                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4248


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JOSEPH SAMUEL HALL,

                Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cr-00034-FPS-JES-1)


Argued:   February 1, 2013                 Decided:   March 20, 2013


Before KING, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge King and Judge Thacker joined.


ARGUED: Edward Lee Gillison, Jr., GILLISON LAW OFFICES, Weirton,
West Virginia, for Appellant.     David J. Perri, OFFICE OF THE
UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
ON BRIEF: William J. Ihlenfeld, II, United States Attorney,
Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

        Joseph Samuel Hall appeals his conviction for being a felon

in possession of firearms in violation of 18 U.S.C. § 922(g).

Finding no merit in his appellate contentions, we affirm.



                                          I.

        Because the government prevailed at trial, we review the

evidence in the light most favorable to the government.                       United

States v. Jefferson, 674 F.3d 332, 341 n.14 (4th Cir. 2012).                        On

February 19, 2011, Hall, a convicted felon, entered a Cabela’s

retail store near Wheeling, West Virginia, with an acquaintance

named Airiel Underwood.            There, Underwood attempted to buy two

guns.     Cabela’s ran a background check on Underwood through the

National Instant Criminal Check System (“NICS”), which did not

immediately       approve   the    transaction.           Consequently,      Cabela’s

refused    to    complete    the   sale.        However,    because    it    did   not

receive notification from NICS within three business days that

Underwood       was   ineligible     to        purchase    the    guns,     Cabela’s

eventually allowed Underwood to purchase the guns.                          Underwood

and   Hall      returned    to   Cabela’s      on   February     27   to    make   the

purchase.

        During the February 27 visit, Cabela’s sales clerk Miranda

Cordery noticed that Hall stayed very close to Underwood.                      Then,

after Underwood purchased the guns, Hall stated that they would

                                           2
need   ammunition.        Cordery   then    discussed      different    types     of

ammunition with Hall, and he selected ammunition for Underwood

to purchase.     After leaving Cabela’s with Hall, Underwood placed

the guns and ammunition in the trunk of Hall’s car and rode with

him to her apartment, where he dropped her off and drove away

with the guns and ammunition.           Hall gave Underwood the money to

purchase the guns and additional money for her assistance.

       Shortly   thereafter,    NICS    determined      that      Underwood      was

prohibited from purchasing the guns because of a recent drug

offense.     Accordingly      Joe   Price,    an   agent    of    the   Bureau    of

Alcohol, Tobacco, and Firearms (“A.T.F”), attempted to retrieve

the guns from Underwood, but she told Price that she had given

the guns to her boyfriend.           Underwood gave Price a fictitious

name for her boyfriend, but Price determined that Underwood had

given the guns to Hall and arranged for Hall to be arrested near

his home in Detroit, Michigan.               Eventually, one of the guns,

identified by serial number, was found approximately eight miles

from Hall’s home.

       Hall was indicted for aiding and abetting a false statement

in   acquisition     of   a   firearm   in    violation      of    18   U.S.C.     §

922(a)(6) and for being a felon in possession of firearms in

violation of 18 U.S.C. § 922(g) & 2(a).             A jury acquitted him on

the first count but convicted him on the second.                  He now appeals

that conviction.

                                        3
                                        II.

                                        A.

       We turn first to Hall’s contention that the district court

erred by denying his motion for acquittal, in which he argued

that    the   evidence      was     insufficient     to     establish    that   he

possessed the guns.         We review challenges to the sufficiency of

the evidence de novo, United States v. Alerre, 430 F.3d 681, 693

(4th Cir.2005), and we must sustain the verdict if there is

substantial evidence, viewed in the light most favorable to the

government, to support it.           Burks v. United States, 437 U.S. 1,

17 (1978).       Here, we find that the evidence was sufficient to

support Hall’s conviction.

       To sustain a conviction for being a felon in possession of

firearms, constructive possession is sufficient.                   United States

v. Gallimore, 247 F.3d 134, 136-37 (4th Cir. 2001).                     “A person

has constructive possession over contraband when he has                     . . .

control   over    the   .   .   .   vehicle    in   which    it   is   concealed.”

United States v. Armstrong, 187 F.3d 392, 396 (4th Cir. 1999).

As noted, evidence at trial established that Underwood and Hall

purchased the guns together in Cabela’s.                  They left the store

together and proceeded to Hall’s car, where Underwood placed the

guns in the trunk.          Hall then took Underwood to her apartment

and drove away with the guns.                This evidence is sufficient to

establish that Hall had constructive possession of the guns.

                                         4
Accordingly, we affirm the district court’s denial of the motion

for acquittal.

                                         B.

