UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASON R. PEARSON,
Defendant - Appellant.
No. 05-5025
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANKLIN L. STINNETT,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CR-05-53)
Argued: October 27, 2006 Decided: March 13, 2007
Before WILKINS, Chief Judge, and WIDENER and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: David Lassiter, Jr., JEFFERSON & LASSITER, Richmond,
Virginia; Reuben Voll Greene, Richmond, Virginia, for Appellants.
Brian Lee Whisler, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON
BRIEF: Chuck Rosenberg, United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jason R. Pearson and Franklin L. Stinnett appeal their
convictions for making a false statement in connection with the
purchase of a firearm, see 18 U.S.C.A. § 922(a)(6) (West 2000), and
making a false statement regarding information required to be kept
by a licensed firearms dealer, see 18 U.S.C.A. § 924(a)(1)(A) (West
Supp. 2006). Stinnett additionally appeals his convictions for
being a felon in possession of a firearm, see 18 U.S.C.A.
§ 922(g)(1) (West 2000), and influencing a witness to provide false
testimony, see 18 U.S.C.A. § 1512(b)(1) (West 2000). For the
reasons set forth below, we affirm.
I.
On July 10, 2004, Stinnett visited a former girlfriend, Edwina
Newsom, while she was at her mother’s home babysitting her younger
brothers. Later, Tianna Odom arrived, and Stinnett, Newsom, and
her brothers left with Odom in Odom’s vehicle. The group traveled
to the north side of Richmond, Virginia, making one stop to pick up
Pearson, and eventually arrived at a high school parking lot where
they met two unidentified men. Stinnett gave Newsom approximately
$100 in cash, while Pearson gave her $20. Stinnett and Pearson got
into a second vehicle with the two men.
The entire group drove to a gun show, where Newsom paid for
her admission and Stinnett’s. Agents for the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) observed the group as they
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entered and wandered about the show. Stinnett eventually
approached the Rabbit Ridge Enterprises table and began inspecting
the firearms on display. An undercover ATF agent at the table
answered Stinnett’s questions about a nine millimeter handgun.
Newsom joined Stinnett at the table. After inspecting the weapon,
Stinnett directed Newsom to look at it, hold it, and then
instructed her to “[t]ell the man that I like the gun and this is
the one that I want.” J.A. 555. When Newsom, following these
instructions, indicated to the agent that she wished to purchase
the firearm that Stinnett had just been holding, Stinnett moved off
to another area of the gun show.
Newsom filled out the paperwork required to complete the
purchase of the firearm. Initially, she indicated that she was not
the actual purchaser of the firearm, but changed her response after
being advised of the repercussions of that statement. After
completing the paperwork, Newsom realized that she did not have
sufficient funds to cover the $129 purchase price and informed the
undercover agent that “he didn’t give me enough money.” Id. at
657. She left the Rabbit Ridge table and was observed talking with
both Stinnett and Pearson. Newsom and Pearson returned to the
Rabbit Ridge table where he passed additional money to her in a
below-the-waist maneuver and then left. Newsom paid for the
handgun and a box of ammunition. When her background check was
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complete, Newsom, Stinnett, Pearson, and the others left the gun
show.
Once the party exited the arena, they separated into the same
traveling groups as before. Newsom and Odom were stopped by law
enforcement officers approximately one-quarter mile from the gun
show. Newsom was questioned about her attendance at the show and
the firearm she had purchased. At first, Newsom claimed that she
had purchased the weapon for herself but later admitted that she
had purchased it for Stinnett. Stinnett and Pearson were
interviewed by police in the gun show parking lot; both denied
knowing Newsom or having any involvement in her purchase of a
firearm.
On June 23, 2005, after a two-day trial, a jury returned
guilty verdicts on all counts for Pearson and Stinnett. Pearson
was sentenced to 51 months imprisonment while Stinnett was
sentenced to 57 months imprisonment.
II.
We first consider Pearson’s individual challenges to his
convictions.
A.
First, Pearson asserts that the district court erred in
refusing to grant a severance because the seriousness of the two
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additional charges against Stinnett, and the testimony related to
those charges, prejudiced the jury against Pearson and compromised
his right to a fair and impartial trial. We disagree.
We review a decision by the district court to grant or deny a
motion for severance for an abuse of discretion. See United States
v. West, 877 F.2d 281, 287-88 (4th Cir. 1989). Generally, it is
presumed that “individuals indicted together should be tried
together.” United States v. Strickland, 245 F.3d 368, 384 (4th
Cir. 2001) (internal quotation marks omitted). A defendant moving
for severance bears the burden of proving that a joint trial would
be so unfairly prejudicial as to cause a miscarriage of justice.
See United States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995).
Pearson contends that severance was required because the
charge that Stinnett had influenced a witness “inferred an act or
threat of violence ... toward the Government’s only material
witness.” Opening Br. of Appellants at 15. We conclude that the
district court did not abuse its discretion. “[I]nflammatory
evidence ... admitted against one defendant, not directly involving
another codefendant (and with which the other is not charged) does
not, in and of itself, prove substantial prejudice in the latter’s
trial.” United States v. Zalman, 870 F.2d 1047, 1053 (6th Cir.
1989) (internal quotation marks omitted). In this vein, we note
that the district court repeatedly emphasized during jury
instructions that evidence concerning the witness influence charges
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applied only to Stinnett. See United States v. Love, 134 F.3d 595,
603 (4th Cir. 1998) (noting that a jury is presumed capable of
following cautionary instructions about potentially prejudicial
evidence). Moreover, this was not a highly complex case: there
were only two defendants, four charges, and a limited number of
witnesses.
B.
