UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4008

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MIQUAN LIMIK SMITH, a/k/a Mike Smith, a/k/a Limik Smith,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:13-cr-00044-RLV-DSC-2)

Submitted: July 30, 2015 Decided: January 14, 2016

Before DUNCAN, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North 

Carolina, for Appellant. Jill Westmoreland Rose, Acting United 

States Attorney, Amy E. Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Miquan Limik Smith appeals his convictions for conspiring 

to commit an offense against the United States by committing 

burglaries and stealing firearms, in violation of 18 U.S.C. 

§ 371 (2012) (Count 1), aiding and abetting the receipt and 

possession of stolen firearms, in violation of 18 U.S.C. 

§§ 922(j), 924(a)(2) (2012) (Count 2), and unlawfully possessing 

one or more firearms while a convicted felon, in violation of 18 

U.S.C. § 922(g) (Count 3). On appeal, Smith argues that (1) the 

district court abused its discretion by admitting hearsay 

testimony, (2) the evidence was insufficient to sustain his 

convictions, and (3) the Government violated his due process 

rights by failing to call his coconspirator to testify. We 

affirm.

First, we review the district court’s hearsay ruling for 

abuse of discretion. United States v. Gonzales-Flores, 701 F.3d 

112, 117 (4th Cir. 2012). “Hearsay” is any statement that the 

declarant does not make at the instant trial that “a party 

offers in evidence to prove the truth of the matter asserted in 

the statement.” Fed. R. Evid. 801(c). Hearsay is inadmissible 

except as otherwise provided by federal rule or statute. Fed. 

R. Evid. 802.

Here, we conclude that any error in the admission of the 

challenged testimony was harmless because “it appears ‘beyond a 
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reasonable doubt that the error complained of did not contribute 

to the verdict obtained.’” See United States v. Lovern, 293 

F.3d 695, 701 (4th Cir. 2002) (quoting Neder v. United States, 

527 U.S. 1, 15 (1999)). The complained-of statement was offered 

to prove that Smith was a passenger in a car connected with one 

of the burglaries. But even without the testimony, the evidence 

was more than sufficient to sustain Smith’s connection with that 

burglary, his coconspirator, and the stolen firearms. 

Therefore, this claim entitles Smith to no relief.

Nor do we find merit in Smith’s contention that the 

complained-of statement violates his rights under the 

Confrontation Clause. The Confrontation Clause’s reach is 

limited to testimonial statements. Crawford v. Washington, 541 

U.S. 36, 68 (2004). Here, the challenged statement was 

nontestimonial as it was obtained not to learn about past

events, but to apprehend a fleeing suspect. See Davis v. 

Washington, 547 U.S. 813, 822 (2006) (explaining that statements 

are “nontestimonial when made in the course of police 

interrogation under circumstances objectively indicating that 

the primary purpose of the interrogation is to enable police 

assistance to meet an ongoing emergency”). Thus, the 

Confrontation Clause is inapplicable.

We next review de novo the district court’s denial of 

Smith’s Fed. R. Crim. P. 29 motion for judgment of acquittal. 
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United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). We

will affirm if, when the evidence is viewed in the light most 

favorable to the Government, “the conviction is supported by 

substantial evidence.” United States v. Hickman, 626 F.3d 756, 

762-63 (4th Cir. 2010) (internal quotation marks omitted). 

“Substantial evidence is evidence that a reasonable finder of 

fact could accept as adequate and sufficient to support a 

conclusion of a defendant’s guilt beyond a reasonable doubt.” 

United States v. Green, 599 F.3d 360, 367 (4th Cir. 2015) 

(internal quotation marks omitted). A defendant challenging 

evidentiary sufficiency “faces a heavy burden.” United 

States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). Reversal 

of a conviction on these grounds is limited to “cases where the 

prosecution’s failure is clear.” Id. at 244-45 (internal 

quotation marks omitted).

To obtain a conviction under Count 1, the Government had to

show that Smith engaged in a conspiracy to violate 18 U.S.C. 

§ 922(j), which requires an agreement between Smith and his 

coconspirator, Johnson, to receive and possess stolen firearms, 

and an overt act in furtherance of that conspiracy. United 

States v. Cone, 714 F.3d 197, 213 (4th Cir. 2013). Notably, the 

agreement may be inferred from circumstantial evidence. Cone, 

714 F.3d at 213. Under Count 2, the Government had to 

demonstrate that Smith aided and abetted Johnson in violating 
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§ 922(j). Accordingly, to sustain Smith’s convictions under 

both counts, a reasonable juror must be able to conclude that 

Smith conspired, and aided and abetted Johnson, to knowingly 

possess stolen guns that had been shipped in interstate 

commerce. See United States v. Moye, 454 F.3d 390, 395 (4th 

Cir. 2006) (en banc). 

Under Count 3, the Government had to show that Smith 

knowingly possessed a firearm, as Smith does not contest his 

convicted-felon status. To prove possession, the Government 

need only demonstrate that Smith’s “possession was constructive, 

meaning that he exercised, or had the power to exercise, 

dominion and control over the firearm.” United States v. 

Wilson, 484 F.3d 267, 282 (4th Cir. 2007) (internal quotation 

marks omitted). 

Viewing the evidence in the light most favorable to the 

Government, we conclude that a reasonable juror could make a 

number of inferences critical to sustaining Smith’s conviction: 

(1) Smith was present at the final burglary; (2) Smith threw a

duffel bag out of the car window as police pursued the car; and 

(3) Smith knew that the bag contained stolen guns, which were 

instantly recognizable by their distinct weight and shape.

Given these inferences, the jury could conclude, beyond a 

reasonable doubt, that Smith conspired to possess a stolen gun, 

and aided and abetted Johnson in possessing a stolen gun. That 
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Smith fled from Johnson’s car makes the jury’s interpretation of 

the evidence all the more reasonable: “It cannot be doubted that 

in appropriate circumstances, a consciousness of guilt may be 

deduced from evidence of flight and that a jury’s finding of 

guilt may be supported by consciousness of guilt.” United 

States v. Obi, 239 F.3d 662, 665 (4th Cir. 2001). Thus, we hold 

that the evidence was sufficient to sustain the district court’s 

judgment.

We conclude by reviewing Smith’s due process claims, which 

were not raised at trial, for plain error. United States v. 

Promise, 255 F.3d 150, 153 (4th Cir. 2001) (en banc). To 

satisfy this standard of review, Smith must demonstrate that an 

error (1) occurred, (2) was plain, and (3) affected his 

substantial rights. United States v. Olano, 507 U.S. 725, 732 

(1993). Even then, we may exercise our discretion to correct 

such errors only if they “seriously affect the fairness, 

integrity, or public reputation of judicial proceedings.” Id.

Smith essentially claims that the Government engaged in

prosecutorial misconduct by refusing to call Johnson to testify. 

To show prosecutorial misconduct, Smith must demonstrate

“(1) that the prosecutors engaged in improper conduct, and 

(2) that such conduct prejudiced the defendant’s substantial 

rights so as to deny him a fair trial.” United States v. 

Alerre, 430 F.3d 681, 689 (4th Cir. 2005).
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We find no evidence of prosecutorial misconduct on this 

record. The Government had the right to call whomever they 

pleased, as did Smith. Neither elected to call Johnson. In 

short, we see no basis for reversal.

Accordingly, we affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED