United States v. Simmons , 380 F. App'x 323 ( 2010 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-5116
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ROOSEVELT SIMMONS,
    Defendant - Appellant.
    Appeal from the United States District Court for the Northern
    District of West Virginia, at Wheeling.     Frederick P. Stamp,
    Jr., Senior District Judge. (5:07-cr-00040-FPS-JES-1)
    Submitted:   April 21, 2010                 Decided:   May 27, 2010
    Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER,
    Morgantown, West Virginia, for Appellant.     Sharon L. Potter,
    United States Attorney, David J. Perri, Robert H. McWilliams,
    Jr., Assistant United States Attorneys, Wheeling, West Virginia,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Roosevelt Simmons appeals his conviction and sentence
    on one count of being a felon in possession of ammunition, in
    violation of 
    18 U.S.C. § 922
    (g)(1) and 924(a)(2).                         He contends
    that the district court committed reversible error in conducting
    a   jury    view     of      the   crime      scene,    permitting     identification
    testimony of Simmons, denying a motion to suppress the result of
    a   gun-shot    residue        test    (GSR    test),     admitting     evidence      that
    Simmons    used      a    firearm     while    possessing       the   ammunition,     and
    enhancing his sentence.              For the foregoing reasons, we affirm.
    I.
    Early on the morning on November 4, 2007, Roosevelt
    Simmons called 911 after returning home from work to report that
    his apartment at the Eagle Court Apartments in Wheeling, West
    Virginia, had been burglarized.                     Simmons told the responding
    officers that he believed his neighbors had committed the crime
    as retaliation for Simmons’s reporting them to the police for
    loud    music     several      nights      earlier.        Simmons    then    left    his
    apartment and drove to stay with his girlfriend, Nina Speights.
    The next morning, Simmons and Speights’s cousin, Cameron Sealey,
    drove to Steubenville, Ohio, to place a wager on a football
    game.      The two then drove back to the Eagle Court Apartments.
    Proceeding      at       a    high    rate     of      speed,   Simmons      pulled     up
    2
    haphazardly in front of his apartment building and entered the
    building along with Sealey.                Simmons approached apartments 322
    and 323, his direct neighbors, and began banging on their doors,
    yelling       that    someone     must    have      known    about    the     burglary     on
    November 4.          Sarah Ruthers and her boyfriend Richard Gooch were
    in apartment 322 at the time.                  Both noticed Simmons’s car as it
    entered      the     lot   and   parked.           Both    recognized      Simmons    as   he
    exited       the     car   and    recognized         his    voice     in    the     hallway.
    Although neither Ruthers nor Gooch considered themselves friends
    with       Simmons,    Gooch     shared    a   cigarette       with     him    on    several
    occasions and the pair often saw Simmons coming and going from
    the apartment.
    Gooch did not open the apartment door, but a person in
    apartment 323, Jaime Conley, 1 did.                        Simmons began yelling at
    Conley about his apartment break-in, “getting in her face,” and
    telling her that whoever had robbed him had “f***ed with the
    wrong n*****r.”            Conley noticed another man, who she did not
    recognize, standing in the hallway.                        Conley told Simmons that
    she knew nothing about the burglary and, frightened, slammed the
    door in his face.            Conley did not know Simmons’s name, but she
    recognized him as the man that had come over several nights
    earlier to complain about loud music in the apartment.
    1
    Conley was not a resident of the Eagle Court Apartments
    but was staying with friends in the complex at the time.
    3
    Gooch    began    watching          the    events      unfold      through     the
    peephole in Ruthers’s apartment.                    Gooch heard Simmons verbally
    abusing Conley and also saw a man he did not recognize standing
    further down the hallway.              After Conley slammed the door, Gooch
    saw   Simmons    pull     a    handgun     from         a    brown    paper      bag   he   was
    holding.      Gooch told Ruthers to call 911 and retreated back into
    the apartment.         Moments later the residents heard gunfire and
    the sound of breaking dishware and glass.                                 Gooch heard four
    shots    in   quick    succession       followed            by   a   fifth      shot   seconds
    later.     One of the occupants of apartment 323 called 911, as did
    Ruthers.       Ruthers,       who    had   been         seated       in   her   living      room
    looking out over the parking lot, saw the unidentified man exit
    the   building    into    the       parking       lot       prior    to   the    shots   being
    fired.     Gooch and Ruthers then watched together as Simmons and
    the unidentified male entered the car and left the parking lot
    at a high rate of speed with Simmons driving.                             Sealey testified
    that he was the man standing down the hallway and that, when he
    saw Simmons pull a gun, he tried to dissuade him from using it.
    Unable to do so, Sealey fled the apartment building and heard
    multiple gunshots as he reached the parking lot.
    Officers from the Wheeling Police Department responded
    to the scene.         Gooch and Ruthers both identified “Rosie” Simmons
    as the shooter and provided a description of him and his car.
    4
    Conley      also    provided       a     description    of     the   suspect     and    told
    officers that he lived in the building.
