UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4897
RALPH GRAHAM,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-01-35-MU)
Submitted: July 11, 2003
Decided: August 25, 2003
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU
OKWARA, Charlotte, North Carolina, for Appellant. Robert J. Con-
rad, Jr., United States Attorney, Gretchen C.F. Shappert, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GRAHAM
OPINION
PER CURIAM:
Ralph Graham, a federal prisoner, appeals his convictions follow-
ing a jury trial for possession of a firearm by a convicted felon, in vio-
lation of 18 U.S.C. § 922(g)(1) (2000), interference with commerce
by threat or violence and aiding and abetting others, in violation of
18 U.S.C. § 1951 (2000) and 18 U.S.C. § 2 (2000), and brandishing
a firearm during and in relation to a crime of violence and aiding and
abetting others, in violation of 18 U.S.C. § 924(c) (2000) and § 2.
These charges stemmed from two separate incidents. On August 4,
2000, the Charlotte-Mecklenburg Police Department received infor-
mation from a confidential informant that individuals in a dark-
colored Chevrolet Suburban were about to commit a bank robbery.
Graham and his brother Anthony Graham ("Anthony") were stopped
by police officers after being seen in the area in a vehicle fitting the
informant’s description. Both Graham and Anthony testified that the
vehicle belonged to a friend of Anthony’s known as "Tick." Anthony
was driving the vehicle and Graham was a passenger in the front seat.
A loaded handgun was found underneath the front passenger’s seat.
The other incident occurred on December 25, 2000, when officers
received a call that a Days Inn motel had been robbed. Upon their
arrival at the scene, the victim of the robbery, Alfred Brent Bridges
("Bridges"), informed the officers of the details of the robbery and
gave a description of the assailant. Based on this information, Graham
was apprehended at a nearby location shortly thereafter. Bridges was
taken to that location, where he identified Graham as the assailant. He
also identified a gun found on Graham’s person as that used in the
robbery, and cash found on Graham’s person as that taken from the
hotel.
On appeal, Graham argues that the district court erred by denying
his pretrial motion to suppress statements and evidence regarding the
August 4, 2000, incident, and that there was no probable cause to
search the automobile. We find that Graham, as a passenger claiming
no possessory interest in the automobile or its contents, lacks standing
to challenge the search. See Rakas v. Illinois, 439 U.S. 128, 148-49
UNITED STATES v. GRAHAM 3
(1978); see also United States v. Rusher, 966 F.2d 868, 874 (4th Cir.
1992).
Graham also argues that the district court erred by failing to hold
an evidentiary hearing regarding his suppression motion. We review
a district court’s failure to grant a suppression hearing for abuse of
discretion. See United States v. Chavez, 902 F.2d 259, 264 (4th Cir.
1990). As Graham lacked standing to challenge the search and sei-
zure, there was no abuse of discretion in this case.
Graham next argues that the district court erred by failing to dis-
close the identity of the confidential informant. The defendant bears
the burden of proving that he is entitled to disclosure of such informa-
tion. See Rugendorf v. United States, 376 U.S. 528, 534-35 (1964);
see also United States v. D’Anjou, 16 F.3d 604, 609-10 (4th Cir.
1994). We review a district court’s decision whether to disclose the
identity of a confidential informant for abuse of discretion. See United
States v. Gray, 47 F.3d 1359, 1363 (4th Cir. 1995). Because the infor-
mant was not a participant in the crime but a mere "tipster," disclosure
of his or her identity was not required. See United States v. Price, 783
F.2d 1132, 1138 (4th Cir. 1986) (citing McLawhorn v. North Caro-
lina, 484 F.2d 1, 5 (4th Cir. 1973)).
Graham also argues that the district court erred by denying his
motion for a new trial and/or mistrial with regard to the December 25,
2000, robbery. We review a district court’s decision whether to grant
a new trial and/or mistrial for abuse of discretion. See Cline v. Wal-
Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998); see also United
States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997).
Graham first argues that a new trial and/or mistrial was warranted
because the Government’s failure to respect his stipulation that he
was a convicted felon by cross-examining him regarding past convic-
tions was prejudicial and inflammatory, thus negating his right to a
fair trial before an impartial jury. Specifically, he argues that such
cross-examination violates the holding of United States v. Old Chief,
519 U.S. 172 (1997). We disagree. In Old Chief, the Supreme Court
held that the district court abused its discretion in a case involving a
prosecution for possession of a firearm by a convicted felon by reject-
ing the defendant’s offer to stipulate his status as a convicted felon.
4 UNITED STATES v. GRAHAM
Here, the Government used Graham’s prior convictions for impeach-
ment purposes only. Thus, Old Chief is distinguishable because it
addressed an element of the offense charged. See United States v.
Smith, 131 F.3d 685, 687 (7th Cir. 1997).
Graham further argues that the Government improperly used Fed.
