United States v. Ambrose Sample, II ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-2762
UNITED STATES OF AMERICA
v.
AMBROSE J. SAMPLE, II,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No.: 2-18-cr-00031-001)
District Court Judge: Honorable Joy Flowers Conti
Submitted under Third Circuit L.A.R. 34.1(a)
on April 23, 2020
(Opinion filed: May 29, 2020)
Before: PORTER, RENDELL and FISHER, Circuit Judges
O P I N I O N*
RENDELL, Circuit Judge:
Appellant Ambrose J. Sample II (“Sample”) was convicted of possessing
ammunition as a convicted felon under 18 U.S.C. § 922(g)(1). Sample appeals his
conviction, arguing that the Government did not present sufficient evidence to sustain his
conviction because it failed to prove two elements: that the round of ammunition he
possessed met the statutory definition of “ammunition,” and that he knowingly possessed
the round of ammunition. For the reasons discussed below, we will affirm the District
Court’s judgment.
I. 1
A. Factual Background
In June 2017, Pittsburgh Police Officer Joseph Bucci responded to a 911 call in
which Shalena Lewis reported that gunshots had been fired in her neighborhood. When
Bucci arrived, he first saw and spoke to Sample and a few other people on the street.
Sample denied hearing gunshots, but Bucci continued on to speak with others, including
Lewis, the 911 caller, and her fiancé, Aaron Burton. Lewis identified Sample as the
individual who had fired the gunshots that led to her 911 call.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Because we write for the parties, who are familiar with the facts and the procedural
posture to date, we only include what is necessary to explain our decision.
2
Finding no shell casings or other evidence, Bucci eventually left the scene to
address another call but gave Sample’s description to Detective Joseph Lippert, who had
just arrived. Lippert also left the scene shortly thereafter but, while leaving, saw Sample
walking down a nearby street. Lippert stopped and spoke to Sample, before Bucci
returned and identified Sample as the alleged shooter. Lewis then also identified him.
Sample was detained, and his hands were swabbed for a gunshot residue test, which came
back positive.
The officers obtained a search warrant for and searched Sample’s residence.
Officers recovered a round of .380-caliber ammunition that was located in plain view on
the mantel above the fireplace in the living room of Sample’s residence. The officers did
not find a firearm or other ammunition in Sample’s residence.
B. Sample’s Indictment, Trial, and Conviction
The Government indicted and charged Sample with possession of ammunition by
a convicted felon and with possession of a firearm by a convicted felon. 2 Each count
alleged that Sample’s possession occurred after his convictions of four crimes punishable
by imprisonment for more than one year. Sample proceeded to a bench trial on both
counts.
At trial, in addition to witness testimony from Bucci, Lippert, Lewis, Burton, and
others, the Government presented expert testimony from Maurice Ferentino, a Special
2
Because Sample only appeals his felon in possession of ammunition conviction, we do
not describe the facts that formed the basis for Sample’s felon in possession of a firearm
charge, on which he was acquitted.
3
Agent for the of Bureau of Alcohol, Tobacco, Firearms and Explosives. At trial, Sample
did not object to Ferentino’s qualification as an expert or to the admission of his
testimony. Ferentino testified that, based on his training, experience, and visual and
physical inspection of the round of ammunition recovered from Sample’s residence, the
round was .380-caliber ammunition that would fit a .380-caliber firearm. Ferentino
testified that he had not tested the round’s primer to determine whether the round was
live. After the Government presented its case, Sample testified in his own defense,
stating among other things that he had never seen the ammunition and did not intend to
possess it.
After both parties rested, Sample moved for a judgment of acquittal on both
counts, and the District Court reserved decision. The District Court found Sample guilty
of possessing ammunition as a convicted felon. Sample then moved again for a judgment
of acquittal, which the District Court denied. The Court sentenced Sample to a 55
months’ imprisonment and a three-year term of supervised release. Sample timely filed
this appeal.
II. 3
We review the District Court’s factual findings for clear error. See, e.g., United
States v. Helbling, 209 F.3d 226, 237 (3d Cir. 2000). We review its legal determinations
de novo. See United States v. Ledesma-Cuesta, 347 F.3d 527, 530 (3d Cir. 2003). We
3
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
4
affirm a judgment of conviction if, “after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Burnett, 773 F.3d 122, 135 (3d Cir.
2014) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).
We “must view the evidence in the light most favorable to the . . . verdict and presume
that the [finder of fact] properly evaluated credibility of the witnesses, found the facts,
and drew rational inferences.” United States v. Marcavage, 609 F.3d 264, 271 (3d Cir.
2010) (quoting United States v. Wasserson, 418 F.3d 225, 237 (3d Cir. 2005)) (alterations
in original). Our review is “highly deferential.” United States v. Caraballo-Rodriguez,
726 F.3d 418, 430 (3d Cir. 2013).
III.