    After leaving Eagle Court, Simmons and Sealey returned
    to Speight’s home, where Sealey witnessed Simmons hide the gun
    in a laundry detergent box on top of the refrigerator.                             Twenty
    minutes later Officer Ben Heslep with the Bellaire, Ohio, Police
    Department 2        spotted        and     stopped      a     vehicle    matching       the
    description         provided       by     Gooch   and       Ruthers.      With     Simmons
    stopped, officers from the Wheeling Police Department escorted
    Gooch to the scene to see if he could identify Simmons.                                Apart
    from Simmons, only police officers in uniform were present at
    the    scene       when   Gooch        arrived.      While     Gooch    stayed     in    his
    vehicle, Simmons was asked to stand up out of the police vehicle
    where he was being detained; Gooch identified Simmons as the
    shooter and Simmons was placed back in the car.                            Simmons was
    then       transported     to      the     Bellaire     Police       Department,       where
    officers       conducted       a       gun-shot   residue       test    (GSR   test)     on
    Simmons’s hands.           At the time the officers conducted the GSR
    test, Simmons had been requesting to use the restroom.
    At the Eagle Court Apartments, officers recovered five
    spent 9 mm. caliber shell casings in the hallway.                              Four were
    clustered together outside of doors 322 and 323 and the fifth
    2
    Bellaire, Ohio, is located directly across the Ohio River
    from Wheeling, West Virginia.
    5
    was fifteen feet down the hall.                      Three bullet holes were found
    in the door to apartment 322 and two holes were found in the
    door   to    apartment          323.      One       of    the        bullets       shattered      the
    dishware in Ruthers’s apartment.                         Officers never recovered the
    firearm used in the shooting.
    Based       upon      the    foregoing,             a        federal    grand       jury
    indicted Simmons on December 4, 2007, on one count of being a
    felon in possession of ammunition, in violation of 
    18 U.S.C. § 922
    (g)(1)        and       924(a)(2).             During           the       pretrial     period,
    investigators with the Bureau of Alcohol, Tobacco, and Firearms
    (“ATF”),     obtained        letters      and       jail    phone          recordings       between
    Simmons and Speights.              In these conversations, Simmons informed
    Speights     that       he   had    hidden       the       gun       in    a    laundry     box    in
    Speights’s apartment and arranged for his sister to remove the
    gun.       Simmons       also     suggested         how    Speights            should     make    her
    statements        to    investigators.              In    addition,            a   prison    inmate
    approached        the    Government       with       information            that     Simmons      had
    discussed the possibility of attempting to kill or seriously
    injure the federal prosecutor in his case.                                  Simmons apparently
    hoped that removing the prosecutor would delay his trial and
    provide him grounds to move for dismissal under the Speedy Trial
    Act.
    Prior to trial, Simmons moved to exclude the results
    of   the    GSR    test      as    well   as     both      out-of-court             and   in-court
    6
    identification         testimony     from        Gooch.       The    district      court,
    adopting the recommendation of the magistrate judge assigned to
    the case, denied both motions.                   A jury trial was conducted from
    August 26 to August 28, 2008.                    During the trial, the district
    court      conducted    a   jury   view     of     the    crime   scene      outside    the
    presence of Simmons, who was detained in a van in the parking
    lot.       The jury ultimately convicted Simmons on the ammunition
    possession charge.           The district court conducted a sentencing
    hearing on November 3, 2008, and sentenced Simmons to 120 months
    imprisonment.      Simmons noted a timely appeal.
    II.
    On appeal, Simmons contends that the district court
    committed     reversible      error    in    conducting       a     jury    view   of   the
    Eagle      Court   Apartments,        permitting           Gooch’s         identification
    testimony,     denying      the    motion    to     suppress      the   GSR    test,    and
    admitting evidence of the shooting. 3                    We address each contention
    in turn.
    3
    Simmons also contends that the district court committed
    reversible error in sentencing him.       Specifically, Simmons
    argues that it violates the Sixth Amendment to impose sentencing
    enhancements even under an advisory Guidelines scheme and even
    if the resulting sentence is below the statutory maximum.
    Simmons concedes that his argument is foreclosed by Booker v.
    United States, 
    543 U.S. 220
     (2005), but contends that Booker was
    wrongly decided.   Booker remains binding law, however, and we
    thus reject Simmons’s argument.
    7
    A.
    Simmons           first   contends       that     the       district    court
    committed    reversible          error     in    conducting    a   jury     view    of   the
    Eagle Court Apartments during the trial.                          “The federal courts
    recognize their inherent power to permit a jury view of places
    or objects outside the courtroom.                    The decision to permit a view
    is    entrusted     to     the     sound    discretion       of    the    trial     court.”
    United States v. Passos-Paternina, 
    918 F.2d 979
    , 986 (1st Cir.
    1990) (citations omitted).                 See also United States v. Woolfolk,
    