      We turn next to Hall’s challenge to the district court’s

decision to allow Cordery to testify about Underwood and Hall

purchasing ammunition.         Hall contends that Cordery’s testimony

was evidence of other crimes offered to prove bad character,

which should have been excluded under Fed. R. Evid. 404(b).              The

district court disagreed for several reasons, including that the

testimony was not admitted to show bad character but rather to

provide    context     for   the   gun   purchase.    The   district    court

concluded that, under United States v. Kennedy, 32 F.3d 876,

885-86 (4th Cir. 1994), the testimony was admissible for that

purpose.    We review the district court’s decision to admit this

testimony for abuse of discretion.            United States v. Lighty, 616

F.3d 321, 351 (4th Cir. 2010).

      Fed. R. Evid. 404(b) limits the circumstances under which

“[e]vidence of a crime, wrong, or other act” may be admitted,

but   “evidence   of    uncharged    conduct    is   not   considered   other

crimes evidence [and falls outside the scope of Rule 404(b)] if

it arose out of the same series of transactions as the charged

offense, or if it is necessary to complete the story of the

crime on trial.”        Kennedy, 32 F.3d at 885 (internal quotations

and alterations omitted).          Here, the ammunition purchase arose

                                         5
out of the same series of events as the gun purchase.                              Further,

since the government’s case depended upon proving that Underwood

was a straw buyer for Hall, showing that Hall asked to buy

ammunition       and       chose    the   type      of     ammunition        to    buy       was

“necessary to complete the story of the crime on trial.”                                     Id.

(internal quotations and alterations omitted).                           Therefore, this

testimony was admissible under Kennedy, and the district court

did not abuse its discretion by allowing it.

                                             C.

       Hall next challenges the district court’s decision to admit

into evidence the gun recovered near his home in Detroit.                                     On

that    point,      Hall    argues    that    the    district        court     should       have

excluded the gun under Fed. R. Evid. 403 because its probative

value    was     substantially       outweighed          by    the   danger       of    unfair

prejudice.           We     review    evidentiary             rulings    for      abuse       of

discretion.         Lighty, 616 F.3d at 351.              Here, we find no abuse of

discretion and affirm the district court’s ruling.

       Fed.    R.    Evid.    403    states       that   relevant       evidence       may    be

excluded if its “probative value is substantially outweighed by

a danger of . . . unfair prejudice.”                            Hall argues that the

unfair prejudicial value of the gun was high in relation to its

probative      value       because    the     gun    was       not   recovered         in    his

possession.         However, there was ample evidence linking the gun

to Hall, including the fact that its serial number matched the

                                              6
serial    number     on   one     gun   Underwood   purchased      for   Hall    at

Cabela’s.     With that evidence linking the gun to Hall, the fact

that it was recovered in someone else’s possession does little,

if anything, to diminish its probative value or increase the

danger of unfair prejudice.              Therefore, we find no abuse of

discretion in the district court’s decision to admit the gun,

and we affirm that ruling.

                                         D.

       We now turn to Hall’s challenge to the district court’s

decision to deny his motion for a mistrial.                     In that motion,

Hall contended that the government improperly argued to the jury

that     Underwood    had    no     motive    to    lie   to     inculpate      him.

Specifically, the government stated in its closing argument:

       Defense counsel has gone to great lengths to try to
       suggest to you that [Underwood] – her credibility is
       suspect and you can’t believe what she says.     Well,
       what has the defense suggested to you as to her motive
       to incriminate this guy? Why? What motive?

J.A. 609.      The court denied the motion for a mistrial, after

which the government continued to encourage the jury to question

what motive Underwood had to inculpate Hall.                   We review whether

allegedly improper remarks from counsel require a mistrial de

novo.     United States v. Collins, 415 F.3d 304, 307 (4th Cir.

2005).    Finding no error, we affirm.

       To obtain a new trial based on improper remarks from the

government, a defendant must show that the remarks were improper

                                          7
and that they affected the defendant’s substantial rights to

such a degree that they deprived him of a fair trial.                         United

States v. Chorman, 910 F.2d 102, 113 (4th Cir. 1990).                         Here,

Hall argues that the government’s remarks were improper because

there was evidence that Underwood had a motive to lie, but Hall

points to no such evidence.              In fact, the only evidence he

points to is testimony from Underwood that she initially lied to

the A.T.F. in an attempt to exonerate, not inculpate, herself

and Hall.     Therefore, the government’s remarks questioning what

motive Underwood had to inculpate Hall were not inconsistent

with   the   evidence    or   improper       in    any   way.    Accordingly,    we

affirm the district court’s decision to deny the motion for the

mistrial.



                                     III.

       The final two issues we address pertain to the government’s

investigation and trial preparation.                     We begin by recounting

additional    facts     and    procedural         history    pertinent   to   these

issues.

       Prior to Hall’s trial, Price showed Cordery a black and

white photograph of Hall and asked her whether the photograph

showed the person who had accompanied Underwood into Cabela’s on

the two occasions described above.                 Cordery responded that “the

picture was too bad.          It was too grainy.            [She] couldn’t really

                                         8
tell.” 1      J.A. 280.           Counsel for the government represented to

this Court at oral argument that Price made no notes pertaining

to this conversation with Cordery.

       Under the district court’s Initial Scheduling Order, the

government was required to disclose all exculpatory evidence by

October 3, 2011, and was requested to disclose all “statements

or   reports”        from    prospective         witnesses    by    December       6,   2011.

(Dist.      Ct.   Doc.      18,    ¶    7,    requesting    disclosure        of   “material

described in 18 U.S.C. § 3500,” which requires disclosure of

“statements or reports” from witnesses.)                      The government did not

disclose the fact that Price had conducted the photo display or

that Cordery could not definitively identify Hall in it.

       At    trial,      the      government      asked    Cordery       to   identify     the

person      who   had      accompanied         Underwood    into    Cabela’s.           Hall’s

counsel, unaware that Cordery had been unable to identify Hall

in the photo display, objected and claimed that the in-court

identification was “cumulative.”                      J.A. 261.    The district court,

also       unaware    of     the       display,       overruled    the    objection,       and

Cordery      identified        Hall      as    Underwood’s    companion.           Then,    on


       1
       At sentencing, Price testified about the photo display and
explained that “Ms. Cordery stated that it was a grainy photo
and she was pretty sure. She gave, like, maybe 90 percent, but
she couldn’t say that she was 100 percent sure” that the
photograph depicted the person who accompanied Underwood into
the store. J.A. 692.



                                                  9
cross examination, Hall’s counsel asked Cordery whether she had

ever seen a photo of Hall, and she testified about the photo

display          and   her   inability    to      identify   Hall   in      it.    This

testimony was the first notice Hall or the court received of the

display.          At this point, Hall’s attorney made no objection or

motion based on the government’s failure to disclose the photo

display.          Further, at closing argument, Hall’s counsel admitted

that Hall was the person with Underwood in Cabela’s during at

least one of the visits.              Also, at oral argument to this Court,

Hall’s      counsel      conceded     that     Hall’s    identity      as   Underwood’s

companion is not contested. 2

       On appeal, Hall raises two issues that involve the display.

First,      he     contends    that   Cordery’s      in-court    identification      of

Hall       was     tainted    by   the   display,       which   Hall    contends   was

improperly          suggestive.       Second,      he   contends    that     Cordery’s

inability to identify him in the photo display was exculpatory

evidence that the government should have disclosed under Brady

v. Maryland,           373 U.S. 83 (1963).          The parties agree that plain

error review is appropriate for the Brady issue, but they argue

for different standards of review on the objection to the in-


       2
       There was ample evidence beyond Cordery’s testimony that
Hall was, in fact, Underwood’s companion in the store.     This
evidence included but was not limited to Underwood’s testimony
and store video showing Hall with Underwood.



                                             10
court identification.           We need not resolve this dispute because,

with regard to both issues, the standard of review does not

affect our decision.

      Fed. R. Cr. P. 52(a) directs that “[a]ny error, defect,

irregularity,      or    variance       that   does    not    affect      substantial

rights    must    be    disregarded.”          “Under      [this]    harmless-error

standard,    we    will    not    reverse      if     we   can    ‘say,    with   fair

assurance, after pondering all that happened without stripping

the erroneous action from the whole, that the judgment was not

substantially swayed by the error.’”                   United States v. Byers,

649 F.3d 197, 211 (4th Cir. 2011) (quoting Kotteakos v. United

States, 328 U.S. 750, 765 (1946)).                Here, even if we assume that

the photo display was improperly suggestive, 3 that it affected

Cordery’s    in-court      identification,          and    that     the    government

should have disclosed Cordery’s inability to identify Hall, none

of   those   points     could    have    swayed     the    outcome   of    the    trial

because Hall does not contest that he was, in fact, the person

with Underwood at Cabela’s.                Accordingly, the alleged errors


      3
       The Supreme Court and this Court have stated that single-
photograph displays are unduly suggestive and should generally
be viewed with suspicion.    See Manson v. Brathwaite, 432 U.S.
98, 116 (1977) (explaining that identifications “arising from
single-photograph displays may be viewed in general with
suspicion”); United States v. Johnson, 114 F.3d 435, 441-42 (4th
Cir. 1997) (concluding that the use of a “single photograph
display” for pretrial identification was unduly suggestive).



                                          11
concern   an   issue   that   is   not    in   dispute—Hall’s   presence   at

Cabela’s—so they are harmless and do not entitle Hall to relief.



                                     IV.

     For the foregoing reasons, we affirm Hall’s conviction.

                                                                   AFFIRMED




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