United States of America v. Kenneth Graham

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4318
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH GRAHAM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:13-cr-00620-WDQ-1)
Submitted: March 15, 2016 Decided: April 4, 2016
Before SHEDD, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan A. Gladstone, Annapolis, Maryland, for Appellant. Rod
J. Rosenstein, United States Attorney, Seema Mittal, Kenneth S.
Clark, Assistant United States Attorneys, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kenneth Graham appeals his conviction for attempted Hobbs
Act robbery, in violation of 18 U.S.C. § 1951(a) (2012);
possessing and discharging a firearm in furtherance of a crime
of violence, in violation of 18 U.S.C. § 924(c) (2012); and
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2012). Graham contends that the district
court abused its discretion in allowing the Government to ask a
leading question as to Graham’s intent to rob. He also argues
there is insufficient evidence to support the jury’s finding
that he intended to commit a robbery. We affirm.
We review for an abuse of discretion the district court’s
ruling on the use of leading questions. United States v.
Durham, 319 F.2d 590, 592 (4th Cir. 1963); see United States v.
Hicks, 748 F.2d 854, 859 (4th Cir. 1984). “The evil to be
avoided is that of supplying a false memory for the
witness. . . . Generally, abuse of discretion is not found in
the absence of prejudice or clear injustice to the defendant.”
Durham, 319 F.2d at 592 (citations omitted); see also Winant v.
Bostic, 5 F.3d 767, 773 (4th Cir. 1993) (“[R]eversal is
warranted on the basis of leading questions only if the judge’s
actions cause the denial of a fair trial.”).
Graham argues that the district court abused its discretion
in allowing the Government to ask the victim a leading question

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about Graham’s intent to commit a robbery. We conclude that the
district court did not abuse its discretion. When the
Government asked the disputed question, it was merely
summarizing the witness’ answer to that point. Thus, the
Government’s question did not “supply[] a false memory for the
witness,” see Durham, 319 F.2d at 592, and Graham did not suffer
any “prejudice or clear injustice.” See id.
We review de novo the sufficiency of the evidence
supporting a conviction. United States v. Barefoot, 754 F.3d
226, 233 (4th Cir.), cert. denied, 135 S. Ct. 502 (2014). We
will uphold a conviction if, viewing the evidence in the light
most favorable to the Government, “any rational trier of fact
could have found the essential elements of the crime charged
beyond a reasonable doubt.” Id. (internal quotation marks
omitted). As a reviewing court, we may not “reweigh the
evidence or the credibility of witnesses,” United States v.
Roe, 606 F.3d 180, 186 (4th Cir. 2010), and must examine the
evidence in a “cumulative context” rather than “in a piecemeal
fashion,” United States v. Burgos, 94 F.3d 849, 863 (4th Cir.
1996) (en banc). Consequently, “[r]eversal for insufficient
evidence is reserved for the rare case where the prosecution’s
failure is clear.” United States v. Said, 798 F.3d 182, 194
(4th Cir. 2015) (citation and internal quotation marks omitted),

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petition for cert. filed, U.S.L.W. (U.S. Dec. 8, 2015)
(No. 15-7332).
“A Hobbs Act violation requires proof of two elements:
(1) the underlying robbery or extortion crime, and (2) an effect
on interstate commerce.” United States v. Strayhorn, 743 F.3d
917, 922 (4th Cir. 2014) (citation and internal quotation marks
omitted). Under the Hobbs Act, “robbery” is defined as
the unlawful taking or obtaining of personal property
from the person or in the presence of another, against
his will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to
his person or property, or property in his custody or
possession, or the person or property of a relative or
member of his family or of anyone in his company at
the time of the taking or obtaining.
18 U.S.C. § 1951(b)(1). In order to convict a defendant of
attempt to commit a crime, the Government must show, “beyond a
reasonable doubt, that (1) he had culpable intent to commit the
crime and (2) he took a substantial step towards completion of
the crime that strongly corroborates that intent.” United
States v. Engle, 676 F.3d 405, 419-20 (4th Cir. 2012). Here,
the parties dispute only whether Graham had the requisite intent
to commit a robbery.
Graham argues that the meaning of the phrase he spoke to
the victim—“Kick that shit out”—“cannot be easily deciphered.”
Appellant’s Br. at 7. We conclude, however, that the meaning of
the phrase is self-evident in the context in which it was

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uttered, and it supports the jury’s finding that Graham intended
to rob the victims. Graham was carrying a gun and wearing a ski
mask to hide his face when he knocked on the victims’ door near
midnight. He hid so that Victim A could not see him when she
opened the door. He then shoved a gun into her face and pushed
her back inside her home. While pointing his gun at her face,
he said, “Kick that shit out.” J.A. 48. A reasonable jury
could easily conclude from these facts that Graham had the
intent to commit a robbery.
Accordingly, we affirm the judgment of the district court.
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

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