UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 97-4784
EVERETT CEASAR GRIER, a/k/a
Timothy Jerome Avery,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-97-83)

Submitted: February 16, 1999

Decided: March 18, 1999

Before WILKINS and TRAXLER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joel S. Trilling, Asheville, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, William A. Brafford, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Everett Ceasar Grier was convicted by a jury of one count of pos-
session with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (1994), and one count of carrying a firearm in relation to
a drug trafficking crime in violation of 18 U.S.C.A.§ 924(c)(1) (West
1994 & Supp. 1998). He was sentenced to a 248 month term of
imprisonment. He appeals his conviction. Finding no reversible error,
we affirm.

Grier was arrested after the automobile in which he was a passen-
ger was stopped by a police officer responding to a trespassing com-
plaint at an apartment complex. Pursuant to a consent search of the
vehicle, a bag containing 323.3 grams of cocaine base was found on
the floor of the automobile, partially under Grier's seat. When the
officer frisked Grier he found a loaded weapon in Grier's waistband
or belt. During a more thorough search of Grier at the police station,
a "chunk" of cocaine base slightly larger than a fifty cent piece was
recovered from Grier's pocket, and $490 cash was recovered from
Grier's undergarments.

The driver of the vehicle, Roy Junior Young, was also arrested
after police found approximately eight crack cocaine rocks on him.1
Young pled guilty in state court to possession with intent to sell and
deliver the eight rocks. Young testified against Grier at Grier's trial.
While Grier testified that the bag containing the cocaine base did not
belong to him, Young testified that Grier had the bag with him before
Grier got into Young's vehicle.2
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1 There was also a third passenger in the vehicle, Rolland Davidson; he
was not arrested or charged in connection with the stop. Davidson did
not testify at Grier's trial because he could not be located.
2 The vehicle actually belonged to Young's father, but Young consis-
tently used it as his method of transportation.

                    2
Grier raises four evidentiary issues on appeal. This court reviews
a district court's ruling on the relevance and admissibility of evidence
for abuse of discretion, and reverses only if the error was not harm-
less. See United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995);
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1995). "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 strip-
ping the erroneous action from the whole, that the judgment was not
substantially swayed by the error." Brooks , 111 F.3d at 371 (quotation
and citation omitted).

Grier first alleges that the district court abused its discretion in
allowing testimony regarding the nature of the gun and bullets found
on Grier. The gun was a semi-automatic handgun, and it was loaded
with hollow point bullets. At trial, one police officer testified regard-
ing the technical operation of a semi-automatic handgun, and stated
that it was similar to the type of gun carried by police officers.
Another police officer described how hollow point bullets technically
differ from most bullets, and stated that hollow point bullets "create
more damage." Defendant asserts that this testimony was not relevant
to the crimes charged and was prejudicial.

Evidence that is relevant is admissible unless excluded for some
other purpose. See Fed. R. Evid. 402; Westfield Ins. Co. v. Harris, 134
F.3d 608, 614 (4th Cir. 1998). Evidence is relevant if it has "any ten-
dency" to make a material fact more or less probable than it would
be without the evidence. Fed. R. Evid. 401. One reason for excluding
relevant evidence is that the probative value of the evidence is "sub-
stantially outweighed by the danger of unfair prejudice." Fed. R.
Evid. 403. However, this possibly prejudicial effect requires exclu-
sion "only in those instances where the trial judge believes that there
is a genuine risk that the emotions of the jury will be excited to irra-
tional behavior, and that this risk is disproportionate to the probative
value of the offered evidence." Westfield Ins. Co., 134 F.3d at 614
(quotation and citations omitted).

The Government submits that the testimony regarding the nature of
the gun and bullets was relevant because it tended to show that Grier,
and not Young, was the drug dealer and thus the likely owner of the
bag of cocaine base. The Government further contends that the evi-

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dence tended to show that the gun and bullets were"serious tools of
the (drug) trade."

