                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-4197


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

ANTONIO BARBEE,

                  Defendant - Appellant.



                               No. 12-4260


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

DAVID RICARDO STEWART,

                  Defendant - Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge.   (1:11-cr-00156-JAB-1; 1:11-cr-00156-JAB-
2)


Submitted:   April 23, 2013                       Decided:   May 3, 2013


Before MOTZ and      SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


C. Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham, North
Carolina; J. David James, SMITH, JAMES, ROWLETT & COHEN, LLP,
Greensboro, North Carolina, for Appellants. Ripley Rand, United
States Attorney, Graham T. Green, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

             In    these   consolidated          appeals,     Antonio      Barbee     and

David Ricardo Stewart challenge their convictions on one count

each   of   attempted      interference         with    commerce      by   robbery,    in

violation of 18 U.S.C. §§ 2, 1951(a) (2006), and carrying, using

or brandishing a firearm during and in relation to a crime of

violence,    in    violation    of     18       U.S.C.A.    §§ 2, 924(c)(1)(A)(ii)

(West Supp. 2012).         After a jury trial, Barbee was sentenced to

156 months in prison and Stewart was sentenced to 360 months in

prison.     Although Defendants do not challenge their respective

sentences,    Defendants       lodge    several        challenges      against    their

convictions.       Finding no reversible error, we affirm.

             Stewart first asserts that the district court erred

when it failed to consider his pre-sentencing pro se motion to

dismiss     his    attorney    for    ineffective          assistance      of   counsel.

According     to    Stewart,    his    pro       se    motion,   in    which     Stewart

complained        about    trial      counsel’s         alleged       mistakes,       was

essentially an “inartfully drawn motion for a new trial” for

which he should have been appointed new counsel.

             Although      Stewart’s        sentencing        was     scheduled       for

March 20, 2012, the pro se motion to dismiss was drafted by

Stewart on March 10, 2012, and filed in the district court on

March 13, 2012, nearly five months after his guilty verdict.

When Stewart raised the motion at his sentencing, the district

                                            3
court afforded Stewart an opportunity to explain the reasons for

his     motion,       during     which       time        Stewart    reiterated    several

complaints        about      trial    counsel’s          performance.       The   district

court explained that it would not entertain Stewart’s complaints

about       his   attorney’s         trial   strategy        at    that    juncture,    and

inquired whether Stewart believed he could continue with his

attorney during sentencing.                  Stewart assured the district court

that he could, that he “just wanted to go on record to let [the

district court] know how [he felt] about [his] counsel[,]” and

that he “[d]efinitely” did not have a problem with his attorney

representing him during his sentencing hearing.                           Given Stewart’s

assurances that he wished to proceed with sentencing, we discern

no error in the district court’s decision to move forward with

Stewart’s sentencing.

               Moreover, although Stewart’s motion did not actually

request a new trial, we conclude that even assuming—for the sake

of argument—the district court should have construed Stewart’s

pro se motion as a motion for a new trial, such a motion would

have been untimely.             According to Fed. R. Crim. P. Rule 33, a

motion      for   a    new     trial    based       on    grounds    other    than     newly

discovered evidence 1 must be filed within fourteen days after a



        1
       Although a motion for a new trial predicated on newly
discovered evidence may be filed within three years of a guilty
(Continued)
                                              4
finding of guilty.           Fed. R. Crim. P. 33(b)(2).               “[T]he time

limits set forth in Rule 33 are jurisdictional[.]”                     See United

States v. Smith, 62 F.3d 641, 648 (4th Cir. 1995).                      Thus, we

conclude that had the district court construed the motion as one

seeking a new trial, the district court would have been required

to deny the motion. 2        See id. at 651 (holding that a motion for a

new trial based on ineffective assistance must be filed within

seven (now fourteen) days of a jury verdict).

             Defendants      also     raise   several    objections      to   the

district court’s evidentiary rulings.                 In particular, Stewart

asserts that the district court erred when it allowed:                        (1)

recordings of his telephone conversations into evidence; (2) a

Government witness to testify before the jury, even though she

had   a    head   injury    and   was    medicated;   and   (3)   a    Government

witness to testify about Stewart’s alleged attempts to secure a

false alibi.       Barbee asserts that the district court erred when

it    admitted    into     evidence     Stewart’s   statements    incriminating




verdict, Fed. R. Crim. P. 33(b)(1), Stewart did not argue newly
discovered evidence in his motion.
       2
       Notably, if Stewart wished to pursue his allegations of
ineffective assistance of counsel, he could have done so on this
appeal—which he did not—or may do so by way of a collateral
challenge under 28 U.S.C.A. § 2255 (West Supp. 2012). See id.



                                          5
Barbee because admission of those statements allegedly violated

Barbee’s right to confront witnesses against him.

            We review the preserved evidentiary rulings for abuse

of discretion and will only reverse if we determine that the

rulings    were    “arbitrary     and    irrational.”         United   States       v.

Cloud, 680 F.3d 396, 401 (4th Cir.) (internal quotation marks

omitted), cert. denied, 133 S. Ct. 218 (2012).                 Thus, under Fed.

R. Crim. P. 52(a), the preserved evidentiary rulings are subject

to   harmless     error    review,     “such   that   ‘in     order    to    find    a

district court’s error harmless, we need only be able to 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.

Johnson,    617   F.3d    286,   292    (4th   Cir.   2010)    (quoting      United

States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)).

            As    to   unpreserved      evidentiary   objections,       we   review

for plain error.         See United States v. Cabrera-Beltran, 660 F.3d

742, 751 (4th Cir. 2011) (“An objection to the admission of

evidence must be both specific and timely.”); United States v.

Parodi,    703    F.2d    768,   783    (4th   Cir.   1983)    (“Timeliness         of

objection under [Fed. R. Evid. 103] requires that it be made at

the time the evidence is offered[.]”) (internal quotation marks

omitted).    Under this standard of review, Fed. R. Crim. P. 52(b)

“authorizes an appeals court to correct a forfeited error only

                                          6
if (1) there is an error, (2) the error is plain, and (3) the

error affects substantial rights.”                          Henderson v. United States,

133    S.    Ct.    1121,      1126    (2013)         (internal       quotation       marks   and

brackets omitted).               Because Rule 52 is permissive, we should

correct the error only if it “seriously affects the fairness,

integrity or public reputation of judicial proceedings[.]”                                    Id.

at 1127 (internal quotations marks and brackets omitted).

              With       these   standards            in    mind,     we    reject     Stewart’s

summary argument that the district court abused its discretion

when    it    allowed         the     Government            to   present       into     evidence

recordings of Stewart’s telephone conversations.                               Stewart argues

that    the    four      recordings         about      which     he    complains       “did    not

constitute         an    admission         or    declaration          against       interest[,]”

“lack[ed]      sufficient            context      and       specificity        to     make    them

relevant under [Fed. R. Evid.] 401 and 402[,]” and that their

probative value “was substantially outweighed by the danger of

unfair prejudice, confusion of the issues or misleading the jury

in    violation         of   [Fed.    R.    Evid.]         403[.]”         However,    the    four

conversations about which Stewart complains need not constitute

admissions or declarations against interest—which are exceptions

to the rule against hearsay—because, as the Government correctly

asserted in the district court, since they were statements made

by     Stewart      and      offered        by    an       opposing        party,     all     four

conversations contained statements that were properly admitted

                                                  7
as non-hearsay under Fed. R. Evid. 801(d)(2)(a).                             See United

States v. Wills, 346 F.3d 476, 489-90 (4th Cir. 2003) (holding

that    recordings    of    defendant’s         telephone     conversations           were

admissible     as    admissions       by   a    party-opponent         and    that     his

brother’s     statements    on     those       recordings    were      also    properly

admitted to put defendant’s statements into context).

              Although Stewart summarily argues that the statements

were    irrelevant    and    unfairly      prejudicial,           we   defer    to     the

district court’s decision to the contrary.                      We agree that the

challenged telephone conversations were relevant to the issues

at   trial.     Moreover,    a     district      court     may,     under     Rule    403,

exclude otherwise relevant evidence if the probative value of

the evidence “is substantially outweighed by the danger of . . .

unfair prejudice, confusion of the issues, misleading the jury,

undue delay, waste of time, or needlessly presenting cumulative

evidence.”      Fed. R. Evid. 403.             We will not overturn a district

court’s Rule 403 judgment “except under the most extraordinary

of   circumstances,     where     a    trial     court’s     discretion        has    been

plainly abused.”       United States v. Love, 134 F.3d 595, 603 (4th

Cir. 1998) (internal brackets and quotation marks omitted).                            We

must “examine the evidence in the light most favorable to its

proponent,     maximizing    its      probative      value    and      minimizing      its

prejudicial effect.”         Id. (internal quotation marks omitted).

Given   the    deference    we   afford        the   district     court’s      Rule    403

                                           8
determination, we conclude that the district court’s decision to

admit     the       telephone            conversations          was        not     an     abuse    of

discretion.

