UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4197
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO BARBEE,
Defendant - Appellant.
No. 12-4260
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
15