UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4748
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER K. MULLINS, a/k/a Christopher Eric
Mullins,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:04-cr-00011)
Submitted: January 11, 2008 Decided: February 7, 2008
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin L. Bailey, Rodney A. Smith, BAILEY & GLASSER, LLP,
Charleston, West Virginia, for Appellant. Charles T. Miller,
United States Attorney, Monica K. Schwartz, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher K. Mullins appeals his convictions by a jury
for aggravated bank robbery, in violation of 18 U.S.C. §§ 2113(a)
and 2113(d) (2000), and use of a firearm during and in relation to
a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (2000).
The district court sentenced him to a total term of 135 months’
imprisonment. Mullins appeals his conviction and sentence,
asserting that the district court abused its discretion in making
certain evidentiary rulings and in denying his motions for a
continuance, for a judgment of acquittal, and for a new trial. We
affirm.
I.
Viewed in the light most favorable to the Government, see
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998), the
evidence adduced at trial established the following. The morning
of September 15, 2003, a masked, white-skinned man entered the
Comfort, West Virginia branch of Whitesville State Bank. He
pointed a small firearm at one of the bank employees and demanded
that she fill a duffel bag with money. The employee filled the
duffel bag with between $9,000 and $12,000; she also slipped in a
red dye pack designed to explode within minutes or seconds of
crossing the bank’s threshold. The assailant left the bank with
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the filled duffel bag and entered a black Chevy Blazer that had
damage to the left front bumper and tow hook.
Law enforcement officials responding to the crime traced
muddy tire tracks to a black Chevy Blazer that had been set on fire
along a service road. Paint chip analysis revealed the Blazer had
five layers of paint — two base gray/green layers, a red layer, a
clear coat layer, and a top, black layer. A database search of the
partial VIN number from the Blazer led to a red Blazer that had
been reported stolen by Timothy Chambers. Witness testimony showed
that approximately three years prior to the robbery Mullins
acquired a red Blazer from Chambers. At some point while Mullins
owned the Blazer, it was damaged in the front near the tow hook.
Mullins had possession of the vehicle until the day before the
robbery, but had not been seen with it since that day.
Near the burned Blazer, officials found the .22 caliber
firearm that had been used during the robbery. Ownership of the
firearm was traced to Mullins.
Two days after the robbery, Mullins’ employee and mother-
in-law both went to a local bank to deposit money given to them by
Mullins and his wife. Bank officials noted the money was damp, had
a powdery feel, and possessed a strong smell similar to bleach. In
addition, white portions of the bills were unusually white in
appearance and one of the bills had a pinkish tint to it.
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II.
Mullins challenges some of the district court’s
evidentiary rulings. He contends the district court erred in
allowing the Government to admit Police Lieutenant David Gaskins’
testimony regarding the colors revealed in his analysis of paint
chips taken from the burned Blazer. Mullins asserts this testimony
should have been excluded or restricted based on the Government’s
alleged failure to timely disclose Gaskins’ testimony. Mullins
also contends the district court erred in allowing the Government
to admit evidence that Chambers reported his red Blazer had been
stolen. He asserts this evidence violated Fed. R. Evid. 404(b)’s
exclusion of “other acts” evidence to show conformity therewith.
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 and citation
omitted). After reviewing the record, the district court’s
rulings, and the parties’ briefs on appeal, we conclude that the
district court did not err.
The decision whether to impose a sanction for a violation
of Rule 16(a)(1)(G) rests within the district court’s discretion.
See Fed. R. Crim. P. 16(d)(2); United States v. Hastings, 126 F.3d
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310, 317 (4th Cir. 1997). The sanction of exclusion of testimony,
however, “is almost never imposed” absent a constitutional
violation or statutory authority for the exclusion. United
States v. Charley, 189 F.3d 1251, 1262 (10th Cir. 1999). Even when
there has been an abuse of discretion under Rule 16, reversal is
inappropriate unless the defendant establishes prejudice by
demonstrating that it is likely that had the Government complied
with the discovery rule (not had the evidence been suppressed), the
verdict would have been different. See United States v. Chastain,
198 F.3d 1338, 1348 (11th Cir. 1999). Under these principles and
in light of the facts presented in this case, we cannot say the
district court abused its discretion in allowing the Government to
introduce Gaskins’ testimony regarding the color of the paint
chips.
