United States v. Bey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4826
BERNARD ANTHONY BEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-98-386-AMD)
Submitted: August 15, 2000
Decided: September 5, 2000
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Jack B. Rubin, JACK B. RUBIN, P.A., Baltimore, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, Martin J.
Clarke, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury found Bernard Anthony Bey guilty of one count of being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) (1994). On appeal, Bey contends that: (1) the district
court erred by admitting evidence of a police scanner, and (2) the
prosecutor unfairly vouched for the credibility of two witnesses and
misled the jury during closing and rebuttal arguments. Finding no
reversible error, we affirm.
The evidence at trial showed the following. Bey was one of three
passengers in a car driven by Chester Stone. The car was stopped by
Baltimore City Police Officer Darren Belechto after it went through
a red light. Stone told Belechto he did not have a driver's license.
Belechto next observed the front right passenger search the glove
compartment. Belechto further observed Bey, from the right rear pas-
senger side, offer his driver's license. Belechto called for assistance
and subsequently asked the passengers to exit the car. The police
seized guns from every passenger except Bey. Belechto seized a
handgun from the rear seat of the car six inches from where Bey was
seated at the time of the stop. Each handgun was loaded with a bullet
in the chamber. Belechto also seized a police scanner from the rear
passenger floor board.
"A district court's evidentiary rulings are entitled to substantial def-
erence" and "will not be disturbed absent a clear abuse of discretion."
United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992) (internal
quotation marks omitted). "The trial court has broad discretion in rul-
ing on questions of relevancy and in balancing the probative value of
relevant evidence against any undue prejudice." United States v.
Zandi, 769 F.2d 229, 237 (4th Cir. 1985). We find that the district
court did not abuse its discretion by admitting the police scanner as
evidence.
During closing and rebuttal arguments, the prosecutor expressed an
opinion as to the veracity of two witnesses. Because Bey did not
object to the prosecutor's statements, we review for plain error. See
United States v. Lipford, 203 F.3d 259, 271 (4th Cir. 2000). To find
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plain error: (1) there must be an error; (2) the error must be plain; (3)
the error must affect substantial rights; and (4) if the first three condi-
tions are met, the reviewing court must determine that the forfeited
error "``seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.'" United States v. Olano, 507 U.S. 725, 732-
37 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)). A prosecutor's remarks regarding the veracity of a witness
will not warrant a new trial unless the remarks"so infected the trial
with unfairness as to make the resulting conviction a denial of due
process." United States v. Loayza, 107 F.3d 257, 262 (4th Cir. 1997)
(internal quotation marks and citation omitted). Several factors the
court should look at are:
(1) the degree to which the prosecutor's remarks have a ten-
dency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent
the remarks, the strength of competent proof introduced to
establish the guilt of the accused; and (4) whether the com-
ments were deliberately placed before the jury to divert
attention to extraneous matters.
United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995).
In the instant case, the comments regarding the witness' veracity
were not extensive. One statement occurred during the closing argu-
ment, and the other statement occurred during the rebuttal argument.
There was substantial proof establishing that a gun was found in the
back seat of the car next to where Bey was seated and that Bey had
constructive possession of the weapon. Furthermore, the prosecutor
preceded each statement regarding the truthfulness of the witnesses
with a review of the evidence that the jury observed and heard. Thus,
the jury was afforded the opportunity to consider the basis for the
prosecutor's statements. Accordingly, we find there was no error
because the statements did not deny Bey a fair trial.
The prosecutor also reviewed the evidence and suggested the
intended purpose of the four men prior to being stopped by Belechto.
We find the prosecutor's remarks were proper and did not deny Bey
a fair trial.
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Accordingly, we affirm Bey's conviction and sentence. We dis-
pense 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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