United States v. Williams , 717 F.3d 35 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1590
UNITED STATES OF AMERICA,
Appellee,
v.
KAREEM WILLIAMS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, with whom
Rheba Rutkowski, Assistant Federal Public Defender, was on brief,
for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
May 17, 2013
SELYA, Circuit Judge. In a run-up to this case, a
thrice-convicted felon and his confederates attended a backyard
barbecue at which firearms were openly displayed. They
subsequently reconvened at the scene of a planned robbery.
Although the robbery was never consummated, the police arrested the
convicted felon, defendant-appellant Kareem Williams, on firearms
charges. During his ensuing trial, the district court admitted
evidence of his statements to the police about events occurring at
the cookout. The jury convicted, and the defendant now challenges
both the sufficiency of the government's proof and the
admissibility of the statements. We affirm.
We start with the travel of the case. A federal grand
jury indicted the defendant on charges of possessing a firearm as
a convicted felon (count 1) and possessing a firearm with an
obliterated serial number (count 2). See 18 U.S.C. § 922(g)(1),
(k). At the close of all the evidence, the defendant moved
unsuccessfully for judgment of acquittal. See Fed. R. Crim. P. 29.
The jury found the defendant guilty, and the court sentenced him,
as an armed career criminal, to a 15-year prison term. See 18
U.S.C. § 924(e)(1). This timely appeal ensued.
The defendant's principal claim of error is that the
district court should have granted his motion for judgment of
acquittal because the evidence did not allow a rational jury to
find beyond a reasonable doubt that he knowingly possessed the guns
-2-
charged in the indictment. In determining whether the evidence
suffices to sustain a conviction, we draw the facts and all
reasonable inferences therefrom in the light most agreeable to the
jury verdict. See United States v. Walker, 665 F.3d 212, 224 (1st
Cir. 2011); United States v. Troy, 618 F.3d 27, 29 (1st Cir. 2010).
"To uphold a conviction, the court need not believe that no verdict
other than a guilty verdict could sensibly be reached, but must
only satisfy itself that the guilty verdict finds support in 'a
plausible rendition of the record.'" United States v. Echeverri,
982 F.2d 675, 677 (1st Cir. 1993) (quoting United States v. Ortiz,
966 F.2d 707, 711 (1st Cir. 1992)). This is the same indulgent
standard that the district court was duty bound to employ in
passing upon the defendant's Rule 29 motion, and we review the
district court's denial of that motion de novo. See United States
v. Dwinells, 508 F.3d 63, 72 (1st Cir. 2007).
The evidence, scrutinized favorably to the verdict,
reveals the following. At 12:39 a.m. on June 20, 2011, a police
officer, Daniel Dempsey, responded to a dispatch call about
suspicious activity on Paine Avenue, Cranston, Rhode Island. When
Dempsey arrived at the scene, he saw two stopped vehicles: an Acura
in front and a Nissan Maxima behind. Dempsey drove toward the
Acura until he was nose-to-nose with it. Using the spotlight on
his cruiser, Dempsey saw four men inside the Acura. He stepped
into the street and ordered the driver of the Acura to shut off the
-3-
engine. Instead of heeding this command, the driver began
traveling in reverse. So did the driver of the Maxima.
The Acura spun around and sped away, and the Maxima
continued traveling backwards. Dempsey returned to his vehicle,
pursued the Maxima, and ultimately collided with it.
Dempsey stepped out into the street and drew his weapon,
ordering the occupants of the Maxima to raise their hands. The
driver (Indya Rivers) and the front-seat passenger (Helluva Brown)
complied immediately. The defendant, who was sitting in the back
seat, did not comply; Dempsey observed him "moving around
. . . towards the center area of the seat." Dempsey could see the
back of the defendant's right shoulder but could not see what he
was doing with his hands. It was only after Dempsey reiterated his
command several times that the defendant finally raised his hands.
Once back-up arrived, Dempsey ordered Rivers, Brown, and
the defendant out of the Maxima. The defendant initially failed to
comply and exited the vehicle only after Dempsey repeated his
command.
Officer James McQuinn searched the Maxima. He noticed
that the armrest in the center of the back seat was "ajar [and] was
sticking out. It wasn't flush with the back seat." McQuinn pulled
the armrest all the way down, exposing a pass-through (that is, an
opening that led to the trunk of the car). Inside the trunk — a
few inches away from the pass-through — were two fully loaded guns:
-4-
a .38 revolver with black tape wrapped around the handle and a .45
caliber semi-automatic pistol with an obliterated serial number.
