United States v. Como ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4444
ANDREW COMO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-95-495)
Submitted: February 27, 1997
Decided: March 13, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
D. Garrison Hill, HILL, WYATT & BANNISTER, L.L.P., Green-
ville, South Carolina, for Appellant. J. Rene Josey, United States
Attorney, Harold Gowdy III, Assistant United States Attorney, Green-
ville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Andrew Como appeals from his conviction of conspiracy to pos-
sess with intent to distribute and to distribute cocaine, 21 U.S.C.A.
§ 846 (1994), for which he was sentenced to 242 months in prison.
We affirm.
Como first challenges the district court's refusal to instruct the jury
on the charge of simple possession. Because possession is not a nec-
essary element of the conspiracy charged, Como was not entitled to
an instruction on simple possession. See United States v. Schmuck,
489 U.S. 705, 716 (1989) (where lesser offense requires element not
required for the greater offense, the defendant is not entitled to a
lesser included offense instruction); United States v. Horn, 946 F.2d
738, 744 (10th Cir. 1991) (holding that possession, possession with
intent to distribute, and distribution are not lesser included offenses
of conspiracy to commit those offenses).
Como next claims that the district court erred in refusing to grant
his motion for a mistrial after a witness made a previously undis-
closed statement at trial. The witness, Ms. Tamara Jeter, was a co-
conspirator of Como's who testified for the government at trial as to
various aspects of the conspiracy. On direct examination, Jeter was
asked why she had given inconsistent statements to police when she
was arrested. Jeter's response was that she was"scared." After
Como's attorney attempted to impeach Jeter on these inconsistencies,
the government's attorney, on re-direct, asked Jeter why she hadn't
given Como's name to the police the day she was arrested. Jeter
responded that Como and another conspirator (Dexter Barnes) had
once said that "they would hurt anybody or kill anybody who testified
against them." Como moved for a mistrial on the grounds that Jeter's
testimony was unduly prejudicial and had not been disclosed to the
defense pursuant to discovery. The district court issued a limiting
instruction but refused to grant a mistrial.
We review the district court's evidentiary rulings for abuse of dis-
cretion. United States v. Whittington, 26 F.3d 456, 465 (4th Cir.
1994). The district court did not abuse its discretion for several rea-
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sons. First, threat evidence is admissible if relevant to explain a wit-
ness' inconsistent statements. See, e.g., United States v. Thomas, 86
F.3d 647, 654 (7th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3340 (U.S. Nov. 4, 1996) (No. 96-515). Second, there was no evi-
dence that the government had committed any discovery violation
because, as Como concedes, there was no evidence that Jeter had ever
made the statement to anyone prior to the trial. Moreover, Jeter was
available to the defense prior to trial. Finally, Como cannot demon-
strate prejudice because he has made no showing that he could have
discredited the statement had he received prior disclosure of its con-
tents. See United States v. Jackson, 757 F.2d 1486, 1492 (4th Cir.
1985).
Finally, Como claims that Jeter's testimony regarding the threat
made by Como and Dexter Barnes (who, at the time of Como's trial,
was still at large) and a statement by another government witness vio-
lated his Sixth Amendment rights because they amounted to confes-
sions by non-testifying co-defendants in violation of Bruton v. United
States, 391 U.S. 123 (1968). However, the threatening statement men-
tioned by Jeter was attributed directly to Como. Moreover, this Court
has held that Bruton does not apply if the non-testifying co-
defendant's statement is admissible under the co-conspirator excep-
tion to the hearsay rule found in Fed. R. Evid. 801(d)(2)(E). United
States v. Shores, 33 F.3d 438, 442 (4th Cir. 1994). The other state-
ment, made by Deborah Hollis, was that Barnes told her in a tele-
phone conversation that he was "wanted." Como's name was not
mentioned and, therefore, the statement could not have incriminated
him.
Accordingly, we affirm Como's conviction and sentence. We dis-
pense 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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