United States v. Wilson ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
DEC 22 1997
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 97-8024
(D. Ct. No. 96-CR-99)
LONNIE EUGENE WILSON, (D. Wyo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, TACHA , and BALDOCK, Circuit Judges.
The defendant in this case was found guilty of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). He appeals his
conviction on four different grounds and also makes two challenges to his
sentencing. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
Background
The defendant Lonnie Wilson was convicted of a felony in Wyoming state
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
court in 1982. Fourteen years later, on April 10, 1996, local law enforcement
officers executed a search warrant, completely unrelated to the crime at issue
here, at the defendant’s uncle’s home on Dillon Avenue in Cheyenne, Wyoming.
The defendant, present when the officers arrived, informed detective Dean
Jackson and other officers prior to the search that he had a gun in his bedroom in
the residence. According to Detective Jackson, the defendant said that the gun
was his.
During the search, the police discovered a Browning shotgun in a room
with men’s clothing and correspondence addressed to the defendant. The
defendant’s uncle, John Henry Wilson, told the discovering officer that the room
belonged to the defendant. The shotgun was found inside a case.
According to Detective Jackson, when he saw the defendant later that
evening, the defendant asked if the police had taken “his” gun during the search.
See Tr. at 221. When the detective asked whether it was wise for the defendant to
have a gun considering his prior felony conviction, the defendant then asserted
that the gun belonged to his dead grandfather. The detective testified that when
he saw the defendant again one week later, the defendant again requested the gun
and again referred to it as “his.” See id. at 223.
Special Agent Kenneth Bray of the Bureau of Alcohol, Tobacco, and
Firearms began investigating the defendant’s connection to the gun. Upon
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learning of Agent Bray’s activity, the defendant invited Agent Bray to the Dillon
address, where he told the agent that the shotgun had belonged to his father, who
died in 1994. The defendant told Agent Bray that the shotgun passed to his
grandmother, who also lived at the Dillon address and who passed away in 1995.
The defendant said that he then moved the shotgun to his bedroom. According to
the defendant, he did this at the request of his aunts, who felt that the defendant’s
grandmother’s possessions should be secured to prevent theft.
According to Agent Bray’s testimony, Mr. Wilson stated that he had been
living at both his girlfriend’s house and the house on Dillon. Nevertheless, the
defendant also said that he had exclusive possession of the bedroom in which the
gun was found, referred to it as his room, and maintained his personal effects
there.
On October 31, 1996, the district court entered a discovery order which
required, among other things, that the government provide the defense with a
written summary of the government’s expected expert testimony, including the
experts’ opinions and the bases for those opinions, by November 8, 1996. Several
days before trial, and after November 8 had passed, the defendant learned that the
government planned to call an expert to identify the single fingerprint found on
the gun as that of the defendant. The defendant also learned that the government
planned to prove one of the elements of the crime--that the shotgun traveled in
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interstate commerce--by having Agent Bray testify that the Browning was
manufactured in Belgium and imported through St. Louis. The defendant moved
in limine to exclude the testimony of these witnesses based on the government’s
violation of the discovery order. The district court denied the motion.
At trial, the government also introduced, over the defendant’s objection, a
report from the National Crime Information Center indicating that the shotgun
was stolen. The government submitted this evidence to rebut the testimony of the
defendant’s two aunts and his stepmother, who claimed that the gun was a family
heirloom.
The jury found the defendant guilty of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). At sentencing, the
judge enhanced the defendant’s sentence by two levels on the basis of its
conclusion that the gun was stolen.
Discussion
The defendant appeals on five different grounds. He argues, first, that the
evidence at trial was insufficient to support his conviction for possessing a
weapon; second, that the court abused its discretion in refusing two of the
defense’s proposed jury instructions; third, that the report from the National
Crime Information Center was hearsay not within any exception; fourth, that the
trial court erred in admitting the testimony of Agent Bray and the fingerprint
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expert; and fifth, that there were two errors in his sentencing. With regard to
each challenge, we affirm the district court.
I. The Possession Element
A. Sufficiency of the Evidence
In determining whether there is sufficient evidence to support the jury’s
verdict, this court reviews the record de novo. See, e.g., United States v. Wilson,
107 F.3d 774, 778 (10th Cir. 1997). Evidence sufficiently supports a verdict if,
when considered in the light most favorable to the government, it would allow a
reasonable juror to find the defendant guilty beyond a reasonable doubt. See id.In evaluating the evidence under this standard, the court will not question a jury’s
credibility determinations or its conclusions about the weight of the evidence.
