United States v. Antonio Barbee

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4197

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ANTONIO BARBEE,

Defendant - Appellant.

No. 12-4260

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

DAVID RICARDO STEWART,

Defendant - Appellant.

Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:11-cr-00156-JAB-1; 1:11-cr-00156-JAB-
2)

Submitted: April 23, 2013 Decided: May 3, 2013

Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.

C. Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham, North
Carolina; J. David James, SMITH, JAMES, ROWLETT & COHEN, LLP,
Greensboro, North Carolina, for Appellants. Ripley Rand, United
States Attorney, Graham T. Green, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

In these consolidated appeals, Antonio Barbee and

David Ricardo Stewart challenge their convictions on one count

each of attempted interference with commerce by robbery, in

violation of 18 U.S.C. §§ 2, 1951(a) (2006), and carrying, using

or brandishing a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C.A. §§ 2, 924(c)(1)(A)(ii)

(West Supp. 2012). After a jury trial, Barbee was sentenced to

156 months in prison and Stewart was sentenced to 360 months in

prison. Although Defendants do not challenge their respective

sentences, Defendants lodge several challenges against their

convictions. Finding no reversible error, we affirm.

Stewart first asserts that the district court erred

when it failed to consider his pre-sentencing pro se motion to

dismiss his attorney for ineffective assistance of counsel.

According to Stewart, his pro se motion, in which Stewart

complained about trial counsel’s alleged mistakes, was

essentially an “inartfully drawn motion for a new trial” for

which he should have been appointed new counsel.

Although Stewart’s sentencing was scheduled for

March 20, 2012, the pro se motion to dismiss was drafted by

Stewart on March 10, 2012, and filed in the district court on

March 13, 2012, nearly five months after his guilty verdict.

When Stewart raised the motion at his sentencing, the district

3
court afforded Stewart an opportunity to explain the reasons for

his motion, during which time Stewart reiterated several

complaints about trial counsel’s performance. The district

court explained that it would not entertain Stewart’s complaints

about his attorney’s trial strategy at that juncture, and

inquired whether Stewart believed he could continue with his

attorney during sentencing. Stewart assured the district court

that he could, that he “just wanted to go on record to let [the

district court] know how [he felt] about [his] counsel[,]” and

that he “[d]efinitely” did not have a problem with his attorney

representing him during his sentencing hearing. Given Stewart’s

assurances that he wished to proceed with sentencing, we discern

no error in the district court’s decision to move forward with

Stewart’s sentencing.

Moreover, although Stewart’s motion did not actually

request a new trial, we conclude that even assuming—for the sake

of argument—the district court should have construed Stewart’s

pro se motion as a motion for a new trial, such a motion would

have been untimely. According to Fed. R. Crim. P. Rule 33, a

motion for a new trial based on grounds other than newly

discovered evidence 1 must be filed within fourteen days after a

1
Although a motion for a new trial predicated on newly
discovered evidence may be filed within three years of a guilty
(Continued)
4
finding of guilty. Fed. R. Crim. P. 33(b)(2). “[T]he time

limits set forth in Rule 33 are jurisdictional[.]” See United

States v. Smith, 62 F.3d 641, 648 (4th Cir. 1995). Thus, we

conclude that had the district court construed the motion as one

seeking a new trial, the district court would have been required

to deny the motion. 2 See id. at 651 (holding that a motion for a

new trial based on ineffective assistance must be filed within

seven (now fourteen) days of a jury verdict).

Defendants also raise several objections to the

district court’s evidentiary rulings. In particular, Stewart

asserts that the district court erred when it allowed: (1)

recordings of his telephone conversations into evidence; (2) a

Government witness to testify before the jury, even though she

had a head injury and was medicated; and (3) a Government

witness to testify about Stewart’s alleged attempts to secure a

false alibi. Barbee asserts that the district court erred when

it admitted into evidence Stewart’s statements incriminating

verdict, Fed. R. Crim. P. 33(b)(1), Stewart did not argue newly
discovered evidence in his motion.
2
Notably, if Stewart wished to pursue his allegations of
ineffective assistance of counsel, he could have done so on this
appeal—which he did not—or may do so by way of a collateral
challenge under 28 U.S.C.A. § 2255 (West Supp. 2012). See id.

5
Barbee because admission of those statements allegedly violated

Barbee’s right to confront witnesses against him.

We review the preserved evidentiary rulings for abuse

of discretion and will only reverse if we determine that the

rulings were “arbitrary and irrational.” United States v.

Cloud, 680 F.3d 396, 401 (4th Cir.) (internal quotation marks

omitted), cert. denied, 133 S. Ct. 218 (2012). Thus, under Fed.

R. Crim. P. 52(a), the preserved evidentiary rulings are subject

to harmless error review, “such that ‘in order to find a

district court’s error harmless, we need only be able to say

with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.’” United States v.

Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (quoting United

States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)).

As to unpreserved evidentiary objections, we review

for plain error. See United States v. Cabrera-Beltran, 660 F.3d

742, 751 (4th Cir. 2011) (“An objection to the admission of

evidence must be both specific and timely.”); United States v.

Parodi, 703 F.2d 768, 783 (4th Cir. 1983) (“Timeliness of

objection under [Fed. R. Evid. 103] requires that it be made at

the time the evidence is offered[.]”) (internal quotation marks

omitted). Under this standard of review, Fed. R. Crim. P. 52(b)

“authorizes an appeals court to correct a forfeited error only

6
if (1) there is an error, (2) the error is plain, and (3) the

error affects substantial rights.” Henderson v. United States,

133 S. Ct. 1121, 1126 (2013) (internal quotation marks and

brackets omitted). Because Rule 52 is permissive, we should

correct the error only if it “seriously affects the fairness,

integrity or public reputation of judicial proceedings[.]” Id.

at 1127 (internal quotations marks and brackets omitted).

With these standards in mind, we reject Stewart’s

summary argument that the district court abused its discretion

when it allowed the Government to present into evidence

recordings of Stewart’s telephone conversations. Stewart argues

that the four recordings about which he complains “did not

constitute an admission or declaration against interest[,]”

“lack[ed] sufficient context and specificity to make them

relevant under [Fed. R. Evid.] 401 and 402[,]” and that their

probative value “was substantially outweighed by the danger of

unfair prejudice, confusion of the issues or misleading the jury

in violation of [Fed. R. Evid.] 403[.]” However, the four

conversations about which Stewart complains need not constitute

admissions or declarations against interest—which are exceptions

to the rule against hearsay—because, as the Government correctly

asserted in the district court, since they were statements made

by Stewart and offered by an opposing party, all four

conversations contained statements that were properly admitted

7
as non-hearsay under Fed. R. Evid. 801(d)(2)(a). See United

States v. Wills, 346 F.3d 476, 489-90 (4th Cir. 2003) (holding

that recordings of defendant’s telephone conversations were

admissible as admissions by a party-opponent and that his

brother’s statements on those recordings were also properly

admitted to put defendant’s statements into context).

Although Stewart summarily argues that the statements

were irrelevant and unfairly prejudicial, we defer to the

district court’s decision to the contrary. We agree that the

challenged telephone conversations were relevant to the issues

at trial. Moreover, a district court may, under Rule 403,

exclude otherwise relevant evidence if the probative value of

the evidence “is substantially outweighed by the danger of . . .

unfair prejudice, confusion of the issues, misleading the jury,

undue delay, waste of time, or needlessly presenting cumulative

evidence.” Fed. R. Evid. 403. We will not overturn a district

court’s Rule 403 judgment “except under the most extraordinary

of circumstances, where a trial court’s discretion has been

plainly abused.” United States v. Love, 134 F.3d 595, 603 (4th

Cir. 1998) (internal brackets and quotation marks omitted). We

must “examine the evidence in the light most favorable to its

proponent, maximizing its probative value and minimizing its

prejudicial effect.” Id. (internal quotation marks omitted).

