United States v. Herbin , 367 F. App'x 208 ( 2010 )

08-5036-cr
United States v. Herbin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of February, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROSEMARY S. POOLER,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 08-5036-cr
17
18 SAMUEL HERBIN,
19 Defendant-Appellant.
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21
22 APPEARING FOR APPELLANT: MARSHALL A. MINTZ, Mintz &
23 Oppenheim LLP, New York, New
24 York.
25
26 APPEARING FOR APPELLEE: MICHAEL P. DRESCHER (Gregory L.
27 Waples, on the brief), United
28 States Attorney’s Office for the
1
1 District of Vermont, for
2 Tristram J. Coffin, United
3 States Attorney for the District
4 of Vermont, Burlington, Vermont.
5
6 Appeal from a judgment of the United States District
7 Court for the District of Vermont (Sessions, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 Samuel Herbin appeals his conviction on the grounds
14 that (1) the district court erroneously admitted evidence of
15 his handwriting exemplars, and (2) the evidence was
16 insufficient to support his conviction for being a felon in
17 possession of a firearm. We assume the parties’ familiarity
18 with the underlying facts, the procedural history, and the
19 issues presented for review.
20
21 [1] Herbin argues that his handwriting exemplars were
22 inadmissible under Federal Rules of Evidence 401, 608(b),
23 404(b), and 403. “We review a trial court’s evidentiary
24 rulings for an abuse of discretion.” United States v.
25 McDermott, 245 F.3d 133, 140 (2d Cir. 2001). When the
26 specific evidentiary challenge raised on appeal was
27 preserved in the district court, we will vacate if a party’s
28 substantial rights are affected. See Fed. R. Evid. 103(a);
29 United States v. Dupre, 462 F.3d 131, 136 (2d Cir. 2006);
30 see also Jacquin v. Stenzil, 886 F.2d 506, 508 (2d Cir.
31 1989). When it was not, our review is for plain error. See
32 Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
33
34 Evidence is relevant if it has “any tendency to make
35 the existence of any fact that is of consequence to the
36 determination of the action more probable or less probable
37 than it would be without the evidence.” Fed. R. Evid. 401.
38 Here, the handwriting exemplars were relevant to Herbin’s
39 credibility as a testifying witness. Relevant evidence,
40 however, “may be excluded if its probative value is
41 substantially outweighed by the danger of unfair prejudice,
42 confusion of the issues, or misleading the jury, or by
43 considerations of undue delay, waste of time, or needless
44 presentation of cumulative evidence.” Fed. R. Evid. 403.
45 Because Herbin did not raise a Rule 403 objection in the
46 district court, our review is for plain error. The
2
1 handwriting exemplars were obviously prejudicial to Herbin.
2 However, they were also relevant to Herbin’s credibility and
3 the validity of Herbin’s innocent justification for leasing
4 the apartment. We cannot find that the district court
5 committed plain error in balancing these concerns.
6
7 Federal Rule of Evidence 404(b) provides that evidence
8 of prior bad acts is inadmissible for propensity purposes
9 but is admissible “for other purposes.” See also United
10 States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1995). Before
11 404(b) evidence can be admitted, the government must, upon
12 request of the defendant, “provide reasonable notice in
13 advance of trial, or during trial if the court excuses
14 pretrial notice on good cause shown, of the general nature
15 of any such evidence it intends to introduce at trial.”
16 Fed. R. Evid. 404(b). Herbin did not raise a 404(b)
17 objection in the district court, and he has not demonstrated
18 plain error in this Court. The exemplars were relevant for
19 multiple non-propensity purposes, such as impeachment and
20 intent; moreover, Herbin has offered no argument as to why
21 any notice problem justifies vacatur under the plain error
22 standard.
23
24 [2] Herbin also contends that the evidence was insufficient
25 to support his conviction for being a felon in possession of
26 a firearm. See 18 U.S.C. § 922(g)(1). To obtain a
27 § 922(g)(1) conviction, the government must prove beyond a
28 reasonable doubt that: (1) the defendant has at least one
29 previous felony conviction; (2) the defendant knowingly
30 possessed the firearm; and (3) the firearm was in or
31 affected interstate commerce. United States v. White, 552
32 F.3d 240, 245 n.2 (2d Cir. 2009). Herbin argues that the
33 government presented insufficient evidence as to possession
34 and interstate commerce.
35
36 Herbin “bears a very heavy burden” in prevailing on
37 these arguments. See United States v. Crowley, 318 F.3d
38 401, 407 (2d Cir. 2003) (internal quotation marks omitted).
39 We must sustain the conviction if, “after viewing the
40 evidence in the light most favorable to the prosecution, any
41 rational trier of fact could have found the essential
42 elements of the crime beyond a reasonable doubt.” Jackson
43 v. Virginia, 443 U.S. 307, 319 (1979).
44
45 Possession. The government can establish possession by
46 proving either actual or constructive possession. United
3
1 States v. Gaines, 295 F.3d 293, 300 (2d Cir. 2002). Actual
2 possession “requires the government to show defendant
3 physically possessed the firearm.” Id. Here, the evidence
4 of actual possession consisted principally of the seizure of
5 a gun during a raid on Herbin’s residence and the testimony
6 of a witness that she heard Herbin say that the police had
7 seized his gun during the raid. This alone suffices. See
8 United States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006).
9
10 Interstate Commerce. The government must show “[s]ome
11 nexus with commerce . . . although that need not be any more
12 than the minimal nexus that the firearm [has] been, at some
13 time, in interstate commerce.” United States v. Jones, 16
14 F.3d 487, 491 (2d Cir. 1994); see also Gaines, 295 F.3d at15 302. “Testimony that a weapon was manufactured out of state
16 is generally sufficient to meet the interstate commerce
17 element.” Jones, 16 F.3d at 491 (internal quotation marks
18 omitted)521. Here, an ATF agent testified that the frame of
19 the gun at issue was manufactured in Nevada and then shipped
20 to California where it was assembled with other parts and
21 ultimately sold.
22
23 Finding no merit in Herbin’s remaining arguments, we
24 hereby AFFIRM the judgment of the district court.
25
26
27
28 FOR THE COURT:
29 CATHERINE O’HAGAN WOLFE, CLERK
30
4