UNITED STATES of America, Plaintiff—Appellee, v. Frank BAILEY, Defendant—Appellant.
No. 08-4899.
United States Court of Appeals, Fourth Circuit.
Submitted: April 24, 2009. Decided: May 22, 2009.
328 Fed. Appx. 439
Thomas L. Crowe, Law Offices of Thomas L. Crowe, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Debra L. Dwyer, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Unpublished opinions аre not binding precedent in this circuit.
After a jury trial, Frank Bailey was convicted of distribution and possession with the intent to distribute cocaine base, in violаtion of
We review de novo the district court‘s denial of a Fed.R.Crim.P. 29 motion for judgment of acquittal. E.g., United States v. Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, — U.S. —, 129 S.Ct. 663, 172 L.Ed.2d 637 (2008). In conducting this review, “the verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to supрort it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This court has defined “substantial evidence” as “evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant‘s guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc). We consider circumstantial as well аs direct evidence, and we allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established. United States v. Harvey, 532 F.3d 326, 333 (4th Cir.2008).
In his sole challenge to count 1 and as part of his challenges as to counts 2 and 3, Bailey contends that the evidence is insufficiеnt because of contradictions in the testimony of the police officers concerning the location of the undercover surveillance vehicle from which they observed Bailey engaging in narcotics transactions. In resolving issues of substantial evidence, however, this court does nоt reweigh evidence or review witness credibility. United States v. Wilson, 118 F.3d 228, 234 (4th Cir.1997). Rather, it is the role of the jury to judge the credibility of witnesses, resolve conflicts in testimony, and weigh the evidence. United States v. Manbeck, 744 F.2d 360, 392 (4th Cir.1984). And after review of the record, we conclude that there was sufficient evidence from which a jury could conclude that Bailey knowingly distributеd and possessed with intent to distribute cocaine base.
To establish a violation of
The evidence was sufficient to convict Bailey on counts 2 and 3. Although Bailey was not in actual possession of the loaded .22 caliber firearm seized from the living room of the residence from which he was observed selling cocaine base, the jury could infer his knowledge of and dominion and control over the firearm, as it was found on the floor under a couch in the residence‘s living room, a room close to the residence‘s front door. The evidence was also sufficient to show that Bailey constructively possessed the .22 caliber firearm in furthеrance of a drug trafficking crime. The evidence showed that the firearm was loaded and located in the living room not far from the entrancе to the residence through which Bailey had been observed exiting to sell cocaine base on the front porch. The firearm, although located beneath the couch, was accessible to Bailey, the only occupant of the residence and a convicted felon prоhibited from possessing the firearm or ammunition. Further, in light of the testimony from the government‘s expert, the jury could find that the firearm was of the type used by drug traffickеrs for protection, and the firearm was found at night under circumstances indicating that Bailey was involved in drug distribution. Accordingly, the district court did not err in denying Bailеy‘s Rule 29 motions for judgment of acquittal.
This court reviews the district court‘s denial of a motion for mistrial for abuse of discretion, United States v. West, 877 F.2d 281, 287-88 (4th Cir.1989), and will disturb a district court‘s ruling “only under the most extraordinary of circumstances.” United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.1997). “A defendant must show prejudice in order for the court‘s ruling to constitute an abuse of discretion, and no prеjudice exists if the jury could make individual guilt determinations by following the court‘s cautionary instructions.” West, 877 F.2d at 288. Remarks by the prosecutor in an opening statement will lead to reversal if “(1) the prosecutor‘s remarks ... [were] in fact ... improper, and (2) such remarks ... prejudicially affected the defendant‘s substantial rights sо as to deprive the defendant of a fair trial.”
In this case, the district court denied a mistrial on the basis of the government‘s improper remark because the remark was made during an opening statement. However, the court instructed the jury thаt the opening statements of the attorneys were not to be considered evidence, and jurors are presumed to follow the instructions delivered by the district court, see United States v. Love, 134 F.3d 595, 603 (4th Cir.1998). Moreover, the evidence presented at trial was sufficient to sustain the jury‘s verdict even without the improper remаrk in the government‘s opening statement. Accordingly, because the government‘s remark did not so prejudice Bailey‘s substantial rights as to deny him a fair trial, the district court did not err in denying his requests for a mistrial.
We therefore affirm the district court‘s judgment. We dispense with oral argument because the facts and legаl conclusions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.