United States v. Kelly ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5567
ROBERT ANTHONY KELLY, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Samuel G. Wilson, District Judge.
(CR-94-43)
Submitted: December 30, 1996
Decided: January 30, 1997
Before WIDENER and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Dennis E. Jones, DENNIS E. JONES & ASSOCIATES, Lebanon,
Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Julie C. Dudley, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robert Anthony Kelly appeals his convictions arising out of his
arrest while in possession of numerous small baggies of cocaine and
a firearm. The jury found Kelly guilty of being a felon in possession
of a firearm, 18 U.S.C. § 922(g) (1994), possession with intent to dis-
tribute cocaine, 21 U.S.C. § 941(a)(1) (1994), and use of a firearm
during a drug trafficking offense. 18 U.S.C. § 924(c) (1994). Kelly
raises three assignments of error on appeal. Finding no merit to
Kelly's contentions, we affirm his conviction.
Kelly first suggests that the district court abused its discretion when
it denied his motion for a mistrial. United States v. Dorsey, 45 F.3d
809, 817 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3907(U.S. June 26, 1995) (No. 94-9433). Kelly sought a mistrial after one
of the prosecution witnesses testified that he told Kelly during the
investigation that he knew Kelly dealt in drugs. In light of the judge's
immediate curative instruction, which the jury is presumed to have
followed, Greer v. Miller, 483 U.S. 756, 766 n.8 (1987), the isolated
nature of the statement, and the significant evidence of guilt, the wit-
ness' misstatement did not prejudice Kelly to the extent that it
deprived him of a fair trial. See United States v. Bennett, 984 F.2d
597, 608 (4th Cir. 1993) (per curiam). As a result, Kelly has failed to
show prejudice, Dorsey, 45 F.3d at 817, and cannot demonstrate an
abuse of discretion on the part of the district court in denying the
motion for a mistrial.
Kelly next contends that the evidence of record was insufficient to
support his conviction for possession with intent to distribute as
opposed to mere possession of the cocaine. Because there was sub-
stantial evidence that would warrant a jury finding of guilt beyond a
reasonable doubt, the district court did not err in denying Kelly's
motions for acquittal. United States v. MacCloskey, 682 F.2d 468, 473
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(4th Cir. 1982); see also United States v. Stockton, 788 F.2d 210, 218
(4th Cir. 1986); United States v. Tresvant, 677 F.2d 1018 (4th Cir.
1982). In his statements to the police, Kelly admitted to at least one
incidence of distribution when he traded one baggie of cocaine for the
handgun in his possession. In addition, there was ample testimony
that the manner in which the cocaine was packaged was typical of
cocaine intended for distribution. Finally, Kelly stated that he was
travelling to Middleboro, Kentucky, to "get rid" of the cocaine. If he
were merely intending to destroy it or consume it, there would be no
purpose for the long trip. Consequently, without re-weighing the testi-
mony, United States v. Arrington, 719 F.2d 701, 704 (4th Cir. 1983),
there was substantial evidence in support of Kelly's conviction. Kelly
suggests that the absence of large sums of cash in his possession pre-
cludes a jury finding he possessed the requisite intent. This bit of
absent evidence does not alter the conclusion that the district court did
not err in denying the motions for acquittal.
Finally, Kelly encourages this court to find that the evidence was
insufficient to support his conviction for use of a firearm in light of
the Supreme Court's recent opinion in Bailey v. United States, ___
U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448, 94-
7492). However, we note that the opinion in Bailey specifically holds
that "bartering" satisfies Congress's intent to proscribe "active
employment" of firearms in the commission of a drug trafficking
offense. Id. at 4042. Consequently, Kelly's statement to police that he
had traded some of his cocaine to obtain the firearm in his possession
was sufficient to constitute "use" even in the wake of the Bailey deci-
sion. See also Smith v. United States, 508 U.S. 223, 237 (1993) (hold-
ing that an exchange of weapon for drugs constitutes"use"). Kelly's
conviction for use of a firearm was supported by sufficient evidence.
Finding no merit to any of Kelly's assignments of error by the trial
court, we affirm his conviction. 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
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