UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4748

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHRISTOPHER K. MULLINS, a/k/a Christopher Eric

Mullins,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. John T. Copenhaver, Jr.,

District Judge. (2:04-cr-00011)

Submitted: January 11, 2008 Decided: February 7, 2008

Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Benjamin L. Bailey, Rodney A. Smith, BAILEY & GLASSER, LLP,

Charleston, West Virginia, for Appellant. Charles T. Miller,

United States Attorney, Monica K. Schwartz, Assistant United States

Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
- 2 -

PER CURIAM:

Christopher K. Mullins appeals his convictions by a jury

for aggravated bank robbery, in violation of 18 U.S.C. §§ 2113(a)

and 2113(d) (2000), and use of a firearm during and in relation to

a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (2000).

The district court sentenced him to a total term of 135 months’

imprisonment. Mullins appeals his conviction and sentence,

asserting that the district court abused its discretion in making

certain evidentiary rulings and in denying his motions for a

continuance, for a judgment of acquittal, and for a new trial. We

affirm.

I.

Viewed in the light most favorable to the Government, see

United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998), the

evidence adduced at trial established the following. The morning

of September 15, 2003, a masked, white-skinned man entered the

Comfort, West Virginia branch of Whitesville State Bank. He

pointed a small firearm at one of the bank employees and demanded

that she fill a duffel bag with money. The employee filled the

duffel bag with between $9,000 and $12,000; she also slipped in a

red dye pack designed to explode within minutes or seconds of

crossing the bank’s threshold. The assailant left the bank with
- 3 -

the filled duffel bag and entered a black Chevy Blazer that had

damage to the left front bumper and tow hook. 

Law enforcement officials responding to the crime traced

muddy tire tracks to a black Chevy Blazer that had been set on fire

along a service road. Paint chip analysis revealed the Blazer had

five layers of paint — two base gray/green layers, a red layer, a

clear coat layer, and a top, black layer. A database search of the

partial VIN number from the Blazer led to a red Blazer that had

been reported stolen by Timothy Chambers. Witness testimony showed

that approximately three years prior to the robbery Mullins

acquired a red Blazer from Chambers. At some point while Mullins

owned the Blazer, it was damaged in the front near the tow hook.

Mullins had possession of the vehicle until the day before the

robbery, but had not been seen with it since that day.

Near the burned Blazer, officials found the .22 caliber

firearm that had been used during the robbery. Ownership of the

firearm was traced to Mullins.

Two days after the robbery, Mullins’ employee and motherin-law both went to a local bank to deposit money given to them by

Mullins and his wife. Bank officials noted the money was damp, had

a powdery feel, and possessed a strong smell similar to bleach. In

addition, white portions of the bills were unusually white in

appearance and one of the bills had a pinkish tint to it.
- 4 -

II.

Mullins challenges some of the district court’s

evidentiary rulings. He contends the district court erred in

allowing the Government to admit Police Lieutenant David Gaskins’

testimony regarding the colors revealed in his analysis of paint

chips taken from the burned Blazer. Mullins asserts this testimony

should have been excluded or restricted based on the Government’s

alleged failure to timely disclose Gaskins’ testimony. Mullins

also contends the district court erred in allowing the Government

to admit evidence that Chambers reported his red Blazer had been

stolen. He asserts this evidence violated Fed. R. Evid. 404(b)’s

exclusion of “other acts” evidence to show conformity therewith. 

We review a district court’s decision regarding the

admission or exclusion of evidence for abuse of discretion. United

States v. Lancaster, 96 F.3d 734, 744 (4th Cir. 1996). Such

discretion is abused only when a district court has acted

“arbitrarily or irrationally.” United States v. Moore, 27 F.3d

969, 974 (4th Cir. 1994) (internal quotation marks and citation

omitted). After reviewing the record, the district court’s

rulings, and the parties’ briefs on appeal, we conclude that the

district court did not err. 

The decision whether to impose a sanction for a violation

of Rule 16(a)(1)(G) rests within the district court’s discretion.

See Fed. R. Crim. P. 16(d)(2); United States v. Hastings, 126 F.3d
- 5 -

310, 317 (4th Cir. 1997). The sanction of exclusion of testimony,

however, “is almost never imposed” absent a constitutional

violation or statutory authority for the exclusion. United

States v. Charley, 189 F.3d 1251, 1262 (10th Cir. 1999). Even when

there has been an abuse of discretion under Rule 16, reversal is

inappropriate unless the defendant establishes prejudice by

demonstrating that it is likely that had the Government complied

with the discovery rule (not had the evidence been suppressed), the

verdict would have been different. See United States v. Chastain,

198 F.3d 1338, 1348 (11th Cir. 1999). Under these principles and

in light of the facts presented in this case, we cannot say the

district court abused its discretion in allowing the Government to

introduce Gaskins’ testimony regarding the color of the paint

chips. 

Mullins contends the district court violated Federal Rule

of Evidence 404(b) by admitting evidence that the Chambers reported

their Chevy Blazer as being stolen. Rule 404(b) is an

“inclusionary rule” that only bars the admission of “[o]ther

crimes, wrongs, or acts” that “tends to prove only criminal

disposition.” Fed. R. Evid. 404(b); United States v. Higgs, 353

F.3d 281, 311 (4th Cir. 2003) (emphasis added). The evidence

Mullins challenges here — that Chambers reported his vehicle as

stolen — was not direct evidence of any act on Mullins’ part.
- 6 -

Instead, it was introduced in the course of describing law

enforcement officials’ search for the history of the burned Blazer.

To the extent that this evidence indirectly implicated

Mullins in a criminal act, it was admissible for permissible

purposes under Rule 404(b), including to explain law enforcement

officials’ conduct, to clarify Mullins’ brother-in-law’s testimony

regarding Mullins’ acquisition of the van, to suggest why Mullins

was not able to acquire a title and registration to the vehicle,

and to show why the vehicle was expendable. Accordingly, the

district court did not abuse its discretion in allowing the

Government to admit this evidence.

Mullins also asserts that the district court erred by

denying his request for a continuance for counsel to prepare for

cross-examination of Gaskins. Our review of the district court’s

decisions leads us to conclude that the court did not abuse its

discretion in denying Mullins’ motion based on the timeliness of

his request, his opportunity to review the paint chips in advance

of trial, and other relevant factors. See United States v.

Williams, 445 F.3d 724, 738 (4th Cir.) (stating the standard of

review), cert. denied, 127 S. Ct. 314 (2006). 

Mullins further contends the cumulative effect of the

district court’s errors during the trial denied him a fair trial.

We note that “a cumulative error analysis aggregates only actual
*

A cumulative error analysis “aggregates all the errors that

individually have been found to be harmless, and therefore, not

reversible, and it analyzes whether their cumulative effect on the

outcome of the trial is such that collectively they can no longer

be determined to be harmless.” Rivera, 900 F.2d at 1470.

- 7 -

errors to determine their cumulative effect.”* See United

States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990). Because

Mullins has not demonstrated multiple errors, there is nothing to

aggregate and the cumulative effect doctrine would not apply. 

Lastly, Mullins challenges the sufficiency of the

Government’s evidence supporting the guilty verdicts. We review

the denial of a Rule 29 motion for a verdict of acquittal de novo.

United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). Where,

as here, the motion was based on a claim of insufficient evidence,

“[t]he verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). We

consider both circumstantial and direct evidence, “and allow the

government the benefit of all reasonable inferences from the facts

proven to those sought to be established.” United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Furthermore, on

appellate review, this court does not review the credibility of the

witnesses and it assumes that the jury resolved contradictions in

testimony in favor of the Government. United States v. Romer, 148

F.3d 359, 364 (4th Cir. 1998). 
- 8 -

We review the district court’s decision to deny a Rule

33(a) motion for a new trial for abuse of discretion. United

States v. Adam, 70 F.3d 776, 779 (4th Cir. 1995). A district court

“should exercise its discretion to grant a new trial sparingly, and

. . . should do so only when the evidence weighs heavily against

the verdict.” United States v. Perry, 335 F.3d 316, 320 (4th Cir.

2003) (internal quotation marks omitted). Under this standard,

“this Court may not substitute its judgment for that of the

district court; rather, we must determine whether the court’s

exercise of discretion, considering the law and the facts, was

arbitrary or capricious.” United States v. Fulcher, 250 F.3d 244,

249 (4th Cir. 2001) (internal quotation marks omitted). 

With these standards in mind, we have reviewed the record

and conclude that the evidence was sufficient to support Mullins’

conviction. There was substantial circumstantial evidence tying

Mullins to the robbery, including Mullins’ connection to the

firearm and Blazer used in the robbery, as well as to suspicious

money deposited in another bank shortly after the robbery. “The

jury [is] entitled to reject the theory consistent with innocence

and accept the one consistent with guilt so long as there [is]

substantial evidence for its choice.” United States v. Garcia, 868

F.2d 114, 116 (4th Cir. 1989). Accordingly, the district court

properly denied Mullins’ Rule 29 and Rule 33 motions.
- 9 -

For the aforementioned reasons, we affirm the district

court’s judgment. We dispense with oral argument because the facts

and legal conclusions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED