United States v. Newman , 101 F. App'x 397 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4947
SHANE MICHAEL NEWMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Norman K. Moon, District Judge.
(CR-03-48)
Submitted: May 28, 2004
Decided: June 17, 2004
Before MOTZ and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Roland M. L. Santos, Harrisonburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Joseph W. H. Mott, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. NEWMAN
OPINION
PER CURIAM:
Shane Michael Newman was charged with conspiracy to possess
with intent to distribute fifty grams or more of methamphetamine, 21
U.S.C. § 846 (2000) (Count One), three counts of using, carrying, and
possessing a firearm in furtherance of a drug trafficking crime, 18
U.S.C. § 924(c) (2000) (Counts Two, Three, and Five), and three
counts of possession of a firearm while an unlawful user of a con-
trolled substance, 18 U.S.C. § 922(g)(3) (2000) (Counts Four, Six,
and Seven). According to the Government, Counts Three and Four,
which charged conduct occurring in February 2002, related to Dana
Lambert’s initial purchase of methamphetamine from Newman in
February 2002. Counts Five and Six, charging illegal conduct subse-
quent to the date referenced in Counts Three and Four, related to
Lambert’s purchase of methamphetamine from Newman later that
month. Count Two alleged illegal conduct in the summer of 2001, and
Count Seven alleged a § 922(g)(3) violation on February 24, 2002.
A jury convicted Newman on all counts, and the district court sen-
tenced him to 780 months in prison. He now appeals. We affirm.
I
Testimony at trial revealed that Newman was an established
methamphetamine dealer in Woodstock, Virginia, by the summer of
2001. Newman generally distributed the drug in his apartment bed-
room. He had a number of regular customers. Jeremy Peace lived
with Newman from January 2002 until his arrest on February 24,
2002. Peace testified that Newman offered him cigarettes, gas money,
and free rent in exchange for Peace’s selling Newman’s methamphet-
amine to Peace’s regular customers.
Witnesses testified that Newman had a black handgun, which he
almost always wore or had near his person when he distributed
methamphetamine. A law enforcement official stated that a .45 hand-
gun was properly registered to Newman. Several witnesses testified
that Newman used methamphetamine frequently; Peace said that
UNITED STATES v. NEWMAN 3
Newman used it more than once each day during the time the two
men lived together.
II
Peace challenges the sufficiency of the evidence on Counts Two,
Five, and Six. A defendant challenging the sufficiency of the evidence
"bears a heavy burden." United States v. Beidler, 110 F.3d 1064, 1067
(4th Cir. 1997)(internal quotation marks and citation omitted). To
determine if there was sufficient evidence to support a conviction, we
consider whether, taking the evidence in the light most favorable to
the Government, substantial evidence supports the jury’s verdict.
Glasser v. United States, 315 U.S. 60, 80 (1942). We review both
direct and circumstantial evidence and permit "the [G]overnment the
benefit of all reasonable inferences from the facts proven to those
sought to be established." United States v. Tresvant, 677 F.2d 1018,
1021 (4th Cir. 1982). Witness credibility is within the sole province
of the jury, and we will not reassess credibility. United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Counts Two and Five charged Newman with violating § 924(c) in
the summer of 2001 and in February 2002, respectively. Lisa Hoover
testified that she and her boyfriend, a methamphetamine user, visited
Newman’s apartment in the summer of 2001. Newman and her boy-
friend each had methamphetamine and decided to try each other’s
drug. When they sat on the bedroom floor to begin sampling the
drugs, Newman pulled a black handgun from his pants and placed it
underneath a nearby nightstand. These facts are sufficient to establish
that the firearm "furthered, advanced, or helped forward a drug traf-
ficking crime." See United States v. Lomax, 293 F.3d 701, 705 (4th
Cir.), cert. denied, 537 U.S. 1031 (2002). The jury could have inter-
preted Newman’s handling of the gun as a demonstration that he pro-
tected his drug supply. It is noteworthy that the gun was not far from
Newman’s person during the time Hoover and her boyfriend were in
the bedroom.
Counts Five and Six related to the later of Newman’s two February
2002 distributions of methamphetamine to Dana Lambert.* Lambert
*Newman is incorrect when he claims in his brief that the conduct
charged in Counts Five and Six actually occurred in April 2003.
4 UNITED STATES v. NEWMAN
testified that she bought methamphetamine from Newman two or
three times between the end of January and February 20, 2002. New-
man was always armed with a small black handgun, which he either
wore or had on a nightstand in his bedroom, where the distributions
occurred. On these facts, the evidence was sufficient to convict New-
man on Count Five. See id. Lambert also testified that Newman was
using methamphetamine daily, and Peace testified that Newman was
using methamphetamine more than once a day during this period. The
evidence thus was sufficient to convict Newman on Count Six. See
United States v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002); United
States v. Purdy, 264 F.3d 809, 812-13 (9th Cir. 2001).
III
Newman had a loose association with the Warlocks, an outlaw
motorcycle gang. Prior to trial, defense counsel expressed his concern
that any mention of this association could prejudice the defense, par-
ticularly in light of recent publicity about the Warlocks in the local
press. The court asked that no Warlocks connection be played up
because it was not important to the case.
The prosecutor, trying to show that Newman possessed the hand-
gun for the sole purpose of drug distribution, asked Lambert whether
Newman belonged to a gun club. Lambert replied, "He was associated
with the Warlocks." Defense counsel objected and, at a sidebar,
moved for a mistrial. The court instructed the jury to disregard Lam-
bert’s answer.
On appeal, Newman contends that Lambert’s unresponsive answer
unfairly prejudiced the jury and that any curative action short of
declaring a mistrial was error. We conclude that the district court did
not abuse its discretion in denying the motion for mistrial. See United
States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997) (stating standard
of review). Lambert’s unresponsive answer was brief and isolated,
and the district court promptly gave a curative instruction. Jurors are
presumed to follow a court’s instructions. Weeks v. Angelone, 528
U.S. 225, 234 (2000). Further, contrary to Newman’s position, there
was substantial evidence against him, and the momentary mention of
the Warlocks could not have affected the outcome of the trial.
UNITED STATES v. NEWMAN 5
IV
Newman contends that Counts Four and Seven charge the same
offense and therefore are multiplicitous. It is clear that Count Seven
charged a violation of § 922(g)(3) occurring on February 24, 2002,
and that Count Four charged such a violation during an earlier distri-
bution to Lambert in February. Thus, the counts do not charge the
same crime.
V
We accordingly affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before us and argument would not aid the decisional process.
AFFIRMED