United States v. Edwards

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4441
ARCHIE LEE EDWARDS, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Robert G. Doumar, Senior District Judge.
(CR-00-59)
Submitted: November 30, 2001
Decided: December 27, 2001
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jeffrey W. Shaw, DUSEWICZ & SOBERICK, P.C., Gloucester
Point, Virginia, for Appellant. Kenneth E. Melson, United States
Attorney, Matthew W. Hoffman, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. EDWARDS
OPINION
PER CURIAM:
Archie Lee Edwards, Jr., appeals his conviction of being a felon in
possession of a firearm. We affirm.
Two bounty hunters, Samuel Kearson and Eugene Johnson, called
the police when they discovered that Edwards, who was wanted on
a warrant, was probably inside a residence in Newport News, Vir-
ginia. Officers responded to the area and met Kearson and Johnson.
Kearson, flanked by two officers, knocked on the front door of the
townhouse. Johnson and other officers were at the rear of the house.
When Edwards opened the door, Kearson identified himself and saw
that Edwards had a gun. Kearson yelled, "Gun! Gun!" He said that the
weapon appeared to be a 9 mm. black semiautomatic handgun. The
bounty hunters and officers quickly moved to more secure locations.
Soon, Edwards apparently voluntarily left the house. He was
arrested. Lorna Thigpen, who resided in the home, gave written con-
sent to a search of the residence. Officers discovered a loaded, black
9 mm. handgun in plain view in a closet in the master bedroom. There
was testimony that the gun had traveled in interstate commerce, and
Edwards stipulated to a prior felony conviction.
The arguments raised by Edwards on appeal are not persuasive.
First, in response to the jury’s request to receive those portions of
Kearson’s and Officer Rogers’ testimony pertaining to the description
of the gun and where it was seen, the court reread the entire testimony
of both Kearson and Rogers. We discern no judicial bias in the court’s
decision to reread all of the testimony, as opposed to portions of the
testimony, and conclude that there was no abuse of discretion. See
United States v. Meredith, 824 F.2d 1418, 1425 (4th Cir. 1987). The
court’s brief questioning of Rogers about the difference between a
revolver and an automatic weapon and its questions of and comments
to Thigpen, whose testimony often was confusing, confrontational
and contradictory, were entirely appropriate exercises of the court’s
duty under Fed. R. Evid. 611(a), 614(b). Further, there is no evidence
of judicial bias in the court’s questions and comments. See United
States v. Villarini, 238 F.3d 530, 536 (4th Cir. 2001).
UNITED STATES v. EDWARDS 3
Officer Bollhorst testified that, in his initial report, he identified
Kearson as Johnson. When he discovered his mistake, he corrected
the report. Instead of the initial report, a corrected report was given
to the Commonwealth’s Attorney, who provided it to Edwards’ law-
yer. Failure to receive the initial report could not possibly have preju-
diced Edwards’ defense, and there was no violation of either the
Jencks Act or Brady v. Maryland, 373 U.S. 83 (1963), that requires
reversal. See United States v. Sarihifard, 155 F. 3d 301, 309 (4th Cir.
1998) (Brady); United States v. Schell, 775 F.2d 559, 567 (4th Cir.
1985) (Jencks Act).
In response to the jury’s question about possession, the district
court gave a supplemental instruction that answered the question
"fairly and accurately without creating prejudice." United States v.
Smith, 62 F.3d 641, 646 (4th Cir. 1995). The instruction simply set
forth the difference between mere presence and possession, and fur-
ther explained the difference between constructive and actual posses-
sion. Finally, the district court did not abuse its discretion in giving
a modified Allen charge, Allen v. United States, 164 U.S. 492 (1896),
when the jury announced its inability to reach a verdict. Notably, the
court did not suggest that any juror surrender his or her convictions
and encouraged open minds among those in the majority and those in
the minority. See United States v. Cropp, 127 F.3d 354, 359 (4th Cir.
1997).
We accordingly affirm the conviction. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the material before the court and argument would not aid the deci-
sional process. The motion to reconsider the order denying Edwards’
motion for substitute counsel is denied.
AFFIRMED