UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4547
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ARNESS ERBY, a/k/a Rasta, a/k/a Fife,
a/k/a Antwa Amala, a/k/a Antwa Damala,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:05-cr-00151-CMH-AL)
Submitted: July 31, 2007 Decided: August 24, 2007
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul P. Vangellow, PAUL P. VANGELLOW, P.C., Falls Church, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Martha
Pacold, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, James Arness Erby was convicted
of being a felon in possession of a firearm and ammunition on or
about October 16, 2004, in violation of 18 U.S.C. § 922(g)(1)
(2000) (“Count One”); being a felon in possession of a firearm and
ammunition on or about December 30, 2004, also in violation of 18
U.S.C. § 922(g)(1) (“Count Two”); conspiracy to distribute MDMA, a
Schedule I controlled substance more commonly known as ecstasy, in
violation of 21 U.S.C. § 841(a)(1) (2000) (“Count Three”); and use
of a firearm in relation to a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1) (2000) (“Count Four"). Erby was
sentenced to 120 months’ imprisonment on both Counts One and Two
and 240 months on Count Three, to be served concurrently, and life
imprisonment on Count Four, to be served consecutively. For the
reasons set forth below, we reject Erby’s arguments on appeal and
affirm his convictions and sentence.
Taken in the light most favorable to the Government,
Evans v. United States, 504 U.S. 255, 257 (1992), the evidence
presented at trial established the following facts. Erby
frequently brought marijuana and ecstasy to Spotsylvania, Virginia,
for distribution within that community. Erby also provided drugs
to his associate, Belinda Alsop, for her to sell on his behalf. On
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or about October 16, 2004,1 Jessica Sheets asked Erby and Alsop to
escort Sheets to her apartment. At the apartment, Sheets argued
with Lantz Day, her boyfriend; the argument quickly escalated,
resulting in Day slapping Sheets. Erby proceeded to shoot Day
twice in the leg.
On December 30, 2004,2 Erby arranged to meet James Ridley
at the Springfield Mall. April Latimore, Erby’s then-girlfriend,
accompanied him; Ridley was accompanied by his girlfriend, Jasmine
Raynor. Ridley had approximately $850 cash on his person. Ridley
and Erby parked their vehicles near one another, and Erby exited
his vehicle. As Raynor exited Ridley’s car, she observed someone
getting in the backseat of the car. However, Raynor could not see
this person’s face. When Raynor returned to Ridley’s vehicle
several minutes later, she found Ridley leaning against the door,
not moving. Raynor immediately called for help, but Ridley was
pronounced dead on the scene. Two bullets were removed from
Ridley’s body during an autopsy.
Later that evening, Erby told Latimore that he shot
Ridley after he refused to submit to Erby’s attempt to rob him. In
addition to detailing his murder of Ridley, Erby also told Latimore
that he shot Lantz Day. Erby also admitted shooting Day to
1
The following facts form the predicate for Count One.
2
Count Two was based on the following facts.
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Harneisha Courtney and Charles Davis. All three — Latimore,
Courtney, and Davis — testified against Erby at trial.
Julian Mason, the Government’s forensic expert, testified
that there was no facility in Virginia that manufactured the
bullets removed from Day’s leg and Ridley’s body, and that these
bullets were likely fired from the same firearm because the bullets
were the same type, with “the same physical characteristics of
manufacturing.” Mason further testified that none of the firearms
that would have caused the distinct markings found on the recovered
bullets were manufactured in Virginia. The parties stipulated to
Erby’s prior felony conviction.
After the district court denied Erby’s motion for a
mistrial, Erby moved, pursuant to Fed. R. Crim. P. 29, for a
judgment of acquittal, arguing that the Government failed to
present sufficient evidence to convict him on both Count One and
Count Two because it did not prove Erby’s possession of the firearm
was interrupted between the time of the first and second offenses.
The Government responded that Erby’s argument was really a
challenge to the indictment as multiplicitous, and that Erby had
waived any argument on that basis by failing to raise it prior to
trial. The court denied the motion. After resting, Erby renewed
his Rule 29 motion, which the court again denied. The jury
convicted Erby on all four counts.
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Prior to sentencing, Erby’s attorney received an e-mail,
ostensibly from Day, in which Day explained that he had recently
met Erby in jail and learned that Erby had been convicted of a
crime related to his shooting. Day asserted that Erby was not the
person who shot him. Erby moved for a new trial, arguing that this
information constituted newly discovered, exculpatory evidence.