The defendant was taken to Cranston police headquarters
and, later that same day, two detectives interrogated him. The
defendant waived his Miranda rights, see Miranda v. Arizona, 384
U.S. 436 (1966), and agreed to speak with them.
During this recorded interview, the defendant disclosed
that he and the other occupants of the two cars had been planning
to rob a marijuana trafficker.1 He knew that guns would be
involved in the heist and stated that they had been placed in the
Maxima before he entered the car. He later changed his tune and
said that he thought that the guns were in the Acura.
The defendant further explained that he and his
confederates had attended a family cookout shortly before
sojourning to Paine Avenue. The cookout took place on the evening
of June 19, and Dempsey encountered the Maxima and the Acura
shortly after midnight on June 20.
The defendant stated that the semi-automatic pistol
belonged to Alexander Collins (one of the occupants of the Acura)
and that he had seen it tucked into Collins's waistband at the
1
The defendant disputes that the jury could have found that
he admitted intending to participate in the planned robbery. This
position elevates hope over fact. We have carefully examined both
the video and audio of the recorded interview, and we find
virtually inescapable the conclusion that the defendant admitted to
being part and parcel of the planned robbery.
-5-
cookout. The defendant accurately described the revolver as the
one with "tape on it," even though the police had made no mention
of the presence of tape. He claimed that this firearm, too,
belonged to an occupant of the Acura.
The defendant went on to say that, at the cookout, he
noticed Collins passing the revolver to a family member who just
"got out [of prison] on a gun charge." The defendant says that he
took the revolver from this person and hid it behind a "little
rock."
Against this evidentiary backdrop, we turn to the
defendant's principal plaint. To support a conviction under 18
U.S.C. § 922(g)(1), the offense charged in count 1, the government
had to prove beyond a reasonable doubt that the defendant was a
convicted felon who knowingly possessed a firearm in circumstances
that implicated interstate commerce. See United States v. Staula,
80 F.3d 596, 604 (1st Cir. 1996). To support a conviction under 18
U.S.C. § 922(k), the offense charged in count 2, the government had
to prove beyond a reasonable doubt that the defendant knowingly
possessed a firearm that had traveled in interstate commerce and
"had the importer's or manufacturer's serial number removed,
obliterated, or altered." See United States v. Betancourt, 116
F.3d 74, 75 & n.3 (3d Cir. 1997).
The defendant concedes that he has at least one prior
felony conviction, that both the revolver and the semi-automatic
-6-
pistol traveled in interstate commerce, and that the latter had an
obliterated serial number. As to both counts, then, his
sufficiency challenge focuses with laser-like intensity on whether
the government's proof was sufficient to establish the common
element of knowing possession.
Knowing possession of a firearm may be proved through
either actual or constructive possession. See United States v.
Liranzo, 385 F.3d 66, 69 n.2 (1st Cir. 2004). Actual possession is
"the state of immediate, hands-on physical possession." United
States v. Zavala Maldonado, 23 F.3d 4, 6 (1st Cir. 1994).
Constructive possession occurs "when a person knowingly has the
power and intention at a given time to exercise dominion and
control over an object, either directly or through others." United
States v. Ocampo-Guarin, 968 F.2d 1406, 1409 (1st Cir. 1992)
(internal quotation marks omitted).
Where, as here, the evidence is largely circumstantial,
the relevant inquiry asks whether the evidence as a whole, along
with plausible inferences favorable to the government, warrants a
rational jury in concluding that the government has proved the
elements of the offense beyond a reasonable doubt. See United
States v. Tierney, 760 F.2d 382, 384 (1st Cir. 1985); Dirring v.
United States, 328 F.2d 512, 515 (1st Cir. 1964). In conducting
this inquiry, we are not required to examine each sliver of
evidence in splendid isolation. Rather, we must appraise the
-7-
totality of the evidence, mindful that "individual pieces of
evidence, insufficient in themselves to prove a point, may in
cumulation prove it." Bourjaily v. United States, 483 U.S. 171,
179-80 (1987). This approach recognizes the verity that "[t]he sum
of an evidentiary presentation may well be greater than its
constituent parts." Id. at 180; Ortiz, 966 F.2d at 711.