Mullins contends the district court violated Federal Rule
of Evidence 404(b) by admitting evidence that the Chambers reported
their Chevy Blazer as being stolen. Rule 404(b) is an
“inclusionary rule” that only bars the admission of “[o]ther
crimes, wrongs, or acts” that “tends to prove only criminal
disposition.” Fed. R. Evid. 404(b); United States v. Higgs, 353
F.3d 281, 311 (4th Cir. 2003) (emphasis added). The evidence
Mullins challenges here — that Chambers reported his vehicle as
stolen — was not direct evidence of any act on Mullins’ part.
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Instead, it was introduced in the course of describing law
enforcement officials’ search for the history of the burned Blazer.
To the extent that this evidence indirectly implicated
Mullins in a criminal act, it was admissible for permissible
purposes under Rule 404(b), including to explain law enforcement
officials’ conduct, to clarify Mullins’ brother-in-law’s testimony
regarding Mullins’ acquisition of the van, to suggest why Mullins
was not able to acquire a title and registration to the vehicle,
and to show why the vehicle was expendable. Accordingly, the
district court did not abuse its discretion in allowing the
Government to admit this evidence.
Mullins also asserts that the district court erred by
denying his request for a continuance for counsel to prepare for
cross-examination of Gaskins. Our review of the district court’s
decisions leads us to conclude that the court did not abuse its
discretion in denying Mullins’ motion based on the timeliness of
his request, his opportunity to review the paint chips in advance
of trial, and other relevant factors. See United States v.
Williams, 445 F.3d 724, 738 (4th Cir.) (stating the standard of
review), cert. denied, 127 S. Ct. 314 (2006).
Mullins further contends the cumulative effect of the
district court’s errors during the trial denied him a fair trial.
We note that “a cumulative error analysis aggregates only actual
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errors to determine their cumulative effect.”* See United
States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990). Because
Mullins has not demonstrated multiple errors, there is nothing to
aggregate and the cumulative effect doctrine would not apply.
Lastly, Mullins challenges the sufficiency of the
Government’s evidence supporting the guilty verdicts. We review
the denial of a Rule 29 motion for a verdict of acquittal de novo.
United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). Where,
as here, the motion was based on a claim of insufficient evidence,
“[t]he verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). We
consider both circumstantial and direct evidence, “and allow the
government the benefit of all reasonable inferences from the facts
proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Furthermore, on
appellate review, this court does not review the credibility of the
witnesses and it assumes that the jury resolved contradictions in
testimony in favor of the Government. United States v. Romer, 148
F.3d 359, 364 (4th Cir. 1998).
*
A cumulative error analysis “aggregates all the errors that
individually have been found to be harmless, and therefore, not
reversible, and it analyzes whether their cumulative effect on the
outcome of the trial is such that collectively they can no longer
be determined to be harmless.” Rivera, 900 F.2d at 1470.
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We review the district court’s decision to deny a Rule
33(a) motion for a new trial for abuse of discretion. United
States v. Adam, 70 F.3d 776, 779 (4th Cir. 1995). A district court
“should exercise its discretion to grant a new trial sparingly, and
. . . should do so only when the evidence weighs heavily against
the verdict.” United States v. Perry, 335 F.3d 316, 320 (4th Cir.
2003) (internal quotation marks omitted). Under this standard,
“this Court may not substitute its judgment for that of the
district court; rather, we must determine whether the court’s
exercise of discretion, considering the law and the facts, was
arbitrary or capricious.” United States v. Fulcher, 250 F.3d 244,
249 (4th Cir. 2001) (internal quotation marks omitted).
With these standards in mind, we have reviewed the record
and conclude that the evidence was sufficient to support Mullins’
conviction. There was substantial circumstantial evidence tying
Mullins to the robbery, including Mullins’ connection to the
firearm and Blazer used in the robbery, as well as to suspicious
money deposited in another bank shortly after the robbery. “The
jury [is] entitled to reject the theory consistent with innocence
and accept the one consistent with guilt so long as there [is]
substantial evidence for its choice.” United States v. Garcia, 868
F.2d 114, 116 (4th Cir. 1989). Accordingly, the district court
properly denied Mullins’ Rule 29 and Rule 33 motions.
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For the aforementioned reasons, we affirm the district
court’s judgment. We dispense with oral argument because the facts
and legal conclusions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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