UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5808

WALTER E. WILLIAMS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-95-58)

Submitted: January 28, 1997

Decided: February 13, 1997

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Stephanie D. Thacker, Assistant United States Attorney, Charleston, West

Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Walter E. Williams was convicted by a jury of possessing a firearm

while a convicted felon in violation of 18 U.S.C.§ 922(g)(1) (1994).

He appeals his conviction and his 115-month sentence, alleging that

the district court erred in rejecting his proposed jury instruction, in

admitting certain evidence, in refusing to dismiss a juror who recognized a government witness, and in enhancing his sentence for reckless endangerment. United States Sentencing Commission, Guidelines

Manual, § 3C1.2 (Nov. 1994). We affirm.

In January 1995, while Walter E. Williams was on supervised

release after serving a term of imprisonment for a drug offense, Deputy United States Marshal William Snodgrass found him in possession of a .38 caliber bullet and a black nylon holster. In February

1995, after the court received information that Williams had violated

the conditions of his supervised release, a warrant issued for Williams' arrest. His probation officer ordered Williams to surrender but

he failed to do so.

On February 23, 1995, Probation Officer Tom Lewis saw Williams

drive his black Mercury into a hotel parking lot. Lewis contacted the

United States Marshal's Service. Shortly afterward, Deputy Marshal

William Snodgrass arrived at the parking lot. Williams was gone from

the car; however, looking through the window, Snodgrass observed

a gun partially concealed under the floor mat on the driver's side. The

gun proved to be a .38 special, a derringer. It had two bullets in it and

was in the same black nylon holster which Snodgrass found attached

to Williams' belt in January.

Williams was taken into custody the next day. Early in the afternoon, he eluded capture after a footrace in a residential area. Just

before dark, while Williams was riding with a confidential informant,

deputy marshals and Kanawha County deputy sheriffs surrounded his

car on a main highway. Williams got out of the car, jumped the

median barrier, ran across the oncoming traffic lanes, and went down

a brushy hillside toward the Kanawha River. The deputies chased him

with guns drawn because they believed he was armed. One deputy

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accidentally discharged his weapon during the chase. When Williams

was confronted on the river bank, he refused to surrender, went into

the water and refused to come out. Two deputies were forced to subdue Williams in the water to take custody of him.

When the bullet seized on January 9 from Williams was examined

by C.R. Lane, the Firearms and Toolmarks Examiner for the West

Virginia State Police Forensic Laboratory, Lane found that it had fire

pin markings which indicated that it had been fired from the derringer

seized on February 24. Lane's report was provided to Williams prior

to trial. The government filed a motion in limine to determine whether

the evidence was admissible. The district court excluded evidence

linking the bullet seized on January 9 to the gun seized on February

24 from the government's case-in-chief because the defense had not

been given notice that expert testimony would be used. The court later

permitted the government to introduce this evidence in rebuttal.

At trial, Crystal Jones testified for the government that Williams

tried to sell her a .38 caliber derringer with a black holster on February 22, 1995, the day before the gun was found in his car. Williams'

girlfriend, Jane Fletcher, testified that the gun belonged to her, that

she had left it in the car the night before Williams' arrest, and that he

did not know it was in the car. In rebuttal, the government first had

Deputy Marshal Snodgrass testify about the bullet Williams possessed

in January 1995. Next, C.R. Lane testified that the bullet found in

Williams' pants pocket in January had been fired from the same derringer seized from his car in February and reloaded for additional use.

On appeal, Williams first contends that the district court erred in

refusing to instruct the jury that, following the Supreme Court's decision in Lopez v. United States, ___ U.S. ___, 63 U.S.L.W. 4343 (U.S.

Apr. 26, 1995) (No. 93-1260), the government was required to prove

that the defendant's possession of the firearm had an explicit connection with or effect on interstate commerce. Williams argues that

Lopez heightened the burden of proof for all federal firearms offenses,

a position which is based on inferences drawn from the language of

the opinion rather than its explicit holding. The argument he makes

was rejected in United States v. Smith, 101 F.3d 202, 215 (1st Cir.

1996) (proof of minimal nexus to interstate commerce still sufficient

for § 922(g) conviction after Lopez); see also United States v. Lewis,

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100 F.3d 49, 50-53 (7th Cir. 1996) (same). Consequently, we find that

the district court did not err in refusing Williams' requested jury

instruction.

Next, Williams contends that C.R. Lane's testimony was improperly admitted because it concerned another bad act (Williams' possession of the bullet seized in January) and no notice of his testimony

was provided until the eve of trial. Fed. R. Evid. 404(b) provides that

evidence of other crimes, wrongs, or bad acts may be admissible at

trial if the government gives reasonable notice before trial. Other

criminal acts are intrinsic to the charged crime (and therefore are not

excludable under Rule 404(b)) if they are inextricably intertwined

with it or are necessarily preliminary to it or if both are part of a single criminal episode. United States v. Chin, 83 F.3d 83, 87-88 (4th

Cir. 1996). Possession of a firearm and possession of ammunition for

the firearm are acts which are inextricably intertwined even though

each may be charged as a separate crime. The district court's exclusion of Lane's testimony from the government's case-in-chief was

based on the government's failure to identify Lane as an expert witness in pretrial disclosure as required by Fed. R. Crim. P. 16(a)(1)(E),

not because his testimony concerned a prior bad act. Lane's testimony

was not excludable under Rule 404(b).

Williams also argues that Lane's expert testimony was inadmissible because the government failed to list him as an expert witness or

provide a summary of his expected testimony during discovery. However, Rule 16(a)(1)(E) requires the government to disclose a summary

of expert witness testimony which it intends to use during its case-inchief. Lane's testimony became necessary only after Fletcher's testimony that the gun found in Williams' car in February belonged to

her. Because Rule 16 did not prevent Lane's testimony in rebuttal, no

error occurred.

In the middle of the trial, juror Harold Boggess notified the court

that he saw government witness C.R. Lane in the hall and recognized

him as an assistant scoutmaster known to him as"Rocky" Lane. The

district court questioned juror Boggess about his acquaintance with

Lane and permitted both attorneys to do so. Boggess said he and Lane

had gone on camping trips with the scouts two or three times a year

for the last three years. Boggess said he respected Lane's opinion but

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would be able to reach a fair and impartial verdict nonetheless and

would not give undue weight to Lane's testimony. Although an alternate was available and defense counsel asked that Boggess be dismissed, the district court decided to keep him on the panel.

A determination of impermissible bias is "essentially one of credibility, and therefore largely one of demeanor," and thus a trial court's

evaluation of a juror is entitled to "special deference." Patton v.

Yount, 467 U.S. 1025, 1038 (1984). Williams argues that, because

Lane's testimony was improperly admitted, the damage was "cumulative." However, Lane's testimony was properly admitted. Consequently, we find that the district court did not abuse its discretion in

refusing to dismiss Boggess.

Finally, Williams challenges the finding that a sentence enhancement for reckless endangerment was appropriate because of his

attempt to elude capture on the highway and the riverbank. The guideline provides for a two-level adjustment if the defendant recklessly

created a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer.

"Reckless" is used as it is defined in USSG§ 2A1.4 to mean that "the

defendant was aware of the risk created by his conduct and the risk

was of such a nature and degree that to disregard that risk constituted

a gross deviation from the standard of care that a reasonable person

would exercise in such a situation." The district court's factual finding

is reviewed for clear error. See United States v. John, 935 F.2d 644,

648 (4th Cir. 1991).

The court found that Williams earned the adjustment by running

across four lanes of traffic, causing the marshals to follow him, causing them to run after him over uneven terrain with weapons drawn,

and finally forcing them to remove him from the river. Williams

argues that he did no more than flee. However, the circumstances of

his flight created obvious risks to all concerned from the traffic and

the danger of firearms being discharged. The district court did not

clearly err in finding that Williams had created a serious risk of death

or serious bodily injury to another in the course of his flight.

The conviction and sentence are therefore affirmed. We dispense

with oral argument because the facts and legal contentions are ade-

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quately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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