United States v. Trevor Braithwaite, 81 F.3d 151, 4th Cir. (1996)

81 F.
3d 151
NOTICE: Fourth Circuit Local Rule 36(c) states that citation

of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Trevor BRAITHWAITE, Defendant-Appellant.
No. 95-5183.
United States Court of Appeals, Fourth Circuit.

Submitted March 21, 1996.
Decided April 4, 1996.
Appeal from the United States District Court for the District of South
Carolina, at Florence. C. Weston Houck, Chief District Judge.
William Reynolds Williams, WILLCOX, McLEOD, BUYCK &
WILLIAMS, Florence, South Carolina, for Appellant. J. Preston Strom,
Jr., United States Attorney, Alfred J. Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.
D.S.C.
AFFIRMED.
Before NIEMEYER and MICHAEL, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
OPINION
PER CURIAM:
Trevor Braithwaite appeals his conviction and sentence on a jury verdict of

knowing possession of a firearm by a convicted felon, in violation of 18
U.S.C.A. 922(g) (West Supp.1995). Braithwaite timely filed this direct
appeal, advancing three claims of error. First, Braithwaite claims that his arrest
was unlawful due to a technical defect in the warrant, and therefore that the
district court erred in denying his motion to suppress the firearm. Second,
Braithwaite claims that the evidence was insufficient to support the jury's
verdict. Finally, Braithwaite claims that the district court erred in enhancing his
sentence for committing perjury pursuant to U.S.S.G. 3C1.1 (Nov.1994). For
the reasons set forth below, we affirm Braithwaite's conviction and sentence.
2
This Court reviews the district court's factual findings regarding suppression for
clear error, and applies a de novo standard of review to the ultimate suppression
decision. United States v. Rusher, 966 F.2d 868, 873 (4th Cir.), cert. denied, --U.S. ---, 61 U.S.L.W. 3285 (U.S. Oct. 13, 1992) (No. 92-5734). Fourth and
Fifth Amendment violations are waived by failing to file a pretrial motion to
suppress as required by Fed.R.Crim.P. 12(b)(3). In this case, Braithwaite's
attorney waited until the trial had begun before making his motion to suppress
the firearm on the ground that there was a technical defect in the arrest warrant.
While the failure to timely move to suppress evidence may be excused for just
cause and a showing of resultant prejudice, we find that no just cause exists in
this case. See United States v. Wilson, 895 F.2d 168, 173 (4th Cir.1990); see
also Fed.R.Crim.P. 12(f). Accordingly, we find Braithwaite's first claim of
error to be without merit.
Braithwaite next claims that the evidence was insufficient to support his
conviction of possessing the firearm. Specifically, Braithwaite claims that the
testimony of the police officers that they found the firearm on Braithwaite's
person was incredible. In evaluating the sufficiency of the evidence to support a
conviction, the relevant question is whether any rational trier of fact could have
found Braithwaite guilty beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979); United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir.1982). The evidence must be construed in the light most favorable to the
Government. Tresvant, 677 F.2d at 1021; United States v. Giunta, 925 F.2d
758, 764 (4th Cir.1991). If there exists substantial evidence to support a verdict,
viewing the evidence in the light most favorable to the Government, the verdict
must be sustained. Glasser v. United States, 315 U.S. 60, 80 (1942). This Court
considers circumstantial and direct evidence, and allows the Government the
benefit of all reasonable inferences from the facts established to those sought to
be proven. Tresvant, 677 F.2d at 1021. Circumstantial evidence need not
exclude every reasonable hypothesis of innocence. United States v. Jackson,
863 F.2d 1168, 1173 (4th Cir.1989).
At the trial on this matter, Officer Potter testified that he found the firearm in
Braithwaite's right pocket. Officer Parker testified that he saw Officer Potter
find the gun in Braithwaite's right front pocket. Moreover, two other officers
testified that they were present when the gun was seized from Braithwaite.
Braithwaite asserts that the testimony of the police officers is not credible given
the type of clothing he was wearing at the time. Specifically, he claims that if
he had had a gun on his person prior to a scuffle which ensued prior to his
arrest, many other witnesses would have seen the firearm. However, in
resolving issues of substantial evidence, this Court does not weigh evidence or
review witness credibility. United States v. Saunders, 886 F.2d 56, 60 (4th
Cir.1989); Murdaugh Volkswagen, Inc. v. First Nat'l Bank of S.C., 801 F.2d
719, 725 (4th Cir.1986).
5
Even if the jury had decided guilt on the basis of Officers Potter and Parker's
testimony alone, the jury's decision to believe their testimony is not reviewable.
The officers' testimony, taken in the light most favorable to the Government,
supports Braithwaite's conviction. Accordingly, we deny Braithwaite relief on
this claim.
Finally, an enhancement for obstruction of justice based on perjury may be

given if the district court finds that the defendant committed perjury in his trial
testimony, that is, that he intentionally lied about a material matter. U.S.S.G.
3C1.1; United States v. Dunnigan, 507 U.S. 87, ---, 61 U.S.L.W. 4180, 4183
(U.S. Feb. 23, 1993) (No. 91-1300). Rather than make a specific finding on
each of the elements of perjury, the court may make a finding that encompasses
them all. Id.; United States v. Castner, 50 F.3d 1267, 1279 (4th Cir.1995).
Here, the district court found that Braithwaite intentionally lied when he
testified that he had no firearm in his possession, and that the perjury was
material. We find that the district court's findings were proper and adequate to
permit the adjustment under Dunnigan and U.S.S.G. 3C1.1.
Accordingly, we affirm Braithwaite's conviction and sentence. We dispense

with oral argument because the facts and legal contentions are adequately
presented in the materials before the Court and argument would not aid the
decisional process.
AFFIRMED

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81 F.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation

United States Court of Appeals, Fourth Circuit.

Trevor Braithwaite appeals his conviction and sentence on a jury verdict of

Finally, an enhancement for obstruction of justice based on perjury may be

Accordingly, we affirm Braithwaite's conviction and sentence. We dispense

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