Day testified as to this matter at Erby’s sentencing hearing. On
cross-examination, Day conceded that he never actually gave a
description of his shooter and that, when approached by police
officers regarding the e-mail, he refused to discuss it with them.
The district court denied Erby’s motion for a new trial.
In addition to finding Day’s testimony generally incredible, the
district court noted that, when considered against the weight of
the Government’s evidence, Day’s testimony would not have resulted
in an acquittal. After considering and rejecting Erby’s other
sentencing arguments, the district court sentenced Erby to 120
months on Counts One and Two and 240 months on Count Three, to be
served concurrently, and life imprisonment on Count Four, to be
served consecutively. Erby timely noted his appeal.
Erby first argues that the evidence regarding Ridley’s
murder should have been excluded under Fed. R. Evid. 403 because
its prejudicial nature outweighed its probative value. Rule 403
excludes otherwise relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice,
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confusion of the issues, or misleading the jury.” Fed. R. Evid.
403. “The mere fact that the evidence will damage the defendant’s
case is not enough — the evidence must be unfairly prejudicial, and
the unfair prejudice must substantially outweigh the probative
value of the evidence.” United States v. Hammoud, 381 F.3d 316,
341 (4th Cir. 2004) (en banc) (internal quotation marks and
citations omitted), vacated on other grounds, 543 U.S. 1097 (2005).
The district court’s ruling is overturned only under extraordinary
circumstances, where the district court’s discretion has been
plainly abused, and it acted arbitrarily or irrationally. United
States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990). The evidence
is reviewed in the “light most favorable to its proponent,
maximizing its probative value and minimizing its prejudicial
effect.” Id. (internal quotation marks and citations omitted).
In United States v. Williams, 445 F.3d 724 (4th Cir.
2006), we upheld the use of evidence of a murder to prove a felon-
in-possession charge in factual circumstances very similar to those
presented here. As Erby does here, the defendant in Williams
argued that the district court erred in admitting evidence of the
murder underlying the felon-in-possession charge. In rejecting
this argument, we emphasized that the evidence of the victim’s
murder was highly relevant because “[a] determination that Williams
shot [the victim] obviously would demonstrate that Williams
possessed a firearm, and the evidence of the [victim’s] murder
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would also establish that the firearm that Williams
possessed . . . satisfied the statutory definition of ‘firearm.’”
Williams, 445 F.3d at 732. Thus, while Williams was certainly
prejudiced by the evidence of the murder, we opined that no unfair
prejudice resulted from the admission of this evidence. Id. 732-
33.
Williams controls the disposition of this issue. As was
the case in Williams, the Government’s evidence of Ridley’s murder
was probative and relevant to the felon-in-possession charge.
Although Erby was prejudiced by this evidence in that it
established his criminal culpability, it was certainly not unfair
prejudice because the probative value of the evidence plainly
outweighed the prejudicial affect. Because the district court did
not abuse its discretion in admitting evidence of Ridley’s murder,
this claim fails.
Erby next asserts that his Rule 29 motion should have
been granted because the indictment, which charged two felon-in-
possession counts related to Erby’s possession of a single firearm,
was multiplicitious.3
3
Erby further argues that, because the Government’s evidence
did not establish that Erby’s possession of the firearm was
interrupted or otherwise broken, the Government’s evidence was
insufficient as a matter of law to prove two separate charges. In
his brief, Erby cites several cases from other circuits that
support Erby’s contention that, in order to sustain two felon-in-
possession convictions for possession of the same firearm, the
Government must prove that the defendant’s possession of that
firearm was interrupted and that the defendant subsequently
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Pursuant to Fed. R. Crim. P. 12(b)(3), any motion
alleging a defect in the indictment must be made prior to trial
commencing. A defendant’s failure to raise such a challenge prior
to trial results in the waiver of the challenge, save for those
instances in which the waiver is excused for good cause. Fed. R.
Crim. P. 12(e); United States v. Colton, 231 F.3d 890, 909 (4th
Cir. 2000). “Relief from the waiver of an objection is appropriate
only if the moving party demonstrates cause for the failure to
object and actual prejudice resulting from the defect.” Colton,
231 F.3d at 909.
Erby raised this issue for the first time after the
Government closed its case-in-chief. Erby’s failure to raise this
objection prior to trial waives his objection to it. Id.
Moreover, Erby fails to show cause and resulting prejudice to
relieve him from the impact of this waiver. Accordingly, we
decline to consider the merits of this issue.
Erby also argues that he should have been awarded a new
trial on the basis of Day’s testimony, as proffered at sentencing,
that Erby was not the person who shot him. According to Erby,
Day’s testimony constituted new, previously undiscoverable evidence
that would have resulted in an acquittal.
reacquired possession thereof. See, e.g., United States v. Conley,
291 F.3d 464, 470-71 (7th Cir. 2002); United States v. Rivera, 77
F.3d 1348, 1351 (11th Cir. 1996). However, we have never adopted
this position.
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Federal Rule of Criminal Procedure 33(a) permits the
trial court to grant a motion for a new trial “if the interest of
justice so requires.” To warrant a new trial under Fed. R. Crim.
P. 33 based on newly discovered evidence, the defendant must show
that: (1) the evidence is newly discovered; (2) the defendant used
due diligence; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material; and (5) the evidence
would probably result in an acquittal at a new trial. United
States v. Lofton, 233 F.3d 313 (4th Cir. 2000). Unless the
defendant can satisfy all five of these factors, the motion should
be denied. United States v. Chavis, 880 F.2d 788, 793 (4th Cir.
1989). We review a district court’s order denying a motion for new
trial for abuse of discretion. United States v. Lentz, 383 F.3d
191, 219 (4th Cir. 2004).
In denying Erby’s motion, the district court first
concluded that Day’s testimony was generally incredible.
Considering that Day was largely uncooperative with police
officials, most significantly with regard to his outright refusal
to ever provide a description of the shooter, it is reasonable that
the district court would question the veracity of Day’s post-trial
revelations. Moreover, Day was extremely intoxicated the night of
the shooting, thus inhibiting his ability to accurately recall the
shooter’s identity. The district court further opined that, if
presented at a new trial, Day’s testimony would not have resulted
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in an acquittal, given the overwhelming nature of the Government’s
evidence of Erby’s involvement in both Day’s shooting and Ridley’s
murder. We conclude that the district court did not abuse its
discretion in reaching this conclusion or in denying Erby’s motion
for a new trial.
Erby’s last claim is that the district court violated his
Fifth Amendment rights in enhancing his sentence based on uncharged
and unadmitted facts, determined by the court at sentencing by a
preponderance of the evidence. Erby emphasizes that this is not a
claim pursuant to United States v. Booker, 543 U.S. 220 (2005),
because Booker involved a Sixth Amendment challenge, and this claim
is based on the Due Process Clause of the Fifth Amendment.
Our decisions have never suggested that the established
practice of using the preponderance standard for making sentencing
findings should be revisited.4 Our sister circuits have all
approved the use of the preponderance standard in determining a
defendant’s sentencing range under the advisory Sentencing
Guidelines,5 and we see no reason to proceed otherwise. The
4
See generally United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005) (“Consistent with the remedial scheme set forth in
Booker, a district court shall first calculate (after making the
appropriate findings of fact) the range prescribed by the
guidelines.”).
5
See, e.g., United States v. Pacheco, __ F.3d __, 2007 WL
1559572, *4 (1st Cir. 2007); United States v. Hall, 473 F.3d 1295,
1312 (10th Cir. 2007); United States v. Kosinski, 480 F.3d 769, 775
(6th Cir. 2007); United States v. Dean, __ F.3d __, 2007 WL
1516144, *11 (11th Cir. 1007); United States v. Bras, 483 F.3d 103,
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district court committed no error in applying the preponderance
standard.
We affirm Erby’s convictions and sentence. 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
107-08 (2007); United States v. Cooper, 437 F.3d 324, 330 (3d Cir.
2006); United States v. Tabor, 439 F.3d 826, 830 (8th Cir. 2006);
United States v. Kilby, 443 F.3d 1135, 1140-41 (9th Cir. 2006);
United States v. Gonzalez, 407 F.3d 118, 125 (2d Cir. 2005); United
States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S.
Ct. 43 (2005); McReynolds v. United States, 397 F.3d 479, 481 (7th
Cir.), cert. denied, 545 U.S. 1110 (2005); United States v. Dean,
414 F.3d 725, 730 (7th Cir. 2005).
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