United States v. Lewis

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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

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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

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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

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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

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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.

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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

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