United States v. Jackie Roberts ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0600n.06
No. 12-5464
FILED
UNITED STATES COURT OF APPEALS Jun 24, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
JACKIE ROBERTS, ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
Defendant-Appellant. )
)
BEFORE: KEITH, WHITE, and STRANCH, Circuit Judges.
DAMON J. KEITH, Circuit Judge. Defendant Jackie Roberts was convicted following
a three-day jury trial in federal district court of drug trafficking and unlawful possession of a firearm.
His convictions stemmed from a drug transaction involving a controlled buy. At sentencing, the
Government argued that Defendant was subject to an armed career criminal enhancement due to
several prior convictions. The district court ultimately applied the enhancement and sentenced
Defendant to 235 months of imprisonment. On appeal, Defendant argues that the evidence was
insufficient to convict him. He also argues that the district court committed reversible error at
sentencing by failing to conduct a colloquy required under 21 U.S.C. § 851, allowing him to contest
the existence of a prior conviction. For the reasons detailed below, we AFFIRM Defendant’s
convictions and his sentence.
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I. Sufficiency of the Evidence
Background
In November 2011, a federal jury convicted Defendant Jackie Roberts of: (1) distribution of
hydrocodone pills, a controlled substance; (2) firearm possession while being a felon; (3) firearm
possession after being convicted of domestic violence; and (4) being an unlawful drug user in
possession of a firearm. On April 11, 2012, he was sentenced to 235 months in prison. His
convictions stemmed from a drug transaction involving a controlled buy and possession of a .38
caliber gun. The following facts were presented at trial.
The Investigation of Jackie Roberts
Defendant was a constable in Clay County, Kentucky. In May 2011, a county drug task force
and the police department of Manchester County, Kentucky began an investigation of Defendant
for possible drug-trafficking activities. Law enforcement had received complaints that Defendant
was selling prescription pills of out “Jack’s Tires,” a tire shop he owned with his wife, Jennifer
Roberts, in Manchester, Kentucky. Law enforcement arranged for Jerry Jarvis, a cooperating witness
(“CW”), to purchase controlled substances from Roberts at Jack’s Tires.
The Controlled Buy
On July 19, 2011, Jarvis purchased two hydrocodone pills from Roberts. Jarvis was wired
to record audio and video during the transaction. In the video, Defendant is recorded discussing the
price of the pills and snorting a line of powdered pills. When Jarvis asked about purchasing
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additional pills the following day, Defendant replied he did not know if it was possible. Defendant
also stated that he slept with a .38 caliber firearm and had recently pointed the gun at someone.
Defendant’s Arrest and Search of His Property
Officers obtained a search warrant for Jack’s Tires and executed it on July 20, 2011. They
arrested Defendant and his wife and seized one-half of an oxycodone pill, a credit card, a straw, and
plastic bags. All the items contained powder residue. They also seized several bottles of Neurontin,
a non-controlled substance available by prescription. After the search, Defendant’s wife told officers
that Defendant stays alternatively at a house on Ball’s Knob Road and a shed on Curry Branch Road,
both in Clay County, Kentucky. After admitting ownership of a firearm, she admitted that Defendant
had handled the gun.
The same day, Defendant’s son, Jackie Charles Roberts, told the police that Defendant owned
a .38 caliber revolver that he usually kept in the car or at Jack’s Tires in a green zip-up banker’s bag.
He also said that he had observed his father handling the firearm on several occasions.
The officers then transported Defendant and his wife to the Curry Branch property. A device
in the police vehicle recorded the pair discussing their recent drug sales and who could have turned
them into the police. Defendant told an officer that the firearm belonged to his wife, but admitted
that he had probably handled the firearm and police might find his fingerprints on it. At the Curry
Branch property, the police found a loaded .38 caliber revolver in a green zip-up bag and twelve
additional rounds of ammunition under a pillow on the bed inside a storage shed.
The Trial
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On August 4, 2011, Defendant was indicted for drug trafficking and various offenses related
to the unlawful possession of a firearm. During the trial, the CW Jerry Jarvis, Defendant’s son
Jackie Charles Roberts, and four law enforcement officers who participated in the investigation
testified consistently with the aforementioned facts on behalf of the Government. Additionally, the
audio-video recording of the controlled buy was played for the jury. Defendant then put on two
witnesses to testify about his son’s reputation for untruthfulness. He also took the stand in his own
defense. The judge read aloud a November 9, 2011 stipulation in which Defendant admitted that the
pills recovered from the controlled buy and from the search of Jack’s Tires contained controlled
substances. The jury found Defendant guilty.
Standard of Review
Defendant asserts that there was insufficient evidence to support his convictions. The
Fourteenth Amendment guarantees “that no person shall be made to suffer the onus of a criminal
conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact
beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia,
443 U.S. 307, 316 (1979). “For sufficiency of the evidence challenges, ‘the relevant question is
whether, 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. Sease, 659 F.3d 519, 523 (6th Cir. 2011) (emphasis in original) (quoting Jackson, 443 U.S.
at 319). The government receives “the benefit of all inferences which can reasonably [be] drawn
from the evidence, even if the evidence is circumstantial.” United States v. Rozin, 664 F.3d 1052,
1058 (6th Cir. 2012) (quoting United States v. Adamo, 742 F.2d 927, 932 (6th Cir. 1984)).
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Analysis
A. Distribution of a Controlled Substance
One of Defendant’s convictions was for distribution of hydrocodone, a controlled substance,
in violation of 21 § U.S.C. 841(a)(1). He argues that Jarvis’ testimony was the only evidence offered
in support of the conviction and that this evidence was insufficient because Jarvis was not credible.
To obtain a conviction for the distribution of a controlled substance, the government must
prove that: 1) the defendant knowingly or intentionally distributed the controlled substance, and 2)
at the time of distribution the defendant knew the substance was a controlled substance. United
States v. Colon, 268 F.3d 367, 376 (6th Cir. 2001).
Here, the evidence the Government introduced would allow a reasonable juror to conclude
that Defendant distributed a controlled substance even without considering the contested testimony
from CW Jarvis. The jury watched and listened to the recording of the controlled buy, in which
Defendant snorted a line of pill powder and discussed the price of the pills. Detective Samuel
Johnson testified that Defendant sold two hydrocodone pills to CW Jarvis. Defendant himself
admitted that the pills recovered from his shop contained controlled substances. Officers also
recovered drug paraphernalia from Jack’s Tires.
Defendant asserts that the recorded evidence was ambiguous as to whether it was Defendant
himself or his wife who sold the pills. A jury, however, could rationally conclude that it was
Defendant who sold the pills, in addition to, or instead of, his wife. This would be sufficient to
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convict Defendant. “[W]e cannot overturn the jury’s decision merely because it had to draw
reasonable inferences.” United States v. Arnold, 486 F.3d 177, 181 (6th Cir. 2007) (en banc).
“[T]he critical point is that the jury could have drawn different inferences from [the Government’s]
evidence, and our mandate is to affirm when the jury’s choice was a rational one.” Id. at 182.
B. Firearm Possession While Under a Disability
Defendant was also convicted of three offenses pertaining to the possession of a firearm
under 18 U.S.C. § 922. To obtain a conviction under 18 U.S.C. § 922, the government must prove
that: 1) the defendant possessed a firearm or ammunition and 2) that the firearm or ammunition had
traveled in or affected interstate commerce. 18 U.S.C. § 922(h). Section § 922 further requires proof
that a specified disability existed at the time a defendant possessed the firearm. Here, the jury found
that Defendant had the following disabilities: (1) he had a previous felony conviction, 18 U.S.C. §
922(g)(1); (2) he had used a controlled substance during the time he possessed the firearm, 18 U.S.C.
§ 922(g)(3); and (3) he has been convicted of a domestic violence misdemeanor, 18 U.S.C. §
922(g)(9). See United States v. Newsom, 452 F.3d 593, 608 (6th Cir. 2006); United States v.
Roberge, 565 F.3d 1005, 1008–09 (6th Cir. 2009); United States v. Beavers, 206 F.3d 706, 708 (6th
Cir. 2000).
For these offenses, Defendant only appeals the sufficiency of the evidence with regard to
whether he possessed the firearm. He asserts that the only evidence supporting firearm possession
are the testimonies of CW Jarvis and Defendant’s son Jackie Charles Roberts. Defendant contends
that their testimony is insufficient because it is “patently noncredible.”
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A defendant may be convicted of unlawful firearm possession under 18 U.S.C. § 922 based
on either actual or constructive possession of a firearm. Newsom, 452 F.3d at 608–10 (citing United
States v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005)). “Constructive possession exists when a person
. . . knowingly has the power and the intention at a given time to exercise dominion and control over
an object, either directly or through others.” United States v. Gardner, 488 F.3d 700, 713 (6th Cir.
2007) (internal quotation marks omitted). Mere presence alone near a gun is insufficient to prove
constructive possession. Arnold, 486 F.3d at 183. Instead, “[o]ther incriminating evidence must
supplement a defendant’s proximity to a firearm in order to tip the scale in favor of constructive
possession.” United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). Evidence that
Defendant had both of the following is sufficient to prove constructive possession: (1) knowledge
of and access to the firearm, and (2) intent to exercise dominion or control over the firearm. United
States v. Bailey, 553 F.3d 940, 945 (6th Cir. 2009).
Here, CW Jarvis and Jackie Charles Roberts testified that Defendant had knowledge of and
access to the recovered firearm, as well as intent to control it because they had observed Defendant
in possession of the firearm on multiple occasions. CW Jarvis also testified that Defendant admitted
ownership of the firearm, that he slept with it, and that he had recently pointed it at a trespasser.
Defendant asserts that this evidence is insufficient because it rests on testimony from
witnesses he characterizes as “patently noncredible.” This argument is unavailing. Credibility
determinations are left to the jury. See United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006)
(holding that attacks on the credibility of witnesses “are simple challenges to the quality of the
government’s evidence and not the sufficiency of the evidence” and that appellate courts do not
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“weigh the evidence” or “assess the credibility of the witnesses”); United States v. Beverly, 369 F.3d
516, 532 (6th Cir. 2004) (“[D]etermining the credibility of witnesses is a task for the jury, not this
court.”). The jury was aware of Defendant’s cited reasons for finding the witnesses “patently
noncredible:” CW Jarvis admitted that he had lied to officers on another occasion and two witnesses
testified that Jackie Charles had a reputation for untruthfulness. Nonetheless, the jury convicted
Defendant anyway. As such, the jury “obviously accepted” Jarvis and Jackie Charles’ testimonies
despite the reasons to discredit them. Beverly, 369 F.3d at 533.1
II. Failure to Conduct a §851 Colloquy at Sentencing
Defendant argues that the district court committed reversible error when it failed to conduct
a colloquy required by 21 U.S.C. § 851(b) regarding sentence enhancements applied due to his prior
convictions. We disagree.
Before trial, the Government notified Defendant that should he be convicted, it would argue
that he is subject to statutory sentence enhancements as an armed career criminal (“ACC”) pursuant
to 18 U.S.C. § 924(e) and U.S. Sentencing Guidelines § 4B1.4 on the allegation that he had been
convicted of three or more crimes of violence. The notice cited a March 5, 1981 conviction for first
degree robbery, a September 24, 1985 conviction for first degree assault, and a July 27, 1988
conviction for first degree robbery. The Presentence Investigation Report (“PSIR”) also
recommended that Defendant be sentenced as an ACC.
1
Defendant also asserts that the evidence was insufficient because there was no physical
evidence. This claim is meritless. “Circumstantial evidence alone is sufficient to sustain a
conviction and such evidence need not remove every reasonable hypothesis except that of guilt.”
United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010) (quoting United States v. Spearman,
186 F.3d 743, 746 (6th Cir. 1999)).
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Recidivist drug offenders are subject to an enhanced sentence under 21 U.S.C. § 851(b)(1).
For every prior conviction that is relied upon for the enhancement, the government must file an
information identifying the prior conviction. 21 U.S.C. § 851(a). For every information filed under
21 U.S.C. § 851(a), “the court . . . shall inquire whether the defendant affirms or denies that he has
been previously convicted as alleged and shall inform him that any challenge to a prior conviction
that is not made before the sentence is imposed may not thereafter be raised to attack the sentence.”
United States v. Williams, 899 F.2d 1526, 1529 (6th Cir. 1990); 21 U.S.C. § 851(b). The “failure
to engage in the colloquy required by section 851(b) is subject to harmless error analysis.” United
States v. Hill, 142 F.3d 305, 313 (6th Cir. 1998). The Government has the burden of proving that
the alleged error did not affect Defendant’s substantial rights. United States v. Johnson, 467 F.3d
559, 564 (6th Cir. 2006). “To carry this burden, the government must demonstrate to this Court with
certainty that the error at sentencing did not cause the defendant to receive a more severe sentence.”
Id. (internal quotation omitted).
Of the prior convictions the Government relied upon in arguing for an ACC enhancement,
the only one Defendant contests on appeal is a 1981 conviction for robbery. The parties dispute
whether or not the district court was required to conduct a § 851(b) inquiry. We do not reach this
issue for, even assuming that the district court was required to conduct such an inquiry, such a failure
did not affect Defendant’s substantial rights. Although the Government asserts that Defendant,
through counsel, conceded that the 1981 conviction was a predicate “crime of violence” for
sentencing purposes, we affirm Defendant’s sentence on other grounds. It appears that any challenge
Defendant raised to the conviction would be barred by the statute of limitations because the
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conviction occurred in 1981 and the Government’s information was filed in 2011. See 21 U.S.C.
§ 851(e) (“No person who stands convicted of an offense under this part may challenge the validity
of any prior conviction alleged under this section which occurred more than five years before the
date of the information alleging such prior conviction.”); see also United States v. Young, 496 F.
App’x 570, 579 (6th Cir. 2012) (holding defendant was barred from objecting to the inclusion of an
eleven year old conviction in a § 851 information).2
III. Conclusion
For the foregoing reasons, we AFFIRM Defendant’s conviction and sentence.
2
Defendant argues that his challenge is not subject to the § 851(e) statute of limitations
because he is attacking the “existence” of the conviction and not its “validity.” We need not address
whether such a distinction would allow his challenge to proceed, however, because Defendant’s
attack cannot be categorized as an attack on the “existence” of the conviction. Defendant does not
deny that he was convicted of a crime for stealing a watch at knifepoint. Rather, he argues that the
conviction should have been entered for “second-degree theft,” not the second-degree robbery
conviction now reflected in his criminal history. We read this argument as a challenge to the validity
of the conviction and not its existence.