UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4717
ROBERT LEE HOUSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-00-117)
Submitted: June 26, 2002
Decided: July 19, 2002
Before WILKINS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Melvin J. Radin, Norfolk, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Raymond E. Patricco, Jr., 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Unpublished opinions are not binding precedent in this circuit.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. HOUSTON
OPINION
PER CURIAM:
Robert Lee Houston appeals his convictions by a jury for posses-
sion with intent to distribute cocaine base, in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1999); possession with intent to distribute heroin,
in violation of 21 U.S.C.A. § 841(a)(1); using and carrying a firearm
during and in relation to a drug trafficking crime, in violation of 18
U.S.C.A. § 924(c)(1) (West 2000); being a felon in possession of two
firearms, in violation of 18 U.S.C.A. §§ 922(g), 924(a)(2) (West
2000); and possession of cocaine, in violation of 21 U.S.C.A. § 844(a)
(West 1999). Houston’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but raising issues regarding the suffi-
ciency of the evidence, prejudicial testimony, and vindictive prosecu-
tion. Houston has filed a pro se brief elaborating on these issues.
Finding no reversible error, we affirm.
Houston argues the district court erred by denying his motion for
judgment of acquittal. This court reviews de novo the district court’s
denial of a motion for judgment of acquittal. United States v. Romer,
148 F.3d 359, 364 (4th Cir. 1998). To determine whether there was
sufficient evidence, we consider whether the evidence, viewed in the
light most favorable to the government, was sufficient for a rational
trier of fact to have found the essential elements of the crime beyond
a reasonable doubt. Id.; United States v. Burgos, 94 F.3d 849, 862-63
(4th Cir. 1996) (en banc).
The evidence at trial showed on October 14, 1999, Portsmouth
police officers executed a search warrant at 124 Elm Avenue. Hous-
ton was present in the house. From a back bedroom the officers
recovered a bag containing heroin, marijuana, crack cocaine, powder
cocaine, and two firearms. The officers also recovered personal
papers and mail addressed to Houston, a capsule of heroin on the
kitchen floor, ammunition, and suspected drug paraphernalia. Hous-
ton was carrying $823 in currency on his person. During statements
to the police officers Houston said he was holding and selling the
drugs for an individual named Rock, and had bought the guns with
Rock.
UNITED STATES v. HOUSTON 3
On June 14, 2000, Portsmouth police officers executed a search
warrant at 1505 Effingham Street. The officers apprehended Houston
as he was running out the back door and seized a substance from his
person later determined to be cocaine.
Houston primarily argues the officers’ testimony was inherently
incredible. However, the resolution of credibility issues is solely
within the province of the jury. See Romer, 148 F.3d at 364. Houston
also argues there was no physical evidence connecting Houston with
the narcotics and firearms. However, reviewing the evidence in the
light most favorable to the Government, Houston admitted to two dif-
ferent police officers to possessing the drugs and guns and selling the
narcotics. Houston also contends that the officers’ delay in memorial-
izing Houston’s incriminating statement renders the officers’ testi-
mony incredible. However, the jury was able to assess the witnesses’
credibility, and we will not overturn that assessment.
Next, Houston argues the district court erred by allowing a detec-
tive to testify as to the reason why televisions and tools were removed
by the police. The district court’s decisions concerning admission or
exclusion of evidence are reviewed for abuse of discretion. United
States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995). We have reviewed
the record and find the district court did not abuse its discretion in
admitting this testimony.
Houston claims the federal prosecution of Houston was vindictive
in nature. Because Houston did not raise this issue before the district
court, we review for plain error. See United States v. Olano, 507 U.S.
725, 732 (1993). To establish prosecutorial vindictiveness, Houston
must show through objective evidence, "(1) the prosecutor acted with
genuine animus toward the defendant and (2) the defendant would not
have been prosecuted but for that animus." United States v. Wilson,
262 F.3d 305, 314 (4th Cir. 2001), cert. denied, ___ U.S. ___, 122
S. Ct. 1908 (2002). The government’s charging decisions are pre-
sumptively lawful. Id. at 315 (citing United States v. Armstrong, 517
U.S. 456, 464 (1996)). Houston speculates the state officers encour-
aged the federal government to prosecute Houston after state charges
against him were dismissed. However, Houston proffers no evidence
of animus other than his conclusory allegations, and we find this
claim to be without merit.
4 UNITED STATES v. HOUSTON
In his pro se brief, Houston presents arguments in support of the
issues raised by counsel. We find these arguments do not sway the
analysis. To the extent Houston avers his statements made to police
officers were inadmissible hearsay, an out-of-court statement by a
party against that party is admissible. Fed. R. Evid. 801(d)(2)(A).
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm
Houston’s conviction. This court requires that counsel inform his cli-
ent, in writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from repre-
sentation. Counsel’s motion must state that a copy thereof was served
on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED