UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5702

ABU ASHONTE ALI, a/k/a Marty

Boldin, a/k/a Marty Boldwin,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Robert G. Doumar, District Judge.

(CR-95-31)

Argued: June 6, 1996

Decided: July 30, 1996

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and

CURRIE, United States District Judge for the

District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Robert Bryan Rigney, KNIGHT, DUDLEY, CLARKE &

DOLPH, P.L.C., Norfolk, Virginia, for Appellant. Janet S. Reincke,

Assistant United States Attorney, Norfolk, Virginia, for Appellee. ON

BRIEF: Helen F. Fahey, United States Attorney, Norfolk, Virginia,

for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Abu Ashonte Ali of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g) and § 924(a)(2), and

of possessing an unregistered firearm, in violation of 26 U.S.C.

§ 5861(d). Ali was sentenced to a total of 140 months imprisonment.

He appeals, asserting multiple challenges to his convictions and sentences. We affirm.

I.

A Virginia state police officer, Officer Nick Pizzillo, attempted to

stop and question Ali after noticing that Ali's car had a broken left

taillight. Ali did not stop until he reached a motel, at which point he

quickly left his car, leaving the driver's door open and permitting his

car to roll back into Officer Pizzillo's car. As Ali exited the car and

began walking toward the officer, Pizzillo drew his weapon and

ordered Ali to stop and place his hands on the back of the car. Upon

inquiry, Pizzillo learned that Ali was driving with a suspended

license. Pizzillo also spotted a knife scabbard on the car floor under

the driver's seat. A subsequent search uncovered a 12-gauge sawedoff shotgun in a black bag behind the front seat. The bag also contained a pawn receipt bearing Ali's name.

II.

First Ali contends that the district court erred in not dismissing the

indictment because of alleged grand jury improprieties. He asserts

that the presence of two unauthorized persons in the grand jury room

violated Fed. R. Crim. P. 6(e) and requires dismissal of the indictment.

This contention is without merit. In United States v. Computer Sciences Corp., 689 F.2d 1181 (4th Cir. 1982), cert. denied, 459 U.S.

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1105 (1983), we rejected a claim that five separate intrusions involving the entry of unauthorized persons in the grand jury room necessarily required dismissal. We noted that although grand jury proceedings

should always remain inviolate, "perfection" is rarely possible. Id. at

1185. The critical question is whether there has been an "intrusion of

significant duration" or a "showing of deliberate rule disregard by the

government or prejudice to the defendant." Id.

In this case, the prosecutor had just begun to tell the jurors that she

would be presenting a superseding indictment. After the prosecutor

had explained what a superseding indictment was, a juror raised his

hand and told her that two unknown persons were in the room. Those

persons were promptly evicted. They had been misdirected to the

grand jury room and innocently sat down. The prosecutor then called

a magistrate and a hearing was conducted, at which the magistrate

determined that one of the unauthorized persons was a witness for a

separate grand jury matter and that the second person was accompanying the witness. The magistrate questioned the prosecutor, the

grand jurors, and the unauthorized persons as to the extent of the

information they heard in the grand jury room. All agreed that the

unauthorized persons had heard no testimony, but only the prosecutor's introductory remarks.

At the conclusion of the hearing, the magistrate found that the

unauthorized persons had innocently entered the grand jury room and

that no prejudice had resulted. The district court subsequently

affirmed the magistrate's findings. As in Computer Sciences, our

review of the record indicates that this is a case"`absent demonstrable

prejudice or substantial threat thereof' so that`dismissal of the indictment is plainly inappropriate.'" 689 F.2d at 1185 (citing United States

v. Morrison, 449 U.S. 361, 365 (1981)).

III.

Ali next claims that the district court erred in not requiring the

prosecution to provide him with manuals containing the policies and

procedures of the Chesapeake Police Department, as he had requested

in discovery. He contends that because Officer Pizzillo testified that

proper procedure did not require the officer to report the fenderbender between himself and Ali, and another officer testified that

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such accidents must be reported, the failure to provide the manuals

denied Ali a chance to cross-examine on credibility. To the extent that

this argument has been preserved, it is meritless.

When Ali made his discovery motion for the police procedures, the

district court postponed ruling on the motion. The court stated that it

would listen to the trial testimony and, if the manuals became relevant, would order the prosecution to provide them. During the trial,

Ali never renewed his motion for the manuals nor did the district

court ever rule that they had become relevant. We review district

court discovery decisions for abuse of discretion. United States v.

LaRouche, 896 F.2d 815, 826 (4th Cir.), cert. denied, 496 U.S. 927

(1990).

The district court did not abuse its discretion. Police departments

have valid interests in keeping their internal policies and procedures

secret. The court therefore did not err in refusing to supply the manuals to Ali until he could demonstrate their relevance. Nor did the court

abuse its discretion in failing to find that the manuals had become relevant because (1) Ali never brought to the court's attention any perceived relevance and (2) the purported relevance Ali now argues to

this court (credibility as to reporting accident requirements for police

accidents) has minimal bearing on any material fact in this case.

IV.

Ali also asserts that his trial was delayed in violation of his rights

under the Sixth Amendment and the Speedy Trial Act.

Ali was placed under arrest by state police officers on September

5, 1994. He was subsequently imprisoned in a state facility for violating his probation. On January 23, 1995, a federal complaint and federal arrest warrant were issued, charging him with being a convicted

felon in possession of a firearm. On February 22, 1995, the grand jury

returned a one-count indictment against Ali. On March 2, Ali was

arraigned and trial was scheduled for May 8, 1995. On March 13, the

grand jury returned a two-count superseding indictment, charging him

with the two offenses at issue in this case. On March 22, Ali was rearraigned. The trial date, May 8, remained unchanged.

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As to Ali's Sixth Amendment challenge, the standard this court

applies is well-settled. We must balance the following factors: (1) the

length of the delay; (2) the reason for the delay; (3) whether the

defendant asserted his right to a speedy trial; and (4) the prejudice

defendant suffered. See United States v. Thomas , 55 F.3d 144, 148

(4th Cir. 1995) (citing Doggett v. United States , 505 U.S. 647, 651

(1992)), cert denied, ___ U.S. #6D6D 6D#, 116 S. Ct. 266 (1995). Here, thirty

days elapsed between issuance of the warrant and the initial indictment; and two and one-half months between the initial indictment and

the trial.

This delay constitutes no violation of Ali's constitutional right to

a speedy trial. First, the relatively short time periods involved here do

not come close to being uncommonly long. Typically, not until a year

has passed do courts presume sufficient prejudice from delay to warrant a constitutional speedy trial inquiry. See Thomas, 55 F.3d at 149

(citation omitted). The second factor is not significant because when

such a short period of delay is at issue, the reason for the delay

becomes irrelevant. The third factor weighs against Ali; no evidence

indicates that Ali ever asserted his right to a speedy trial. Finally, Ali

was incarcerated in the state prison throughout the delay period,

therefore his liberty interest has not been significantly affected, nor

has he shown any other prejudice resulting from the delay.

As to Ali's Speedy Trial Act claim, he appears to allege that the

time period between his arrest by state officers and his federal indictment violated the Act. This argument was disposed of in United

States v. Iaquinta, 674 F.2d 260, 264 (4th Cir. 1982), in which we

held that the time period for Speedy Trial Act purposes does not begin

until a federal arrest takes place. Accordingly, Ali's state arrest did

not trigger his statutory right to a speedy trial under federal law. See

18 U.S.C. § 3161 et seq. The thirty day delay between the issuance

of the federal warrant and the indictment in federal court was not

improper; Ali's rights under the Speedy Trial Act were not violated.

V.

Next, Ali contends that the district court erred in permitting the

jury to hear that he had used several "alias" names. He maintains that

because he had legally changed his name, it was prejudicial for the

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jury to hear about his aliases. Permitting the jury to hear of the aliases

was not error. Ali's aliases were relevant in proving that the car he

drove belonged to him. Although Ali denied ownership of the car,

various documents found in the car referred to his aliases. Since the

aliases were material to the contested issue of ownership or possession of the car (and gun), the court did not err in denying Ali's motion

to strike them.

VI.

Additionally, Ali asserts that the district court erred in denying his

motion to suppress evidence taken from his car. The district court

held a lengthy suppression hearing during which four witnesses testified, including two police officers and Ali himself. At the conclusion

of the hearing, the court denied the suppression motion. First, the

court found that the broken taillight, a violation of traffic laws, provided Officer Pizzillo with justification for the initial stop. See United

States v. McDonald, 61 F.3d 248, 254 (4th Cir. 1995) (traffic violation may provide a basis for an investigatory stop). Ali does not

appear to challenge this finding on appeal.

What he does challenge is the legitimacy of the resulting search of

his car. At the suppression hearing, Officer Pizzillo testified that after

he had ascertained that Ali's license was suspended, and had spotted

and confiscated the scabbard containing the "five or six inch bladed

commando-style knife," he asked Ali if he had"any more surprises."

Ali responded, "No, it's not my car." The officer then asked if Ali

would mind if the officer "took a look" in the car and Ali said, "the

car is not mine. You can look all you want." Ali testified that he was

never asked to consent to a search, but he corroborated the officer's

testimony regarding his statement that the car was not his.

The district court carefully considered this evidence and made the

following findings:

Given the defendant's extensive history as a felon, the

court does not assign credibility to the defendant's testimony. In fact, the court finds the defendant's testimony to

be incredible, and for that reason the court credits the testi-

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mony of the officer, and the officer says the defendant gave

him permission to search the vehicle.

Based upon the officer's testimony the defendant gave

him permission to search the vehicle and the defendant's

testimony in part which corroborates the officer's testimony,

it is the court's finding that the defendant in this case gave

Officer Pizzillo consent to search the vehicle.

The court in part concludes this because it appears in saying the vehicle was not his, the defendant was trying to provide some excuse for what he knew the officer would find

in that particular vehicle. So, for that reason the court finds

that this was a consensual search and that the evidence

should not be suppressed.

Thus the court decided to credit the police officer's testimony rather

than Ali's and found that Ali had consented to the search of the car.

Because a consensual search does not violate the Fourth Amendment,

the fruits of such a search are generally admissible. See United States

v. Lattimore, No. 94-5915, ___ F.3d #6D 6D6D#, 1996 WL 344878, at *3 (4th

Cir., June 25, 1996) (en banc) (citing Schenckloth v. Bustamonte, 412

U.S. 218, 219 (1973)). Thus the district court did not err in denying

Ali's suppression motion.

VII.

Ali challenges the district court's refusal to exclude from the jury's

consideration several items obtained from the car. These items

included various letters and cards relating to Ali's prior convictions.

Ali contends that Fed. R. Evid. 403 prohibits admission of this evidence.

Under Rule 403, a district court may exclude evidence if "its probative value is substantially outweighed by the danger of unfair prejudice." We review the district court's evidentiary rulings for abuse of

discretion. See United States v. Whittington, 26 F.3d 456, 465 (4th

Cir. 1994). A district court's Rule 403 decision will not be overturned

except under "the most extraordinary of circumstances, where that

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discretion has been plainly abused." United States v. Simpson, 910

F.2d 154, 157 (4th Cir. 1990) (citations and internal quotation omitted).

In this case, the papers in the car were relevant to the extent that

they showed that the car containing the shotgun was Ali's car, and

not, as he had claimed, his girlfriend's. Therefore, the documents

were plainly probative of a significant issue in the case. The documents were also prejudicial, in that they related to Ali's prior criminal

history. Although redaction of the documents would have been warranted on this basis, defense counsel never requested that the documents be redacted. Rather, he urged the court to exclude the

documents altogether and inform the jury that the police found letters

or documents addressed to and written by Ali. The government had

an interest in displaying to the jury the number and variety of the documents found bearing Ali's name and the aliases, and so the district

court did not err in rejecting Ali's proposed remedy. Moreover, the

court repeatedly cautioned the jury that the documents were admitted

only for the purpose of showing Ali's control of the vehicle and for

no other purpose. Such cautionary instructions are due significant

weight in our assessment of whether the evidence was overly prejudicial. See United States v. Hadaway, 681 F.2d 214, 219 (4th Cir.

1982). Since there was no request for redaction and the court properly

admonished the jury as to the limited purpose of the documents, the

court did not abuse its discretion in admitting the documents.

VIII.

Next, Ali contends that the district court erred in permitting the

government to introduce one letter from the car because the government had not provided proper evidence to show the chain of custody

of the letter. At trial, however, Ali objected to admission of the letter

based on Rule 403 and not because of any perceived problem with the

chain of custody. Failure to raise the chain of custody objection

deprived the court of the opportunity to rule on the chain of custody.

As such, the argument is waived on appeal and may be reviewed only

for plain error. See United States v. Olano, 507 U.S. 725 (1993).

The chain of custody rule is simply a variation of the rule requiring

proper authentication of evidence. United States v. Howard-Arias,

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679 F.2d 363, 366 (4th Cir.), cert. denied, 459 U.S. 874 (1982). Even

if the letter had not been properly authenticated, this defect would not

constitute plain error because Ali has failed to allege, let alone prove,

that he was prejudiced by its admission.

IX.

Ali also challenges the district court's decision to admit evidence

of "uncharged" bad conduct.

First, he contends that the court should not have permitted a police

officer to testify that, on another occasion, Ali was arrested while

driving the same car. The prosecution offered this evidence to show

that Ali had previously possessed the car to counter Ali's claim that

the car (and weapon found in it) were not his. Thus, this evidence was

not offered to show Ali's character but rather to identify Ali as being

in possession of the car and the weapon found therein. As such, the

testimony was admissible under Rule 404(b).

Second, Ali claims that the court should not have permitted the

government to introduce various items found in his car. Ali claims

these items, described as burglary tools, were irrelevant and prejudicial. Officer Pizzillo testified that he found numerous items in Ali's

trunk, including cameras, radios, and pagers. When he began to

explain why he believed these items were suspicious, defense counsel

objected, arguing that the officer's suspicions were based on pure

"speculation." The prosecution responded that it would be happy to

go into the officer's qualifications as an expert. The court then told

the prosecutor to develop the officer's qualifications. The officer testified to his qualifications and later revealed that numerous "burglary

tools" were found in Ali's car. Seemingly satisfied, defense counsel

raised no further objections.

It is only now on appeal that Ali raises an objection to the burglary

tools as evidence of prior bad acts or uncharged criminal conduct. The

failure to raise this objection before the trial court constitutes a waiver

of the objection, reviewed for plain error. In view of the abundant

other evidence presented by the government establishing Ali's guilt

of the charged firearm offenses, any error in admitting evidence

regarding the "burglary tools" was harmless.

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X.

Ali maintains that the district court erred in permitting the government to introduce evidence at trial that was not disclosed to the

defense until the second day of trial. This evidence, which the government claims was discovered the night of the first day of trial, consisted of towing records. The records were introduced to show Ali's

control of the car. We review the district court's decision to admit this

evidence for abuse of discretion. The court allowed Ali and his counsel some time to review the new evidence before its introduction. Fed.

R. Crim. P. 16(c) simply requires that a party, who discovers additional evidence, "promptly notify" the other party or the court. Ali

does not argue that the government purposely withheld this evidence

or that it was not, in fact, newly discovered. We therefore cannot conclude that the district court abused its discretion in admitting the

newly discovered evidence.

XI.

Next, Ali contends that the district court erred in denying his

motion for acquittal because the government did not provide sufficient evidence to satisfy the "commerce" requirement of 18 U.S.C.

§ 922(g). This statute makes it illegal for a felon to "ship or transport

in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported in interstate and

foreign commerce." Ali relies on the Supreme Court's recent decision

in United States v. Lopez, ___ U.S. ___, 115 S. Ct. 1624 (1995), and

on United States v. Bass, 404 U.S. 336 (1971).

Ali's apparent constitutional challenge to the statute, based on

Lopez, must fail. In Lopez, the Supreme Court struck down a statute

prohibiting possession of a firearm near a school, concluding that the

statute had "nothing to do with `commerce'" and contained "no jurisdictional element which would ensure, through case-by-case inquiry,

that the firearm possession in question affects interstate commerce."

Lopez, ___ U.S. at ___, 115 S. Ct. at 1630-31. The statute in question

in this case, § 922(g), in contrast, does contain such a jurisdictional

element because it applies only to firearms having"an explicit connection with or effect on interstate commerce." Id. at 1631. Lopez

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therefore does not affect previous precedent upholding the statute's

constitutionality. See, e.g., Scarborough v. United States, 431 U.S.

563 (1977); United States v. Bass, 404 U.S. 336 (1971).

In a related challenge, Ali contends that the evidence presented in

this case, which showed that the firearm had once traveled in interstate commerce (from its place of manufacture in Massachusetts to

Ali's possession in Virginia) was insufficient to show that he possessed the weapon in interstate commerce. Ali bases this contention

on language taken from the Supreme court's opinion in Bass, in

which Justice Marshall stated that the commerce connection can be

shown in a variety of ways. Justice Marshall offered, as an example,

that the government could establish the commerce nexus with regard

to "possession" charges by showing that:

at the time of the offense the gun was moving interstate or

on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the

offense of "receiv[ing] . . . in commerce or affecting commerce," for we conclude that the government meets its burden here if it demonstrates that the firearm received has

previously traveled in interstate commerce.