Given the deference we afford the district court’s Rule 403

8
determination, we conclude that the district court’s decision to

admit the telephone conversations was not an abuse of

discretion.

We also discern no error in the district court’s

decision to allow the Government to introduce in its case-in-

chief testimony about Stewart’s alleged attempts to secure an

alibi. In this regard, Stewart asserts that the district court

erred because he presented no evidence at trial about an alibi

and there was no reliable evidence that he sought to procure a

false alibi. According to Stewart, although evidence showing

consciousness of guilt may be introduced, the Government in this

case made no showing that Stewart coerced or instigated the

witness’s testimony.

Fed. R. Evid. 404(b) prohibits evidence of other

crimes or bad acts to show bad character and propensity to

violate the law. However, evidence of other bad acts is

admissible for certain purposes unrelated to a defendant’s bad

character, such as proof of “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” Fed. R. Evid. 404(b). This court has “noted that

Rule 404(b) is viewed as an inclusive rule, admitting all

evidence of other crimes or acts except that which tends to

prove only criminal disposition.” United States v. Gray, 405

F.3d 227, 239 (4th Cir. 2005).

9
For instance, “[e]vidence of witness intimidation is

admissible to prove consciousness of guilt and criminal intent

under Rule 404(b), if the evidence (1) is related to the offense

charged and (2) is reliable.” See United States v. Hayden, 85

F.3d 153, 159 (4th Cir. 1996). Moreover, fabrications of

evidence by a defendant or the submission of false explanations

in an attempt to aid a defense are admissible to prove a

defendant’s state of mind. See United States v. Hughes, 716

F.2d 234, 240-41 (4th Cir. 1983). We have reviewed the record

and have considered the parties’ arguments and find no

reversible error in the district court’s decision to admit the

challenged statements into evidence. 3

Stewart also summarily argues that the district court

erred when it allowed a Government witness to testify at trial

because she was medicated at the time of her testimony due to a

head injury she sustained the day before. A witness is presumed

to be competent unless it is shown that she does not have

3
Even if it was error for the district court to allow the
Government to present evidence of Stewart’s attempts to secure a
false alibi during its case-in-chief, given the remaining
evidence establishing that Stewart committed the attempted
robbery, we find any error to be harmless. See United States v.
Grooms, 2 F.3d 85, 89 (4th Cir. 1993) (concluding that evidence
of defendant’s false alibi was inadmissible as irrelevant, but
finding error harmless “[g]iven the one-sided nature of the
evidence presented”).

10
personal knowledge of the matter about which she testifies, does

not have the ability to recall, or does not understand the oath.

United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982).

“[A] district judge has great latitude in the procedure he may

follow in determining the competency of a witness to testify.”

United States v. Odom, 736 F.2d 104, 111 (4th Cir. 1984).

In this case, the district court sua sponte conducted

a thorough voir dire outside of the jury’s presence to determine

whether the Government’s witness was competent to testify,

despite her medicated state. Although the witness expressed a

desire not to testify and, after inquiry by the district court,

stated that the medication she was taking could “cause

inconsistency,” we have found nothing in her testimony to

indicate that she did not have personal knowledge of the matters

at hand, that she did not have the ability to recall the events,

or that she did not understand the oath under which she was

testifying. Given the absence of evidence in the record

supporting Stewart’s summary assertion to the contrary, and in

light of the district court’s instruction to the jury that the

witness was medicated at the time of her testimony and that the

medication could have an effect on her recollection and ability

to understand what was taking place, we conclude that the

district court did not clearly err in finding that witness was

competent to testify. See Odom, 736 F.2d at 112-13 (“Whether

11
the witness has such competency is a matter for determination by

the trial judge after such examination as he deems appropriate

and his exercise of discretion in this regard is to be reversed

only for clear error.”).

