UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4214

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

LAMONT P. MASON, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Richard L. Williams, Senior 

District Judge. (3:08-cr-00214-RLW-1) 

Submitted: August 21, 2009 Decided: September 18, 2009 

Before MOTZ, GREGORY, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire, 

Assistant Federal Public Defender, Richmond, Virginia, for 

Appellant. Dana J. Boente, United States Attorney, Kevin C. 

Nunnally, Special Assistant United States Attorney, Richard D. 

Cooke, Assistant United States Attorney, Richmond, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 After a jury trial, Lamont P. Mason was convicted of 

one count of possession with intent to distribute five grams or 

more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) 

(2006), one count of possession of a firearm in furtherance of a 

drug trafficking crime, in violation of 18 U.S.C. § 924(c) 

(2006), and one count of possession of a firearm by a convicted 

felon, in violation of 18 U.S.C. § 922(g)(1) (2006). On appeal, 

Mason asserts the evidence was insufficient to support the drug 

conviction or the possession of a firearm in furtherance of a 

drug trafficking crime conviction. He also challenges the 

district court’s decision not to give a jury instruction about 

impeaching witnesses with a felony conviction. In addition, he 

claims there was plain error when the prosecutor engaged in 

misconduct by vouching for a witness and asserting facts not in 

evidence. Finally, Mason claims the cumulative effect of the 

errors calls for a reversal. We affirm. 

 “A defendant challenging the sufficiency of the 

evidence faces a heavy burden.” United States v. Foster, 507 

F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690 

(2008). We review a sufficiency of the evidence challenge by 

determining whether, viewing the evidence in the light most 

favorable to the Government, any rational trier of fact could 

find the essential elements of the crime beyond a reasonable 

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doubt. United States v. Collins, 412 F.3d 515, 519 (4th Cir. 

2005); see Glasser v. United States, 315 U.S. 60, 80 (1942). We 

review both direct and circumstantial evidence, and accord the 

Government all reasonable inferences that could be drawn in its 

favor, United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 

2008), and will uphold the jury’s verdict if substantial 

evidence supports it, and will reverse only in those rare cases 

of clear failure by the prosecution. Foster, 507 F.3d at 244-

45. 

 “To convict a defendant of possession with the intent 

to distribute, the [G]overnment must prove: (1) possession of a 

narcotic controlled substance; (2) knowledge of the possession; 

and (3) the intent to distribute.” Collins, 412 F.3d at 519. 

 To establish a § 924(c)(1) violation, the Government 

must also present evidence “indicating that the possession of 

the firearm furthered, advanced, or helped forward a drug 

trafficking crime.” United States v. Lomax, 293 F.3d 701, 705 

(4th Cir. 2002). Whether a firearm served such a purpose is a 

question of fact. Id. A series of factors that might lead a 

reasonable finder of fact to conclude the existence of a 

connection between a defendant’s possession of a firearm and his 

drug trafficking crime include, but are not limited to: “the 

type of drug activity being conducted, accessibility of the 

firearm, the type of weapon, whether the weapon is stolen, the 

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status of the possession (legitimate or illegal), whether the 

gun is loaded, proximity to drugs or drug profits, and the time 

and circumstances under which the gun is found.” Id. (internal 

quotation marks omitted). 

 We find after considering the testimony of the four 

law enforcement personnel and the expert witness, that the 

evidence was more than substantial to support the jury’s verdict 

with respect to both charges. 

 The decision to give or not to give a jury instruction 

is reviewed for abuse of discretion. United States v. Seidman, 

156 F.3d 542, 551 (4th Cir. 1998). This court reviews a charge 

to determine if the court adequately instructed the jury on the 

elements of the offense and the accused’s defenses. United 

States v. Fowler, 932 F.2d 306, 317 (4th Cir. 1991). A judge 

must clearly and fairly state the controlling law. United 

States v. Childress, 26 F.3d 498, 503 (4th Cir. 1994). “A 

district court’s refusal to provide an instruction requested by 

a defendant 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. Lewis, 53 F.3d 29, 32-33 

(4th Cir. 1995) (internal quotation marks omitted). We find 

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that the court’s decision not to give the requested instruction 

did not seriously impair Mason’s ability to conduct his defense. 

 Insofar as Mason claims the prosecutor engaged in 

misconduct during the closing arguments, we note review is for 

plain error because Mason failed to object. United States v. 

Olano, 507 U.S. 725, 732 (1993). Plain error requires a finding 

that: (1) there was error; (2) the error was “plain”; and (3) 

the error affected his substantial rights. Id. If the three 

elements of this standard are met, this court may still exercise 

its discretion to notice the error only “if the error seriously 

affect[s] the fairness, integrity, or public reputation of 

judicial proceedings.” Id. at 736. 

 Improper remarks during closing do not always result 

in a retrial. “The relevant question is whether the 

prosecutors’ comments so infected the trial with unfairness as 

to make the resulting conviction a denial of due process.” 

United States v. Higgs, 353 F.3d 281, 330 (4th Cir. 2003) 

(internal quotation marks omitted). “[T]he test for reversible 

prosecutorial misconduct generally has two components: that 

(1) the prosecutor’s remarks or conduct must in fact have been 

improper, and (2) such remarks or conduct must have 

prejudicially affected the defendant’s substantial rights so as 

to deprive the defendant of a fair trial.” United States v. 

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Mitchell, 1 F.3d 235, 240 (4th Cir. 1993) (internal quotation 

marks omitted). 

 In evaluating prejudice, a number of factors should be 

considered: 

(1) the degree to which the prosecutor’s remarks have 

a tendency to mislead the jury and to prejudice the 

accused; (2) whether the remarks were isolated or 

extensive; (3) absent the remarks, the strength of 

competent proof introduced to establish the guilt of 

the accused; and (4) whether the comments were 

deliberately placed before the jury to divert 

attention to extraneous matters. 

Mitchell, 1 F.3d at 241. Whether the errors must result in a 

reversal is dependent upon the facts in each case. Id.

 Given the strength of the Government’s case, the fact 

that the misconduct concerned a witness whose testimony was 

mostly redundant and the fact the jury was instructed to rely 

upon its own recollection of the evidence, we find Mason’s 

substantial rights were not prejudiced. 

 Finally, we find that under the cumulative error 

doctrine, Mason’s substantial rights to a fair trial were not 

affected. See United States v. Martinez, 277 F.3d 517, 532 (4th 

Cir. 2002). 

 Accordingly, we affirm the convictions and sentence. 

We dispense with oral argument because the facts and legal 

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contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

AFFIRMED