United States v. Porter

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4861
POWELL DOUGLAS PORTER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-01-9-V)
Submitted: June 17, 2003
Decided: July 9, 2003
Before MOTZ and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Benjamin D. Porter, MORROW, ALEXANDER, TASH, KURTZ &
PORTER, Winston-Salem, North Carolina, for Appellant. Robert J.
Conrad, Jr., United States Attorney, Kenneth M. Smith, Assistant
United States Attorney, Jennifer Marie Hoefling, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
2 UNITED STATES v. PORTER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Powell Porter appeals his convictions following a jury trial on
charges of conspiring to transport stolen landscaping equipment in
interstate commerce and interstate transportation of stolen property.
See 18 U.S.C. §§ 371, 2314 (2000). Porter asserts the district court
erred in giving a jury instruction regarding "deliberate ignorance" and
in denying his motions for acquittal, to interview jurors, for a bill of
particulars, and mistrial. For the following reasons, we affirm.
First, we find no abuse of discretion in the district court’s decision
to give a "deliberate ignorance" instruction. See United States v.
Abbas, 74 F.3d 506, 513 (4th Cir. 1996) (providing standard of
review). Porter argues the United States’ evidence, if believed, indi-
cated Porter had actual knowledge the property in question was
stolen. However, we have consistently held that such an instruction
is proper when there is evidence of both actual knowledge and delib-
erate ignorance, see id., and we conclude there was sufficient evi-
dence presented at trial to support either theory.
Second, Porter’s challenge to the district court’s denial of his
motion for judgment of acquittal is misplaced. Porter argues the testi-
mony of two cooperating co-conspirators was so contradictory as to
render their entire testimonies incredible. However, when reviewing
the denial of a motion for acquittal, this Court considers only whether
there is substantial evidence which, taken in the light most favorable
to the United States, would permit a jury to find that the defendant
was guilty beyond a reasonable doubt. See United States v. Mac-
Closkey, 682 F.2d 468, 473 (4th Cir. 1982); see also Glasser v.
United States, 315 U.S. 60, 80 (1942). We do not assess the credibil-
ity of the witnesses and assume the jury resolved all contradictions in
the witnesses’ testimony in favor of the government. United States v.
Sun, 278 F.3d 302, 313 (4th Cir. 2002). Further, the witnesses pro-
UNITED STATES v. PORTER 3
vided corroborating testimony regarding the elements underlying both
counts of conviction. As a result, Porter’s motion for acquittal was
properly denied.
With respect to Porter’s third and fourth claims, we find no abuse
of discretion in either the district court’s denial of Porter’s motion to
interview the jury, see United States v. Gravely, 840 F.2d 1156, 1159
(4th Cir. 1988) (providing standard), or Porter’s motion for a bill of
particulars, see United States v. Jackson, 757 F.2d 1486, 1491 (4th
Cir. 1985) (providing standard). Porter’s motion to interview the jury
failed to provide persuasive, credible evidence of an improper outside
influence on the jury’s deliberations. See Tanner v. United States, 483
U.S. 107, 125 (1987). Further, a bill of particulars was not necessary,
as the prosecution’s investigative file was open to Porter for inspec-
tion, and Porter’s motion essentially sought a detailed disclosure of
the government’s evidence in advance of trial. See United States v.
Automated Med. Labs., Inc., 770 F.2d 399, 405 (4th Cir. 1985).
Finally, we find no abuse of discretion in the district court’s denial
of Porter’s motion for mistrial based on a testifying witness’s pur-
ported comment on Porter’s post-arrest silence. See United States v.
Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997) (providing standard). We
conclude the testimony in question was an isolated, spontaneous com-
ment that the United States did not incorporate as part of its case
against Porter. In addition, the district court provided an appropriate
curative instruction. See Williams v. Zahradnick, 632 F.2d 353, 361-
62 (4th Cir. 1980). As a result, the district court properly denied Por-
ter’s motion for mistrial.
Accordingly, we affirm Porter’s convictions. We dispense with oral
argument because the fact and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED