United States v. Gary McDowell , 502 F. App'x 558 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1091n.06
No. 11-6448
FILED
Oct 19, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
GARY MCDOWELL, WESTERN DISTRICT OF TENNESSEE
Defendant-Appellant,
/
BEFORE: CLAY and WHITE, Circuit Judges; HOOD, District Judge.*
CLAY, Circuit Judge. A jury convicted Defendant Gary McDowell of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g), and the district court sentenced him to
120 months in prison to be followed by three years of supervised release. Defendant contends on
appeal that the district court improperly admitted, as res gestae or background, evidence regarding
the home invasion robbery that precipitated him being charged with the gun possession offense. For
the reasons set forth below, we AFFIRM Defendant’s conviction.
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 11-6448
BACKGROUND
At about 12:20 a.m. on June 18, 2010, Defendant, along with two other people, broke into
a residence at 1737 South Trezevant Street in Memphis, Tennessee. Defendant, wearing a ski mask
and gloves, and his cohorts went to this address in order to collect on an unpaid debt. At the same
time, an unrelated individual, Travis Woods, was at a nearby bar watching a basketball game.
Woods met a woman at the bar, who invited him back to her home following the game. Despite
receiving directions to this woman’s home, Woods inadvertently ended up at 1737 South Trezevant.
When Woods approached the house, Defendant pointed his gun at Woods, and Woods fled.
Woods flagged down Memphis police officers Gary Williams and Durrell Gray, who had
arrived at the scene in response to a 911 call about the robbery. Woods told the officer that a man,
who he identified at trial as Defendant, had threatened him with a gun at 1737 South Trezevant.
Upon reaching 1737 South Trezevant, Williams observed two black men run from the house; Gray,
who was stationed at a different location by the house, saw one man run past him and heard Williams
engaged in a struggle with Defendant. Williams and Gray both later identified one of the men as
Defendant and confirmed that Defendant was wearing a ski mask and gloves and had a handgun.
The officers apprehended Defendant and recovered a gun—a .40 caliber Smith & Wesson pistol.
The other fleeing man successfully evaded apprehension by police.
The following day, Defendant, after having been advised of his Miranda rights, agreed to
provide police with a statement. A redacted version of this statement was later entered into evidence
at Defendant’s trial. In the statement, Defendant admitted to participating in a robbery at 1737 South
Trezevant on June 18, 2010 possessing a gun during the robbery, and having been previously
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convicted of a felony. At trial, the government submitted proof of that Defendant’s prior felony
convictions.
On September 21, 2011, a federal grand jury for the Western District of Tennessee returned
a one-count indictment of Defendant, charging him with being a felon in possession of a firearm, in
violation 18 U.S.C. § 922(g). Prior to trial, the government gave notice to Defendant that it intended
to introduce evidence related to the home invasion robbery in which Defendant was involved that
precipitated him being charged with the gun possession offense. Defendant then filed a motion in
limine to exclude such evidence. On July 11, 2011, the district court held a hearing on the motion
at which the court concluded that the evidence was admissible as res gestae or background evidence.
In the course of denying Defendant’s motion, however, the district court limited the scope of the
robbery evidence that the government could introduce as background.
At trial, Defendant renewed his objections to the introduction of the home invasion evidence.
Specifically, Defendant took issue with questioning about a ski mask and gloves that were admitted
into evidence; the introduction of an envelope found on Defendant containing $900; questioning
about Defendant’s statement to police on the night of the robber; and the introduction of Defendant’s
redacted statement to the police on the night of the robbery. During the course of trial and then again
in the charge to the jury, the district court instructed the jurors that they were not to consider acts not
charged in the indictment, such as the robbery.
The jury convicted Defendant on July 13, 2011 on the sole § 922(g) count. The district court
sentenced Defendant to 120 months in prison to be followed by three years of supervised release.
Defendant timely appealed, invoking this Court’s jurisdiction under 28 U.S.C. § 1291.
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No. 11-6448
DISCUSSION
We review evidentiary rulings of the district court for abuse of discretion, United States v.
Mayberry, 540 F.3d 506, 515 (6th Cir. 2008), subject to harmless error review, United States v. Bell,
516 F.3d 432, 447 (6th Cir. 2008); see Fed. R. Crim. P. 52(a). Under harmless error, “the question
is whether there is a reasonable possibility that the evidence complained of might have contributed
to the conviction.” Bell, 516 F.3d at 447 (citation internal quotation marks omitted). When
excluding the evidence complained of, there is nonetheless overwhelming evidence of the
defendant’s guilt, harmless error may be found. Id. Moreover, curative instructions given by the
district court may also render an evidentiary error harmless. Id.The crime of being a felon in possession of a firearm under 18 U.S.C. § 922(g) consists of
three elements: (1) the defendant had a previous felony conviction; (2) the defendant knowingly
possessed the firearm specified in the indictment; and (3) the firearm traveled in or affected interstate
commerce. United States v. Morrison, 594 F.3d 543, 544 (6th Cir. 2010). Even assuming that the
admission of evidence of the home invasion was erroneous, we are convinced that “that the judgment
was not substantially swayed by error” and was therefore harmless because the government’s proof
on each of the three elements of § 922(g) was overwhelming. Bell, 516 F.3d at 447 (citation and
internal quotation marks omitted). On the first element, the government introduced certified copies
of Defendant’s prior felony convictions into evidence, as well as Defendant’s admission in his in-
custody statement that he had been previously convicted of a federal felony “[f]or distribution of
drugs.” As to possession, Defendant did not challenge the government’s proof on this element,
which consisted of multiple eyewitness statements identifying Defendant as possessing the gun and
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No. 11-6448
Defendant’s own admission to that effect. Finally, as to the interstate nexus, the government put on
an expert—Special Agent Frederic Winston of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives—who testified that Smith & Wesson guns, including Defendant’s gun, are manufactured
in Springfield, Massachusetts. Additionally, the gun specifically had the manufacturer’s inscription
and “Springfield, MA, USA” labeled on it. The expert’s testimony and manufacturer’s inscription
on the gun, combined with the fact that Defendant possessed the gun in Tennessee, leads to the
inexorable conclusion that Defendant’s gun traveled in interstate commerce. See, e.g., United States
v. Murphy, 107 F.3d 1199, 1211–12 (6th Cir. 1997) (listing cases); see also United States v.
Robinson, 205 F. App’x 415, 417 (6th Cir. 2006) (“[A] manufacturer’s inscription on a firearm can
be sufficient evidence to prove that the firearm traveled in interstate commerce.”). Therefore, it is
clear that regardless of whether the evidence regarding the home invasion robbery was properly
admitted, the government has shown any such error to be harmless.
Our conclusion is further bolstered by the fact that during the course of trial and then again
in the charge to the jury, the district court instructed the jurors that they were not to consider acts not
charged in the indictment, such as the robbery, in determining Defendant’s guilt on the gun
possession charge. See United States v. Layne, 192 F.3d 556, 573 (6th Cir. 1999) (finding harmless
error where “the evidence against Defendant was overwhelming, and the district court gave a
curative instruction”); cf. United States v. Harvey, 653 F.3d 388, 396 (6th Cir. 2011) (“Jurors are
presumed to follow instructions.”).
CONCLUSION
For the foregoing reasons, we AFFIRM Defendant’s conviction.
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