Bass, 404 U.S. at 350 (alteration in original). From this language, Ali

concludes that possessing a firearm (as opposed to receiving one)

requires more than proof that the firearm had once traveled in interstate commerce.

Ali's precise argument was rejected in another opinion authored by

Justice Marshall, Scarborough v. United States , 431 U.S. 563 (1977).

In Scarborough the Supreme Court "reconsidered" the prior distinction between the proof required for possessing and receiving. Id. at

575 n.11. The Court held that there was "no indication that Congress

intended to require any more than the minimal nexus that the firearm

have been, at some time, in interstate commerce." Id. at 575. Because

in the present case, the government offered such proof, Ali's argument fails.

XII.

Ali contends that his convictions should be overturned for lack of

sufficient evidence. Viewing the evidence in the light most favorable

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to the government, as we must, we conclude that the evidence was

clearly sufficient to establish Ali's guilt of both convictions. Ali was

convicted of being a felon in possession of a firearm and of possessing an unregistered firearm. He concedes that he is a convicted felon;

there is abundant evidence in the record that an unregistered sawedoff shotgun was found in a car Ali possessed, while he was driving

the car. Accordingly, his contention of insufficient evidence to sustain

his convictions is without merit.

XIII.

Ali asserts that the district court erred in failing to dismiss the

indictment because Officer Pizzillo's testimony was too incredible to

be believed. There was nothing inherently incredible about the officer's testimony. In any event, credibility determinations are not

within the province of this court. See United States v. Johnson, 55

F.3d 976, 979 (4th Cir. 1995).

XIV.

Finally, Ali challenges his sentence. He contends that because the

two counts with which he was charged were grouped under the

Guidelines, and because the maximum sentence for each count taken

alone, was 120 months, he should not have been sentenced to 140

months for the grouped counts.

The district court grouped the two counts together because they

encompassed the same conduct. The court then determined that the

appropriate offense level for the grouped counts was 26. See United

States Sentencing Commission, Guidelines Manual , § 2K2.1(a)(1)

(Nov. 1994). Ali's extensive criminal history placed him in category

VI. The guideline range for a defendant with an offense level of 26

and a criminal history category of VI is 120-150 months. USSG Ch.5,

Pt. A. From that range the court determined that the proper "total punishment," USSG § 5G1.2, comment., was 140 months.

Once the district court has determined the "total punishment," the

court must calculate the statutory maximum punishment permitted for

each count. Here, the statutory maximum that could be imposed on

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each count was 120 months. The commentary to the Guidelines notes

that usually the "total punishment" will not exceed the statutory maximum punishment. Id. However, "[i]f the sentence imposed on the

count carrying the highest statutory maximum is less than the total

punishment, then the sentence imposed on one or more of the other

counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment." USSG

§ 5G1.2(d). Accordingly, to reach the desired"total punishment" of

140 months, the court imposed the statutory maximum, 120 months,

on one of the counts against Ali, and, on the second count, imposed

20 months to run consecutively, while the remaining 100 months ran

concurrently with the initial 120 month sentence.

This sentence was consistent with United States v. Watford, 894

F.2d 665, 669 (4th Cir. 1990), in which we noted that sentences for

two counts grouped together should run concurrently,"except to the

extent necessary to produce a sentence within the appropriate guideline range." See also United States v. Young , 916 F.2d 147, 151-52

(4th Cir. 1990) (sometimes "grouped counts" can merit consecutive

sentences where the maximum on the highest individual count is less

than the total punishment). The district court's sentence in this case

also comports with similar sentences in other circuits. See United

States v. Mizrachi, 48 F.3d 651 (2d Cir. 1995); United States v. Kings,

981 F.2d 790 (5th Cir.), cert. denied, 508 U.S. 953 (1993). Cf. United

States v. Joetzki, 952 F.2d 1090 (9th Cir. 1991).

Ali's attempt to use this court's decision in United States v.

Talbott, 902 F.2d 1129 (4th Cir. 1990), to support his theory that his

sentence could not exceed the maximum for either of the counts for

which he was convicted, is unavailing. In Talbott, the district court

had sentenced the defendant to consecutive ten year sentences for

possession and manufacture of a single firearm. We held that such a

"pyramiding" of sentences was not permissible. Id. at 1133. In the

typical case, that is true. It is only in the unusual case, such as the one

here, where the total allowable punishment under the Guidelines

exceeds the statutory maximum, that the court may impose consecutive sentences to reach the chosen "total punishment."

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For the foregoing reasons, Ali's convictions and sentences are

AFFIRMED.

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