UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4214
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAMONT P. MASON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00214-RLW-1)
Submitted: August 21, 2009 Decided: September 18, 2009
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Kevin C.
Nunnally, Special Assistant United States Attorney, Richard D.
Cooke, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Lamont P. Mason was convicted of
one count of possession with intent to distribute five grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2006), one count of possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)
(2006), and one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2006). On appeal,
Mason asserts the evidence was insufficient to support the drug
conviction or the possession of a firearm in furtherance of a
drug trafficking crime conviction. He also challenges the
district court’s decision not to give a jury instruction about
impeaching witnesses with a felony conviction. In addition, he
claims there was plain error when the prosecutor engaged in
misconduct by vouching for a witness and asserting facts not in
evidence. Finally, Mason claims the cumulative effect of the
errors calls for a reversal. We affirm.
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690
(2008). We review a sufficiency of the evidence challenge by
determining whether, viewing the evidence in the light most
favorable to the Government, any rational trier of fact could
find the essential elements of the crime beyond a reasonable
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doubt. United States v. Collins, 412 F.3d 515, 519 (4th Cir.
2005); see Glasser v. United States, 315 U.S. 60, 80 (1942). We
review both direct and circumstantial evidence, and accord the
Government all reasonable inferences that could be drawn in its
favor, United States v. Harvey, 532 F.3d 326, 333 (4th Cir.
2008), and will uphold the jury’s verdict if substantial
evidence supports it, and will reverse only in those rare cases
of clear failure by the prosecution. Foster, 507 F.3d at 244-
45.
“To convict a defendant of possession with the intent
to distribute, the [G]overnment must prove: (1) possession of a
narcotic controlled substance; (2) knowledge of the possession;
and (3) the intent to distribute.” Collins, 412 F.3d at 519.
To establish a § 924(c)(1) violation, the Government
must also present evidence “indicating that the possession of
the firearm furthered, advanced, or helped forward a drug
trafficking crime.” United States v. Lomax, 293 F.3d 701, 705
(4th Cir. 2002). Whether a firearm served such a purpose is a
question of fact. Id. A series of factors that might lead a
reasonable finder of fact to conclude the existence of a
connection between a defendant’s possession of a firearm and his
drug trafficking crime include, but are not limited to: “the
type of drug activity being conducted, accessibility of the
firearm, the type of weapon, whether the weapon is stolen, the
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status of the possession (legitimate or illegal), whether the
gun is loaded, proximity to drugs or drug profits, and the time
and circumstances under which the gun is found.” Id. (internal
quotation marks omitted).
We find after considering the testimony of the four
law enforcement personnel and the expert witness, that the
evidence was more than substantial to support the jury’s verdict
with respect to both charges.
The decision to give or not to give a jury instruction
is reviewed for abuse of discretion. United States v. Seidman,
156 F.3d 542, 551 (4th Cir. 1998). This court reviews a charge
to determine if the court adequately instructed the jury on the
elements of the offense and the accused’s defenses. United
States v. Fowler, 932 F.2d 306, 317 (4th Cir. 1991). A judge
must clearly and fairly state the controlling law. United
States v. Childress, 26 F.3d 498, 503 (4th Cir. 1994). “A
district court’s refusal to provide an instruction requested by
a defendant constitutes reversible error only if the
instruction: (1) was correct; (2) was not substantially covered
by the court’s charge to the jury; and (3) dealt with some point
in the trial so important, that failure to give the requested
instruction seriously impaired the defendant’s ability to
conduct his defense.” United States v. Lewis, 53 F.3d 29, 32-33
(4th Cir. 1995) (internal quotation marks omitted). We find
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that the court’s decision not to give the requested instruction
did not seriously impair Mason’s ability to conduct his defense.
Insofar as Mason claims the prosecutor engaged in
misconduct during the closing arguments, we note review is for
plain error because Mason failed to object. United States v.
Olano, 507 U.S. 725, 732 (1993). Plain error requires a finding
that: (1) there was error; (2) the error was “plain”; and (3)
the error affected his substantial rights. Id. If the three
elements of this standard are met, this court may still exercise
its discretion to notice the error only “if the error seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 736.
Improper remarks during closing do not always result
in a retrial. “The relevant question is whether the
prosecutors’ comments so infected the trial with unfairness as
to make the resulting conviction a denial of due process.”
United States v. Higgs, 353 F.3d 281, 330 (4th Cir. 2003)
(internal quotation marks omitted). “[T]he test for reversible
prosecutorial misconduct generally has two components: that
(1) the prosecutor’s remarks or conduct must in fact have been
improper, and (2) such remarks or conduct must have
prejudicially affected the defendant’s substantial rights so as
to deprive the defendant of a fair trial.” United States v.
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Mitchell, 1 F.3d 235, 240 (4th Cir. 1993) (internal quotation
marks omitted).
In evaluating prejudice, a number of factors should be
considered:
(1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; and (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters.
Mitchell, 1 F.3d at 241. Whether the errors must result in a
reversal is dependent upon the facts in each case. Id.
Given the strength of the Government’s case, the fact
that the misconduct concerned a witness whose testimony was
mostly redundant and the fact the jury was instructed to rely
upon its own recollection of the evidence, we find Mason’s
substantial rights were not prejudiced.
Finally, we find that under the cumulative error
doctrine, Mason’s substantial rights to a fair trial were not
affected. See United States v. Martinez, 277 F.3d 517, 532 (4th
Cir. 2002).
Accordingly, we affirm the convictions and sentence.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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