               We    also       discern        no     error     in    the     district      court’s

decision to allow the Government to introduce in its case-in-

chief testimony about Stewart’s alleged attempts to secure an

alibi.    In this regard, Stewart asserts that the district court

erred because he presented no evidence at trial about an alibi

and there was no reliable evidence that he sought to procure a

false alibi.           According to Stewart, although evidence showing

consciousness of guilt may be introduced, the Government in this

case    made    no    showing         that     Stewart        coerced       or     instigated     the

witness’s testimony.

               Fed.       R.    Evid.      404(b)          prohibits        evidence      of    other

crimes    or    bad       acts      to    show      bad     character       and    propensity      to

violate    the       law.           However,        evidence         of    other    bad    acts    is

admissible for certain purposes unrelated to a defendant’s bad

character,          such       as   proof        of       “motive,        opportunity,         intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.”          Fed. R. Evid. 404(b).                     This court has “noted that

Rule    404(b)       is    viewed         as   an         inclusive       rule,    admitting      all

evidence of other crimes or acts except that which tends to

prove only criminal disposition.”                            United States v. Gray, 405

F.3d 227, 239 (4th Cir. 2005).

                                                      9
                  For instance, “[e]vidence of witness intimidation is

admissible to prove consciousness of guilt and criminal intent

under Rule 404(b), if the evidence (1) is related to the offense

charged and (2) is reliable.”                   See United States v. Hayden, 85

F.3d       153,    159   (4th   Cir.      1996).      Moreover,        fabrications     of

evidence by a defendant or the submission of false explanations

in    an    attempt      to   aid   a     defense   are    admissible      to   prove    a

defendant’s state of mind.                  See United States v. Hughes, 716

F.2d 234, 240-41 (4th Cir. 1983).                   We have reviewed the record

and    have        considered       the    parties’       arguments      and    find    no

reversible error in the district court’s decision to admit the

challenged statements into evidence. 3

                  Stewart also summarily argues that the district court

erred when it allowed a Government witness to testify at trial

because she was medicated at the time of her testimony due to a

head injury she sustained the day before.                    A witness is presumed

to    be    competent     unless     it    is   shown     that   she    does    not    have

       3
       Even if it was error for the district court to allow the
Government to present evidence of Stewart’s attempts to secure a
false alibi during its case-in-chief, given the remaining
evidence establishing that Stewart committed the attempted
robbery, we find any error to be harmless. See United States v.
Grooms, 2 F.3d 85, 89 (4th Cir. 1993) (concluding that evidence
of defendant’s false alibi was inadmissible as irrelevant, but
finding error harmless “[g]iven the one-sided nature of the
evidence presented”).




                                             10
personal knowledge of the matter about which she testifies, does

not have the ability to recall, or does not understand the oath.

United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982).

“[A] district judge has great latitude in the procedure he may

follow in determining the competency of a witness to testify.”

United States v. Odom, 736 F.2d 104, 111 (4th Cir. 1984).

           In this case, the district court sua sponte conducted

a thorough voir dire outside of the jury’s presence to determine

whether   the     Government’s     witness       was   competent      to    testify,

despite her medicated state.            Although the witness expressed a

desire not to testify and, after inquiry by the district court,

stated    that    the      medication     she    was    taking     could     “cause

inconsistency,”      we    have   found      nothing    in   her   testimony       to

indicate that she did not have personal knowledge of the matters

at hand, that she did not have the ability to recall the events,

or that she did not understand the oath under which she was

testifying.        Given    the   absence       of   evidence    in   the    record

supporting Stewart’s summary assertion to the contrary, and in

light of the district court’s instruction to the jury that the

witness was medicated at the time of her testimony and that the

medication could have an effect on her recollection and ability

to   understand    what     was   taking     place,    we    conclude      that   the

district court did not clearly err in finding that witness was

competent to testify.          See Odom, 736 F.2d at 112-13 (“Whether

                                        11
the witness has such competency is a matter for determination by

the trial judge after such examination as he deems appropriate

and his exercise of discretion in this regard is to be reversed

only for clear error.”).