    197 F.3d 900
    ,        905    (7th   Cir.      1999)   (noting     that    a     district
    court’s ruling on a motion for a jury view is reviewed for abuse
    of discretion).
    Three months prior to trial, the Government moved for
    a    jury   view    of     the     Eagle    Court     Apartments     and     included      a
    proposed list of sites.                The district court granted the motion
    as to the sites described by the Government and also offered
    Simmons the opportunity to suggest additional sites.
    On the first day of the trial, the district court,
    accompanied         by     counsel,         the      Defendant,      and      the        lead
    investigator, Agent James E. Sirbaugh of the ATF, took the jury
    to view the Eagle Court Apartments.                      The Defendant stayed in a
    van with U.S. Marshals during the view.                           Before entering the
    apartments,        Agent       Sirbaugh    suggested      to   the   district       court,
    outside the presence of the jury, that the jurors look at the
    8
    bullet holes in the apartment doors from both sides, a request
    the   district     court       granted.         Once       inside    the     apartment,        and
    again outside the jury’s presence, Agent Sirbaugh suggested that
    the jurors see the holes in Ruthers’s refrigerator.                                    Simmons’s
    counsel    objected       to     that     view       because        it    was    not    on    the
    Government’s       pretrial       list    of     sites,       and    the     district        court
    sustained    the    objection.           The        jurors       completed      the    view    and
    returned to court.
    On appeal, Simmons does not contest the conducting of
    a   jury   view,     but       rather     argues       that,        given    Special         Agent
    Sirbaugh’s       comments,       the     jury       view     was     transformed        from    a
    permissible       crime       scene     inspection          into     an    unconstitutional
    opportunity       for     Agent       Sirbaugh        to     testify       outside      of    the
    Defendant’s presence.             Simmons also argues that he was unable to
    communicate with counsel during the jury view, and that this
    failure kept Simmons from having his counsel point out several
    important features of the scene.
    We     do      not     believe          either        situation       constituted
    reversible    error       in     this    case.          The       presence      of     Simmons’s
    counsel    during       the     view     resolves          any    constitutional         issues
    arising from Simmons’s inability to take part in the view.                                     See
    Snyder v. Massachusetts, 
    291 U.S. 97
     (1934), (holding that a
    jury view with counsel present is constitutional).                               In addition,
    Agent Sirbaugh’s comments were not made in front of the jury,
    9
    and, even if they were, he was simply assisting the district
    court in finding the sites already supplied by the Government.
    Moreover, even assuming the district court erred in
    conducting the view, Simmons cannot show that such error was
    harmful.       This court has held that jury views of crime scenes,
    both    court-ordered          and    unsupervised,         are   subject     to    harmless
    error review.           See Arnold v. Evatt, 
    113 F.3d 1352
    , 1361 (4th
    Cir. 1997) (court-ordered jury view subject to harmless error
    review); Sherman v. Smith, 
    89 F.3d 1134
    , 1137 (4th Cir. 1996)
    (en    banc)    (unsupervised          jury    view    of    crime    scene      subject    to
    harmless error review).               In determining the possible harm of any
    error, this court should “look to the nature and extent of the
    [jury’s]       activity      and     assess    how    that    activity      fit    into    the
    context of the evidence presented at trial.”                           Sherman, 
    89 F.3d at 1138
    .        “The level of conjecture inherent in this inquiry is
    reduced,       making     it    even    more    appropriate          for   harmless-error
    analysis, when the jury view is personally supervised by the
    judge.”     Arnold, 
    113 F.3d at 1361
    .                  An error is harmless “if a
    reviewing      court    is     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. Basham, 
    561 F.3d 302
    ,
    327 (4th Cir. 2009) (quoting Kotteakos v. United States, 
    328 U.S. 750
    , 765 (1946)).
    10
    Applying this standard, any error in this case was
    harmless.     Two witnesses who knew Simmons, Gooch and Ruthers,
    testified that he was the person in the hallway, and Gooch and
    Conley both testified that Simmons drew a gun.                           Simmons’s own
    companion that day, Cameron Sealey, testified that Simmons drew