Viewed through this prism, the defendant's argument
withers. Drawing plausible inferences, a rational jury could find
— as this jury did — that the government proved beyond a reasonable
doubt that the defendant knowingly possessed both firearms. The
jurors heard testimony that the guns were stored in the trunk of
the Maxima near the opening of a pass-through that connected the
trunk with the center of the back seat. This was in close
proximity to the defendant and within easy reach of where he had
been "moving around." The defendant ignored Dempsey's repeated
orders to come out of the car, instead moving toward the armrest.
He initially refused to raise his hands, keeping them out of
Dempsey's line of vision. This was especially significant because
the police later discovered that the armrest, which normally
covered the pass-through, was ajar. Moreover, the defendant had
planned to take part in a robbery and knew that guns would be
involved (indeed, he had handled the revolver only hours before his
apprehension). Last — but far from least — the defendant admitted
-8-
to the police that he knew the guns were in the Maxima.2 The
totality of this evidence easily supports an inference that the
defendant was in constructive possession of the guns.
To say more about this claim of error would be
supererogatory. Jurors have the right — indeed, the obligation —
to use their common sense in evaluating and drawing inferences from
circumstantial evidence. Viewing the record as a whole and using
their common sense, the jurors in this case rationally could have
inferred that when Dempsey stopped the Maxima the defendant had
knowing and intentional dominion and control over the firearms and,
thus, constructively possessed them. See, e.g., United States v.
Robinson, 473 F.3d 387, 399-400 (1st Cir. 2007) (finding evidence
of constructive possession sufficient where defendant had access
and opportunity to store guns in engine compartment); Liranzo, 385
F.3d at 69-70 (holding evidence sufficient to establish
constructive possession of gun by front-seat passenger where gun
was found beneath seat); see also United States v. Chapdelaine, 989
F.2d 28, 33-34 (1st Cir. 1993). It follows inexorably that the
district court did not err in denying the defendant's Rule 29
motion for judgment of acquittal.
2
The fact that the defendant later contradicted this
admission did not drain it of probative value. When there are two
conflicting versions of a single event, it is for the jury to
decide which version, if either, should be given credence. See
United States v. Nascimento, 491 F.3d 25, 46-47 (1st Cir. 2007);
United States v. Gobbi, 471 F.3d 302, 311 (1st Cir. 2006).
-9-
The defendant's remaining claims of error relate to the
admission of evidence. When objections have been preserved, we
review a district court's evidentiary rulings for abuse of
discretion. Walker, 665 F.3d at 228; United States v. Rodríguez-
Vélez, 597 F.3d 32, 40 (1st Cir. 2010).
The defendant insists that the district court abused its
discretion in admitting evidence of his statements about the
robbery scheme and his handling of the revolver at the cookout. In
the defendant's view, this evidence was both irrelevant and
unfairly prejudicial. We deal sequentially with these preserved
objections.
"Evidence is relevant if: (a) it has any tendency to make
a fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action."
Fed. R. Evid. 401. Trial courts are afforded wide latitude in
determining whether evidence crosses this low threshold, and we
will not disturb an exercise of that discretion unless an abuse
looms. United States v. Saccoccia, 58 F.3d 754, 780 (1st Cir.
1995).
In the case at hand, the district court did not abuse its
discretion in deeming the defendant's statements relevant to the
issue of whether he knowingly possessed the guns found in the
Maxima. These statements had a discernable tendency to make clear
the chain of events and to shed light upon the defendant's
-10-
knowledge of the guns and his motive and opportunity to possess
them.3 Because the case turned on the issue of knowing possession,
their relevance is apparent. See, e.g., United States v. González,
110 F.3d 936, 942 (2d Cir. 1997); United States v. Ladd, 885 F.2d
954, 959 (1st Cir. 1989).
The defendant's second objection implicates Federal Rule
of Evidence 403. Rule 403 provides that: "[t]he court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence." Fed.
R. Evid. 403. The delicate balance between probative value and
prejudicial effect is fact-specific and, within broad limits, is
best struck by the trial court. Walker, 665 F.3d at 229. "Only
rarely — and in extraordinarily compelling circumstances — will we,
from the vista of a cold appellate record, reverse a district
court's on-the-spot judgment concerning the relative weighing of
probative value and unfair effect." United States v. Pires, 642
F.3d 1, 12 (1st Cir. 2011) (quoting Freeman v. Package Mach. Co.,
865 F.2d 1331, 1340 (1st Cir. 1988)).
3
Although the required showing is merely a showing of knowing
possession, evidence of motive and opportunity can serve as
circumstantial evidence that helps to show constructive possession.
