United States v. Robert Benton ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4016
ROBERT BENTON, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4017
GLORIA A. MCCUTCHEON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4033
LEON BRANT,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4043
MARY BENTON NEWTON,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-97-866)
Submitted: April 28, 2000
Decided: May 23, 2000
Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James T. McBratney, Jr., Florence, South Carolina; W. Rhett Eleazer,
ELEAZER LAW FIRM, L.L.P., Columbia, South Carolina; James D.
Dotson, Jr., Lake City, South Carolina; Louis H. Lang, CALLISON,
TIGHE & ROBINSON, L.L.P., Columbia, South Carolina, for Appel-
lants. J. Rene Josey, United States Attorney, William E. Day, II,
Assistant United States Attorney, Thomas E. Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In these consolidated appeals, Robert Benton and Gloria McCut-
cheon appeal their convictions and sentences for conspiracy to pos-
2
sess with intent to distribute cocaine and crack in violation of 21
U.S.C.A. §§ 841(a)(1), (b)(1), 846 (West 1999). Benton and Leon
Brant appeal their convictions and sentences for possession of a fire-
arm by a felon in violation of 18 U.S.C.A. §§ 922(g)(1), 924(e) (West
Supp. 1999) and use of a firearm in relation to a crime of violence in
violation of 18 U.S.C.A. §§ 2, 924(c) (West 1994 & Supp. 1999).
Benton, McCutcheon, Brant, and Mary Benton Newton appeal their
convictions and sentences for the attempted murder of a government
witness with the intent to prevent him from testifying at trial in viola-
tion of 18 U.S.C.A. §§ 2, 1512(a)(1) (West 1994 & Supp. 1999). We
have reviewed the record and the parties' submissions and find no
reversible error.
No. 99-4016: Benton contends the court erred in admitting evi-
dence in violation of Fed. R. Evid. 404(b). We find the court did not
abuse its discretion in admitting the testimony of Kent Brown and
Lafayette Bradford. See United States v. Mark , 943 F.2d 444, 447 (4th
Cir. 1991). We conclude that the testimony was admissible under
Rule 404(b) to show Benton's motive and intent. See Fed. R. Evid.
404(b); United States v. Bailey, 990 F.2d 119, 122 (4th Cir. 1993).
No. 99-4017: McCutcheon's attorney has filed a brief in accor-
dance with Anders v. California, 386 U.S. 738 (1967), concluding
that there are no meritorious grounds for appeal, but arguing that there
was insufficient evidence to convict McCutcheon of attempted mur-
der of a government witness. Although McCutcheon was informed of
her right to file a supplemental brief, she has not done so. Our review
of the record reveals that when construed in the light most favorable
to the Government, there was sufficient evidence to support McCut-
cheon's jury conviction under 18 U.S.C.A. §§ 2, 1512(a)(1). See
Glasser v. United States, 315 U.S. 60, 80 (1942).
Pursuant to Anders, this court has reviewed the record for potential
error and has found none. This court requires that counsel inform his
client, in writing, of the right to petition the Supreme Court of the
United States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from repre-
sentation. Counsel's motion must state that a copy thereof was served
on the client.
3
No. 99-4033: Brant contends that (1) the court abused its discretion
in denying his motion for a severance and (2) the court erred in sen-
tencing him to the maximum penalty provided for under the statute
of conviction. We find the court did not abuse its discretion in deny-
ing a severance because Brant failed to demonstrate a miscarriage of
justice in being tried with the other defendants. See United States v.
Brugman, 655 F.2d 540, 543 (4th Cir. 1981). Furthermore, we find no
error in the court's sentencing Brant to the maximum penalty under
18 U.S.C.A. § 1512(a). See United States v. Porter, 909 F.2d 789, 794
(4th Cir. 1990).
No. 99-4033: Newton argues that (1) the court abused its discretion
in denying her motion for a mistrial based upon admission of Rule
404(b) evidence without prior notification; (2) there was insufficient
evidence to support her conviction for aiding and abetting in the
attempted murder of a government witness with intent to prevent him
from testifying; (3) the court abused its discretion in refusing to give
a requested jury instruction concerning aiding and abetting; (4) the
court misapplied the Sentencing Guidelines in refusing to reduce her
offense level for being an accessory-after-the-fact to an obstruction of
justice offense.
We find the court did not abuse its discretion in denying Newton's
motion for a mistrial. See United States v. Dorsey, 45 F.3d 809, 817
(4th Cir. 1995). Although Newton elected not to have it read, the
court offered a curative instruction, which was a less drastic alterna-
tive to declaring a mistrial. See United States v. Hayden, 85 F.3d 153,
157 (4th Cir. 1996); United States v. Smith, 44 F.3d 1259, 1268 (4th
Cir. 1995).
Furthermore, we conclude there was sufficient evidence to support
Newton's conviction for aiding and abetting the attempted murder of
Knight. See Glasser, 315 U.S. at 80. We also conclude that the court
did not abuse its discretion in refusing to give Newton's requested
jury instruction because the requested instruction was substantially
covered by the charge actually given to the jury. See United States v.
Lewis, 53 F.3d 29, 32-33 (4th Cir. 1995). Finally, we find the court
properly sentenced Newton under the guideline for witness tampering
by attempted murder. See U.S. Sentencing Guidelines Manual,
4
§ 1B1.2 (1997); See United States v. Lambert, 994 F.2d 1088, 1091
(4th Cir. 1993).
Accordingly, we affirm all Appellants' convictions and sentences.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
5