United States v. Gable

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 3, 2003
• Docket: 02-60990
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 3, 2003

Charles R. Fulbruge III Clerk No. 02-60990 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

TYRANT O’NEAL GABLE also known as Sealed Defendant 1

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 02-CR-26-1-BrR --------------------

Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Tyrant O’Neal Gable appeals his jury conviction of being a

felon in possession of a firearm. Gable argues that the district

court abused its discretion in admitting portions of a videotape

from Gable’s previous arrest into evidence for impeachment

purposes because the videotape’s prejudicial value outweighed its

probative value.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-60990 -2-

Here, the district court properly allowed in only those

portions of the videotape that impeached Gable’s statement that

he would never fight with a police officer. See United States v.

Lollar, 606 F.2d 587, 588 (5th Cir. 1979). The district court

weighed the prejudicial value against the probative value of the

videotape and determined that only portions of the videotape

should be admitted, and the court allowed Gable the opportunity

to explain the videotape. Additionally, the district court

instructed the jury that the videotape was not being admitted to

prove the content of the statements on it but only to determine

whether those statements were consistent with Gable’s trial

testimony. The district court did not abuse its discretion. See

United States v. Perez, 217 F.3d 323, 329-30 (5th Cir. 2000).

Gable also argues that the district court erred in admitting

photographs of injuries sustained by the police officer because

those photographs were not relevant and were merely cumulative.

In admitting the photographs, the district court performed the

required balancing test and determined that nothing in them would

shock the conscience. Gable has not shown that the district

court abused its discretion in admitting the photographs. See

United States v. Hays, 872 F.2d 582, 587 (5th Cir. 1989).

Gable argues that the district court erred in admitting into

evidence an exhibit because it was not properly authenticated.

Even if the document arguably is not self-authenticating under

FED. R. EVID. 902(4), the district court did not err in admitting No. 02-60990 -3-

it because there was sufficient evidence to support a finding

that that document was what the Government claimed it to be. See

United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir.

1989). Moreover, the contents of the document were consistent

with the testimony at trial of the probation officer, who had

determined that Gable previously had been convicted of grand

larceny, and Gable’s own testimony. The district court did not

abuse its discretion in admitting the document. See id.

Gable argues that the district court erred in overruling his

motion for judgment of acquittal because there was insufficient

credible evidence to show beyond a reasonable doubt that he was

the person in possession of the firearm. A review of the record

reveals sufficient evidence to support the verdict. The officer

testified that he observed the handle of a gun in Gable’s

waistband and that, in the course of fighting with Gable, the gun

fell out of Gable’s waistband. Although the jury also heard the

testimony of two bystanders who said that they saw Gable’s

brother, not Gable, with a gun, that testimony is not necessarily

inconsistent with the officer’s testimony.

Gable also argues that the district court abused its

discretion in allowing the Bureau of Alcohol, Tobacco, and

Firearms (ATF) agent to testify as an expert in interstate

transportation of firearms. Here, the ATF agent had been an

agent with the ATF for approximately three years and three months

and had completed the only ATF-required course in nexus training. No. 02-60990 -4-

The district court did not abuse its discretion in accepting him

as an expert based on his training and experience. See United

States v. Townsend, 31 F.3d 262, 270 (5th Cir. 1994).

Gable argues, to preserve the issue for further review, that

Apprendi v. New Jersey, 530 U.S. 466 (2000), is applicable

because the Government was attempting to enhance his sentence

using the existence of an uncharged felony. Where, as here, the

defendant’s sentence is below the maximum authorized by statute,

Apprendi is inapplicable. See United States v. Doggett, 230 F.3d

160, 165 (5th Cir. 2000). As Gable concedes, his Apprendi

challenge is foreclosed.

Gable also argues that the facts of the altercation with the

police officer showed only a misdemeanor and not a felony and

therefore the district court should not have enhanced his

sentence under U.S.S.G. § 2K2.1(b)(5).

The record supports the district court’s determination that

at least a preponderance of evidence supported a finding that

Gable was engaged in a serious altercation with the officer,

which was a felony offense. See United States v. McKinney, 53

F.3d 664, 677 (5th Cir. 1995). The officer testified that the

reason he grabbed Gable was to protect the bystanders. He did

not testify that he grabbed Gable to arrest him. The officer

explained that, once he grabbed Gable, Gable began fighting with

him violently and that Gable knew who he was because he had

spoken with him before and the officer was in uniform. The No. 02-60990 -5-

district court did not clearly err in applying U.S.S.G.

§ 2K2.1(b)(5). See United States v. Edwards, 65 F.3d 430, 432

(5th Cir. 1995).

Finally, Gable argues that the cumulative effect of all of

the errors deprived him of a fair trial, requiring that his

conviction be reversed and the matter remanded for a new trial.

Because Gable has not demonstrated any error in his trial, this

issue lacks merit. The judgment of the district court is

AFFIRMED.