                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-5024



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JASON R. PEARSON,

                                             Defendant - Appellant.



                             No. 05-5025



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


FRANKLIN L. STINNETT,

                                             Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (CR-05-53)


Argued:   October 27, 2006                 Decided:   March 13, 2007


Before WILKINS, Chief Judge, and WIDENER and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.


ARGUED: David Lassiter, Jr., JEFFERSON & LASSITER, Richmond,
Virginia; Reuben Voll Greene, Richmond, Virginia, for Appellants.
Brian Lee Whisler, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.        ON
BRIEF: Chuck Rosenberg, United States Attorney, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

        Jason R. Pearson and Franklin L. Stinnett appeal their

convictions for making a false statement in connection with the

purchase of a firearm, see 18 U.S.C.A. § 922(a)(6) (West 2000), and

making a false statement regarding information required to be kept

by a licensed firearms dealer, see 18 U.S.C.A. § 924(a)(1)(A) (West

Supp. 2006).        Stinnett additionally appeals his convictions for

being   a   felon    in   possession   of   a   firearm,    see   18   U.S.C.A.

§ 922(g)(1) (West 2000), and influencing a witness to provide false

testimony, see 18 U.S.C.A. § 1512(b)(1) (West 2000).                   For the

reasons set forth below, we affirm.


                                       I.

     On July 10, 2004, Stinnett visited a former girlfriend, Edwina

Newsom, while she was at her mother’s home babysitting her younger

brothers.     Later, Tianna Odom arrived, and Stinnett, Newsom, and

her brothers left with Odom in Odom’s vehicle.             The group traveled

to the north side of Richmond, Virginia, making one stop to pick up

Pearson, and eventually arrived at a high school parking lot where

they met two unidentified men.         Stinnett gave Newsom approximately

$100 in cash, while Pearson gave her $20.         Stinnett and Pearson got

into a second vehicle with the two men.

     The entire group drove to a gun show, where Newsom paid for

her admission and Stinnett’s.          Agents for the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF) observed the group as they

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entered    and   wandered   about    the    show.       Stinnett      eventually

approached the Rabbit Ridge Enterprises table and began inspecting

the firearms on display.       An undercover ATF agent at the table

answered Stinnett’s questions about a nine millimeter handgun.

Newsom joined Stinnett at the table.          After inspecting the weapon,

Stinnett   directed   Newsom   to    look    at   it,    hold   it,    and   then

instructed her to “[t]ell the man that I like the gun and this is

the one that I want.”       J.A. 555.       When Newsom, following these

instructions, indicated to the agent that she wished to purchase

the firearm that Stinnett had just been holding, Stinnett moved off

to another area of the gun show.

       Newsom filled out the paperwork required to complete the

purchase of the firearm. Initially, she indicated that she was not

the actual purchaser of the firearm, but changed her response after

being advised of the repercussions of that statement.                        After

completing the paperwork, Newsom realized that she did not have

sufficient funds to cover the $129 purchase price and informed the

undercover agent that “he didn’t give me enough money.”                  Id. at

657.   She left the Rabbit Ridge table and was observed talking with

both Stinnett and Pearson.          Newsom and Pearson returned to the

Rabbit Ridge table where he passed additional money to her in a

below-the-waist maneuver and then left.                 Newsom paid for the

handgun and a box of ammunition.            When her background check was




                                      4
complete, Newsom, Stinnett, Pearson, and the others left the gun

show.

      Once the party exited the arena, they separated into the same

traveling groups as before.           Newsom and Odom were stopped by law

enforcement officers approximately one-quarter mile from the gun

show.    Newsom was questioned about her attendance at the show and

the firearm she had purchased.          At first, Newsom claimed that she

had purchased the weapon for herself but later admitted that she

had   purchased   it   for    Stinnett.      Stinnett   and   Pearson    were

interviewed by police in the gun show parking lot; both denied

knowing Newsom or having any involvement in her purchase of a

firearm.

      On June 23, 2005, after a two-day trial, a jury returned

guilty verdicts on all counts for Pearson and Stinnett.            Pearson

was   sentenced   to   51    months    imprisonment   while   Stinnett   was

sentenced to 57 months imprisonment.


                                       II.