The district court did not abuse its discretion in allowing this testi-
mony. The evidence had a mild tendency to establish which of the
two men owned the bag of cocaine base and thus was slightly rele-
vant. Although the Government may have simply pointed out that
Grier was carrying a gun and Young was not, the fact that Grier was
carrying a loaded semi-automatic handgun with hollow point bullets
does "furnish[ ] part of the context of the crime." See United States
v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (quotation and citation
omitted), cert. denied, ___ U.S. #6D 6D6D#, 66 U.S.L.W. 3704 (U.S. Apr. 27,
1998) (No. 97-8487). Nor is there reason to have excluded the evi-
dence under Rule 403; to the extent that the evidence was prejudicial,
it was not unfairly so. See United States v. Grimmond, 137 F.3d 823,
833 (4th Cir. 1998), cert. denied, #6D6D 6D# U.S. ___, 67 U.S.L.W. 3232
(No. 97-9416) (U.S. Oct. 5, 1998).

Grier also argues that the district court abused its discretion in
allowing testimony that Grier stole the handgun. During cross exami-
nation, the prosecutor asked Grier, "did you know that gun was
stolen?" In response Grier stated that he had stolen the gun. The pros-
ecutor then asked several questions about stealing the gun. Grier now
asserts that this line of questioning violated the Federal Rules of Evi-
dence, including Rule 404(b).

It is not clear how inquiry regarding the gun's pedigree could have
been probative of the charges for which Grier was on trial. However,
to the extent that this line of questioning was improper, any error was
harmless. First, there was little doubt that Grier had been carrying a
gun because the police recovered it from him at his arrest. Second,
regarding whether the bag of cocaine base belonged to Grier or
Young, there was significant circumstantial evidence implicating
Grier: Grier, and not Young, was carrying a loaded weapon and a
large amount of cash; the drugs were found on the floor of the vehi-
cle, partially under Grier's seat. In addition, Young testified that the
bag was Grier's. Therefore, we can conclude with confidence that the
judgment was not substantially swayed by the prosecutor's inquiry as
to whether Grier knew the weapon to have been stolen, even if the
line of questioning was in error. See Brooks, 111 F.3d at 371.

                    4
Grier next alleges that the district court abused its discretion in
allowing the prosecutor to question Grier regarding an alleged shoot-
ing. On cross examination, the prosecutor asked Grier if Grier used
the gun to shoot Troy Linn Thompson in the leg, thus introducing an
alleged incident with no clear connection to the crimes for which
Grier was being tried. Over defense objections, the question was
allowed and repeated. However, Grier invoked his Fifth Amendment
privilege and never answered. Grier argues that the questioning could
not have produced relevant evidence, was prejudicial, and was meant
to elicit inadmissible character evidence under Fed. R. Evid. 404(b).

It is less than obvious what relevance Grier's alleged shooting of
a person would have to the subject of Grier's trial. However, we again
conclude that, even if this line of questioning was improper, the judg-
ment was not substantially swayed by the error. See Brooks, 111 F.3d
at 671.

Finally, Grier contends that the district court abused its discretion
in allowing testimony regarding the exact method by which Grier
smoked crack cocaine. During cross examination, Grier stated that
about fifteen minutes before being stopped by the police in Young's
vehicle, Grier smoked crack cocaine; Grier explained how one
smokes crack out of a can. Grier now maintains that this testimony
was irrelevant and prejudicial in light of the fact that he had already
admitted to being a crack smoker.

It was not an abuse of discretion for the district court to allow this
line of questioning. Even if the testimony was only slightly probative,
it was not unduly prejudicial, because Grier had already testified that
he was a crack smoker. Further, a defendant's admission of a fact
generally does not prevent the government from putting forward evi-
dence to establish that fact. See United States v. Dunford, 148 F.3d
385, 394-96 (4th Cir. 1998) (holding that district court did not abuse
its discretion in admitting evidence of drugs and drug paraphernalia
seized from defendant's home even though defendant had stipulated
to being a drug user); see generally Old Chief v. United States, 519
U.S. 172, 186-87 (1997).

Accordingly, we affirm Grier's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-

                     5
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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