United States v. Sperling , 400 F. App'x 765 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5158
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID CHARLES SPERLING,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00419-JAB-1)
Argued: September 22, 2010 Decided: November 9, 2010
Before NIEMEYER and DUNCAN, Circuit Judges, and Robert J.
CONRAD, Jr., Chief United States District Judge for the Western
District of North Carolina, sitting by designation.
Reversed and remanded by unpublished opinion. Judge Duncan
wrote the opinion, in which Judge Niemeyer and Judge Conrad
joined.
ARGUED: David Bernard Smith, Greensboro, North Carolina, for
Appellant. Terry Michael Meinecke, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF:
Anna Mills Wagoner, United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
This appeal arises from a conviction on one count of
possession of a firearm by a person who is an unlawful user of
or addicted to a controlled substance, 18 U.S.C. § 922(g)(3).
Appellant David Sperling challenges the district court’s denial
of his motion for acquittal, claiming there was insufficient
evidence to support the jury’s verdict. For the reasons that
follow, we reverse the judgment of the district court and vacate
Sperling’s conviction.
I.
On October 16, 2008, a police officer observed Sperling
driving fifteen miles below the speed limit while drifting in
and out of his lane on Interstate 85, near Thomasville, North
Carolina. 1 The officer stopped Sperling’s vehicle, approached
it, and noticed an assault rifle behind the passenger seat. The
officer asked Sperling if there were any more firearms in the
vehicle, and Sperling replied that there was a 9 millimeter
pistol in the glovebox. After obtaining Sperling’s consent to
search the vehicle, the officer recovered both the assault rifle
and the pistol, as well as several loaded magazines of
1
Since Sperling appeals from a jury’s guilty verdict, “we
recite the facts in the light most favorable to the government.”
United States v. Kelly, 510 F.3d 433, 435 n.1 (4th Cir. 2007).
2
ammunition. He then arrested Sperling for carrying a concealed
weapon. Sperling did not appear impaired at the time of his
arrest, and the record does not reflect that the arresting
officer detected any odors of controlled substances in his
vehicle.
The officer took Sperling to the Thomasville police
department. After receiving Miranda warnings and stating that
he was prepared to answer questions, Sperling was interviewed
for about four-and-a-half hours by four state and federal law
enforcement officers. During this interview, Sperling confirmed
that he owned the weapons and ammunition that had been found in
his vehicle. In response to initial queries from the officers,
Sperling also reported that he had once had a drug problem but
had not used drugs for many years. Upon further questioning,
Sperling altered his story, admitting to the officers that he
had used both marijuana and cocaine within a couple months of
his arrest. Sperling also acknowledged at some point that he
had tried to stop using drugs but “continued to use them on and
off.” J.A. 132.
While Sperling was in police custody, his vehicle was towed
to an impound lot. Shortly after the vehicle reached the lot, a
certified police K-9 handler conducted a canine search of the
vehicle. The police dog alerted at three different sites on the
vehicle’s exterior. Once allowed inside the vehicle, the dog
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alerted “very aggressively” at the center console. J.A. 63.
The officer searched the vehicle’s interior but did not find any
controlled substances.
In October 2008, a grand jury indicted Sperling in a one-
count indictment alleging a violation of 18 U.S.C. § 922(g)(3). 2
A jury trial began on January 12, 2009. During the two-day
trial, the government presented testimony and other evidence
regarding Sperling’s arrest and statements, as well as the
canine search of defendant’s vehicle. The federal agent who
advised Sperling of his Miranda rights testified that he found
no criminal or medical record of Sperling’s drug use or evidence
of drug addiction. Another federal agent testified that he had
spoken to Sperling’s parents, who confirmed that Sperling had
undergone drug treatment as a teenager.
At the close of the government’s evidence, Sperling moved
for acquittal on the charge against him for want of sufficient
evidence, pursuant to Federal Rule of Criminal Procedure 29. He
argued that the government had failed to offer any evidence,
other than his uncorroborated statements, to show that his drug
use had been “consistent [and] prolonged or . . . close to the
time of the [firearm] possession.” J.A. 169. The government
2
Section 922(g) provides, in pertinent part, that “[i]t
shall be unlawful for any person . . . (3) who is an unlawful
user of or addicted to any controlled substance . . . to . . .
possess . . . any firearm.”
4
countered by asserting that Sperling’s incriminating statements
reflected a consistent pattern of drug use, which was
corroborated by the canine alert. The district court denied
Sperling’s motion.
On January 13, 2009, the jury rendered a guilty verdict.
Sperling renewed his Rule 29 motion, which was again denied. On
October 20, 2009, the district court denied a third motion to
acquit and sentenced Sperling to fifteen months’ imprisonment
and two years of supervised release. This appeal followed.
II.
