United States v. Elswick

306 F. App'x 8
CourtCourt of Appeals for the Fourth Circuit
DecidedDecember 31, 2008
Docket06-4693
StatusUnpublished
Cited by2 cases

This text of 306 F. App'x 8 (United States v. Elswick) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Elswick, 306 F. App'x 8 (4th Cir. 2008).

Opinions

[9]*9PER CURIAM:

Kad Elswick (“Elswick”), was convicted of four counts: Count One, possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); Count Two, possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); Count Three, use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and Count Four, failure to appear in violation of 18 U.S.C. § 3146(a)(1). Elswick appeals all of his convictions except that for failure to appear.

As discussed below, Elswick’s challenges to Counts One and Two lack merit, and we affirm as to those. On these facts, however, following the Supreme Court’s decision in Watson v. United States, — U.S.—, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007), his conviction under 18 U.S.C. § 924(c)(1)(A) can no longer be supported. We therefore reverse as to that count and remand for resentencing.

I.

Federal agents approached Elswick in September 2004 in connection with an investigation into Larry Blackburn, a Virginia drug dealer. J.A. at 47-48. The agents initially told Elswick that he was not being investigated but that they were merely seeking information regarding a firearm that he had allegedly possessed. J.A. at 64. In the course of the conversation, the agents learned that Elswick was a convicted felon. Subsequently, Elswick was indicted on four counts related to drug possession and distribution, the possession of a firearm, and failure to appear. J.A. at 16-17.

At trial, Eric Woods testified for the government that he had stolen his father’s gun in order to trade it for drugs. He claimed that he gave the gun to his friend, Terry Looney, who took the gun into a home and returned without it. J.A. at 22-24. Eric Woods did not know who lived in the home or who received the gun from Looney; and Looney did not testify at trial. Later that same day, the two drove to a convenience store parking lot. There, Looney approached a parked car. Elswick was seated in the driver’s seat. Eric Woods testified that Elswick gave Looney “a bag” that contained methamphetamine. J.A. at 24-26.

Lloyd Woods, Eric’s father, then testified that he received a call from Elswick sometime later. Elswick stated that he had Lloyd Woods’s gun and would return the gun to Lloyd Woods in exchange for a payment of $50. Lloyd Woods agreed and drove to Elswick’s home where he gave Elswick $50. The gun, however, was not located at Elswick’s home, and the two men had to wait until a female arrived with the gun, at which point it was returned to Lloyd Woods. J.A. at 39-40, 82-83.

When questioned by federal agents, Elswick admitted to having bought a gun from two boys that matched the description of that owned by Lloyd Woods. Elswick disputed any implication that drugs were involved in the transaction. J.A. at 49-50. He then claimed that Blackburn, to whom he had sold or pawned the gun, told him to return it to Lloyd Woods since it had a defect. He signed a copy of a statement setting forth those facts. J.A. at 50, 134. At trial, Elswick claimed that the statement he gave to investigators was not true and offered a different account of how he came to sell the gun back to Lloyd Woods. His trial testimony centered on the fact that his long-time live-in girlfriend had bought the gun and that he lied when investigators questioned him because at [10]*10the time she was dying of cancer and he wanted to protect her. J.A. at 84-85.

Elswick also failed to appear before the court, one of the conditions of his supervised release. Following his jury trial, Elswick was convicted on all counts. He timely filed this appeal.

II.

Elswick alleges that there is insufficient evidence in the record to support his convictions on possession of methamphetamine with intent to distribute, being a convicted felon in possession of a firearm, and using a firearm in relation to or possessing a firearm in furtherance of a drug crime. Challenges to the sufficiency of evidence are reviewed de novo. United States v. Kelly, 510 F.3d 433, 440 (4th Cir.2007). A court reviews a jury verdict to determine whether “there is substantial evidence, taking the view most favorable to the Government, to support [the verdict].” United States v. Burgos, 94 F.3d 849, 863 (4th Cir.1996) (en banc) (citation omitted). The court therefore looks to see whether, based upon the evidence in the record “and the reasonable inferences to be drawn therefrom[,] ... the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt.” Id. at 863 (quoting United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984)) (internal quotations omitted); see also Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (“[T]he critical inquiry ... [is] whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt”). We discuss each of Elswiek’s bases for appeal in turn.

A.

Elswick first challenges the sufficiency of the evidence on which his conviction for the possession of methamphetamine with intent to distribute is based.

This challenge is without merit. In order to convict Elswick, the government was required to show that he knowingly possessed the controlled substance in question and intended to distribute it. See United States v. Randall, 171 F.3d 195, 209 (4th Cir.1999). The government here presented eyewitness testimony from Eric Woods that Elswick both possessed and distributed methamphetamine. Witness testimony that could be credited by a reasonable juror is itself “sufficient to sustain the jury verdict.” United States v. Whittington, 455 F.3d 736, 740 (6th Cir.2006); see also United States v. Catalan-Vazquez, 211 F. App’x 864, 866 (11th Cir.2006) (unpublished) (holding that a jury may base its verdict on any testimony not “unbelievable on its face” or “so contrary to the teachings of human experience that no rational person could believe in it” (quoting United States v. Jones, 913 F.2d 1552, 1559 n. 7 (11th Cir.1990))); United States v. Carpenter, 422 F.3d 738, 746 (8th Cir.2005) (finding that corroboration of witness testimony is not required because credibility is for the jury to determine). Because a reasonable jury could have found Eric Woods’s testimony credible and because that testimony was a sufficient basis for the conviction, Elswick’s challenge fails.

B.

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Related

United States v. Elswick
364 F. App'x 19 (Fourth Circuit, 2010)

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Bluebook (online)
306 F. App'x 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-elswick-ca4-2008.