                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4895



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DARRELL EUGENE DIGSBY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-04-304)


Submitted:   June 5, 2006                  Decided:   June 15, 2006


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Jonathan A. Vogel,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Defendant-Appellant, Darrell Eugene Digsby appeals from the

district court’s judgment of conviction for one count of felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).   A

review of the record, the parties' briefs and the joint appendix

revealing no error, we affirm the conviction.



                                 I.

     Shortly after 2:00 a.m. on July 26, 2004, officers William

Stanley Cook and Piotr Ignaczak of the Charlotte-Mecklenburg Police

Department responded to a call to investigate gunshots fired near

Tuckaseegee Road in Charlotte, North Carolina.     As the officers

were passing a residence at 1106 Pryor Street, a naked black male,

later identified as Ronald Logan, flagged them down.    Logan, who

was bleeding from a head injury, told the officers that he had been

in a bedroom of the residence with his girlfriend, later identified

as Qunzina Dillard, when an individual unknown to him kicked in the

bedroom door.   The individual threatened to kill him and ordered

him out of the residence.   The individual struck Logan in the head

with a weapon as Logan passed through the hallway and fired a shot

into the air as Logan exited the residence.

     As the officers approached the residence, several people

exited through the front door onto the porch, screaming that a man

was in the house with a gun.    The police later identified two of


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the people exiting the house as Ray Davis and Yolanda Larkin, both

of whom resided at the home.       Davis and Larkin requested that the

officers enter the residence to remove the armed individual.

Ignaczak instructed everyone to get off the porch.

     Cook   proceeded   to   the   side    of   the   residence.   As   Cook

approached a door that opened into the kitchen, he observed Digsby

open the door and begin to exit.          Digsby held a gun in his right

hand.   Cook ordered Digsby to drop the weapon and get on the

ground. Instead, Digsby retreated back through the door and locked

it behind him.   By this time, Ignaczak had joined Cook at the side

of the residence.

     Both officers returned to the front of the residence and

entered through the open front door.             The officers discovered

Digsby in the hallway near the kitchen.           They ordered him to get

down on the floor, and Digsby complied.          They then handcuffed and

frisked him but found no weapon.           Ignaczak led Digsby from the

residence, leaving Cook and a supervisor to conduct a search. Cook

subsequently found a Hi-Point .45 caliber handgun, consistent with

the weapon he had seen in Digsby's possession at the side of the

residence, underneath a bag of french fries in the kitchen freezer.

Although the freezer was operational, the handgun was not cold when

Cook found it.      No other weapons were found in the residence.

Subsequent analysis of the handgun revealed that it had been




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manufactured in Ohio and, at some point, had been sold in South

Carolina.

       Following his indictment for felon in possession of a firearm,

Digsby moved to suppress the handgun, arguing that he resided at

1106 Pryor Street, and that the entry into and search of his

residence violated the Fourth and Fourteenth Amendments.                        The

magistrate judge who conducted the suppression hearing concluded

that    the    evidence   did    not    support    Digsby's    residency   claim.

Instead,      it   established    that    Digsby    was   an   intruder    in   the

residence who lacked standing to contest the officers' entry into

and search of the residence.

       Prior to trial, Digsby moved to "bifurcate the trial or limit

the evidence to the fact of a prior felony conviction without

disclosing to the jury the specific offense or offense conduct."

J.A. 13.        The district court instructed Digsby that the crime

charged       consisted   of    two    distinct    elements,   a   prior   felony

conviction and possession of a firearm, and that, if he elected to

stipulate to the felony conviction, the government would not be

permitted to present evidence of the conviction.               Otherwise, proof

of the conviction became an essential element of the government's

case.    Digsby elected to stipulate to the felony conviction.

       Just prior to jury selection, the venire of potential jurors

accidentally may have seen Digsby and other defendants in custody

as they were brought up from the holding cell.                 Digsby's counsel


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expressed "some concern" about what the jurors "might have seen,"

though he noted that Digsby would not have been prejudiced by his

attire because he was not dressed in orange.            J.A. 105d-105e.   The

district court instructed Digsby that he could ask the jurors about

the   issue   during   voir-dire   and   offered   to    give   a   corrective

instruction. Digsby declined both of these offers because of their

potential to highlight what the jurors might have seen.