Sample appeals his conviction under 18 U.S.C. § 922(g)(1), arguing that the
Government failed to present sufficient evidence to sustain the District Court’s judgment
of conviction. Section 922(g)(1) states that it is unlawful for any person “who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one
year . . . to . . . possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C.
§ 922(g)(1). In order to sustain a conviction under 18 U.S.C. § 922(g)(1), the prosecution
must prove beyond a reasonable doubt that: (1) the defendant was convicted of a felony,
defined as a “a crime punishable by imprisonment for a term exceeding one year,” id.;
(2) the defendant, after being convicted, knowingly possessed ammunition, defined as
“ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in
any firearm,” 18 U.S.C. § 921(a)(17)(A); (3) the defendant’s possession was in or
5
affecting interstate commerce; and (4) the defendant knew of his or her felon status at the
time he or she possessed the ammunition. See Rehaif v. United States, 139 S. Ct. 2191,
2195-96, 2200 (2019). 4
A. Whether the round met the statutory definition of ammunition
Sample first argues that the Government presented insufficient evidence to prove
that the round of ammunition that was recovered from his home met the statutory
definition of “ammunition” under 18 U.S.C. § 921(a)(17)(A). The District Court found
that Ferentino’s expert testimony on this point sufficed to prove that the .380-caliber
round that officers recovered from Sample’s mantel was “ammunition” under 18 U.S.C.
§ 921(a)(17)(A). Sample urges, however, that Ferentino’s testimony did not support the
District Court’s finding because Ferentino did not attempt to load it into a weapon.
Sample’s argument fails. Viewing Ferentino’s testimony in the light most
favorable to the prosecution, it is clear that there was enough evidence before the District
Court for a “rational trier of fact” to find as the District Court did. Burnett, 773 F.3d at
135. Ferentino testified that the round recovered by officers on Sample’s mantel was a
round of .380-caliber ammunition designed for use in a .380-caliber handgun. His
testimony was based on his examination of the round and his years of training and
experience. Ferentino’s testimony sufficed to support the District Court’s judgment of
conviction on this element, which requires evidence that the ammunition be “designed for
4
Sample stipulated that he was a convicted felon, and does not argue he did not know of
his felon status. See Rehaif, 139 S. Ct. at 2200. Similarly, Sample does not contest on
appeal that the round of ammunition had traveled in interstate commerce.
6
use in any firearm,” 18 U.S.C. § 921(a)(17)(A). 5 We will therefore affirm the District
Court’s ruling on this issue.
B. Whether Sample possessed the round
Sample next argues that the Government presented insufficient evidence to prove
that Sample knowingly possessed the round of ammunition. The District Court found
that Sample constructively possessed the ammunition because it “was found in plain view
on the mantelpiece in his living room,” App. 12, and because he was the only occupant of
the home. Sample argues that the Government did not prove that he constructively
possessed the round and failed to rebut Sample’s testimony that he did not know about
the round.
“Constructive possession” exists if an “individual knowingly has both the power
and the intention at a given time to exercise dominion or control over a thing, either
directly or through another person or persons. Constructive possession necessarily
requires both dominion and control over an object and knowledge of that object’s
existence.” United States v. Walker, 657 F.3d 160, 172 (3d Cir. 2011) (quoting United
States v. Cunningham, 517 F.3d 175, 178 (3d Cir. 2008)). Sufficient circumstantial
5
As part of this challenge, Sample argues that because Ferentino “failed to apply even a
scintilla of a scientific principle or method when formulating his expert opinion,”
Appellant’s Br. at 19, his testimony fails the standard for expert testimony under Federal
Rule of Evidence 702 and therefore was not sufficient evidence to support the District
Court’s finding. Importantly, though, Sample does not argue on appeal that the testimony
was inadmissible, and his citation to Rule 702 in relation to his sufficiency argument does
not change our conclusion that a “rational trier of fact,” Burnett, 773 F.3d at 135, could
have relied on Ferentino’s testimony to find, as the District Court did, that the round was
“ammunition” under 18 U.S.C. § 921(a)(17)(A).
7
evidence supports the District Court’s “constructive possession” finding in Sample’s
case. See, e.g., United States v. Foster, 891 F.3d 93, 111 (3d Cir. 2018) (holding that
constructive possession of a firearm may be proven through circumstantial evidence). As
the District Court noted, Sample was the only person who lived at the home where the
round of ammunition was found; Sample himself testified that he was the only person
“allowed” to live in his home, App. 242; the police found no evidence of other people
living in the home; and the round of ammunition was in plain sight on Sample’s mantel.
This evidence was enough to sustain a finding that Sample exercised “both dominion and
control over” the round of ammunition and a rational fact finder could find that its
position in plain view indicates that Sample had “knowledge of [its] existence.” Walker,
657 F.3d at 172. Therefore, especially in light of our “highly deferential” standard of
review, Caraballo-Rodriguez, 726 F.3d at 430, we will affirm the District Court’s finding
that Sample was in possession of the round of ammunition that was recovered from his
mantel.
IV.
We will affirm the District Court’s judgment of conviction.
8