    a gun and that, in response, Sealey fled the apartment building
    and     subsequently        heard    gunshots.          Conley     and      Gooch    both
    testified    that    they      heard      gunfire      almost    immediately        after
    Simmons drew the gun.               During pretrial incarceration, Simmons
    told his girlfriend Speights that he had hidden the gun and that
    his sister was disposing of it.                  Sealey further testified that
    he watched Simmons hide the gun in Speight’s home.                          Given this
    wealth of testimony, it is difficult to see how Agent Sirbaugh’s
    suggestion    or    Simmons’s       exclusion     were    prejudicial.          Simmons
    suggests    that    he   would      have    asked   for    different        site    views
    regarding     the    ability        to     see   the     parking      lot    from     the
    apartments,    but     he    had    the    opportunity     to    do   so    during    the
    pretrial period and also had ample opportunity to cross-examine
    Ruthers and Gooch on that point.
    B.
    Next, Simmons argues that the district court erred in
    permitting    Gooch’s        identification       testimony      at   trial.         “Due
    process principles prohibit the admission at trial of an out-of-
    court      identification           obtained        through        procedures         ‘so
    11
    impermissibly suggestive as to give rise to a very substantial
    likelihood of irreparable misidentification.’”                            United States v.
    Saunders, 
    501 F.3d 384
    , 389 (4th Cir. 2007) (quoting Simmons v.
    United    States,        
    390 U.S. 377
    ,       384   (1968)).         No     due    process
    violation       occurs         if   the      “identification          was      sufficiently
    reliable        to         preclude         the        substantial        likelihood          of
    misidentification.”             United States v. Johnson, 
    114 F.3d 435
    , 442
    (4th Cir. 1997); see also Manson v. Brathwaite, 
    432 U.S. 98
    , 106
    (1977) (stating that the central question is “whether under the
    totality of the circumstances the identification was reliable
    even     though      the     [identification]            procedure    was      suggestive”)
    (internal quotations omitted).
    We    consider         the     admissibility          of     identification
    testimony in two steps:
    First, the defendant must show that the photo
    identification procedure was impermissibly suggestive.
    Second, if the defendant meets this burden, a court
    considers whether the identification was nevertheless
    reliable in the context of all of the circumstances.
    Saunders, 
    501 F.3d at 389-90
    .
    If    a   witness’s     out-of-court         photo    identification           is
    unreliable           and       therefore           inadmissible,           any         in-court
    identification is also inadmissible.                       Simmons, 
    390 U.S. at
    383-
    84.       On    appeal,        we     may    assume       the   suggestiveness           of    a
    identification procedure and move directly to the second step.
    Holdren v. Legursky, 
    16 F.3d 57
    , 61 (4th Cir. 1994).
    12
    The    magistrate       judge       denied     Simmons’s    motion       to
    exclude     identification          testimony       after    a    hearing,     and    the
    district court adopted that recommendation.                       The district court
    assumed       that     the        photo       identification         procedure        was
    impermissibly suggestive but concluded that the identification
    was still reliable because Gooch knew Simmons personally and
    made    the    identification             roughly    one     half-hour    after       the
    shooting.
    We agree with the district court that, even assuming
    the    initial      procedure       was    impermissibly         suggestive,    Gooch’s
    identification        was    reliable       and     thus    admissible.        We    have
    explained that five factors should be considered in assessing
    the    reliability     of    an     out-of-court      identification:          (1)    the
    witness’s opportunity to view the suspect at the time of the
    crime; (2) the witness’s degree of attention at the time of the
    crime; (3) the accuracy of the witness’s initial description of
    the suspect; (4) the witness’s level of certainty in making the
    identification; and (5) the length of time between the crime and
    the identification.          Saunders, 
    501 F.3d at 391
    .                “In addition,
    courts may consider other evidence of the defendant’s guilt when
    assessing the reliability of the identification.”                      
    Id.
     (internal
    quotation marks and alterations omitted).
