UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4328
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLTON JOSEPH LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Frederick P. Stamp,
Jr., Senior District Judge. (3:06-cr-00051-FPS-DJJ-l)
Submitted: November 26, 2008 Decided: December 29, 2008
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stephen H. Sacks, Baltimore, Maryland, for Appellant. Sharon L.
Potter, United States Attorney, Paul T. Camilletti, Assistant
United States Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Carlton Joseph Lewis was convicted of
possession with intent to distribute 7.52 grams of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2000). He was
sentenced to 137 months in prison. Lewis appeals, contending the
evidence was insufficient to convict him and the district court
erred by allowing inappropriate impeachment of a defense witness,
by failing to provide a missing witness instruction, and by denying
his motion for a mistrial. Finding no error, we affirm.
Lewis first contends that the evidence was insufficient
to show that he possessed or constructively possessed the drugs in
question, and the district court erred in denying his motion for
judgment of acquittal.
A jury’s verdict 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 have defined ‘substantial evidence’ as ‘evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond a
reasonable doubt.’” United States v. Smith, 451 F.3d 209, 216 (4th
Cir. 2006) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc)). “We must consider circumstantial as well as
direct evidence, and allow the government the benefit of all
reasonable inferences from the facts proven to those sought to be
2
established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982). “We may not weigh the evidence or review the
credibility of the witnesses.” United States v. Wilson, 118 F.3d
228, 234 (4th Cir. 1997). “We can reverse a conviction on
insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006)
(internal quotation marks and citation omitted).
To convict Lewis for possession with intent to distribute
cocaine base, proof of “[a]ctual or sole possession of a controlled
substance is not required; constructive possession is sufficient,
which the government can prove by showing that the defendant
exercised, or had the power to exercise, dominion and control over
the item.” United States v. Rusher, 966 F.2d 868, 878 (4th Cir.
1992) (citation omitted). “Intent to distribute may be inferred
from the quantity of drugs possessed.” Id. Constructive
possession may be established by either direct or circumstantial
evidence. Burgos, 94 F.3d at 873.
The Government presented evidence that Lewis was the only
person observed over a period of many hours loitering in the
vicinity where the cocaine base was found. Lewis was also observed
engaging in what officers recognized as hand-to-hand drug dealing,
and he was arrested as he returned to the area where the drugs were
found after engaging in one such transaction. We conclude the
evidence in this case was sufficient to show Lewis possessed the
3
7.52 grams of cocaine base and to support his conviction for
possession with intent to distribute.
Lewis next contends that the district court abused its
discretion when it allowed the Government to cross-examine a
defense witness, Kasey Bennett, about her lifestyle and matters of
her personal life. Specifically, Lewis argues that the Government
exceeded the provisions of Fed. R. Evid. 608 by inquiring into
areas unrelated to Bennett’s character for truthfulness.
To preserve a claim of error predicated upon a ruling
that admits evidence, a party must make a timely objection “stating
the specific ground of objection, if the specific ground was not
apparent from the context.” Fed. R. Evid. 103(a)(1). “The mandate
for specificity in the Rule imposes upon the objecting party the
obligation to object with that reasonable degree of specificity
which would have adequately apprised the trial court of the true
basis for his objection” and “would have clearly stated the
specific ground now asserted on appeal.” United States v. Parodi,
703 F.2d 768, 783 (4th Cir. 1983) (internal quotation marks and
citations omitted). “Where counsel fails adequately to present and
preserve an objection on the record, we review the admission of
evidence solely for plain error.” United States v. Brewer, 1 F.3d
1430, 1434 (4th Cir. 1993). Because Lewis’s counsel did not
contemporaneously raise the specific Rule 608 objection during
Bennett’s testimony, Lewis must show: (1) there was error; (2) the
4
error was plain; and (3) the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732-34 (1993). Even if Lewis
satisfies these conditions, we may exercise our discretion to
notice the error only if the error seriously affected the fairness,
integrity or public reputation of judicial proceedings. Id. at
736.