R. Evid. 404(b) evidence without giving him prior notice. We dis-
agree. Graham’s stipulation to his status as a convicted felon did not
preclude the Government from referencing his criminal record for
impeachment purposes. Moreover, we find that Graham received
notice of this potentiality given the parties’ stipulation that his past
criminal conduct would be used to establish an element of the offense.
Thus, we find that Graham’s argument fails.
Graham also argues that the district court erred by failing to give
a curative instruction to the jury regarding the Government’s line of
questioning referencing his criminal record. We find that the caution-
ary instruction given before the trial sufficiently apprised the jury that
the Government’s "statements, arguments and questions" were not to
be considered as evidence. In any event, because Graham’s criminal
record was properly used for impeachment purposes only, we find
that no curative instruction was necessary.
Graham next argues that the cumulative effect of all of these
alleged errors deprived him of a fair trial, thereby warranting the
granting of a new trial. However, because we find no merit to any of
these alleged errors, Graham’s cumulative error argument necessarily
fails.
Graham further argues that the district court erred by denying his
Fed. R. Crim. P. 29 motions for judgment of acquittal based on insuf-
ficiency of the evidence. To determine whether there was sufficient
evidence to support a conviction, we consider whether, taking the evi-
dence in the light most favorable to the Government, any reasonable
trier of fact could have found the defendant guilty beyond a reason-
able doubt. See Glasser v. United States, 315 U.S. 60, 80 (1942). We
do not weigh the evidence or determine the credibility of the wit-
nesses. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir.
1989). Rather, the jury verdict must be upheld if there is substantial
UNITED STATES v. GRAHAM 5
evidence to support it. See id.; see also United States v. Murphy, 35
F.3d 143, 148 (4th Cir. 1994).
In order to convict Graham on the charge of being a convicted
felon in possession of a firearm, the Government must prove the fol-
lowing three elements beyond a reasonable doubt: (1) Graham had
been previously convicted of a crime punishable by imprisonment for
a term exceeding one year; (2) he knowingly possessed the firearm;
and (3) such possession was in or affecting interstate commerce. See
18 U.S.C. § 922(g)(1) (2000). Because Graham stipulated to his prior
felony conviction, no further evidence needed to be produced to prove
the first element. With regard to the second element, Special Agent
William Holbrook, of the State Bureau of Investigation, testified that
Graham acknowledged the gun was his, stating that he had purchased
it the previous day from a Mexican male whose name he could not
recall. At trial, Graham denied making such a statement, and denied
that the gun was his, that he knew the gun was in the automobile, and
that he ever touched the gun. There is no other evidence linking the
gun to Graham. Because we do not make credibility determinations,
and because the jury clearly believed Holbrook’s testimony, we must
accept it as true. Accordingly, sufficient evidence supports the jury’s
finding of this element beyond a reasonable doubt. Lastly, the third
element, that the firearm was in or affected interstate commerce, is
met because the parties stipulated that the firearm was manufactured
outside of the state.
In order to convict Graham for obstructing, delaying, and affecting
interstate commerce by robbery, the Government must prove the fol-
lowing elements beyond a reasonable doubt: (1) Graham induced
Bridges to depart with property of the Days Inn; (2) he did so know-
ingly and deliberately by robbery; and (3) in doing so, commerce was
obstructed, delayed, or affected.
Bridges testified that Graham demanded money from the motel
safe, threatening Bridges’s life with a gun for failure to comply.
Moreover, Graham threatened to hit Bridges in the head with a lock
from the safe and, after instructing Bridges to lie on the floor on his
stomach, Graham threatened to shoot him if he got up. The gun used
in the robbery was later found in Graham’s possession and identified
by Bridges as the one used in the robbery. Thus, we find that suffi-
6 UNITED STATES v. GRAHAM
cient evidence exists for the jury’s finding the first two elements
beyond a reasonable doubt. With regard to the third element, it is
clear that the Days Inn’s ability to engage in interstate commerce was
affected by the theft of its property. Thus, we find that sufficient evi-
dence supports the jury’s finding this element beyond a reasonable
doubt.
In order to convict Graham on the brandishing charge, the Govern-
ment must prove the following elements beyond a reasonable doubt:
(1) Graham committed a crime of violence, namely, obstructing,
delaying, or affecting commerce by robbery as charged; and (2) dur-
ing and in relation to the commission of that crime, he knowingly
used or carried and brandished the firearm in question. The district
judge instructed the jury that obstructing, delaying, or affecting com-
merce by robbery constituted a crime of violence for purposes of this
charge. Because there is sufficient evidence to support the jury’s con-
viction on that charge, the first element is supported by sufficient evi-
dence. Furthermore, as already noted, Bridges testified that Graham
pointed the gun toward him and threatened his life if he did not com-
ply with his demands. This gun was later found in Graham’s posses-
sion and identified by Bridges. Thus, we find that sufficient evidence
supports the jury’s finding this element beyond a reasonable doubt.
Accordingly, we affirm Graham’s convictions. 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