    Applying      these     factors,       Gooch’s      identification      was
    reliable.      First, Gooch was certain that Simmons was the person
    13
    in the hallway, and Gooch was personally familiar with Simmons
    because they lived in the same apartment complex.                                While Gooch
    and Simmons lived on different floors, Gooch’s girlfriend, whom
    Gooch was visiting that day, lived next to Simmons.                                   After the
    shooting, Gooch had Ruthers immediately dial 911 and identify,
    by name, Simmons as the perpetrator.                        The actual identification
    was made one half-hour after the shooting.                               Gooch had a good
    opportunity       to     view    Simmons’s          approach       and        exit    from    the
    apartment      complex     and       recognized      his    car.         In    addition,      two
    other    witnesses,       Ruthers       and    Sealey,       placed       Simmons       in    the
    apartment building.             Likewise, Conley also identified Simmons at
    trial as the man that she spoke with that day.
    Because     Gooch’s       identification            was        reliable,       the
    district court correctly permitted his in-court testimony and
    identification.
    C.
    Simmons    asserts       that       the     district       court       erred       in
    denying    his     motion       to    suppress       the    GSR    test        taken    at    the
    Bellaire       Police    Department.           In    addressing          the    denial       of    a
    motion    to    suppress       evidence,      we     review       the    district       court’s
    findings of historical fact for clear error, “giving due weight
    to   inferences        drawn    from    those       facts    by    resident          judges   and
    local law enforcement officers.”                    Ornelas v. United States, 
    517 U.S. 690
    , 699 (1996).                 We review de novo the ultimate legal
    14
    conclusion.       
    Id.
             And, “[b]ecause the district court denied the
    motion to suppress, we construe the evidence in the light most
    favorable to the Government.”                            United States v. Perkins, 
    363 F.3d 317
    , 320 (4th Cir. 2004).
    The Fourth Amendment provides that “[t]he right of the
    people    to    be       secure         in    their      persons,     houses,    papers,        and
    effects, against unreasonable searches and seizures, shall not
    be    violated.      .    .     .”           U.S.   Const.     amend.    IV.         Warrantless
    searches “are per se unreasonable under the Fourth Amendment-
    subject    only      to        a     few      specifically       established         and     well-
    delineated exceptions.”                      United States v. Bush, 
    404 F.3d 263
    ,
    275 (4th Cir. 2005) (quoting Mincey v. Arizona, 
    437 U.S. 385
    ,
    390   (1978)).           One       of    the    well-recognized         exceptions         to    the
    warrant requirement is a search incident to a lawful arrest.
    See   United     States        v.       Currence,        
    446 F.3d 554
    ,     556    (4th      Cir.
    2006).     Pursuant to this exception, law enforcement officers
    following a lawful arrest may search “the arrestee’s person and
    the area ‘within his immediate control.’”                              
    Id.
     (quoting Chimel
    v.    California,         
    395 U.S. 752
    ,      763   (1969)).         Another         such
    exception is when exigent circumstances exist, situations “where
    police officers (1) have probable cause to believe that evidence
    of illegal activity is present and (2) reasonably believe that
    evidence may be destroyed or removed before they could obtain a
    15
    warrant.”       United States v. Cephas, 
    254 F.3d 488
    , 494-95 (4th
    Cir. 2001).
    The magistrate judge, after conducting an evidentiary
    hearing, concluded that Simmons was lawfully arrested and that,
    given the inherent destructibility of gun-shot residue evidence,
    the police were permitted to run the GSR test without a warrant.
    The district court adopted that recommendation, and we conclude
    that the district court correctly denied the motion to suppress.
    Recently, the Fifth Circuit concluded that a GSR test
    is a reasonable search incident to arrest.                            United States v.
    Johnson, 
    445 F.3d 793
    , 795-96 (5th Cir. 2006).                               As the court
    explained, “[b]ecause the presence of gun powder on his hands
    was    relevant    evidence       that        [the      defendant]    (or    merely    time)
    could have eventually removed or destroyed, if his arrest was
    valid,    the     performance          of    the       gun   powder   residue    test    was
    lawful, and the admission of the results at trial was proper.”
    