Next, Pearson contends that the district court abused its
discretion in admitting evidence that he had previously been
convicted of a felony. He maintains that because status as a felon
was not a required element of either offense with which he was
charged, evidence of his prior conviction was inadmissible under
Rule 404(b) of the Federal Rules of Evidence.
We review evidentiary rulings by a district court for abuse of
discretion. See United States v. Leftenant, 341 F.3d 338, 342 (4th
Cir. 2003). Though inadmissible solely to prove the character of
a defendant, evidence of other crimes, wrongs, or acts “may ... be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b). Rule
404(b) is “an inclusive rule, admitting all evidence of other
crimes or acts except that which tends to prove only criminal
disposition.” United States v. Young, 248 F.3d 260, 271-72 (4th
Cir. 2001) (internal quotation marks omitted). Such evidence is
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admissible if it is necessary, reliable, and relevant to an issue
other than the defendant’s character. See United States v. Queen,
132 F.3d 991, 997 (4th Cir. 1997). If the prior act evidence meets
these criteria and its probative value is not substantially
outweighed by its prejudicial effect, it may be admitted. See id.
Here, Pearson was convicted of providing a false statement in
connection with the purchase of a firearm and unlawfully causing a
licensed firearms dealer to maintain false records. The district
court concluded that the existence of a prior felony demonstrated
Pearson’s motivation for participating in the charged criminal
conduct and inducing a third party to purchase a firearm. This
ruling was not an abuse of discretion.
III.
Both Pearson and Stinnett challenge the sufficiency of the
evidence to support their convictions for providing false
statements in connection with the purchase of a firearm and
unlawfully causing a licensed firearms dealer to maintain false
records. They base this claim on the fact that Newsom, the
Government’s principal witness, admitted that parts of her
testimony were untruthful.
When reviewing a challenge to the sufficiency of the evidence,
we consider whether the evidence, taken 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
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doubt. See Glasser v. United States, 315 U.S. 60, 80 (1942);
United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996)
(en banc). Thus, a defendant challenging his conviction based upon
the sufficiency of the evidence “bears a heavy burden,” United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal
quotation marks omitted), as “a decision [to reverse for
insufficient evidence] will be confined to cases where the
prosecution’s failure is clear.” Burks v. United States, 437 U.S.
1, 17 (1978). With these principles in mind, we conclude that the
evidence was sufficient to support both Pearson’s and Stinnett’s
convictions.
Pearson’s and Stinnett’s challenge rests upon the credibility
and reliability of Newsom. On direct examination, Newsom’s
testimony was supportive of the Government’s allegations. On
cross-examination, however, she recanted portions of her testimony.
The inconsistencies in her testimony were only partially
rehabilitated by the Government during redirect examination. At
that time, Newsom also admitted that she was afraid of both
defendants and of the Government.
However troubling such inconsistencies are, we must remember
that it is the role of the jury to review the credibility of the
witnesses, weigh the evidence, and resolve any conflicts in the
evidence presented. See United States v. Wilson, 118 F.3d 228, 234
(4th Cir. 1997); Burgos, 94 F.3d at 862-63. Therefore, when, as
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here, the evidence supports different reasonable interpretations,
the jury decides which version to believe. See Wilson, 118 F.3d at
234; Burgos, 94 F.3d at 862. Accordingly, we affirm the
convictions of Pearson and Stinnett.
IV.
Separately, Stinnett challenges the sufficiency of the
evidence supporting his conviction for being a felon in possession
of a firearm.1 As above, we review the evidence in the light most
favorable to the Government and consider whether it was sufficient
for a rational trier of fact to have found the essential elements
of the crime beyond a reasonable doubt. See Burgos, 94 F.3d at
862-63.
Section 922(g)(1) prohibits a convicted felon from knowingly
possessing a firearm in or affecting commerce. See United States
v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc). Because
Stinnett stipulated that he had been previously convicted of a
felony and that the firearm had moved in interstate commerce,2 the
1
In the “Summary of Argument” portion of Appellants’ brief,
Stinnett also contends that there was insufficient evidence to
support his conviction for influencing a prospective witness to
provide false testimony. However, Stinnett does not otherwise
support this claim. See Fed. R. App. P. 28(a)(9)(A). He has
therefore waived the claim, and we do not consider it. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.”).
2
Stinnett did not stipulate that the item he handled at the
Rabbit Ridge table was a “firearm” as defined by federal law, and
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Government was required to prove that Stinnett knowingly possessed
a firearm. See id. Stinnett contends that there was insufficient
proof on this element.
Possession of a firearm sufficient to establish a violation of
§ 922(g)(1) may be actual or constructive. See United States v.
Scott, 424 F.3d 431, 435 (4th Cir.), cert. denied, 126 S. Ct. 779
(2005). Actual possession is defined as physical control over
property. See id. A person has constructive possession of an item
if he knows of its presence and exercises or has the power to
exercise dominion and control over it. See id.
Abundant evidence in the record demonstrates that Stinnett
constructively possessed the firearm purchased by Newsom. Stinnett
handled the firearm, questioned an undercover ATF agent about it,
instructed Newsom to purchase it, and provided her the money
necessary to do so. This evidence is clearly sufficient to support
a jury determination that Newsom acted as Stinnett’s agent when she
purchased the firearm and therefore that he exercised constructive
possession of it.
he challenges on appeal the sufficiency of the evidence supporting
a finding that it was. Because the undercover ATF agent who was
working at the table testified that the firearms on display were
operable, we conclude that the evidence presented was sufficient.
See 18 U.S.C.A. § 921(a)(3)(A) (West 2000).
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V.
For the reasons set forth above, we affirm the convictions of
both Pearson and Stinnett.
AFFIRMED
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