                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4928


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JOHN LAWTON LEDINGHAM,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (6:07-cr-00007-nkm)


Submitted:    June 30, 2009                 Decided:   August 7, 2009


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph A. Sanzone, SANZONE & BAKER, P.C., Lynchburg, Virginia,
for Appellant. Julia C. Dudley, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          A jury convicted John Lawton Ledingham of possessing a

firearm (Count 6) and ammunition (Count 7) after having been

convicted of a felony, in violation of 18 U.S.C. § 922(g)(1)

(2006).   He appeals his convictions, challenging the district

court’s evidentiary rulings and asserting that the Government

violated Brady v. Maryland, 373 U.S. 83 (1963).                       Finding no

reversible error, we affirm.

          Ledingham       argues    that     the   district   court    erred   in

allowing the Government to cross-examine him regarding his prior

convictions after he stipulated that he was a convicted felon.

We review a district court’s determination as to the scope of

cross-examination for abuse of discretion.                See United States v.

Scheetz, 293 F.3d 175, 184 (4th Cir. 2002); cf. United States v.

Basham,   561    F.3d     302,     325   (4th      Cir.   2009)   (“We    review

evidentiary     rulings    of      the   district     court    for     abuse   of

discretion.”).

          In Old Chief v. United States, 519 U.S. 172 (1997),

the Supreme Court held that, when a defendant stipulates to his

felony status at the time of his alleged possession of a firearm

in violation of § 922(g)(1), the Government is precluded from

offering other evidence to prove the prior conviction.                    Id. at

191; see United States v. Williams, 461 F.3d 441, 442-43 (4th



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Cir.   2006).      The    Government,       however,   did   not   offer   any

additional    evidence     on   Ledingham’s    prior   convictions    in   its

case-in-chief.     When the Government elicited testimony regarding

Ledingham’s     other    convictions   on    cross-examination,     Ledingham

already had testified to part of his criminal history.                     See

Williams, 461 F.3d at 451 (“The fact that the jury already knew

of [defendant’s] felon status when it heard the names of his

prior . . . convictions mitigates any damage that may have been

caused by the introduction of those names.”).

             Turning to Ledingham’s claim that the district court

erred in admitting evidence of his prior convictions under Rule

609(a) of the Federal Rules of Evidence, Ledingham focuses on

the district court’s failure to conduct the required balancing

test set forth in Rule 609(a)(1).             See United States v. Gray,

852 F.2d 136, 139 (4th Cir. 1988).             Because he did not rely on

this ground in the district court, this court’s review is for

plain error.     United States v. Kemp, 546 F.3d 759, 763 (6th Cir.

2008); see United States v. Olano, 507 U.S. 725, 732-36 (1993)

(providing standard).

             Assuming that the district court’s failure to conduct

the balancing test amounted to error that was plain, we find

that such error did not affect Ledingham’s substantial rights.

The prior convictions included drug offenses and possession of



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stolen      property,     none     of    which       were    similar       to     the   instant

§ 922(g)(1) offense.              Cf. United States v. Saunders, 964 F.2d

295, 297-98 (4th Cir. 1992) (finding evidence of similar prior

convictions      inadmissible           under       Rule    609(a)).         Moreover,        the

district court gave the jury a cautionary instruction regarding

the use of prior convictions.                       See Williams, 461 F.3d at 451

(“We     have   held       that    [curative]           instructions            mitigate      the

possibility of prejudice from improperly admitted evidence of

the defendant’s criminal history because [w]e generally follow

the presumption that the jury obeyed the limiting instructions

of the district court.”) (internal quotation marks and citation

omitted).       We    therefore         find    no    abuse     of    discretion         in   the

district court’s evidentiary ruling.

              Next, Ledingham contends that the district court erred

by    denying   his       motion    for    a        mistrial       after    the    Government

cross-examined him about a prior conviction he did not commit.

We review a district court’s denial of a motion for a mistrial

for    an   abuse    of    discretion          and    find     none    in    light       of   the

district court’s limiting instructions to the jury.                                See United

States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (stating

standard of review); Williams, 461 F.3d at 451 (noting that this

court       presumes        jury        follows            trial      court’s           limiting

instructions).



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               Ledingham also asserts on appeal that the Government

violated       Brady   by   failing    to     disclose      a    Bureau     of   Alcohol,

Tobacco, Firearms, and Explosives (“BATFE”) asset claim form, in

which his wife stated that she owned the guns seized during the

search of his home.           Due process is violated if the evidence in

question:        (1)   is    favorable      to    the    defendant     because      it    is

either    exculpatory       or    impeaching;        (2)   was     suppressed     by     the

government       either     willfully       or     inadvertently;         and    (3)      is

material.        Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

“[H]owever, where exculpatory information is not only available

to the defendant but also lies in a source where a reasonable

defendant would have looked, a defendant is not entitled to the

benefit of the Brady doctrine.”                   United States v. Jeffers, __

F.3d __, __, 2009 WL 1678046, at *10 (4th Cir. June 17, 2009)

(No. 06-5289) (internal quotation marks and citation omitted).

Moreover, “there is no Brady violation if the defense is aware

of the evidence in time to reasonably and effectively use it at

trial.”    Id.

               Although     the    original      BATFE     asset    claim    form   could

have been used to impeach Mrs. Ledingham’s testimony that the

guns belonged to Ledingham, we find that the nondisclosure of

the form itself did not undermine the outcome of the trial.                              See

Kyles     v.    Whitley,     514     U.S.     419,      433-34     (1995)    (providing



                                            5
standard).           Our review of the record on appeal leads us to

conclude that Ledingham was aware of the information contained

in    the     form    before       trial       and       could     have      taken    reasonable

measures to obtain a copy of the form from the BATFE.                                           See

Jeffers, 2009 WL 1678046, at *10.                        Thus, this claim fails.

               Finally,      Ledingham         asserts         that    the     district       court

erred    by    allowing          his   wife        to    testify      after    he    asserted     a

marital      communications            testimonial           privilege.        We    review     the

trial court’s resolution of the marital privilege issue for an

abuse of discretion and find none.                           See United States v. Acker,

52 F.3d 509, 515 (4th Cir. 1995) (stating standard of review).

Because      Ledingham       and       his    wife      jointly       were    involved      during

their marriage in ongoing criminal activity (i.e., conspiring to

lie to federal officials on the BATFE asset claim form regarding

the ownership of the firearms seized during the search of his

home), he cannot rely on the marital communications privilege.

United      States    v.    Parker,          834    F.2d      408,    411     (4th   Cir.     1987)

(recognizing “that where marital communications have to do with

the     commission          of     a    crime           in    which     both        spouses     are

participants, the conversation does not fall within the marital

privilege”) (internal quotation marks and citation omitted).

               Accordingly, we affirm the district court’s judgment.

We    dispense       with    oral      argument          because      the    facts    and     legal



                                                    6
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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