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United States v. Lennon , 22 F. App'x 245 ( 2001 )


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  •                           UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                              No. 01-4440
FERNANDO Q. LENNON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca B. Smith, District Judge.
(CR-00-81)
Submitted: November 29, 2001
Decided: December 7, 2001
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James S. Ellenson, Newport News, Virginia, for Appellant. Kenneth
E. Melson, United States Attorney, Matthew W. Hoffman, Special
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. LENNON
OPINION
PER CURIAM:
Fernando Q. Lennon appeals his conviction for being a felon in
possession of a firearm, in violation of
    18 U.S.C.A. § 922
    (g)(1) (West
2000). Lennon asserts that the district court should have granted a
mistrial following allegedly prejudicial testimony describing a suspect
in a robbery that occurred in the vicinity of where officers first
encountered him. We affirm.
We review the denial of a motion for a mistrial for an abuse of dis-
cretion and find none. See United States v. Dorlouis,
    107 F.3d 248
    ,
257 (4th Cir. 1997) (stating standard of review). Although Lennon
asserts that the testimony relating to the robbery and the description
of a suspect was prejudicial, not all errors in the admission of evi-
dence will result in the grant of a new trial. See United States v. John-
son,
    610 F.2d 194
    , 196-97 (4th Cir. 1979). Our review of the alleged
error "in the context of the entire trial" focuses on the weight of the
otherwise untainted evidence and the presence or absence of a strong
curative instruction.
    Id. at 196
    ; see United States v. Ince,
    21 F.3d 576
    ,
583 (4th Cir. 1994) (providing standard for determining harmlessness
of nonconstitutional error).
Here, the untainted evidence against Lennon was overwhelming.
He stipulated that he was a convicted felon, the Government estab-
lished that the gun traveled in interstate commerce, the officer saw
Lennon discard an object as he fled, and the object recovered was a
handgun. See United States v. Gallimore,
    247 F.3d 134
    , 136 (4th Cir.
2001) (discussing elements of the offense). Although the objection-
able testimony was elicited by the Government, it was provided as
background information only. In addition, the court provided an
immediate and thorough curative instruction regarding the purpose for
which the jury should consider the testimony. See United States v.
Love,
    134 F.3d 595
    , 603 (4th Cir. 1998) (presuming that the jury fol-
lows cautionary instructions regarding potentially prejudicial evi-
dence). In light of these factors, we find that the district court did not
abuse its discretion by denying Lennon’s motion for a mistrial.
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
UNITED STATES v. LENNON                     3
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED