UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4694
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN BRADFORD NICHOLS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:11-cr-00092-BO-1)
Submitted: May 31, 2013 Decided: June 18, 2013
Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Stephen Bradford Nichols of
possession of stolen firearms and aiding and abetting, in
violation of 18 U.S.C. §§ 2, 922(j), 924(a)(2) (2006) (Count
One), and possession of firearms by a convicted felon and aiding
and abetting, in violation of 18 U.S.C. §§ 2, 922(g)(1), 924
(2006) (Count Two). He received a within-Guidelines sentence of
100 months’ imprisonment. On appeal, Nichols raises three
claims: (1) the district court erroneously admitted evidence of
uncharged burglaries; (2) there was insufficient evidence to
support his convictions; and (3) the district court improperly
used relevant conduct to determine his criminal history
category. Finding no reversible error, we affirm.
I.
Nichols first argues that the district court erred in
admitting evidence of two uncharged burglaries and that the jury
heard inadmissible evidence of a third uncharged burglary, in
violation of his constitutional rights to due process and a fair
trial. This court reviews the admission of evidence for abuse
of discretion. United States v. Forrest, 429 F.3d 73, 79 (4th
Cir. 2005). An abuse of discretion “occurs only when it can be
said that the trial court acted arbitrarily or irrationally in
admitting evidence.” United States v. Williams, 445 F.3d 724,
732 (4th Cir. 2006) (internal quotation marks omitted).
2
Under Rule 404(b), “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in
order to show” that his action on a particular occasion
conformed to that character. Fed. R. Evid. 404(b)(1). Such
evidence “may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R.
Evid. 404(b)(2).
Rule 404(b) only applies to acts extrinsic to the
crime charged. “[W]here testimony is admitted as to acts
intrinsic to the crime charged, and is not admitted solely to
demonstrate bad character, it is admissible.” United States v.
Chin, 83 F.3d 83, 88 (4th Cir. 1996). “[A]cts are intrinsic
when they are inextricably intertwined or both acts are part of
a single criminal episode or the other acts were necessary
preliminaries to the crime charged.” Id. (internal quotation
marks and citation omitted). In addition, evidence of other
crimes or “uncharged conduct is not considered ‘other crimes’”
for Rule 404(b) purposes “if it arose out of the same series of
transactions as the charged offense, or if it is necessary to
complete the story of the crime on trial.” United States v.
Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (internal quotation
marks, alterations, and citation omitted).
3
“To be admissible under Rule 404(b), evidence must be
(1) relevant to an issue other than character; (2) necessary;
and (3) reliable.” United States v. Siegel, 536 F.3d 306, 317
(4th Cir. 2008) (internal quotation marks omitted). “Rule
404(b) is . . . an inclusive rule, admitting all evidence of
other crimes or acts except that which tends to prove only
criminal disposition.” United States v. Young, 248 F.3d 260, 271-
72 (4th Cir. 2001) (internal quotation marks omitted).
“Evidence sought to be admitted under Rule 404(b) must
also satisfy [Fed. R. Evid.] 403 . . . ,” Siegel, 536 F.3d at
319, such that its probative value is not substantially
outweighed by its prejudicial value. United States v. Queen,
132 F.3d 991, 995 (4th Cir. 1997). Under Rule 403, “damage to a
defendant’s case is not a basis for excluding probative
evidence” because “[e]vidence that is highly probative
invariably will be prejudicial to the defense.” United
States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998). Rule 403
requires exclusion of evidence only where the trial judge
perceives “a genuine risk that the emotions of the jury will be
excited to irrational behavior” disproportionate to the value of
the proffered evidence. United States v. Mohr, 318 F.3d 613,
618 (4th Cir. 2003) (internal quotation marks omitted).
Nichols contends that the probative value of the
evidence as to two October 29, 2010 burglaries (the “Jones
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burglary” and “Gauli burglary”) was substantially outweighed by
the danger of unfair prejudice. Nichols further argues that he
was being tried for possession of the firearms stolen on October
18, from the Bennett residence as those were the only guns
admitted and properly identified. The remainder of the
testimony, including the testimony regarding the burglary at the
Sawyer residence (“Sawyer burglary”), Nichols argues, related to
burglaries for which he was not charged.
After review of the record, we conclude that the
district court did not abuse its discretion in allowing
testimony regarding the Sawyer and Jones burglaries. 1 With
respect to the Sawyer burglary, the indictment charged Nichols
with possession of firearms stolen from the Sawyer residence.
Hence, like the testimony of the Bennetts, Sawyer’s testimony
was “admitted as to acts intrinsic to the crime charged,” Chin,
83 F.3d at 88, and for this reason Rule 404(b) was not
implicated. 2
1
Anthony Sawyer testified, without objection, to the
breaking and entering at his residence. As such, the district
court’s admission of Sawyer’s testimony is reviewed for plain
error. Chin, 83 F.3d at 87 (“Where a party . . . fails to
object to the admission of evidence, . . . [this Court]
review[s] the admission for plain error.”) (citations omitted).
