UNITED STATES of America, Plaintiff-Appellee, v. Antonio BARBEE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. David Ricardo Stewart, Defendant-Appellant.
Nos. 12-4197, 12-4260
United States Court of Appeals, Fourth Circuit
Decided: May 3, 2013
Here, T-Mobile does not dispute that there is some level of wireless coverage in the area. J.A. 450-56 (noting, in an expert report prepared for and relied upon by T-Mobile, that there is not “reliable” in-building and in-vehicle wireless coverage in the area served by the proposed site). Thus, T-Mobile‘s burden to show a lack of reasonable alternatives is “particularly heavy.” Fairfax Cnty., 672 F.3d at 268.
As we explained previously, the Board reasonably determined that T-Mobile failed to produce sufficient evidence that it diligently pursued siting the facility at Glenelg High School. See supra Part II.A. In such circumstances, we cannot presently conclude that T-Mobile has met its “particularly heavy” burden of showing that further efforts to locate the facility at an alternative site-Glenelg High School, in particular-would be “fruitless.” Moreover, it is undisputed that the Board has a strong record of approving conditional use permits: Since October 2008, the Board has approved five of the six conditional use permit applications submitted by T-Mobile. Therefore, because T-Mobile has failed to satisfy its burden of showing a lack of reasonable alternatives to the proposed site, it is not entitled to relief under
III.
In sum, substantial evidence supported the Board‘s decision that T-Mobile failed to make diligent efforts to site the facility at Glenelg High School. And T-Mobile did not satisfy its “particularly heavy” burden to show that there were no reasonable alternative sites to provide coverage. Accordingly, we affirm.
AFFIRMED.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In these consolidated appeals, Antonio Barbee and David Ricardo Stewart challenge their convictions on one count each of attempted interference with commerce by robbery, in violation of
Stewart first asserts that the district court erred when it failed to consider his pre-sentencing pro se motion to dismiss his attorney for ineffective assistance of counsel. According to Stewart, his pro se motion, in which Stewart complained about trial counsel‘s alleged mistakes, was essentially an “inartfully drawn motion for a new trial” for which he should have been appointed new counsel.
Although Stewart‘s sentencing was scheduled for March 20, 2012, the pro se motion to dismiss was drafted by Stewart on March 10, 2012, and filed in the district court on March 13, 2012, nearly five months after his guilty verdict. When Stewart raised the motion at his sentencing, the district court afforded Stewart an opportunity to explain the reasons for his motion, during which time Stewart reiterated several complaints about trial counsel‘s performance. The district court explained that it would not entertain Stewart‘s complaints about his attorney‘s trial strategy at that juncture, and inquired whether Stewart believed he could continue with his attorney during sentencing. Stewart assured the district court that he could, that he “just wanted to go on record to let [the district court] know how [he felt] about [his] counsel[,]” and that he “[d]efinitely” did not have a problem with his attorney representing him during his sentencing hearing. Given Stewart‘s assurances that he wished to proceed with sentencing, we discern no error in the district court‘s decision to move forward with Stewart‘s sentencing.
Moreover, although Stewart‘s motion did not actually request a new trial, we conclude that even assuming-for the sake of argument-the district court should have construed Stewart‘s pro se motion as a motion for a new trial, such a motion would have been untimely. According to
Defendants also raise several objections to the district court‘s evidentiary rulings. In particular, Stewart asserts that the district court erred when it allowed: (1) recordings of his telephone conversations into evidence; (2) a Government witness to testify before the jury, even though she had a head injury and was medicated; and (3) a Government witness to testify about Stewart‘s alleged attempts to secure a false alibi. Barbee asserts that the district court erred when it admitted into evidence Stewart‘s statements incriminating Barbee because admission of those statements allegedly violated Barbee‘s right to confront witnesses against him.
We review the preserved evidentiary rulings for abuse of discretion and will only reverse if we determine that the rulings were “arbitrary and irrational.” United States v. Cloud, 680 F.3d 396, 401 (4th Cir.) (internal quotation marks omitted), cert. denied, — U.S. —, 133 S.Ct. 218, 184 L.Ed.2d 112 (2012). Thus, under
As to unpreserved evidentiary objections, we review for plain error. See United States v. Cabrera-Beltran, 660 F.3d 742, 751 (4th Cir.2011) (“An objection to the admission of evidence must be both specific and timely.“); United States v. Parodi, 703 F.2d 768, 783 (4th Cir.1983) (“Timeliness of objection under [
With these standards in mind, we reject Stewart‘s summary argument that the district court abused its discretion when it allowed the Government to present into evidence recordings of Stewart‘s telephone conversations. Stewart argues that the four recordings about which he complains “did not constitute an admission or declaration against interest[,]” “lack[ed] sufficient context and specificity to make them relevant under [
Although Stewart summarily argues that the statements were irrelevant and unfairly prejudicial, we defer to the district court‘s decision to the contrary. We agree that the challenged telephone conversations were relevant to the issues at trial. Moreover, a district court may, under
We also discern no error in the district court‘s decision to allow the Government to introduce in its case-in-chief testimony about Stewart‘s alleged attempts to secure an alibi. In this regard, Stewart asserts that the district court erred because he presented no evidence at trial about an alibi and there was no reliable evidence that he sought to procure a false alibi. According to Stewart, although evidence showing consciousness of guilt may be introduced, the Government in this case made no showing that Stewart coerced or instigated the witness‘s testimony.