On appeal, Sperling’s sole argument is that the district
court erred by denying his Rule 29 motions, because the evidence
against him was insufficient. As a defendant challenging the
sufficiency of the evidence, Sperling bears a heavy burden.
United States v. Young, 609 F.3d 348, 355 (4th Cir. 2010). We
must affirm his conviction if we find it to be supported by
substantial evidence, that is, “evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” Id. Put otherwise, we must assess “whether, ‘viewing
the evidence and the reasonable inferences to be drawn therefrom
in the light most favorable to the [g]overnment, . . . the
evidence adduced at trial could support any rational
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determination of guilty beyond a reasonable doubt.’” Id.(quoting United States v. Burgos, 94 F.3d 849, 863 (4th Cir.
1996) (en banc)).
Section 922(g)(3) criminalizes the possession of a firearm
by a person “who is an unlawful user of or addicted to any
controlled substance.” To sustain a conviction, the government
must prove that the defendant’s drug use was “sufficiently
consistent, ‘prolonged,’ and close in time to his gun possession
to put him on notice that he qualified as an unlawful user”
under the terms of the statute. United States v. Purdy, 264
F.3d 809, 812 (9th Cir. 2001). 3 The government contends that the
jury’s determination that the government had carried its burden
was “supported by substantial and significant evidence,
including, but not limited to, the defendant’s various
admissions to the investigating law enforcement officers.”
Appellee’s Br. at 8. We disagree.
“‘[I]t is a settled principle of the administration of
criminal justice in the federal courts that a conviction must
3
We have previously recognized § 922(g)(3)’s ambiguity with
regard to how close in time a defendant’s drug use must be to
the defendant’s firearm possession in order to constitute a
violation. See United States v. Jackson, 280 F.3d 403, 406 (4th
Cir. 2002) (“[T]he exact reach of [§ 922(g)(3)] is not easy to
define. . . .”). Here, neither party disputes the district
court’s instructions on the timing of Sperling’s drug use. We
therefore apply the framework articulated by the district court,
which reflects the Ninth Circuit’s persuasive conclusion in
Purdy.
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rest upon firmer ground than the uncorroborated admission or
confession of the accused’ made after commission of a crime.”
United States v. Abu Ali, 528 F.3d 210, 234 (4th Cir. 2008)
(quoting Wong Sun v. United States, 371 U.S. 471, 488-89
(1963)). Although corroborative evidence need not “prove the
offense beyond a reasonable doubt, or even by a preponderance,”
it must “support[] the essential facts admitted sufficiently to
justify a jury inference of their truth.” Id. at 235; see also
United States v. Stephens, 482 F.3d 669, 672 (4th Cir. 2007). A
verdict may rely on an admission or confession, but only if
“there is substantial independent evidence that the offense has
been committed, and the evidence as a whole proves beyond a
reasonable doubt that [the] defendant is guilty.” Abu Ali, 528
F.3d at 235 (alteration in original) (quoting Smith v. United
States, 348 U.S. 147, 156 (1954)). Thus, the question before us
is not, as the government would have it, whether there was
sufficient evidence to convict “including” Sperling’s
admissions, but whether there was sufficient independent
evidence to corroborate those admissions. We conclude that
there was not.
The government identifies only two pieces of potentially
corroborative evidence: Sperling’s parents’ statements
regarding his teenage drug use and the canine alerts. Neither
one provided independent evidence that Sperling was an unlawful
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drug user within the meaning of § 922(g)(3). 4 The former shows
only that Sperling--who was twenty-nine when he was arrested--
had used controlled substances a decade or more before the
charged offense. Indeed, the agent who spoke with Sperling’s
parents explicitly testified that he was unable to corroborate
any more recent drug use.
The government’s reliance on the police dog is similarly
unavailing. At most, the canine’s alerts corroborate the
presence of drugs in Sperling’s car at some point prior to his
arrest. But even if a canine alert that did not result in the
discovery of a controlled substance could corroborate a
defendant’s confession of drug possession--and the government
has offered no caselaw that suggests it could--the police dog’s
response is quite irrelevant to the issue of drug use.
The government has cited no other independent evidence to
corroborate Sperling’s confession. We therefore hold that there
was insufficient evidence supporting Sperling’s conviction and
vacate the conviction and sentence.
4
At oral argument, the government claimed for the first
time that the evidence was sufficient to support a jury’s
conclusion that Sperling was a drug addict. As the argument was
not raised in the government’s opening brief, we find it waived.
United States v. Jones, 308 F.3d 425, 427 n.1 (4th Cir. 2002).
In any event, the government’s claim is unsupported by the
record.
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III.
For the foregoing reasons we reverse the district court’s
denial of Sperling’s motion for acquittal, vacate his conviction
and sentence, and remand for further proceedings consistent with
this opinion.
REVERSED AND REMANDED
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