        We first consider Pearson’s individual challenges to his

convictions.

                                       A.

        First, Pearson asserts that the district court erred in

refusing to grant a severance because the seriousness of the two




                                        5
additional charges against Stinnett, and the testimony related to

those charges, prejudiced the jury against Pearson and compromised

his right to a fair and impartial trial.            We disagree.

       We review a decision by the district court to grant or deny a

motion for severance for an abuse of discretion. See United States

v. West, 877 F.2d 281, 287-88 (4th Cir. 1989).               Generally, it is

presumed      that   “individuals   indicted     together    should   be   tried

together.”      United States v. Strickland, 245 F.3d 368, 384 (4th

Cir. 2001) (internal quotation marks omitted).              A defendant moving

for severance bears the burden of proving that a joint trial would

be so unfairly prejudicial as to cause a miscarriage of justice.

See United States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995).

       Pearson contends that severance was required because the

charge that Stinnett had influenced a witness “inferred an act or

threat of violence ... toward the Government’s only material

witness.”      Opening Br. of Appellants at 15.        We conclude that the

district court did not abuse its discretion.                  “[I]nflammatory

evidence ... admitted against one defendant, not directly involving

another codefendant (and with which the other is not charged) does

not, in and of itself, prove substantial prejudice in the latter’s

trial.”       United States v. Zalman, 870 F.2d 1047, 1053 (6th Cir.

1989) (internal quotation marks omitted).            In this vein, we note

that    the    district    court    repeatedly    emphasized     during     jury

instructions that evidence concerning the witness influence charges


                                       6
applied only to Stinnett.      See United States v. Love, 134 F.3d 595,

603 (4th Cir. 1998) (noting that a jury is presumed capable of

following cautionary instructions about potentially prejudicial

evidence).    Moreover, this was not a highly complex case: there

were only two defendants, four charges, and a limited number of

witnesses.

                                    B.

      Next, Pearson contends that the district court abused its

discretion in admitting evidence that he had previously been

convicted of a felony.      He maintains that because status as a felon

was not a required element of either offense with which he was

charged, evidence of his prior conviction was inadmissible under

Rule 404(b) of the Federal Rules of Evidence.

     We review evidentiary rulings by a district court for abuse of

discretion. See United States v. Leftenant, 341 F.3d 338, 342 (4th

Cir. 2003).   Though inadmissible solely to prove the character of

a defendant, evidence of other crimes, wrongs, or acts “may ... be

admissible    for   other    purposes,   such   as   proof   of   motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”         Fed. R. Evid. 404(b).      Rule

404(b) is “an inclusive rule, admitting all evidence of other

crimes or acts except that which tends to prove only criminal

disposition.”   United States v. Young, 248 F.3d 260, 271-72 (4th

Cir. 2001) (internal quotation marks omitted).         Such evidence is


                                     7
admissible if it is necessary, reliable, and relevant to an issue

other than the defendant’s character.            See United States v. Queen,

132 F.3d 991, 997 (4th Cir. 1997).            If the prior act evidence meets

these    criteria    and   its   probative      value    is    not       substantially

outweighed by its prejudicial effect, it may be admitted.                      See id.

        Here, Pearson was convicted of providing a false statement in

connection with the purchase of a firearm and unlawfully causing a

licensed firearms dealer to maintain false records.                       The district

court concluded that the existence of a prior felony demonstrated

Pearson’s motivation for participating in the charged criminal

conduct and inducing a third party to purchase a firearm.                           This

ruling was not an abuse of discretion.


                                       III.

        Both Pearson and Stinnett challenge the sufficiency of the

evidence     to    support     their   convictions       for    providing       false

statements    in    connection     with   the   purchase       of    a    firearm    and

unlawfully causing a licensed firearms dealer to maintain false

records.      They base this claim on the fact that Newsom, the

Government’s       principal     witness,     admitted    that       parts     of    her

testimony were untruthful.