2
The fact that the district court later dismissed the
charges against Nichols based on the firearms stolen from the
Sawyer residence does not alter this conclusion.
5
With respect to the Jones burglary, we conclude that
testimony regarding the breaking and entering of Jones’ home, to
which Nichols had pled guilty, was relevant to Nichols’ and his
accomplice’s common scheme or plan to burglarize homes and pawn
or sell the firearms for cash. Furthermore, evidence of the
Jones burglary established Nichols’ plan to profit from stolen
firearms and that evidence directly rebutted his testimony that
he participated in the sale of stolen firearms unknowingly. We
therefore conclude the evidence was properly admitted under Rule
404(b), and that the probative value of the evidence outweighed
any prejudicial effect, particularly in light of the court’s
limiting instruction to the jury.
To the extent Nichols challenges the admission of
testimony with respect to the Gauli burglary, the district court
granted Nichols’ motion to exclude Larry Gauli’s testimony
concerning the breaking and entering on Rule 403 and 404
grounds. The court only allowed testimony regarding Nichols’
residence at the Gauli home. Because Gauli was not permitted to
testify regarding the breaking and entering, we conclude Rule
404(b) is not implicated.
II.
Next, Nichols challenges the sufficiency of the
evidence to support his convictions. Specifically, Nichols
argues on appeal that the Government failed to show that he
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possessed the firearms, i.e., that he exercised, or had the
power to exercise, dominion and control over the firearms.
Nichols’ mere presence at a place where the guns were located,
he argues, was insufficient to establish constructive
possession.
Nichols moved for a Fed. R. Crim. P. 29 motion for
judgment of acquittal at the close of the Government’s evidence.
The district court denied the motion, except as to six of the
firearms listed in the indictment. This Court reviews de novo
the district court’s denial of a Rule 29 motion for judgment of
acquittal. United States v. Green, 599 F.3d 360, 367 (4th Cir.
2010). This Court reviews the sufficiency of the evidence
supporting a conviction by determining whether, in the light
most favorable to the Government, there is substantial evidence
in the record to support the conviction. Id. “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 a reasonable doubt.” Id. (internal
quotation marks omitted). Reversal on grounds of insufficient
evidence is appropriate only in cases in which the Government’s
failure to present substantial evidence is clear. Id. This
Court also assumes that the jury resolved all contradictions in
the testimony in favor of the Government. United States v. Sun,
278 F.3d 302, 313 (4th Cir. 2002).
7
To convict Nichols for possessing stolen firearms, in
violation of 18 U.S.C. § 922(j), and possessing firearms as a
convicted felon, in violation of 18 U.S.C. § 922(g), the
Government did not need to produce evidence of actual
possession. United States v. Moye, 454 F.3d 390, 395 (4th Cir.
2006); United States v. Gallimore, 247 F.3d 134, 136-37 (4th
Cir. 2001). Instead, evidence of constructive possession is
sufficient. Moye, 454 F.3d at 395. The Government may prove
constructive possession by demonstrating that the defendant
“exercised, or had the power to exercise, dominion and control
over the item.” Gallimore, 247 F.3d at 137 (internal quotation
marks omitted). 3 With this standard in mind, we have reviewed
the evidence and conclude that there was sufficient evidence to
support Nichols’ convictions.
III.
Last, Nichols maintains the district court incorrectly
used the Jones burglary, properly deemed relevant conduct, to
determine his criminal history category. 4 Prior sentences may be
3
Nichols does not challenge his status as a convicted
felon. Moreover, he does not challenge the Government’s
evidence at trial concerning the firearms’ nexus to interstate
commerce.
4
The Government appropriately concedes that, while Nichols’
objection at sentencing on this ground was not clear, he
properly preserved the issue for appeal.
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used to determine the defendant’s criminal history category.
See U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.1 (2011).
However, § 4A1.1 excludes convictions for conduct that qualifies
as “relevant conduct” to the instant offense. See USSG § 4A1.2
cmt. n.1. Relevant conduct is conduct that was part of the same
course of conduct or a common scheme or plan as the offense of
conviction, and it may be used to increase the defendant’s base
offense level. See USSG § 1B1.3(a).
The probation officer assessed three points in
computing Nichols’ criminal history category for Nichols’
burglary of the Jones’ residence on October 29, 2010, and the
resulting five-year state sentence. Nichols argues that,
assuming this court finds that the district court properly
admitted testimony regarding this burglary at trial, the Jones
burglary should have been deemed relevant conduct as it arises
under a “common scheme or plan” as the subject offenses.
Here, the district court did not use the Jones
burglary as relevant conduct in fashioning Nichols’ sentence as
only one base offense level was specified, there were no related
specific offense characteristics, no cross references in Chapter
Two, and no related adjustments in Chapter Three. See USSG
§ 1B1.3(a). Because Nichols’ sentence for the Jones burglary
was appropriately considered in his computation of criminal
9
history points and not as relevant conduct, the district court
did not err in determining Nichols’ criminal history category.
Accordingly, we affirm Nichols’ convictions and
sentence. 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
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