See United States v. Johnson, 57 F.3d 968, 971 (10th Cir. 1995).
The defendant argues that the government did not prove, as 18 U.S.C. §
922(g)(1) requires it to do, that the defendant “knowingly possessed” the
Browning shotgun. See United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir.
1997) (listing knowing possession as one of three elements of the offense). The
statute does not require a defendant to have had actual possession of a firearm;
constructive possession is enough. See United States v. Mills, 29 F.3d 545, 549
(10th Cir. 1994). “A person has constructive possession when he or she
knowingly holds ownership, dominion, or control over the object and the premises
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where it was found.” Id. at 549. If a defendant controls part of a premises, such
as a bedroom, rather than an entire premises, a fact-finder can infer that the
defendant constructively possessed a firearm found in that room. See United
States v. Owens, 70 F.3d 1118, 1127 (10th Cir. 1995) (finding sufficient evidence
of possession where police found gun in bedroom that defendant did not share).
In this case, the government put forth undisputed evidence that the
defendant, and only the defendant, used the bedroom in which the police
discovered the gun. That fact alone satisfies the minimal evidentiary requirement
for constructive possession under Owens. The other evidence in this case made
the factual basis upon which the jury found constructive possession even more
ample. Detective Jackson, for instance, testified that the defendant referred to the
gun as “his” on three different occasions. Also, although the gun was kept in a
case and the defendant contended that he only moved it from one room to the
next, one of his fingerprints was found on it. Under the applicable legal standard,
the evidence presented in this case allowed a reasonable juror to find beyond a
reasonable doubt that the defendant knowingly possessed the shotgun.
B. The Jury Instructions
We review a court’s refusal to give a particular jury instruction for an
abuse of discretion. See United States v. Lee, 54 F.3d 1534, 1536 (10th Cir.
1995). A trial court does not abuse its discretion in issuing jury instructions if the
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instructions that it gives fairly state the governing law and provide the jury with
an understanding of the issues and applicable standards. United States v. DeSoto,
950 F.2d 626, 631 (10th Cir. 1991).
The disputed instructions concern constructive possession. We noted above
that a defendant has constructive possession of an object if he has exclusive
possession of the premises--or part of a premises--in which the object is found.
See Owens, 70 F.3d at 1127. When a defendant has joint, rather than exclusive,
possession of a premises with another, however, the government must also prove
a “nexus” between the object and the defendant strong enough to show that the
defendant had knowledge of and access to the weapon or contraband. See Taylor,
113 F.3d at 1145.
The district court’s instructions 23 and 24 read, in pertinent part:
[Number 23] [P]ossession is constructive when a person does
not have actual possession of the object but knowingly holds
ownership, dominion, or control over the object and the
premises where it is found.
...
[Number 24] Where a defendant jointly occupies or shares a
premises (such as a dwelling, house or building) constructive
possession may be shown by direct evidence . . . or by
circumstantial evidence, which establishes beyond a reasonable
doubt that the defendant had knowledge that the firearm(s) was
contained in the premises and the defendant had the ability to
access the firearm(s).
Vol. 2, Tab 41. The defendant’s proposed instructions 33 and 34 read, in
pertinent part:
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[Number 33] Where the defendant jointly occupied a dwelling
or was present when a firearm is found, the government must
prove beyond a reasonable doubt that there is a connection or
nexus between the defendant and the firearm. Mere proximity
of the defendant Lonnie Eugene Wilson to the firearm is not
enough to establish that he actually or constructively possessed
the firearm.
[Number 34] The fact that Lonnie Eugene Wilson touched the
firearm is not, in itself, enough to prove actual or constructive
possession.
Vol. 1, Tab 31. The first sentence of the defendant’s proposed instruction
33 does not add anything to the district court’s instructions. Although it
uses the word “nexus,” in Taylor we equated the nexus requirement with a
finding of knowledge of and access to the weapon. See Taylor, 113 F.3d
at 1145. The district court’s instructions require both knowledge and
access to the weapon.
The defendant’s proposed instruction 34 and the second sentence of
the proposed instruction 33 are very similar to each other. The district
court refused these instructions, but did inform the jury in instruction 23
that the government was required to show ownership, dominion, or control
of the gun. Furthermore, it gave the jury a fair summary of the evidentiary
requirements in a case involving constructive possession. These
instructions sufficiently covered the issues presented. Therefore, we find
no abuse of discretion with regard to the jury instructions. See United
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States v. Pena, 930 F.2d 1486, 1492 (10th Cir. 1991) (“In deciding
whether the judge properly exercised his discretion, we must examine the
other instructions as a whole to determine if they sufficiently cover the
issues in the case and focus on the facts presented by the evidence.”).
II. National Crime Information Center Evidence
The defendant next argues that the trial court erred by admitting
evidence of a National Crime Information Center record indicating that the
Browning shotgun had been stolen from a Louisiana man in 1987. The
defendant argues that the record was hearsay evidence not admissible
under any exception. During the trial, the defendant’s aunts and his
mother testified that the gun had been a family heirloom. The government
offered the NCIC report to rebut that testimony. The NCIC report was
offered to prove the truth of the matter asserted in it. Thus, it is hearsay
evidence. See Fed. R. Evid. 801(c).
It is unnecessary to determine whether the NCIC report falls into the
business records exception to the hearsay rule, however, because even if
the trial court erred in admitting the record, that error was harmless.
Where a party objects to evidence on hearsay grounds, we apply the
harmless error standard from Kotteakos v. Untied States, 328 U.S. 750,
765 (1946). See United States v. Tome, 61 F.3d 1446, 1455 (10th Cir.
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1995). “[W]e must discern whether the statement, in light of the whole
record, substantially influenced the outcome of the trial, or whether we are
left in grave doubt as to whether it had such an effect.” Id. (citations and
internal quotation marks omitted).
The only contested issue at trial was whether the defendant
possessed the Browning shotgun. Uncontroverted evidence showed that
the gun first arrived at the Dillon Avenue home after the death of the
defendant’s father. The dispute revolved around the defendant’s
relationship to the gun after it arrived at Dillon Avenue, and especially
after the death of his grandmother in 1995. How the gun came to Dillon
Avenue--as a family heirloom or a stolen good--did not have any bearing
on the question of whether the defendant “possessed” the gun for the
purpose of the statute. The trial court’s instructions, in fact, recognized
the irrelevancy of the evidence. The court told the jury that the evidence
“is not offered and cannot be considered by you as evidence of guilt by
this defendant for the crime for which he now stands tried.” Tr. at 404.
The evidence merely contradicted the account of the aunts and
stepmother regarding a peripheral and insignificant issue, and therefore did
not impact the verdict. Cf. Cannady v. United States, 351 F.2d 796, 798
(D.C. Cir. 1965 ) (“If the hearsay evidence had been used to impeach
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appellant’s credibility by showing a contradiction on some insignificant
matter, we would hesitate to reverse his conviction.”). 1 The evidence of
guilt at trial, especially the testimony of Agent Bray and Detective
Jackson, was substantial. Because the NCIC report concerned an
insignificant issue in the trial and was not relevant to the issue of whether
the defendant possessed the gun, and because there was ample independent
evidence in support of the jury’s verdict, there is no risk that the NCIC
evidence substantially influenced the trial.
III. Expert Testimony
Mr. Wilson contends that the district court should not have allowed
the expert testimony of either Agent Bray or fingerprint expert because the
government did not provide written notice to the defendant of their names
and expected testimony, as required by the court’s discovery order. We
review a trial court’s decision to admit or exclude expert testimony for
abuse of discretion, and we will not reverse a trial court’s exercise of
discretion absent a showing that the trial court’s decision was prejudicial
to the defendant’s substantial rights. See Klein v. Grynberg, 44 F.3d 1497,
1
We recognize that it is improper to admit extrinsic evidence in order to impeach a
witness on a collateral matter. See United States v. Mulinelli-Navas, 111 F.3d 983, 988
(1st Cir. 1997). As noted, however, the district court admitted the evidence for its truth.
Furthermore, the defendant did not object to the introduction of the evidence on this
ground. Thus, we do not consider how that rule of law might apply to this case.
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1505 (10th Cir.), cert. denied 116 S. Ct. 58 (1995). We conclude that the
district court did not abuse its discretion.
Agent Bray testified that the Browning shotgun was manufactured in
Belgium and sent to St. Louis. This testimony tended to prove that the gun
had traveled across state lines, as required by 18 U.S.C. §§ 922(g)(1) and
924(a)(2). This testimony did not prejudice the defendant because three of
his own witnesses made statements that also demonstrated that the shotgun
had traveled interstate. See Tr. at 311-12 (testimony of Lenore Cox); id. at
329-31 (testimony of Dollie Scruggs); id. at 344 (testimony of Frankye
Hunt).
The defendant has also failed to show that the admission of the
fingerprint expert’s testimony prejudiced him. Normally, a party cannot
show prejudice resulting from surprise unless the party requested a
continuance. See Marino v. Otis Engineering Corp. 839 F.2d 1404, 1411
(10th Cir. 1988). Here, the defendant did not request a continuance to
prepare for the testimony of the fingerprint expert. Furthermore, the
defendant does not detail the nature of the prejudice against him; he
asserts only that the late admission of the evidence “deprived him of an
adequate opportunity to challenge [the] evidence.” Appellant’s Br. at 18.
This type of conclusory allegation of prejudice is an insufficient basis
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upon which to order a new trial. See Greenwood v. McDonough Power
Equip., Inc., 731 F.2d 690, 697 (10th Cir. 1984) (noting that the objecting
parties did not “display[] the manner in which [the expert’s] observation
prejudiced them or what steps they may have pursued to cure the alleged
prejudice.”).
IV. Sentencing
The trial court enhanced the defendant’s sentence under United
States Sentencing Guideline § 2K2.1(b)(4) for possessing a stolen firearm
and also refused to grant a downward departure under § 3E1.1 for
acceptance of responsibility. The defendant contends that the trial court
erred in both determinations. We review the trial court’s decisions for
clear error. See United States v. Rowlett, 23 F.3d 300, 303 (10th Cir.
1994) (applying § 2K2.1(b)(4)); United States v. Robertson, 45 F.3d 1423,
1449 (10th Cir.) (applying § 3E1.1), cert. denied, 116 S. Ct. 133 (1995).
The sentencing guidelines provide for a two-level enhancement “[i]f
any firearm was stolen.” U.S.S.G. § 2K2.1(b)(4). During the defendant’s
sentencing hearing, the government showed that the gun had been stolen
by presenting a police report from Caddo Parish, Louisiana. That report
had served as the basis for the NCIC evidence admitted at trial.
Because the Federal Rules of Evidence do not apply at sentencing
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hearings, hearsay statements may be used at sentencing as long as they
possess some “minimum indicia of reliability.” United States v. Browning,
61 F.3d 752, 754-55 (10th Cir. 1990). The defendant contends that the
police report does not have a minimum indicia of reliability because it is
merely a “piece of paper” and does not definitively prove that the gun was
actually stolen. There is, however, nothing in this record to suggest that
the report is untrustworthy. That being the case, we affirm the finding of
the district court. See Browning, 61 F.3d at 755 (finding evidence
admissible where there was no showing of unreliability).
Regarding the district court’s refusal to grant a downward departure
for acceptance of responsibility, we have previously held, “[A] defendant
who requires the government to make its proof by going to trial generally
will not be allowed a two-level departure for acceptance of responsibility.”
United States v. Reed, 114 F.3d 1053, 1058 (10th Cir.), cert. denied, 118
S. C.t 316 (1997). If a defendant goes to trial only to assert and preserve
issues that do not relate to factual guilt, however, he may still be entitled
to the reduction. See U.S.S.G. § 3E1.1 n. 2. In this case, the defendant
disputed his factual guilt. He denied Detective Jackson’s testimony that
the defendant stated that the gun was “his,” and denied the testimony of
Agent Bray regarding the defendant’s exclusive authority over the
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bedroom in which the gun was found. Thus, the district court did not err
in refusing to grant the two-level downward departure for acceptance of
responsibility.
Conclusion
Having found that the evidence was sufficient to convict the
defendant of possession of a firearm, that the jury instruction related to
that offense fairly described the law, the improper admission of the
hearsay evidence, if any, was harmless, that no prejudice resulted from the
expert testimony, and that the district court made no errors at sentencing,
we affirm the conviction and sentence of the defendant.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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