UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 96-4005

KENNETH JAMES HANNAH,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-95-7)

Submitted: October 6, 1998

Decided: December 31, 1998

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

John D. Elliott, Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Alfred W. Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Kenneth James Hannah ("Hannah") was convicted of conspiracy to
possess with intent to distribute cocaine base in violation of 21 U.S.C.
§ 846 (1994), possession with intent to distribute cocaine base in vio-
lation of 21 U.S.C. § 841 (1994), and using and carrying a firearm
during and in relation to a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1). He was subsequently sentenced to 420 months'
imprisonment. Hannah now appeals his conviction and sentence.
Finding no reversible error, we affirm.

While being followed by police on March 4, 1994, Hannah aban-
doned the blue Lincoln Continental ("Lincoln") he was driving. The
police kept the Lincoln under surveillance and a white male, not Han-
nah, approached the vehicle with a key and began entering the Lin-
coln. The white male consented to a search of the Lincoln. A
subsequent search uncovered a loaded weapon in the car which was
in easy reach of the driver of the vehicle and a large amount of crack
cocaine. Hannah was identified by Government witnesses as the
driver of the vehicle. However, the Lincoln was owned by Budget
Rent-A-Car and rented by Hannah's wife; Hannah was not listed as
an authorized driver of the vehicle. Hannah was later charged and
convicted based on these facts.

Before trial, Hannah moved to suppress the drugs found in the
vehicle alleging that the search violated his Fourth Amendment rights.
The Government countered that Hannah lacked standing to contest
the search. Following a hearing on the matter, the district court denied
the motion to suppress, finding that Hannah failed to demonstrate that
he possessed a reasonable expectation of privacy in the contents of
the rented Lincoln. Hannah now alleges that the district court erred
in denying his suppression motion.

We review de novo the trial court's conclusions involved in a sup-
pression determination, but the factual determinations forming those
conclusions are reviewed under a clearly erroneous standard. See
United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). To chal-
lenge the validity of a search, a defendant must demonstrate a reason-

                    2
able expectation of privacy in the area searched. See Rawlings v.
Kentucky, 448 U.S. 98, 104-05 (1980). The defendant bears the bur-
den of establishing a reasonable expectation. Id.

We have held that an unauthorized driver of a rental vehicle has no
legitimate privacy interest in the car. Therefore, the search of the Lin-
coln did not violate Hannah's Fourth Amendment rights. See United
States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994). Hannah contends
that this case is distinguishable from Wellons because his wife rented
the vehicle and she had given him permission to use the vehicle. We
have expressly stated that "[a]lthough the appellant herein may well
have had [the renter's] permission to drive the automobile, he did not
have the permission of Hertz Corporation, the owner of the automo-
bile." Id. at 119 n.2. Similarly, Hannah did not have permission from
Budget Corporation to drive the Lincoln.

Furthermore, Hannah testified that he had no interest in the Lincoln
on the day in question and offered no evidence that he was given per-
mission to drive the Lincoln. Because Hannah failed to produce any
evidence to demonstrate a legitimate expectation of privacy and the
district court's findings of fact were not clearly erroneous, he failed
to show a violation of his Fourth Amendment rights. Accordingly, we
find that the district court properly denied Hannah's motion to sup-
press.

Hannah also claims that the district court erred by failing to grant
his motions for a mistrial and for a new trial. Hannah moved for a
mistrial because a Government witness allegedly violated the court's
sequestration order by discussing her testimony with another Govern-
ment witness. We reject this argument because the record clearly
demonstrates that no violation of the sequestration order occurred.
Hence, the district court did not abuse its discretion in denying the
motion. See United States v. Alonzo, 689 F.2d 1202, 1204 (4th Cir.
1982) (denial of a motion for a mistrial reviewed for abuse of discre-
tion).

Hannah also suggests that the district court erred when it denied his
motion for a new trial based on newly discovered evidence that a vio-
lation of the court's sequestration order occurred. We also reject this
argument because Hannah was unable to state which witnesses vio-

                     3
lated the court's sequestration order or whether their testimony was
affected by this alleged violation. Consequently, Hannah was unable
to show that the introduction of this evidence would result in an
acquittal at a new trial. Therefore, the district court did not abuse its
discretion in denying Hannah's motion for a new trial. See United
States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995) (denial of a
motion for a new trial reviewed for abuse of discretion).