Lewis urges on appeal that the Government’s cross-
examination of Bennett was irrelevant to her character for
truthfulness and therefore improper under Rule 608(b). However,
the Government’s questioning regarding the paternity of Bennett’s
children established close ties between Bennett and members of
Lewis’s family, and it was properly allowed to reveal Bennett’s
potential bias and ulterior motives. See United States v. Abel,
469 U.S. 45, 49-53 (1984). We conclude that the district court did
not plainly err or abuse its discretion in allowing Bennett’s
cross-examination.
Lewis next contends that the district court plainly erred
by not giving a missing witness jury instruction. The supposed
missing witnesses were individuals to whom Lewis allegedly sold
drugs, but who were not arrested and did not testify at trial.
“[T]he rule regarding missing witness instructions is that if a
party has it peculiarly within his [or her] power to produce
witnesses whose testimony would elucidate the transaction, the fact
that he [or she] does not do it creates the presumption that the
5
testimony, if produced, would be unfavorable.” United States v.
Brooks, 928 F.2d 1403, 1412 (4th Cir. 1991) (internal quotation
marks and citation omitted). Defense counsel never requested such
an instruction during trial. Thus, Lewis is required to show plain
error that affected his substantial rights. We conclude he has
failed to make this showing. Lewis was not charged with
distribution, but with possession of the 7.52 grams of cocaine base
with intent to distribute. Moreover, as Lewis notes on appeal, he
was not prohibited from arguing to the jury in closing argument
that the hand-to-hand drug transactions observed by the Government
witnesses were not corroborated by the testimony of any buyers at
trial. Further, in light of the substantial evidence against
Lewis, we are satisfied that a missing witness instruction would
not have altered the outcome of the trial. We thus conclude that
failing to instruct the jury on missing witnesses was not plain
error, did not affect Lewis’s substantial rights, and did not
undercut the fairness of the trial.
Finally, Lewis argues that the district court abused its
discretion when it denied his motion for mistrial based upon a
reference in the Government’s opening statement to a statement by
Lewis that had not previously been disclosed to the defense.
We review the grant or denial of a motion for mistrial
for abuse of discretion, United States v. West, 877 F.2d 281,
287-88 (4th Cir. 1989), and we will disturb a district court’s
6
ruling “only under the most extraordinary of circumstances.” See
United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997). “A
defendant must show prejudice in order for the court’s ruling to
constitute an abuse of discretion, and no prejudice exists if the
jury could make individual guilt determinations by following the
court’s cautionary instructions.” West, 877 F.2d at 288. Remarks
by the prosecutor in an opening statement will lead to reversal if
“(1) the prosecutor’s remarks or conduct [were] in fact . . .
improper, and (2) such remarks or conduct . . . prejudicially
affected the defendant’s substantial rights so as to deprive the
defendant of a fair trial.” United States v. Brockington, 849 F.2d
872, 875 (4th Cir. 1988), overruled on other grounds by Bailey v.
United States, 516 U.S. 137 (1995).
The district court determined that Lewis’s statement
indicating that he could not be held responsible for the cocaine
base because “he didn’t have it” on his person should be excluded
from evidence because the defense had no notice of the statement
until the Government’s opening statement. In addition, the
district court agreed that it would consider a curative or limiting
instruction if the defense suggested one at the appropriate time.
However, the court denied Lewis’s request to strike the
Government’s entire opening statement and denied his motion for a
mistrial because the court had instructed the jury that an opening
statement was not to be considered evidence. See United States v.
7
Love, 134 F.3d 595, 603 (4th Cir. 1998) (jurors are presumed to
follow instructions delivered by the court). We conclude the
Government’s reference to Lewis’s statement did not so prejudice
Lewis’s substantial rights as to deprive him of a fair trial and
the district court did not abuse its discretion in denying a
mistrial.
Accordingly, we affirm the district court’s judgment. 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
8