Case Information
*1 Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lee Ann Anderson McCall, Maggie L. Lassack, Jay Schwarz, Laura D’Allaird, Morgan Daniel Ditch, Washington, D.C., for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. *2
PER CURIAM:
Anthony Daniel Smith, Jr., appeals his convictions for conspiring to distribute marijuana, possessing a firearm in furtherance of a drug trafficking crime, and being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006) and 21 U.S.C. § 846 (2006). On appeal, Smith argues the district court plainly erred by admitting evidence of his co-defendant’s out-of-court statement without a limiting instruction, the district court abused its discretion by admitting evidence of Smith’s prior cocaine convictions, and the Government did not present sufficient evidence to support his convictions. For the reasons that follow, we affirm.
This court typically reviews evidentiary rulings for
abuse of discretion. United States v. Perkins, 470 F.3d 150,
155 (4th Cir. 2006). However, because Smith did not object in
the district court to the hearsay testimony, we review the
admission of evidence for plain error. United States v. Olano,
507 U.S. 725, 731 (1993). To show plain error, the appellant
must demonstrate “that an error occurred, that the error was
plain, and that the error affected his substantial rights.”
United States v. Muhammad,
Hearsay is generally not admissible in evidence. Fed. R. Evid. 802. An exception is a statement against penal interest “which was at the time of its making so far contrary to *3 the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Fed. R. Evid. 804(b)(3). A statement is admissible under this exception if: (1) the speaker is unavailable; (2) the statement is actually adverse to the speaker’s penal interest; and (3) “corroborating circumstances clearly indicate the trustworthiness of the statement.” United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995) (internal quotation marks omitted).
We note that all three requirements are met. Clearly,
the statement was against the declarant’s penal interests. See
Williamson v. United States, 512 U.S. 594, 603 (1994). We also
note there was sufficient corroboration indicating the
truthfulness of the statement. Bumpass,
Smith also argues that the admission of Waldron’s
statement violated his Sixth Amendment right to confront a
witness. The Confrontation Clause of the Sixth Amendment bars
“admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 53-54 (2004). For such
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evidence to be excludable under the confrontation clause, it
must be “testimonial,” United States v. Udeozor, 515 F.3d 260,
268 (4th Cir. 2008), and offered for the truth of the matter
asserted, Crawford, 541 U.S. at 59-60 n.9 (the Confrontation
Clause does not bar the use of “testimonial statements for
purposes other than establishing the truth of the matter
asserted”). We find the offered statement was clearly non-
testimonial. See United States v. Smalls, __ F.3d __, 2010 WL
1745123, *8-10 (10th Cir. May 3, 2010) (statement made by co-
conspirator to fellow inmate implicating defendant was
nontestimonial); United States v. Spotted Elk,
Smith contends that his prior cocaine convictions were irrelevant to proper Rule 404(b) purposes. He reasons that his defense was that he did not possess the drugs or guns at all, not that he did not have the intent to distribute, and thus the issue of his intent to distribute was not at issue. Smith further argues that his prior convictions were not sufficiently similar to the present charges to have probative value, and that any probative value was outweighed by the unfair prejudice.
Rule 404(b) of the Federal Rules of Evidence prohibits
the admission of evidence of other wrongs or acts solely to
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prove a defendant’s bad character. Although not admissible to
prove the defendant’s character, evidence of other wrongs may be
admitted to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
Fed. R. Evid. 404(b). Rule 404(b) is an inclusionary rule,
allowing evidence of other crimes or acts to be admitted, except
that which tends to prove only criminal disposition. United
States v. Queen,
To prove a conspiracy to possess a drug with the
intent to distribute, the Government must establish that an
agreement to possess drugs with intent to distribute existed
between two or more persons, that defendant knew of the
conspiracy, and that defendant knowingly and voluntarily
participated in the conspiracy. United States v. Burgos, 94
F.3d 849, 857 (4th Cir. 1996). The Government offered the
evidence of Smith’s past convictions related to cocaine
distribution to show knowledge, lack of mistake, and
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opportunity. Thus, the evidence was relevant to an issue other
than Smith’s general character. As in United States v. King,
768 F.2d 586, 588 (4th Cir. 1985), the evidence made it “more
likely that [the defendant] intended to distribute drugs and was
not an innocent friend of [a co-conspirator,] caught in the
wrong place at the wrong time.” Moreover, by pleading not
guilty, Smith placed his state of mind at issue, making his
prior similar acts both relevant and necessary to the
Government's effort to prove a conspiracy. United States v.
Mark, 943 F.2d 444, 448 (4th Cir. 1991); see also United
States v. Sanchez,
Smith argues that the Government failed to present evidence sufficient to prove beyond a reasonable doubt that Smith or Waldron had dominion and control over the trailer. “A defendant challenging the sufficiency of the evidence faces a heavy burden.” United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). We review a sufficiency of the evidence challenge *7 by determining whether, viewing the evidence in the light most favorable to the Government, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005). This court will uphold the jury’s verdict if substantial evidence supports it, and will reverse only in those rare cases of clear failure by the prosecution. Foster, 507 F.3d at 244-45. The court does not review the credibility of the witnesses and assumes that the jury resolved all contradictions in the testimony in favor of the Government. Id. at 245.
Again, to meet its burden of proof on the conspiracy
charge, the Government had to establish that an agreement to
possess drugs with intent to distribute existed between two or
more persons, that Smith knew of the conspiracy, and that Smith
knowingly and voluntarily participated in the conspiracy. See
Burgos, 94 F.3d at 857. To establish the 18 U.S.C. § 924(c)(1)
violation, the Government had to present evidence “indicating
that the possession of [the] firearm furthered, advanced, or
helped forward a drug trafficking crime.” United States v.
Lomax,
Smith contends he did not possess either the marijuana
or the firearms. Possession may be actual or constructive.
United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992).
When the Government seeks to establish constructive possession,
*8
it must prove that the defendant intentionally exercised
dominion and control or “had the power and the intention to
exercise dominion and control” over the item in question.
United States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005).
Here, viewing the evidence in the light most favorable to the
Government, the combined evidence was sufficient for the jury to
reach the conclusion that Smith entered into an agreement to
possess and sell marijuana, and further, Smith possessed the
guns found in the trailer for use in furtherance of a drug
trafficking crime. See Lomax,
Accordingly, we affirm the district court’s judgment. We dispense 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