For instance, “[e]vidence of witness intimidation is admissible to prove consciousness of guilt and criminal intent under Rule 404(b), if the evidence (1) is related to the offense charged and (2) is reliable.” See United States v. Hayden, 85 F.3d 153, 159 (4th Cir.1996). Moreover, fabrications of evidence by a defendant or the submission of false explanations in an attempt to aid a defense are admissible to prove a defendant‘s state of mind. See United States v. Hughes, 716 F.2d 234, 240-41 (4th Cir.1983). We have reviewed the record and have considered the parties’ arguments and find no reversible error in the district court‘s decision to admit the challenged statements into evidence.3
In this case, the district court sua sponte conducted a thorough voir dire outside of the jury‘s presence to determine whether the Government‘s witness was competent to testify, despite her medicated state. Although the witness expressed a desire not to testify and, after inquiry by the district court, stated that the medication she was taking could “cause inconsistency,” we have found nothing in her testimony to indicate that she did not have personal knowledge of the matters at hand, that she did not have the ability to recall the events, or that she did not understand the oath under which she was testifying. Given the absence of evidence in the record supporting Stewart‘s summary assertion to the contrary, and in light of the district court‘s instruction to the jury that the witness was medicated at the time of her testimony and that the medication could have an effect on her recollection and ability to understand what was taking place, we conclude that the district court did not clearly err in finding that witness was competent to testify. See Odom, 736 F.2d at 112-13 (“Whether the witness has such competency is a matter for determination by the trial judge after such examination as he deems appropriate and his exercise of discretion in this regard is to be reversed only for clear error.“).
Barbee asserts that his constitutional right to confront witnesses against him was violated because the district court allowed into evidence statements made by Stewart that incriminated Barbee. According to Barbee, it was reversible error for the district court to allow a Government witness to testify about statements Stewart made in recorded telephone conversations regarding Barbee‘s telephone because those statements linked Barbee to Stewart and counsel was unable to cross-examine Stewart regarding those statements. Barbee also asserts that it was reversible error for the district court to allow into evidence a recorded telephone conversation Stewart had with his mother, during which Stewart said the Government had “us on camera in the area.” Because Barbee was allegedly “referenced directly and explicitly on the face of these statements[,]” Barbee summarily asserts that their introduction constituted constitutional error under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
In Bruton, the Supreme Court held that admission of a statement inculpating a co-defendant in a joint trial violates the co-defendant‘s rights under the Confrontation Clause if the statement directly incriminates the co-defendant. Id. at 126, 88
We have reviewed the record and find that: (1) the Government witness‘s testimony before the jury was facially benign as it related to Barbee and, thus, did not implicate Bruton, see Marsh, 481 U.S. at 211, 107 S.Ct. 1702 (holding that Confrontation Clause is not violated even when the confession “inferentially incriminates” defendant and other evidence admitted subsequently at trial clearly links the defendant to the statement in an inculpatory manner); (2) the use of the word “us” to refer to the existence of another person who may be a co-defendant did not render Stewart‘s conversation with his mother inadmissible, see United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir.1999) (holding that redacted statements that refer to the existence of another person who may be a co-defendant through the use of another person who may be a co-defendant through the use of symbols or neutral pronouns may be admissible); see also United States v. Min, 704 F.3d 314, 320-21 (4th Cir.2013) (holding that co-defendant‘s statement that contained general references without “facial incrimination” to others who may (or may not) be co-defendants did not violate Bruton); and (3) the district court‘s instructions that the recorded telephone conversations should only be used against Stewart helped guard against any constitutional error, see United States v. Chong Lam, 677 F.3d 190, 204 (4th Cir.2012) (“[J]uries are presumed to follow their instructions.“) (internal quotation marks and citations omitted). Accordingly, we find no violation of Barbee‘s rights under the Confrontation Clause.
Last, we discern no error in the district court‘s decision to deny Defendants’
In resolving issues of substantial evidence, we may not reweigh the evidence or reassess the factfinder‘s determination of witness credibility, and we must assume that the jury resolved all contradictions in testimony in favor of the Government. See United States v. Roe, 606 F.3d 180, 186 (4th Cir.2010). Thus, a defendant challenging the sufficiency of the evidence faces a heavy burden. See United States v. Bonner, 648 F.3d 209, 213 (4th Cir. 2011). We have reviewed the record de novo, see Cloud, 680 F.3d at 403, and have considered the parties’ arguments and conclude that the Government produced sufficient evidence to support the jury‘s convictions.
AFFIRMED.