    Id. at 795-96
    .       Such a result is dictated by Cupp v. Murphy, 
    412 U.S. 291
        (1973),     in    which        the      Supreme   Court   concluded      that
    police,       consistent        with        the     Fourth     Amendment,      could    take
    fingernail samples incident to a lawful arrest.                             
    Id. at 295-96
    .
    In Cupp, the Court explained the basis for the search incident
    to arrest doctrine was the belief that “it is reasonable for a
    police officer to expect the arrestee to use any weapons he may
    have and to attempt to destroy any incriminating evidence then
    16
    in his possession.        
    Id. at 295
    .      Applying that rationale, the
    Court concluded that the police were justified in performing a
    “very limited search necessary to preserve the highly evanescent
    evidence they found under his fingernails.”            
    Id.
    Likewise,     the     GSR     test    in      this    case      was
    constitutional.      Simmons does not contest the lawfulness of his
    arrest,    and,   given   that   concession,     the    GSR   test,   a    “very
    limited search,” was appropriate as a search incident to arrest.
    In   the   alternative,    exigent      circumstances    also    justify    the
    search because Simmons was requesting to use the bathroom and
    both parties agree that washing his hands could have removed any
    gun-shot residue.       The district court did not err in denying the
    motion to suppress.
    D.
    Simmons also challenges the district court’s decision
    to permit testimony regarding the shooting in order to prove
    Simmons’s possession of ammunition, arguing that the evidence
    was inadmissible under Federal Rules of Evidence 404(b) and 403.
    We review evidentiary rulings of the district court for abuse of
    discretion.       United States v. Delfino, 
    510 F.3d 468
    , 470 (4th
    Cir. 2007).       We will not “‘vacate a conviction unless we find
    that the district court judge acted arbitrarily or irrationally’
    in admitting evidence.”          United States v. Benkahla, 
    530 F.3d 17
    300, 309 (4th Cir. 2008) (quoting United States v. Ham, 
    998 F.2d 1247
    , 1252 (4th Cir. 1993)).
    Under      Rule     404(b),      “[e]vidence      of     other    crimes,
    wrongs, or acts is not admissible to prove the character of a
    person in order to show action in conformity therewith.”                            Fed.
    R. Evid. 404(b).        The Rule 404(b) inquiry, however, applies only
    to    evidence    of   other     acts   that     are   “extrinsic      to     the   one
    charged.”        United States v. Chin, 
    83 F.3d 83
    , 87 (4th Cir.
    1996).    “[A]cts intrinsic to the alleged crime do not fall under
    Rule 404(b)'s limitations on admissible evidence.”                         
    Id.
     at 87-
    88.      “Evidence     of     uncharged     conduct    is   not    ‘other     crimes’
    evidence subject to Rule 404 if the uncharged conduct ‘arose out
    of the same series of transactions as the charged offense, or if
    [evidence of the uncharged conduct] is necessary to complete the
    story of the crime on trial.’”               Siegel, 536 F.3d at 316 (quoting
    United States v. Kennedy, 
    32 F.3d 876
    , 885 (4th Cir. 1994)).
    Rule    403     provides    a    more   limited    bar    to     otherwise
    admissible evidence:
    Although relevant, evidence may be excluded if its
    probative value is substantially outweighed by the
    danger of unfair prejudice, confusion of the issues,
    or misleading the jury, or by considerations of undue
    delay, waste of time, or needless presentation of
    cumulative evidence.
    Fed. R. Evid. 403.
    18
    Rule 403 is likewise a rule of inclusion, “generally
    favor[ing] admissibility . . . .”                    United States v. Wells, 
    163 F.3d 889
    ,    896    (4th   Cir.      1998).       District       judges       enjoy   wide
    discretion to determine what evidence is admissible under the
    Rule.    See United States v. Love, 
    134 F.3d 595
    , 603 (4th Cir.
    1998).     We “review a district court’s admission of evidence over
    a Rule 403 objection under a broadly deferential standard.”                               
    Id.
    (internal quotations omitted).                   Indeed, “[a] district court's
    decision to admit evidence over a Rule 403 objection will not be
    overturned except under the most extraordinary of circumstances,
    where that discretion has been plainly abused.”                            United States
    v.   Williams,        
    445 F.3d 724
    ,      732   (4th    Cir.        2006)    (internal
    quotations omitted).          In reviewing the admission of evidence, we
    construe       the    evidence     in    the    “light      most    favorable       to   its
    proponent,      maximizing       its    probative     value        and    minimizing      its
    prejudicial effect.”             United States v. Simpson, 
    910 F.2d 154
    ,
    157 (4th Cir. 1990).
    Applying     these    standards,       we    have    little       difficulty
    concluding that the district court did not abuse its discretion
    in admitting the challenged evidence.                       First, evidence of the
    shooting satisfied Rule 404(b) because it was intrinsic to the
    crime charged—it was part of the same series of transactions as
    the offense and helped to tell the story of the crime.                                    In
    addition, such testimony does not run afoul of Rule 403 because,
    19
    as intrinsic evidence, it was highly probative.                         The evidence
    that Simmons was seen with a gun immediately before a shooting
    occurred was damaging to Simmons’s case, but that is not the
    standard   under    Rule       403   and    such    evidence      was   not   unfairly
    prejudicial.
    III.
    For     the   foregoing         reasons,      we    affirm   the   district
    court's judgment.        Simmons’s motions to file supplemental briefs
    are denied.      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
    20
    