See United States v. Meadows, 571 F.3d 131, 145 (1st Cir. 2009).
-11-
In this instance, the probative force of the challenged
evidence is manifest. To be sure, that evidence was, as the
defendant laments, inimical to his cause. But the defendant has
not shown that any unfair prejudice outweighed its probative value.
Most evidence is prejudicial — that is why one side or the other
seeks to introduce it — and the mere fact that evidence hurts a
party's case does not make its admission problematic. It is only
unfair prejudice that weighs in the Rule 403 balance, see United
States v. Raymond, 697 F.3d 32, 39 (1st Cir. 2012); United States
v. Rodríguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989), and we see
no unfair prejudice here.
We note, moreover, that the district court gave a
limiting instruction specifically designed to minimize any risk of
unfair prejudice:
Now, you've heard evidence that at a
cookout on the evening before the date charged
in the indictment the Defendant previously
possessed the firearm, the .38 caliber with
the tape on it. The indictment does not
charge the Defendant with possessing a firearm
at that cookout, but rather charges him with
possessing at least one firearm at the time of
the automobile stop by the Cranston police.
You may not use this evidence to infer
that because of his character the Defendant
carried out the acts charged in this case.
You may consider this evidence only for
limited purposes, and those are as follows:
The limited purpose of deciding, one, whether
the Defendant had a state of mind or intent
necessary to commit the crime that is charged
in the indictment; or two, whether the
Defendant had a motive or opportunity to
-12-
commit the acts charged in the indictment; or
three, whether the Defendant acted in
accordance or according to a plan or in
preparation for the commission of a crime; or
four, whether the Defendant committed the acts
that he is on trial for by accident or by
mistake. So remember, these are the only
purposes for which you may consider evidence
of the Defendant's prior similar acts. Even
if you find the Defendant may have committed a
similar act in the past, this is not to be
considered as evidence of character to support
an inference that the Defendant committed the
acts charged in the indictment.
Before us, the defendant suggests that this limiting instruction
was not adequate to address the risk of unfair prejudice.
There is, however, a conspicuously large fly in the
ointment: the defendant neither asked for any limiting instruction
nor objected at trial to the one given by the district court. When
a defendant does not interpose a contemporaneous objection to a
limiting instruction, we will review an afterthought complaint
about the instruction only for plain error. See United States v.
Gómez, 255 F.3d 31, 37 (1st Cir. 2001); United States v. Paniagua-
Ramos, 251 F.3d 242, 245-46 (1st Cir. 2001).
Plain error review is rarely appellant-friendly. To
establish plain error, an appellant must show "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the defendant's substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). This is a daunting standard and, not surprisingly, "[i]t is
-13-
the rare case in which an improper instruction will justify
reversal of a criminal conviction when no objection has been made
in the trial court." See Henderson v. Kibbe, 431 U.S. 145, 154
(1977).
The defendant in this case does not come close to making
the requisite showing. While the instruction may not have been
ideal, it did make clear that the jury could not use the
defendant's earlier handling of a firearm as a proxy for the
elements of the charged crimes. We discern no plain error.
In an effort to snatch victory from the jaws of defeat,
the defendant notes that the district court's limiting instruction
drew heavily on Federal Rule of Evidence 404(b). He asserts that
"application of the Rule 404(b) criteria employed in the limiting
instruction to the gun statement demonstrates that this statement
has no special relevance independent of its tendency to show
criminal propensity." We do not agree.
The defendant's statements regarding his prior handling
of the revolver were introduced as circumstantial evidence of at
least one of the charged crimes (knowing possession of the
revolver). As we already have explained, this evidence was
relevant to establish the defendant's knowledge of the revolver and
his motive and opportunity to possess it. Under the circumstances,
the district court's use of the Rule 404(b) framework in its
limiting instruction was an appropriate way to focus the jurors on
-14-
the purposes for which the evidence could legitimately be
considered and to guard against any improper use of it. Cf. United
States v. Powell, 50 F.3d 94, 100 (1st Cir. 1995) (upholding
admissibility of evidence under Rule 404(b) where trial court
determined that the evidence had special relevance to whether
defendant had opportunity to obtain firearms and knowledge of the
availability of firearms).
We need go no further. The short of it is that the
district court did not abuse its discretion in admitting the
challenged evidence. Nor did it commit plain error in framing its
limiting instruction.
Affirmed.
-15-