      At the close of the government's case, Digsby moved for

judgment of acquittal pursuant to Rule 29 of the Federal Rules of

Criminal Procedure.     The district court denied the motion.

      Digsby proposed the following jury instruction concerning the

"in or affecting interstate or foreign commerce" element of a

§ 922(g)(1) violation:

      The term "in or affecting interstate or foreign commerce"
      means that the possession by the defendant must have
      occurred as part of interstate or foreign commerce or
      substantially affected interstate or foreign commerce.
      In other words, the possession of the firearm must be
      commercial   or   economic   in   nature   and  it   must
      substantially affect interstate or foreign commerce. It
      does not include purely interstate commerce unless the
      activity has a substantial effect on interstate commerce.

J.A. 265c. The district court rejected this instruction. Instead,

the district court instructed the jury as follows:

      The phrase "in or affecting commerce" includes commerce
      between anyplace in a state and anyplace outside of that
      state. The government may meet its burden of proof on
      the question of being in or affecting commerce by proving
      to you beyond a reasonable doubt that the firearm
      identified in the indictment at any time had traveled
      across a state boundary line.


                                   - 5 -
J.A. 259.

      At the close of the trial, the jury found Digsby guilty of the

single count in the indictment.                The district court entered a

judgment    of   conviction      and   sentenced     Digsby    to   120   months

imprisonment.     Digsby now appeals his conviction.



                                        II.

      Digsby claims that the district court (1) violated the Fourth

Amendment by denying his motion to suppress the handgun, (2)

violated the Due Process Clause of the Fifth Amendment by limiting

the remedy for the possibility that the jury venire viewed Digsby

in custody and shackles, (3) violated Rule 403 of the Federal Rules

of   Evidence    by   limiting   the    remedy    for   the   criminal    history

information alleged in the indictment to a stipulation that Digsby

had a prior felony conviction, (4) violated the Confrontation

Clause of the Sixth Amendment by admitting hearsay evidence and (5)

erred in rejecting his proposed jury instruction concerning the "in

or   affecting    interstate      or   foreign     commerce"    element    of   a




                                       - 6 -
§ 922(g)(1) violation.1 We review each of these claims individually.



                                      A.

     Digsby first argues that the district court violated his

Fourth Amendment right to be free from unreasonable search and

seizure by denying his motion to suppress the handgun.                     When

reviewing   a   district   court's    denial    of   a   motion   to   suppress

evidence, we review its factual findings for clear error and its

legal conclusions de novo, construing the evidence in the light

most favorable to the government.            United States v. Perkins, 363

F.3d 317, 320 (4th Cir. 2004).

     The district court properly denied Digsby's motion to suppress

the handgun because he lacked standing to challenge the validity of

the search.     A defendant lacks standing to challenge the validity

of a search unless he "has a legitimate expectation of privacy" in

the location to be searched.     Rakas v. Illinois, 439 U.S. 128, 143

(1978).     The defendant bears the burden of establishing that



     1
      Digsby also argues that, even if none of the district court’s
individual errors rise to the level of reversible error, the
combination of those errors violated his due process rights under
the cumulative error doctrine, and that the district court erred in
denying his motion for judgment of acquittal. Because we find no
error in the district court’s rulings, we need not consider
Digsby’s cumulative error doctrine argument.       Digsby fails to
develop any argument, separate from his argument that the district
court erred in denying his proposed jury instruction, concerning
the denial of his motion for judgment of acquittal. Accordingly,
Digsby has abandoned that claim. See Fed. R. App. P. 28(a)(9)(A);
United States v. Smith, 441 F.3d 254, 274 (4th Cir. 2006).

                                     - 7 -
expectation.     United States v. Kitchens, 114 F.3d 29, 31 (4th Cir.

1997).    Here, the magistrate judge found, and the district court

agreed, that Digsby was an intruder, not a resident or a guest, in

the home where the search occurred.             That finding is not clearly

erroneous. As an intruder, Digsby had no legitimate expectation of

privacy in the residence.



                                       B.

       Digsby next argues that the district court violated the Due

Process Clause of the Fifth Amendment by limiting the remedy for

the possibility that the jury venire viewed Digsby in custody and

shackles to jury selection voir dire.                This argument lacks any

merit.   Although the Fifth Amendment prohibits the use of physical

restraints    visible    to   the    jury   unless,    in    the    trial     court's

discretion, interests such as physical security, escape prevention

or   courtroom   decorum      make   such     measures      necessary;        Deck   v.

Missouri, 544 U.S. 622, 628-29 (2005); the record contains no

indication either that the jury actually saw Digsby in shackles or

that   the   district    court   understood     Digsby's      issue      to    be    the

possibility    that     the   jury   venire    had    seen    him   in    shackles.

Digsby's counsel did not refer to shackles or physical restraints

when he raised his "concern" to the district court.                  Moreover, he

did not object when the district court offered either to permit

voir dire on what the potential jurors had seen or to instruct the


                                      - 8 -
jurors "that merely because someone is detained for trial is

nothing that they can consider."           J.A. 105f.      He merely declined

both of the remedies for fear that they might do more harm than

good.    On this record, the district court committed no error.



                                      C.

      Digsby next argues that the district court violated Rule 403

of the Federal Rules of Evidence by denying his motion to bifurcate

the   trial   and   limiting   the   remedy    for   the    criminal   history

information alleged in the indictment to a stipulation that Digsby

had a prior felony conviction.             We review the district court's

rulings on bifurcation for abuse of discretion. See United States

v. King, 582 F.2d 888, 890 (4th Cir. 1978).                We also review the

district court's application of Rule 403 for abuse of discretion,

"examin[ing] the evidence in the 'light most favorable to its

proponent,    maximizing   its   probative     value    and   minimizing   its

prejudicial effect.'"      United States v. Love, 134 F.3d 595, 603

(4th Cir. 1998) (quoting       United States v. Simpson, 910 F.2d 154,

157 (4th Cir. 1990)).

        The district court did not abuse its discretion by requiring

that Digsby stipulate to a prior felony conviction in order to

prevent the government from presenting evidence of the conviction.

This approach conforms with the approach approved by the Supreme

Court in Old Chief v. United States, 519 U.S. 172 (1997).                  The


                                     - 9 -
holding in that case permits a defendant, by stipulating to a prior

felony conviction, to avoid the potential prejudice associated with

the government's efforts to prove the conviction.            Id. at 190-92.

In effect, Digsby received what he requested, the evidence was

limited    "to   the   fact   of   a    prior   felony   conviction   without

disclosing to the jury the specific offense or offense conduct."

J.A. 13.     He was not entitled to prevent the government from

proving the prior felony conviction element of the § 922(g)(1)

violation without stipulating to that element.



                                         D.

     Digsby next argues that the district court violated the

Confrontation Clause of the Sixth Amendment by admitting hearsay

evidence. Specifically, Digsby argues that the statements admitted

by the district court constitute the type of testimonial statements

that the Supreme Court held, in Crawford v. Washington, 541 U.S. 36

(2004), violate the Sixth Amendment.            We disagree.    None of the

statements identified by Digsby as inadmissible hearsay2 implicate




     2
      Digsby alleges four instances of inadmissible hearsay: (1)
Cook's testimony concerning what Logan reported to him when he
arrived at the residence; (2) Cook's testimony concerning
Ignaczak's instructions to individuals at the residence to get off
the porch; (3) Cook's testimony concerning what the individuals on
the porch were saying about the intruder in the residence when he
approached the porch; and (4) the testimony of the government's
expert concerning what he had been told about the make and model of
the handgun found in the freezer.

                                       - 10 -
the concerns raised in Crawford, and the district court properly

applied the Federal Rules of Evidence in admitting the statements.



                                     E.

     Finally, Digsby argues that the district court erred in

rejecting his proposed jury instruction concerning the "in or

affecting interstate or foreign commerce" element of a § 922(g)(1)

violation.     Again, we disagree.    As noted in Digsby's brief to this

court, the jury instruction given by the district court reflects

the law of this circuit.         Moreover, this court has repeatedly

rejected the argument advanced by Digsby that United States v.

Lopez, 514 U.S. 549 (1995) dictates a different result.              See e.g.,

United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001);

United States v. Nathan, 202 F.3d 230, 234 (4th Cir. 2000); United

States v. Crump, 120 F.3d 462, 466 n.2 (4th Cir. 1997).                    We

continue to reject that argument.



                                     III.

     For the foregoing reasons, we affirm the judgment of the

district court.     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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