           Barbee    asserts       that    his   constitutional          right     to

confront witnesses against him was violated because the district

court   allowed   into     evidence   statements          made   by   Stewart    that

incriminated Barbee.         According to Barbee, it was reversible

error for the district court to allow a Government witness to

testify   about   statements       Stewart    made    in     recorded    telephone

conversations     regarding        Barbee’s      telephone        because       those

statements linked Barbee to Stewart and counsel was unable to

cross-examine Stewart regarding those statements.                      Barbee also

asserts that it was reversible error for the district court to

allow into evidence a recorded telephone conversation Stewart

had with his mother, during which Stewart said the Government

had “us on camera in the area.”               Because Barbee was allegedly

“referenced     directly     and   explicitly        on    the    face   of     these

statements[,]” Barbee summarily asserts that their introduction

constituted constitutional error under Bruton v. United States,

391 U.S. 123 (1968).

           In Bruton, the Supreme Court held that admission of a

statement inculpating a co-defendant in a joint trial violates

the co-defendant’s rights under the Confrontation Clause if the

                                      12
statement directly incriminates the co-defendant.                   Id. at 126.

A   Bruton     problem    exists    “only     to     the   extent       that   the

codefendant’s statement in question, on its face, implicates the

defendant.”     United States v. Locklear, 24 F.3d 641, 646 (4th

Cir. 1994).     Thus, redaction of the co-defendant’s incriminating

statement, combined with a limiting instruction, may satisfy the

Confrontation Clause.        See Richardson v. Marsh, 481 U.S. 200,

211 (1987).     This Court reviews de novo whether the admission of

evidence     violated    Barbee’s    rights        under   the    Confrontation

Clause.      United States v. Lighty, 616 F.3d 321, 376 (4th Cir.

2010).

             We have reviewed the record and find that:                   (1) the

Government    witness’s    testimony      before     the   jury   was    facially

benign as it related to Barbee and, thus, did not implicate

Bruton, see Marsh, 481 U.S. at 211 (holding that Confrontation

Clause is not violated even when the confession “inferentially

incriminates” defendant and other evidence admitted subsequently

at trial clearly links the defendant to the statement in an

inculpatory manner); (2) the use of the word “us” to refer to

the existence of another person who may be a co-defendant did

not render Stewart’s conversation with his mother inadmissible,

see United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir. 1999)

(holding that redacted statements that refer to the existence of

another person who may be a co-defendant through the use of

                                     13
symbols or neutral pronouns may be admissible); see also United

States v. Min, 704 F.3d 314, 320-21 (4th Cir. 2013) (holding

that co-defendant’s statement that contained general references

without “facial incrimination” to others who may (or may not) be

co-defendants      did       not   violate        Bruton);         and     (3)    the       district

court’s instructions that the recorded telephone conversations

should only be used against Stewart helped guard against any

constitutional error, see United States v. Chong Lam, 677 F.3d

190, 204 (4th Cir. 2012) (“[J]uries are presumed to follow their

instructions.”)          (internal          quotation              marks        and        citations

omitted).    Accordingly, we find no violation of Barbee’s rights

under the Confrontation Clause.

            Last,       we    discern       no    error       in    the     district         court’s

decision    to    deny       Defendants’          Fed.       R.    Crim.    P.        29   motions.

Because    Defendants         assert     that         the    Government’s         evidence         was

insufficient       to        establish       they        were       the     individuals            who

attempted to rob the coin store, the jury’s verdict will be

sustained “if there is substantial evidence, taking the view

most favorable to the Government, to support it.”                                United States

v.   Whitfield,     695       F.3d     288,      310        (4th    Cir.    2012)          (internal

quotation marks and citation omitted), cert. denied, 133 S. Ct.

1461   (2013).           Substantial             evidence          is     “evidence         that    a

reasonable       finder       of     fact        could       accept        as    adequate          and

sufficient to support a conclusion of a defendant’s guilt beyond

                                                 14
a reasonable doubt.”             United States v. King, 628 F.3d 693, 700

(4th Cir. 2011) (internal quotation marks omitted).

            In resolving issues of substantial evidence, we may

not     reweigh     the     evidence     or     reassess      the     factfinder’s

determination of witness credibility, and we must assume that

the jury resolved all contradictions in testimony in favor of

the Government.           See United States v. Roe, 606 F.3d 180, 186

(4th Cir. 2010).          Thus, a defendant challenging the sufficiency

of the evidence faces a heavy burden.                   See United States v.

Bonner, 648 F.3d 209, 213 (4th Cir. 2011).                  We have reviewed the

record de novo, see Cloud, 680 F.3d at 403, and have considered

the parties’ arguments and conclude that the Government produced

sufficient evidence to support the jury’s convictions.

            Based on the foregoing, we affirm the district court’s

judgments.      We dispense with oral argument because the facts and

legal    contentions       are    adequately    presented     in    the   materials

before   this     court    and    argument    would   not   aid     the   decisional

process.

                                                                            AFFIRMED




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