United States v. Hager , 22 F. App'x 130 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4837
EVERETT HAGER,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4117
BOBBY WAYNE HAGER,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Robert C. Chambers, District Judge.
(CR-00-6)
Submitted: September 25, 2001
Decided: November 14, 2001
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael R. Cline, MICHAEL R. CLINE LAW OFFICES, Charleston,
West Virginia, for Appellant Everett Hager; David O. Schles,
2 UNITED STATES v. HAGER
STOWERS & ASSOCIATES, Charleston, West Virginia, for Appel-
lant Bobby Wayne Hager. Charles T. Miller, United States Attorney,
Steven I. Loew, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following a jury trial, Bobby Wayne Hager and his brother, Everett
Hager, were convicted on several counts of firearms and drug traf-
ficking violations. The Hager brothers appeal, raising several claims.
We find no merit to the appeals; consequently, we affirm the convic-
tions.
On September 1, 1999, members of the West Virginia State Police
Special Response Team ("SRT") and other law enforcement officers
entered a heavily-wooded area where the Hager brothers were report-
edly trespassing. They arrested Bobby Wayne as he traveled through
the area on an all-terrain vehicle. He tried unsuccessfully to grab a
handgun in his side holster to avoid arrest. While he was being hand-
cuffed, he shouted, "Everett, they’re coming to get you. Everett,
they’re coming to get you." Shortly thereafter, the SRT arrested Ever-
ett, but not before he fired rounds from a machine gun at them.
Police found evidence of marijuana cultivation. There was a mari-
juana plant drying on the center console of Bobby Wayne’s van and
four packages of marijuana seeds in his house. It was the latter part
of the marijuana growing season and, although officers found no
areas with a large number of growing marijuana plants, they identi-
fied two areas in the vicinity of the campsites where the Hager broth-
ers were arrested as marijuana patches. They concluded that these
areas were marijuana patches because, in addition to four marijuana
UNITED STATES v. HAGER 3
plants found in the first patch, the sites were clear cut and tilled, and
three potting soil pots containing small quantities of potting soil, as
well as a small shovel, were found at the second patch.
A grand jury indicted the Hager brothers in a superceding indict-
ment that charged each brother with unlawful possession of a machine
gun, in violation of 18 U.S.C.A. §§ 922(o)(1) and 924(a)(2) (West
2000) (Count One), and manufacturing and aiding and abetting the
manufacture of marijuana, in violation of 21 U.S.C.A. § 841(a)(1)
(West 1999) and 18 U.S.C. § 2 (1994) (Count Two). The indictment
also charged Everett with using, carrying, and possessing a machine
gun in furtherance of a drug trafficking crime, in violation of 18
U.S.C.A. § 924(c)(1)(A), (B)(ii) (West 2000) (Count Three), and
Bobby Wayne with using, carrying, and possessing firearms in fur-
therance of a drug trafficking crime, in violation of 28 U.S.C.A.
§ 924(c)(1)(A) (Count Four). A jury convicted the brothers on all
counts.
The Hagers first argue that their convictions under 18 U.S.C.A.
§§ 922 and 924 are invalid because these provisions violate their Sec-
ond Amendment right to bear arms. We previously have held that the
Second Amendment does not create an absolute individual right to
bear arms, but "only confers a collective right of keeping and bearing
arms which must bear a ‘reasonable relationship to the preservation
or efficiency of a well regulated militia.’" Love v. Pepersack, 47 F.3d
120, 124 (4th Cir. 1995) (quoting United States v. Miller, 307 U.S.
174, 178 (1939)). To the extent that the Hagers argue that their fire-
arms convictions violate the Second Amendment because they pos-
sessed their firearms in relation to their private militia activities, we
need not address this claim. The Hagers successfully sought in the
trial court the exclusion of any evidence of their membership in a
militia or anti-government organization and, having excluded use of
this evidence against them, they may not now hold up such evidence
as a shield against their firearms convictions.
Next, Bobby Wayne argues that the evidence was insufficient to
convict him on Count One concerning possession of a machine gun.*
*The statement of issues asserts that the evidence was insufficient to
support any of the counts on which the Hager brothers were convicted.
4 UNITED STATES v. HAGER
Evidence presented at trial showed that Bobby Wayne had purchased
a machine gun matching the description of the weapon fired by Ever-
ett on the day of their arrests. The thirty-round magazine found in the
machine gun matched the magazine described in a document found
in Bobby Wayne’s wallet. Bobby Wayne clearly knew his brother
was close by and Everett fired the machine gun shortly after Bobby
Wayne shouted a warning to him. Under the facts of this case, we find
the evidence sufficient for the jury to find that Bobby Wayne had con-
structive possession of the machine gun. See United States v. Graven-
meir, 121 F.3d 526, 528 (9th Cir. 1997) (discussing elements of
§ 922(o) violation); United States v. Burgos, 94 F.3d 849, 873 (4th
Cir. 1996) (discussing constructive possession).
Bobby Wayne also asserts that the evidence was insufficient to
support his conviction on Count Two, concerning manufacturing and
aiding and abetting the manufacture of marijuana. In light of the
cleared patches of ground in the heavily wooded area occupied by the
Hagers, one of which contained a few growing marijuana plants, mar-
ijuana found in Bobby Wayne’s van and home, the shovel and evi-
dence of potting soil found at one of the sites, and testimony that
Bobby Wayne discussed growing marijuana with his nephew and
showed him one of the marijuana patches, we find that the evidence
is sufficient to support Bobby Wayne’s conviction on Count Two. See
United States v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993) (discussing
elements of § 841(a) violation).
The Hagers also argue that the evidence was insufficient to support
their convictions under 21 U.S.C.A. § 924(c). Everett fired a machine
gun and Bobby Wayne was wearing a side holster with a handgun and
attempted to draw the weapon when they were arrested. They were
arrested in the vicinity of the marijuana patches. We find this evi-
dence sufficient to support their § 924(c) convictions. See United
States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997) (discussing ele-
ments of § 924(c) violation).
However, because Everett does not argue in the body of the brief that the
evidence was insufficient to convict him on Count One or Count Two,
we find that he has abandoned these issues. Edwards v. City of Golds-
boro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).
UNITED STATES v. HAGER 5
Finally, Bobby Wayne argues that he was denied a fair trial
because the district court refused to sever his trial from that of his
brother. We find that the district court did not abuse its discretion by
denying the motion to sever and instead instructing the jury not to
consider as evidence against Bobby Wayne testimony that Everett
arranged for an assault against a witness. Zafiro v. United States, 506
U.S. 534, 538 (1993). Further, we find that Bobby Wayne failed to
justify severance by showing a genuine need for his brother’s testi-
mony. United States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995).
For these reasons, we affirm Everett Hager’s and Bobby Wayne
Hager’s convictions. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED