803(6) because it constitutes a
record kept in the course of a regularly conducted business
activity. The tape’s probative value did not outweigh the chance
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of any unfair prejudice to Suggs, given the powerful testimony by
Sears, West, and Alexander.
At the second trial, photographs of the crime scene were
admitted into evidence. Some of the photographs showed children’s
toys near pools of blood. Admission of these photographs was not
an abuse of discretion. Rather than inflaming the passions of the
jury, the photographs merely completed the story of the crime.
Again, given the substantial testimony against Suggs, there is no
chance that introduction of the photographs unduly prejudiced his
defense.
III
We review a sentence imposed after United States v.
Booker, 543 U.S. 220 (2005), to determine whether it is “within the
statutorily prescribed range” and reasonable. United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). Here,
Suggs’ sentence was statutorily authorized. Reasonableness review
requires us to consider whether the chosen sentence constitutes an
abuse of discretion. United States v. Pauley, No. 07-4270, 2007 WL
4555520, at *5 (4th Cir. Dec. 28, 2007). In making this decision,
we first examine the sentence “for significant procedural errors.”
Id. There were no such errors in this case. We note that the
sentencing court: correctly calculated the advisory guideline
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range of 324-405 months;2 heard from the parties regarding an
appropriate sentence; and considered the factors3 set forth at 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). Id.; see Gall v.
United States, No. 06-7949, 2007 WL 4292116, at *7 (U.S. Dec. 10,
2007). Our reasonableness review also requires us to consider the
substance of the sentence, taking into account “the totality of the
circumstances.” Pauley, 2007 WL 4555520, at *5. Having carefully
reviewed the record, we conclude that Suggs’ sentence is
reasonable.
IV
We accordingly affirm Suggs’ convictions and sentence.
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
2
We reject Suggs’ contention that the district court engaged
in inappropriate judicial factfinding when it calculated his base
offense level and determined that his offense level should be
enhanced based on obstruction of justice and serious bodily injury
to the victims. After Booker, as before, facts used in setting a
sentence at or below the statutory maximum are determined by the
judge based on a preponderance of the evidence. United States v.
Morris, 429 F.3d 65, 72 (4th Cir. 2005).
3
The district court adequately considered the statutory
factors prior to imposing sentence. We note that a sentencing
court need not “robotically tick through” every subsection of
§ 3553(a). United States v. Montes-Pineda, 445 F.3d 375, 380 (4th
Cir. 2006); see Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007).
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