UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4382
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAWRENCE REGINALD SMITH, a/k/a Reginald
Newton, a/k/a Little Reggie,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:05-cr-00384-REP)
Submitted: January 31, 2007 Decided: February 16, 2007
Before MOTZ and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher C. Booberg, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Sara E. Flannery, Assistant
United States Attorney, Tara M. McManigal, Third Year Intern,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lawrence Reginald Smith was convicted by a jury of one
count of possession with intent to distribute less than 500 grams
of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1)
(2000). Smith was sentenced by the district court to forty-one
months’ imprisonment. Finding no error, we affirm.
On appeal, Smith contends the district court improperly
admitted the recording of a telephone conversation between Smith
and another individual over defense objection. We review a
district court’s decision regarding the admission or exclusion of
evidence for abuse of discretion. United States v. Lancaster, 96
F.3d 734, 744 (4th Cir. 1996). Such discretion is abused only when
a district court has acted “arbitrarily or irrationally.” United
States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994) (internal
quotation marks omitted). However, evidentiary rulings based on
erroneous legal conclusions are “by definition an abuse of
discretion.” United States v. Turner, 198 F.3d 425, 430 (4th Cir.
1999).
Smith argues the Government violated Fed. R. Crim. P.
16(a)(1)(B) as well as an informal discovery agreement by not
disclosing his recorded statement well in advance of trial. He
asserts the Government was “charged with knowledge” that Smith and
James Edward Gainer, the Government’s cooperating witness,
conversed over the telephone about matters of interest subsequent
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to Gainer’s arrest. Smith further asserts that his statement was
within the Government’s control “because it was digitally recorded
by a regional jail that has a long standing history of housing
federal inmates.”
Rule 16(a)(1)(B) requires the Government, upon
defendant’s request, to disclose any relevant written or recorded
statements made by the defendant that are within the Government’s
possession, custody, or control and which the Government knows, or
through the exercise of due diligence could know, exist. Fed. R.
Crim. P. 16(a)(1)(B)(i). Because the phone conversation between
Smith and Gainer occurred while Gainer was in a state facility
under state charges, we conclude the district court properly
determined that the statements were not in the Government’s
“possession, custody, or control.” Moreover, it is undisputed that
once the Government obtained possession of the recorded statements,
it provided Smith with a copy thereof in compliance with Rule 16.
Smith also contends the evidence was insufficient to
sustain his conviction under 21 U.S.C. § 841(a)(1). To determine
if there was sufficient evidence to support a conviction, we
consider whether, taking the evidence in the light most favorable
to the Government, substantial evidence supports the jury’s
verdict. Glasser v. United States, 315 U.S. 60, 80 (1942). We
review both direct and circumstantial evidence, and permit the
“government the benefit of all reasonable inferences from the facts
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proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Smith argues the
evidence was insufficient because the Government’s case rested on
the “unreliable” testimony of its cooperating witness, Gainer.
Witness credibility, however, is solely within the province of the
jury and will not be reassessed on appeal. See United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Accordingly, we affirm Smith’s conviction. 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
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