Document Info

Docket Number: 08-5116

Citation Numbers: 380 F. App'x 323

Judges: Davis, Gregory, Per Curiam, Wilkinson

Filed Date: 5/27/2010

Precedential Status: Non-Precedential

Modified Date: 8/3/2023

Authorities (28)

united-states-v-emiro-miguel-passos-paternina-united-states-of-america-v , 918 F.2d 979 ( 1990 )

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Timothy Scott Sherman v. William L. Smith, Warden, Maryland ... , 89 F.3d 1134 ( 1996 )

United States v. Basham , 561 F.3d 302 ( 2009 )

United States v. Carl Simpson, A/K/A Shawn Davidson , 910 F.2d 154 ( 1990 )

United States v. George W. Cephas , 254 F.3d 488 ( 2001 )

John D. Arnold v. Parker Evatt, Commissioner, South ... , 113 F.3d 1352 ( 1997 )

United States v. Larry Chin, A/K/A Dallas , 83 F.3d 83 ( 1996 )

Larry David Holdren v. Carl Legursky, Warden, West Virginia ... , 16 F.3d 57 ( 1994 )

United States v. Joseph Edmund Williams, A/K/A Abdullah ... , 445 F.3d 724 ( 2006 )

United States v. Delfino , 510 F.3d 468 ( 2007 )

united-states-v-joseph-willie-kennedy-aka-snake-united-states-of , 32 F.3d 876 ( 1994 )

united-states-v-keith-gordon-ham-aka-number-one-aka-k-swami-aka , 998 F.2d 1247 ( 1993 )

United States v. John Michael Perkins , 363 F.3d 317 ( 2004 )

United States v. Johnson , 445 F.3d 793 ( 2006 )

United States v. Melvin D. Woolfolk , 197 F.3d 900 ( 1999 )

United States v. Kareem Jamal Currence , 446 F.3d 554 ( 2006 )

United States v. Larry Lamont Bush , 404 F.3d 263 ( 2005 )

United States v. Saunders , 501 F.3d 384 ( 2007 )

United States v. Rex Eugene Love, United States of America ... , 134 F.3d 595 ( 1998 )

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