        When reviewing a challenge to the sufficiency of the evidence,

we consider whether the evidence, taken in the light most favorable

to the Government, was sufficient for a rational trier of fact to

have found the essential elements of the crime beyond a reasonable

                                          8
doubt.    See Glasser v. United States, 315 U.S. 60, 80 (1942);

United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996)

(en banc). Thus, a defendant challenging his conviction based upon

the sufficiency of the evidence “bears a heavy burden,” United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal

quotation   marks   omitted),         as       “a   decision      [to   reverse   for

insufficient    evidence]      will    be       confined    to    cases   where   the

prosecution’s failure is clear.”               Burks v. United States, 437 U.S.

1, 17 (1978).   With these principles in mind, we conclude that the

evidence was sufficient to support both Pearson’s and Stinnett’s

convictions.

      Pearson’s and Stinnett’s challenge rests upon the credibility

and   reliability   of   Newsom.           On    direct    examination,     Newsom’s

testimony was supportive of the Government’s allegations.                         On

cross-examination, however, she recanted portions of her testimony.

The   inconsistencies     in     her       testimony       were    only    partially

rehabilitated by the Government during redirect examination.                      At

that time, Newsom also admitted that she was afraid of both

defendants and of the Government.

      However troubling such inconsistencies are, we must remember

that it is the role of the jury to review the credibility of the

witnesses, weigh the evidence, and resolve any conflicts in the

evidence presented. See United States v. Wilson, 118 F.3d 228, 234

(4th Cir. 1997); Burgos, 94 F.3d at 862-63.                    Therefore, when, as


                                           9
here, the evidence supports different reasonable interpretations,

the jury decides which version to believe.       See Wilson, 118 F.3d at

234;   Burgos,   94   F.3d   at   862.     Accordingly,   we   affirm   the

convictions of Pearson and Stinnett.


                                     IV.

       Separately,    Stinnett    challenges   the   sufficiency   of   the

evidence supporting his conviction for being a felon in possession

of a firearm.1   As above, we review the evidence in the light most

favorable to the Government and consider whether it was sufficient

for a rational trier of fact to have found the essential elements

of the crime beyond a reasonable doubt.          See Burgos, 94 F.3d at

862-63.

       Section 922(g)(1) prohibits a convicted felon from knowingly

possessing a firearm in or affecting commerce.         See United States

v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).            Because

Stinnett stipulated that he had been previously convicted of a

felony and that the firearm had moved in interstate commerce,2 the


       1
       In the “Summary of Argument” portion of Appellants’ brief,
 Stinnett also contends that there was insufficient evidence to
 support his conviction for influencing a prospective witness to
 provide false testimony. However, Stinnett does not otherwise
 support this claim.    See Fed. R. App. P. 28(a)(9)(A).    He has
 therefore waived the claim, and we do not consider it. See United
 States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues
 adverted to in a perfunctory manner, unaccompanied by some effort
 at developed argumentation, are deemed waived.”).
       2
       Stinnett did not stipulate that the item he handled at the
 Rabbit Ridge table was a “firearm” as defined by federal law, and

                                     10
Government was required to prove that Stinnett knowingly possessed

a firearm.    See id.    Stinnett contends that there was insufficient

proof on this element.

     Possession of a firearm sufficient to establish a violation of

§ 922(g)(1) may be actual or constructive.        See United States v.

Scott, 424 F.3d 431, 435 (4th Cir.), cert. denied, 126 S. Ct. 779

(2005).     Actual possession is defined as physical control over

property.    See id.    A person has constructive possession of an item

if he knows of its presence and exercises or has the power to

exercise dominion and control over it.       See id.

     Abundant evidence in the record demonstrates that Stinnett

constructively possessed the firearm purchased by Newsom. Stinnett

handled the firearm, questioned an undercover ATF agent about it,

instructed Newsom to purchase it, and provided her the money

necessary to do so. This evidence is clearly sufficient to support

a jury determination that Newsom acted as Stinnett’s agent when she

purchased the firearm and therefore that he exercised constructive

possession of it.




 he challenges on appeal the sufficiency of the evidence supporting
 a finding that it was. Because the undercover ATF agent who was
 working at the table testified that the firearms on display were
 operable, we conclude that the evidence presented was sufficient.
 See 18 U.S.C.A. § 921(a)(3)(A) (West 2000).

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                               V.

     For the reasons set forth above, we affirm the convictions of

both Pearson and Stinnett.


                                                         AFFIRMED




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