During trial Hannah also moved to have the drugs recovered from
the Lincoln excluded asserting that the evidence was tampered with
because the drugs were in a different bag than they were in when the
evidence left the crime laboratory. Hannah points to the fact that the
forensic chemist who performed the analysis of the drugs testified that
he could not be certain that the Government's evidence was in fact
the same evidence that he had tested because the drugs were now in
a different bag. However, testimony revealed that the evidence was
placed in a different bag because Hannah and his attorneys in a
related state matter had received authority from the court to open the
bag that contained the drugs so his attorneys could examine the con-
tents. Thereafter, the evidence was resealed in a different bag. Based
on this testimony, we find that the district court did not abuse its dis-
cretion in holding that the chain of custody was complete, and the
court properly denied Hannah's motion. See United States v. Howard-
Arias, 679 F.2d 363, 366 (4th Cir. 1982) (resolution of a chain of cus-
tody dispute rests within the sound discretion of the trial judge).

Hannah also requested permission to weigh the drugs that were
actually present in the courtroom to establish that officials had tam-
pered with the evidence. Here the weight of the drugs was not an ele-
ment of the offense. Further, the evidence was transported and
weighed prior to the time the bag was opened at the request of Han-
nah and his attorney in state court. Consequently, we hold that the dis-
trict court did not abuse its discretion by not allowing the defense to
weigh the evidence. See Sasaki v. Class, 92 F.3d 232, 241 (4th Cir.
1996) (evidentiary rulings are entitled to substantial deference and
will not be reversed absent a clear abuse of discretion).

Finally, Hannah contends that his § 924(c)(1) conviction must be
vacated because the district court misinstructed the jury in light of the
Supreme Court's decision in Bailey v. United States, 516 U.S. 137

                     4
(1995), which subsequent to his conviction clarified the meaning of
"use" under the statute. Hannah argues that under Bailey the mere
presence of a firearm under the seat of an automobile, when there was
no evidence of active employment of the weapon, is not enough to
warrant a conviction under § 924(c)(1). Because Hannah did not
object to the instruction on § 924(c)(1) given to the jury, we review
for plain error. See United States v. Olano, 507 U.S. 725, 731-32
(1993).

We find that the district's error in instructing the jury does not
require reversal. While this court has been reluctant in the past to
apply a harmless error analysis in Bailey cases,1 we find that the facts
of this case make such an analysis appropriate. 2 The district court
instructed the jury that the Government had to prove beyond a reason-
able doubt that the firearm was in Hannah's possession or under his
control at the time the drug trafficking crimes were committed. The
only evidence the Government presented as to firearm use was the
fact that when Hannah abandoned the rental car a loaded gun was
found within easy reach of the driver's seat. Therefore, in order to
convict him of this offense, the jury had to find that Hannah trans-
ported the drugs and the firearm in the rental car on March 4, 1994.
Because the evidence overwhelmingly supported the jury's finding of
guilt, because this conduct constitutes "carrying" under § 924(c)(1),
and because there was no evidence that might have provided an
improper basis for a § 924(c)(1) conviction, we hold that any error in
the court's instructions was harmless beyond a reasonable doubt. See
United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997). Conse-
quently, Hannah is not entitled to any relief from his conviction on
the firearm count based on Bailey.
_________________________________________________________________
1 See United States v. Hawthorne , 94 F.3d 118, 120 (4th Cir. 1996);
United States v. Smith, 94 F.3d 122, 124 (4th Cir. 1996).

2 See United States v. Chen, 131 F.3d 375, 380 (4th Cir. 1997), cert.
denied, ___ U.S. ___, 35 U.S.L.W. 3576 (U.S. Mar. 2, 1998) (applying
harmless error analysis). See also Johnson v. United States, 520 U.S. 461
(1997) (stating that misinstructing the jury on an essential element of the
offense, unlike conclusively instructing or failing to instruct the jury, is
an error which is subject to harmless error analysis).

                    5
Accordingly we affirm Hannah's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the material before the court and argument
would not aid in the decisional process.

AFFIRMED

                    6