Barbee asserts that his constitutional right to

confront witnesses against him was violated because the district

court allowed into evidence statements made by Stewart that

incriminated Barbee. According to Barbee, it was reversible

error for the district court to allow a Government witness to

testify about statements Stewart made in recorded telephone

conversations regarding Barbee’s telephone because those

statements linked Barbee to Stewart and counsel was unable to

cross-examine Stewart regarding those statements. Barbee also

asserts that it was reversible error for the district court to

allow into evidence a recorded telephone conversation Stewart

had with his mother, during which Stewart said the Government

had “us on camera in the area.” Because Barbee was allegedly

“referenced directly and explicitly on the face of these

statements[,]” Barbee summarily asserts that their introduction

constituted constitutional error under Bruton v. United States,

391 U.S. 123 (1968).

In Bruton, the Supreme Court held that admission of a

statement inculpating a co-defendant in a joint trial violates

the co-defendant’s rights under the Confrontation Clause if the

12
statement directly incriminates the co-defendant. Id. at 126.

A Bruton problem exists “only to the extent that the

codefendant’s statement in question, on its face, implicates the

defendant.” United States v. Locklear, 24 F.3d 641, 646 (4th

Cir. 1994). Thus, redaction of the co-defendant’s incriminating

statement, combined with a limiting instruction, may satisfy the

Confrontation Clause. See Richardson v. Marsh, 481 U.S. 200,

211 (1987). This Court reviews de novo whether the admission of

evidence violated Barbee’s rights under the Confrontation

Clause. United States v. Lighty, 616 F.3d 321, 376 (4th Cir.

2010).

We have reviewed the record and find that: (1) the

Government witness’s testimony before the jury was facially

benign as it related to Barbee and, thus, did not implicate

Bruton, see Marsh, 481 U.S. at 211 (holding that Confrontation

Clause is not violated even when the confession “inferentially

incriminates” defendant and other evidence admitted subsequently

at trial clearly links the defendant to the statement in an

inculpatory manner); (2) the use of the word “us” to refer to

the existence of another person who may be a co-defendant did

not render Stewart’s conversation with his mother inadmissible,

see United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir. 1999)

(holding that redacted statements that refer to the existence of

another person who may be a co-defendant through the use of

13
symbols or neutral pronouns may be admissible); see also United

States v. Min, 704 F.3d 314, 320-21 (4th Cir. 2013) (holding

that co-defendant’s statement that contained general references

without “facial incrimination” to others who may (or may not) be

co-defendants did not violate Bruton); and (3) the district

court’s instructions that the recorded telephone conversations

should only be used against Stewart helped guard against any

constitutional error, see United States v. Chong Lam, 677 F.3d

190, 204 (4th Cir. 2012) (“[J]uries are presumed to follow their

instructions.”) (internal quotation marks and citations

omitted). Accordingly, we find no violation of Barbee’s rights

under the Confrontation Clause.

Last, we discern no error in the district court’s

decision to deny Defendants’ Fed. R. Crim. P. 29 motions.

Because Defendants assert that the Government’s evidence was

insufficient to establish they were the individuals who

attempted to rob the coin store, the jury’s verdict will be

sustained “if there is substantial evidence, taking the view

most favorable to the Government, to support it.” United States

v. Whitfield, 695 F.3d 288, 310 (4th Cir. 2012) (internal

quotation marks and citation omitted), cert. denied, 133 S. Ct.

1461 (2013). Substantial evidence is “evidence that a

reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

14
a reasonable doubt.” United States v. King, 628 F.3d 693, 700

(4th Cir. 2011) (internal quotation marks omitted).

In resolving issues of substantial evidence, we may

not reweigh the evidence or reassess the factfinder’s

determination of witness credibility, and we must assume that

the jury resolved all contradictions in testimony in favor of

the Government. See United States v. Roe, 606 F.3d 180, 186

(4th Cir. 2010). Thus, a defendant challenging the sufficiency

of the evidence faces a heavy burden. See United States v.

Bonner, 648 F.3d 209, 213 (4th Cir. 2011). We have reviewed the

record de novo, see Cloud, 680 F.3d at 403, and have considered

the parties’ arguments and conclude that the Government produced

sufficient evidence to support the jury’s convictions.

Based on the foregoing, we affirm the district court’s

judgments. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional

process.

AFFIRMED