Opinion
Criminal Action No. 04-190.
August 3, 2004
ORDER-MEMORANDUM
AND NOW, this day of July, 2004, upon consideration of Defendant's Motion for Judgment of Acquittal (Doc. No. 59), and the Government's response thereto, IT IS HEREBY ORDERED that said Motion is DENIED.
Defendant was charged with being a felon in possession of the following three firearms, in violation of 18 U.S.C. § 922(g)(1): (1) a Taurus PT-111, 9 mm caliber pistol loaded with ten rounds of ammunition, bearing an obliterated serial number (hereinafter, "Taurus PT-111"); (2) a Glock 19, 9 mm caliber pistol loaded with ten rounds of ammunition, bearing a partially obliterated serial number (hereinafter, "Glock 19"); and (3) a Davis Industries P-380, 380 caliber pistol loaded with six rounds of ammunition, bearing serial number AP 362255 (hereinafter, "Davis P-380").
At trial, the Government called Philadelphia Police Officers Richard Crawford and Patrick McFadden to the stand. Officers Crawford and McFadden testified that, in response to a radio call, they pulled over a "bluish-green," two-door sports utility vehicle at the intersection of E Street and Allegheny Avenue in Philadelphia at approximately 1:30 AM on October 29, 2003. (7/6/04 N.T. at 83, 121.) Officer Crawford approached the driver's side of the vehicle and Officer McFadden, who was armed with a shotgun, approached the passenger's side of the vehicle. (Id. at 89-90, 122-23.) As he approached, Officer Crawford illuminated the vehicle with a flashlight. (Id. at 90.) Because the vehicle had "heavily tinted" windows, however, Officer McFadden "could not see into vehicle," and "couldn't tell how many occupants were in there, [or the] race or anything [else about] the occupants of the vehicle." (Id. at 89-90.) Officer Crawford instructed the driver of the vehicle to roll down the window. (Id. at 90.) After the driver failed to comply with his request, Officer Crawford opened the driver's side door and asked the driver, who was a male, for his driver's license and the vehicle's paperwork. (Id.) As he was speaking with the driver, who identified himself as Andre Myrie, Officer Crawford observed a female passenger seated in the front passenger seat and Defendant, who was "straddling the hump" in the rear seat of the vehicle. (Id. at 90, 92, 116.) After the driver failed to produce the requested paperwork, Officer Crawford asked him to exit the vehicle. (Id. at 91.)
Officer Crawford later discovered that the driver's real name was Julian Hayes. (Id. at 116.)
Officer Crawford then shined his flashlight into the rear of the passenger compartment and "flipped the driver's seat forward." (Id.) As Officer Crawford flipped the driver's seat forward, he observed the Glock 19 "laying on the floor behind the driver's seat next to [Defendant's] left foot." (Id. at 92.) Officer Crawford then instructed Defendant to exit the vehicle. (Id.) As Defendant stepped out of the vehicle, Officer Crawford observed the Taurus PT-111 "laying on the passenger side rear seat next to where [Defendant] [had been] sitting." (Id.) After Defendant had fully exited the vehicle, Officer Crawford observed the Davis P-380 "on the right side of the rear floor, next to [where] [Defendant's] right foot" had rested. (Id. at 93.) Although Officer Crawford had observed "some clothing . . . on the passenger side floor and the passenger side rear seat," as well as "a video recorder back there," he testified that "[t]here was nothing in the rear that obstructed my view of any of the three firearms at the time they were recovered." (Id.)
The Government offered expert testimony that all of the seized guns constituted "firearms" under the law. (Id. at 137-146.) The Government also introduced stipulations that Defendant was a convicted felon at the time of his arrest and that the firearms had passed in interstate commerce. (Id. at 150-52.)
Defendant called Jerome Small as a witness in his defense. Small, who is Defendant's nephew, testified that, on the night in question, he had driven Defendant to a "go-go" club located at G Street and Allegheny Avenue. (7/7/04 N.T. at 10-12.) According to Small, he and Defendant arrived at the club between 12:00 AM and 12:30 AM. (Id. at 17.) Prior to entering the club, both he and Defendant were patted down for weapons by the club's bouncer, and no weapons were recovered from either himself or Defendant. (Id. at 15-17.) Small testified that once he and Defendant entered the club, he received a call from a girlfriend, whom he decided to go visit at another location. (Id. at 18.) Because Small was not certain that he would return prior to the closing of the club, he asked Julian Hayes (a/k/a Andre Myrie), a "childhood friend" of his who was at the club, to give Defendant a ride home. (Id. at 11, 18-20.) Small left the club at approximately 1:00 AM. (Id. at 17.) Small returned to the club between 1:45 AM and 2:00 AM, but it was closed. (Id. at 21.) Small also testified that he had regularly observed Hayes driving an "aqua green" SUV with tinted windows. (Id. at 20.) On cross-examination, Small testified that he had never introduced Defendant and Hayes prior to the night in question. (Id. at 25.) Small further admitted that he had been convicted on two prior occasions of a total of six felonies, and that he has used several aliases. (Id. at 22-24.)
By way of stipulation, Defendant also presented testimony of Eugene Famigletti, a fingerprint expert, whose examination of the three firearms on June 29, 2004 recovered no identifiable prints. (Id. at 26-27.) In rebuttal, the Government called Philadelphia Police Detective Steven Mostovyk, who testified that, on October 29, 2003, Officers Crawford and McFadden submitted to him the three firearms that they had recovered from the vehicle for investigation. (Id. at 31.) Detective Mostovyk decided not to perform fingerprint testing on any of the three firearms because the officers "were constantly moving the firearm[s] between themselves and other people, which . . . in turn smears the prints" and the grips of the firearms "were full of rough edges" which make them "very tough to fingerprint." (Id. at 31-32.) Detective Mostovyk also estimated that he performs fingerprint testing on only ten percent of the firearms submitted to him for investigation each year. (Id. at 33.)
After lengthy deliberations, the jury unanimously found Defendant guilty of being a felon in possession of a firearm. The jury specifically found that Defendant knowingly possessed the Taurus PT-111, which was recovered from the rear seat next to where Defendant had been sitting, but not the Glock 19 or the Davis P-380.
In deciding a post-verdict motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c), a court must view all of the evidence introduced at trial in the light most favorable to the Government and uphold the verdict so long as "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Voight, 89 F.3d 1050, 1080 (3d Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). The court is required to draw all reasonable inferences in favor of the jury's verdict. United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002). Thus, the defendant bears a "very heavy burden" when challenging the sufficiency of the evidence supporting a jury verdict, United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995), and a finding of insufficiency "should be confined to cases where the prosecution's failure is clear." Smith, 294 F.3d at 476 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984)).
In order to sustain its burden of proof of the crime of felon in possession of a firearm, the Government was required to prove the following elements beyond a reasonable doubt: (1) Defendant had previously been convicted of a crime punishable by imprisonment for a term exceeding one year; (2) Defendant knowingly possessed a firearm; and (3) that the firearm had passed in interstate commerce. United States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000); 18 U.S.C. § 922(g)(1). In his Motion, Defendant argues only that there is insufficient evidence in the record to establish the second element, knowing possession of a firearm.
Possession of a firearm by a felon may be demonstrated through either actual or constructive possession. United States v. Seibart, 148 F. Supp. 2d 559, 561 (E.D. Pa. 2001). A person who knowingly has direct physical control of an object is in actual possession of it. United States v. Blackston, 940 F.2d 877, 883 (3d Cir. 1991). "A person who, although not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it." United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999) (citations and emphasis omitted). Constructive possession is not merely a legal fiction; it "reflects the common sense notion that a person may possess a [firearm] even though the [firearm] is not on his person at the time of arrest."United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986). A finding of constructive possession may not be premised only upon "mere proximity to the [firearm], or mere presence on the property where it is located or mere association with the person who does control the [firearm] or property." United States v. Jenkins, 90 F.3d 814, 818 (3d Cir. 1996) (quoting United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993)). Constructive possession may be shown through either direct or circumstantial evidence. United States v. Martorano, 709 F.2d 863, 866 (3d Cir. 1983).
Defendant contends the Government failed to prove beyond a reasonable doubt that he constructively possessed the Taurus PT-111. Specifically, Defendant argues that he is entitled to acquittal because the Government proved only his mere proximity to the Taurus PT-111, and not that he knowingly had both the power and intention to exercise control over the firearm. In support of his contention, Defendant principally relies onUnited States v. Pitts, 3 F. Supp. 2d 637 (E.D. Pa. 1998),aff'd, 193 F.3d 515 (3d Cir. 1999) (table). In Pitts, the court held that the defendant did not exercise constructive possession over a firearm "found in close proximity to [defendant], wedged under the carpeting on the floor of the car, near the steering column attachment." Id. at 640. The court noted that "[t]here was no testimony at trial that linked [defendant] to the gun, other than the fact that he lived in the same house with the owner of the gun," and "there is no evidence that [defendant] had any knowledge of the gun, let alone control over it." Id. The court's conclusion was buttressed by evidence in the record that "the FBI agent who drove the [vehicle] from the [crime scene] to the [FBI garage], a lengthy trip, did not detect the gun under the carpeting, despite his considerable training in just such detection," and that "the FBI agents only saw the gun when they pulled back the carpet on the floor of the car." Id. ___ In stark contrast to Pitts, the Taurus PT-111 was in plain view on the seat next to Defendant. The jury could reasonably infer that Defendant, who was the only occupant in rear area of the vehicle's passenger compartment, knew of the loaded firearm's presence on the seat next to him and had both the power and intention to exercise control over it, especially given that two other loaded firearms were sitting at Defendant's feet on the rear floor. See United States v. Gonzalez, Crim. A. No. 02-534, 2003 WL 735096, at *4 (E.D. Pa. Mar. 6, 2003) (holding that jury could reasonably infer that defendant had constructive possession of firearm that was plainly visible to officer and located on seat in which defendant had been sitting). As defendant was seated in very close proximity to all three of the firearms charged in the indictment, the Jury's determination that he knowingly had both the power and intention to exercise control over "only" the Taurus PT-111 suggests that the jury regarded the difference in location of the weapons as significant. Thus, a rational juror could have found beyond a reasonable doubt that Defendant knowingly possessed the Taurus PT-111, regardless of whether he or she credited Small's testimony that Hayes had agreed to drive Defendant home from the club and that Defendant had no firearms in his possession when he left the club, as "even a very brief possession of a firearm is sufficient to convict under § 922(g)(1)." United States v. Hendricks, 319 F.3d 993, 1005 (7th Cir. 2003). Viewing all of the record evidence in the light most favorable to the Government and drawing all reasonable inferences in favor of the jury verdict, the Court concludes that Defendant has failed to meet his very heavy burden of demonstrating an insufficiency of evidence to support his conviction. Accordingly, the Court denies the instant Motion.
At trial, Government proceeded only on the theory of constructive possession.