UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4005

KENNETH JAMES HANNAH,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Cameron McGowan Currie, District Judge.

(CR-95-7)

Submitted: October 6, 1998

Decided: December 31, 1998

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John D. Elliott, Columbia, South Carolina, for Appellant. J. Rene

Josey, United States Attorney, Alfred W. Bethea, Jr., Assistant United

States Attorney, Florence, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Kenneth James Hannah ("Hannah") was convicted of conspiracy to

possess with intent to distribute cocaine base in violation of 21 U.S.C.

§ 846 (1994), possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 (1994), and using and carrying a firearm

during and in relation to a drug trafficking crime in violation of 18

U.S.C. § 924(c)(1). He was subsequently sentenced to 420 months'

imprisonment. Hannah now appeals his conviction and sentence.

Finding no reversible error, we affirm.

While being followed by police on March 4, 1994, Hannah abandoned the blue Lincoln Continental ("Lincoln") he was driving. The

police kept the Lincoln under surveillance and a white male, not Hannah, approached the vehicle with a key and began entering the Lincoln. The white male consented to a search of the Lincoln. A

subsequent search uncovered a loaded weapon in the car which was

in easy reach of the driver of the vehicle and a large amount of crack

cocaine. Hannah was identified by Government witnesses as the

driver of the vehicle. However, the Lincoln was owned by Budget

Rent-A-Car and rented by Hannah's wife; Hannah was not listed as

an authorized driver of the vehicle. Hannah was later charged and

convicted based on these facts.

Before trial, Hannah moved to suppress the drugs found in the

vehicle alleging that the search violated his Fourth Amendment rights.

The Government countered that Hannah lacked standing to contest

the search. Following a hearing on the matter, the district court denied

the motion to suppress, finding that Hannah failed to demonstrate that

he possessed a reasonable expectation of privacy in the contents of

the rented Lincoln. Hannah now alleges that the district court erred

in denying his suppression motion.

We review de novo the trial court's conclusions involved in a suppression determination, but the factual determinations forming those

conclusions are reviewed under a clearly erroneous standard. See

United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). To challenge the validity of a search, a defendant must demonstrate a reason-

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able expectation of privacy in the area searched. See Rawlings v.

Kentucky, 448 U.S. 98, 104-05 (1980). The defendant bears the burden of establishing a reasonable expectation. Id.

We have held that an unauthorized driver of a rental vehicle has no

legitimate privacy interest in the car. Therefore, the search of the Lincoln did not violate Hannah's Fourth Amendment rights. See United

States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994). Hannah contends

that this case is distinguishable from Wellons because his wife rented

the vehicle and she had given him permission to use the vehicle. We

have expressly stated that "[a]lthough the appellant herein may well

have had [the renter's] permission to drive the automobile, he did not

have the permission of Hertz Corporation, the owner of the automobile." Id. at 119 n.2. Similarly, Hannah did not have permission from

Budget Corporation to drive the Lincoln.

Furthermore, Hannah testified that he had no interest in the Lincoln

on the day in question and offered no evidence that he was given permission to drive the Lincoln. Because Hannah failed to produce any

evidence to demonstrate a legitimate expectation of privacy and the

district court's findings of fact were not clearly erroneous, he failed

to show a violation of his Fourth Amendment rights. Accordingly, we

find that the district court properly denied Hannah's motion to suppress.

Hannah also claims that the district court erred by failing to grant

his motions for a mistrial and for a new trial. Hannah moved for a

mistrial because a Government witness allegedly violated the court's

sequestration order by discussing her testimony with another Government witness. We reject this argument because the record clearly

demonstrates that no violation of the sequestration order occurred.

Hence, the district court did not abuse its discretion in denying the

motion. See United States v. Alonzo, 689 F.2d 1202, 1204 (4th Cir.

1982) (denial of a motion for a mistrial reviewed for abuse of discretion).

Hannah also suggests that the district court erred when it denied his

motion for a new trial based on newly discovered evidence that a violation of the court's sequestration order occurred. We also reject this

argument because Hannah was unable to state which witnesses vio-

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lated the court's sequestration order or whether their testimony was

affected by this alleged violation. Consequently, Hannah was unable

to show that the introduction of this evidence would result in an

acquittal at a new trial. Therefore, the district court did not abuse its

discretion in denying Hannah's motion for a new trial. See United

States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995) (denial of a

motion for a new trial reviewed for abuse of discretion).

During trial Hannah also moved to have the drugs recovered from

the Lincoln excluded asserting that the evidence was tampered with

because the drugs were in a different bag than they were in when the

evidence left the crime laboratory. Hannah points to the fact that the

forensic chemist who performed the analysis of the drugs testified that

he could not be certain that the Government's evidence was in fact

the same evidence that he had tested because the drugs were now in

a different bag. However, testimony revealed that the evidence was

placed in a different bag because Hannah and his attorneys in a

related state matter had received authority from the court to open the

bag that contained the drugs so his attorneys could examine the contents. Thereafter, the evidence was resealed in a different bag. Based

on this testimony, we find that the district court did not abuse its discretion in holding that the chain of custody was complete, and the

court properly denied Hannah's motion. See United States v. HowardArias, 679 F.2d 363, 366 (4th Cir. 1982) (resolution of a chain of custody dispute rests within the sound discretion of the trial judge).

Hannah also requested permission to weigh the drugs that were

actually present in the courtroom to establish that officials had tampered with the evidence. Here the weight of the drugs was not an element of the offense. Further, the evidence was transported and

weighed prior to the time the bag was opened at the request of Hannah and his attorney in state court. Consequently, we hold that the district court did not abuse its discretion by not allowing the defense to

weigh the evidence. See Sasaki v. Class, 92 F.3d 232, 241 (4th Cir.

1996) (evidentiary rulings are entitled to substantial deference and

will not be reversed absent a clear abuse of discretion).

Finally, Hannah contends that his § 924(c)(1) conviction must be

vacated because the district court misinstructed the jury in light of the

Supreme Court's decision in Bailey v. United States, 516 U.S. 137

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(1995), which subsequent to his conviction clarified the meaning of

"use" under the statute. Hannah argues that under Bailey the mere

presence of a firearm under the seat of an automobile, when there was

no evidence of active employment of the weapon, is not enough to

warrant a conviction under § 924(c)(1). Because Hannah did not

object to the instruction on § 924(c)(1) given to the jury, we review

for plain error. See United States v. Olano, 507 U.S. 725, 731-32

(1993).

We find that the district's error in instructing the jury does not

require reversal. While this court has been reluctant in the past to

apply a harmless error analysis in Bailey cases,1 we find that the facts

of this case make such an analysis appropriate. 2 The district court

instructed the jury that the Government had to prove beyond a reasonable doubt that the firearm was in Hannah's possession or under his

control at the time the drug trafficking crimes were committed. The

only evidence the Government presented as to firearm use was the

fact that when Hannah abandoned the rental car a loaded gun was

found within easy reach of the driver's seat. Therefore, in order to

convict him of this offense, the jury had to find that Hannah transported the drugs and the firearm in the rental car on March 4, 1994.

Because the evidence overwhelmingly supported the jury's finding of

guilt, because this conduct constitutes "carrying" under § 924(c)(1),

and because there was no evidence that might have provided an

improper basis for a § 924(c)(1) conviction, we hold that any error in

the court's instructions was harmless beyond a reasonable doubt. See

United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997). Consequently, Hannah is not entitled to any relief from his conviction on

the firearm count based on Bailey.

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1 See United States v. Hawthorne , 94 F.3d 118, 120 (4th Cir. 1996);

United States v. Smith, 94 F.3d 122, 124 (4th Cir. 1996).

2 See United States v. Chen, 131 F.3d 375, 380 (4th Cir. 1997), cert.

denied, ___ U.S. ___, 35 U.S.L.W. 3576 (U.S. Mar. 2, 1998) (applying

harmless error analysis). See also Johnson v. United States, 520 U.S. 461

(1997) (stating that misinstructing the jury on an essential element of the

offense, unlike conclusively instructing or failing to instruct the jury, is

an error which is subject to harmless error analysis).

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Accordingly we affirm Hannah's conviction and sentence. We dispense with oral argument because the facts and legal contentions are

adequately presented in the material before the court and argument

would not aid in the decisional process.

AFFIRMED

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