                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5082



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


EMORY TAYLOR CHILES,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CR-05-18-FPS)


Submitted:   June 1, 2006                  Decided:   July 11, 2006


Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


L. Richard Walker, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Wheeling, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Randolph J. Bernard,
Assistant United States Attorney, Robert H. McWilliams, Jr.,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Emory Taylor Chiles appeals his conviction under 18 U.S.C.A.

§ 922(g)(West 2000) for possession of a firearm by a convicted

felon stemming from his arrest on May 8, 2005.           Chiles contends

that there was insufficient evidence to support his conviction,

that the district court erred by refusing to instruct the jury that

the possession must have been intentional, that the district court

erred in admitting into evidence a May 8, 2005 recorded telephone

call, and that the district court erred by refusing to admit

another call recorded on May 10, 2005.         We have jurisdiction to

review Chiles’s conviction pursuant to         28 U.S.C.A. § 1291 (West

1993) and for the reasons set forth below, we affirm.

      The Government argued to the jury that Chiles possessed a

firearm.   To prove possession of a firearm in violation of §

922(g)(1), the Government had to establish that “(1) the defendant

previously had been convicted of a crime punishable by a term of

imprisonment   exceeding   one   year;   (2)   the   defendant   knowingly

possessed, transported, shipped, or received, the firearm; and (3)

the possession was in or affecting commerce, because the firearm

had traveled in interstate or foreign commerce at some point during

its existence.”   United States v. Langley, 62 F.3d 602, 606 (4th

Cir. 1995).    The government need not produce evidence of actual

possession, as it may proceed on a constructive possession theory

demonstrating that the defendant “showed ownership, dominion, or


                                   2
control over the [firearm] itself.”    United States v. Blue, 957

F.2d 106, 107 (4th Cir. 1992).   We will sustain the jury’s verdict

if it is supported by substantial evidence.    See United States v.

Cardwell, 433 F.3d 378, 390 (4th Cir. 2005).     While the evidence

produced at trial relating to possession was conflicting, we are

required to view it in the light most favorable to the Government.1

See United States v. Mitchell, 209 F.3d 319, 324 (4th Cir. 2000)

(citing Glasser v. United States, 315 U.S. 60, 80 (1942)).

     Chiles rests his insufficiency of the evidence argument on our

decision in United States v. Blue, 957 F.2d 106 (4th Cir. 1992).

In Blue, we held that mere evidence of a passenger’s shoulder

dipping as an officer approached the vehicle and the corresponding

discovery of a firearm under the passenger’s seat was insufficient

to support a constructive possession theory.   Id. at 108.   We noted

that such facts “fall outside, but just barely, the realm of the

quantum of evidence necessary to support a finding of constructive

possession.”   Id.   With Blue establishing a baseline for the

Government’s burden of proof for constructive possession, we turn

to the facts presented in Chiles’s case.

     At trial, the Government presented the eyewitness testimony of

the arresting officer.   The officer testified that he stopped the

vehicle in which Chiles was riding for a broken light.       When the



     1
      Chiles did not contest that he was a convicted felon or that
the firearm had traveled in interstate commerce.

                                 3
officer   approached   the    vehicle   from   behind,   he    noticed   the

passenger in the backseat, Chiles, make movements, but he could not

determine what the individual was doing.        The officer then shined

his flashlight into the backseat and a shiny object peeking out of

the seat pocket directly in front of Chiles caught his attention.

When the officer shined the        light directly on the object, he

realized it was the butt of a gun.      Chiles’s knees were directly in

front of the pocket containing the gun.            The officer further

testified that the gun was in a position in the seat pocket

consistent with a right-handed person’s movements.               Chiles is

right-handed.

     The Government also produced recorded telephone calls from

Chiles to Rodney Stevenson, the driver of the vehicle.              During

their May 8, 2005 conversation, Stevenson told Chiles that “you

supposed to have that sh*t on your hip, dog. . . . And they

wouldn’t [have] seen it.”      (J.A. at 59.)    In response, Chiles did

not deny knowing about the gun, but he explained that wearing the

gun on his hip would not have been smart because the police could

have patted him down.2       Chiles also telephoned Joseph Jones, the

passenger in the front seat of the vehicle, and attempted to

persuade Jones to say that the gun belonged to him.           Later, Chiles

wrote Jones and asked Jones to say that the gun belonged to



     2
      At trial, Chiles took the stand and testified that he was
unaware that the gun was in the vehicle.

                                    4
Chiles’s girlfriend.           On cross-examination, Chiles admitted that

his   attempts        to   persuade   Jones   and    his   girlfriend       to     take

responsibility for the gun were attempts to have witnesses testify

falsely.3        Chiles’s      statements     to    Stevenson     and     Jones    are

sufficient to demonstrate that he had the power and intention to

exercise control over the firearm.             See United States v. Reamer,

589 F.2d 769, 770 (4th Cir. 1978) (“The law is well established

that, in a criminal case, evidence of a defendant’s attempt to

influence    a    witness      to   testify   regardless     of     the    truth    is

admissible against him on the issue of criminal intent.”).

      In summary, unlike the minimal evidence produced in Blue, the

Government’s presentation, if believed, of Chiles’s telephone calls

to Stevenson and Jones, his letter to Jones, and Chiles’s own

statements       at    trial   provided     more    than   enough       evidence    to

demonstrate that Chiles was aware of the gun’s presence and that he

possessed the gun.           Thus, a rational jury could have determined

that Chiles’s explanation was inconsistent with a lack of intent.

In light of the above evidence, we conclude that substantial

evidence supported the jury’s verdict that Chiles constructively

possessed the firearm.

      We turn next to Chiles’s argument that the district court

erred by refusing to instruct the jury that his possession of the


      3
      Chiles also testified that he tried to have Jones’s
grandmother, the owner of the vehicle, take the fall for the gun.


                                          5
firearm had to be intentional.     “Jury instructions are reviewed to

determine whether, taken as a whole, the instructions fairly state

the controlling law.”    United States v. McQueen, 445 F.3d 757, 759

(4th Cir. 2006) (internal quotation marks and alterations omitted).

“Denial of a requested jury instruction constitutes reversible

error only if the instruction: (1) was correct; (2) was not

substantially covered by the court’s charge to the jury; and (3)

dealt with some point in the trial so important that failure to

give the requested instruction seriously impaired the defendant’s

ability to conduct his defense.”        United States v. Guay, 108 F.3d

545, 550 (4th Cir. 1997) (internal quotation marks omitted).

Having reviewed the record, we conclude that the district court’s

instructions adequately represented the controlling law and thus no

reversible error occurred.

     Finally, we address Chiles’s argument that the district court

erred in excluding from evidence the May 10, 2005 telephone call

and admitting into evidence the May 8, 2005 telephone call.            “We

review   a   trial   court’s   evidentiary   ruling[s]   for   abuse   of

discretion, keeping in mind that the trial court possesses broad

discretion in determining the admissibility of evidence.”        United

States v. Uzenski, 434 F.3d 690, 708 (4th Cir. 2006).

     The district court admitted the May 8, 2005 telephone call

from Chiles to Stevenson pursuant to Federal Rule of Evidence

801(d)(2)(B), which allows for the admission of statements by a


                                    6
party-opponent where the party “has manifested an adoption of

belief in its truth.”       Fed. R. Evid. 801(d)(2)(B).       “A party may

manifest adoption of a statement in any number of ways, including

. . . silence.”      United States v. Higgs, 353 F.3d 281, 310 (4th

Cir. 2003) (internal quotation marks omitted).           “When a statement

is offered as an adoptive admission, the primary inquiry is whether

the statement was such that, under the circumstances, an innocent

defendant would normally be induced to respond, and whether there

are sufficient foundational facts from which the jury could infer

that    the   defendant   heard,   understood,    and   acquiesced   in   the

statement.”     Id. (internal quotation marks omitted).

       The May 8, 2005 conversation took place not long after Chiles

was arrested.      Despite being warned that his conversations were

subject to being recorded, Chiles explained to Stevenson, in

response to Stevenson’s statement that Chiles should have worn the

gun on his hip, that he might have been subject to a police pat

down.    Chiles’s failure to reply to Stevenson that either he was

unaware of the gun’s presence or that he did not possess the gun

demonstrate Chiles’s adoption of Stevenson’s statement that Chiles

had dominion and control over the gun.           Chiles contends that the

statements cannot constitute an adoptive admission because Chiles

could not freely speak about his case while in jail.                 We find

Chiles’s argument to be unpersuasive.       Chiles and Stevenson “were

freely discussing” the arrest. Id. Chiles “gave no indication that


                                      7
he was being silent in the face of [Stevenson’s] accusations

because he knew he was being recorded.          On the contrary, the

recording demonstrates that [Chiles] not only heard and understood

the statements made by [Stevenson], but commented upon them to some

extent.”    Id.    Thus, we find no error in the district court’s

admission of the May 8, 2005 telephone recording.

      After the district court admitted into evidence the recording

of the May 8, 2005 telephone call, Chiles sought to have the

recording of the May 10, 2005 telephone call admitted.        On May 10,

2005, Chiles called Stevenson again and this time he expressly

stated to Stevenson that he did not know the gun was in the seat

pocket.    During the conversation, Chiles also stated that he could

not have had the gun on him because he was a convicted felon.

Chiles contends that the district court erred in excluding this

from evidence because the May 10, 2005 tape was needed to put the

May   8,   2005   tape   into   context.   Pursuant    to   the   rule   of

completeness, set forth in Federal Rule of Evidence 106, “[w]hen a

. . . recorded statement         . . . is introduced by a party, an

adverse party may require the introduction at that time of . . .

any other writing or recorded statement which ought in fairness to

be considered contemporaneously with it.” However, “the court need

only admit the portions that are necessary to clarify or explain

the portion of the testimony already admitted.”         United States v.

Bollin, 264 F.3d 391, 414 (4th Cir. 2001).            The district court


                                     8
found the May 8, 2005 recording to be clear and rejected the May

10, 2005 recording as unnecessary.       We agree that the jury did not

need to review the May 10, 2005 recording in order to understand

the May 8, 2005 conversation.      The May 10, 2005 conversation took

place two days after the May 8, 2005 telephone call and would not

have provided any relevant explanation, clarification, or context

for the May 8, 2005 telephone call.        See id. (“The fact that some

of the omitted testimony arguably was exculpatory does not, without

more,   make   it   admissible   under   the   rule   of   completeness.”).

Therefore, we hold that the district court did not abuse its

discretion in excluding from evidence the self-serving May 10, 2005

telephone call.     See United States v. Wilkerson, 84 F.3d 692, 696

(4th Cir. 1996) (noting that the Federal Rules of Evidence do not

provide for the admission of “self-serving, exculpatory statements

made by a party which are being sought for admission by that same

party”).

     We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                   AFFIRMED




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