United States v. Nathan Driggers ( 2019 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 17-2994
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    NATHAN DRIGGERS,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 15 CR 350 — John J. Tharp, Jr., Judge.
    ____________________
    ARGUED SEPTEMBER 21, 2018 — DECIDED JANUARY 16, 2019
    ____________________
    Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir-
    cuit Judges.
    WOOD, Chief Judge. In the wee hours of the morning on
    April 12, 2015, thieves stole approximately 104 Ruger firearms
    from a train sitting in a Chicago railyard. Later that day, ac-
    cording to the government, Nathan Driggers purchased 30 of
    those stolen guns. He wound up facing charges of being a
    felon in possession of a firearm in violation of 18 U.S.C.
    § 922(g), and possession of a stolen firearm in violation of 18
    2                                                    No. 17-2994
    U.S.C. § 922(j). Driggers proceeded to trial, and a jury re-
    turned a split verdict, finding him guilty of being a felon in
    possession of a firearm, but not guilty of possessing a stolen
    firearm. Driggers now appeals his conviction. He argues that
    the district court improperly allowed testimony about his co-
    defendant Warren Gates and gave an erroneous jury instruc-
    tion on joint possession. Finding no error in the district court’s
    decisions, we affirm Driggers’s conviction.
    I
    On April 12, 2015, eight men entered a Chicago railyard,
    broke into a cargo train parked there, and discovered a cache
    of Ruger firearms being shipped from a factory in New
    Hampshire to a distributor in Washington State. By the end of
    the night, these men had stolen over 100 guns.
    The government did not accuse Driggers of participating
    in the actual robbery. Instead, its theory (supported by the tes-
    timony of one of the robbers, Marcel Turner) was that Terry
    Walker, another of the robbers, contacted Driggers shortly af-
    ter the heist to set up a sale of the stolen guns. The same day,
    Turner and Walker took approximately 30 of the stolen fire-
    arms to Driggers’s store. They met Driggers there, at which
    point Driggers and Walker briefly haggled over the price of
    the guns and then consummated the sale. Though Turner did
    not know how much Driggers ultimately paid for the 30 guns,
    Turner received $1,700 for the six guns that comprised his
    share.
    The government’s other trial evidence attempted to cor-
    roborate Turner’s account of the gun sale. One inconvenient
    fact for the prosecution was that Driggers was not on the lease
    for the store where the gun sale allegedly occurred. But
    No. 17-2994                                                  3
    testimony from Driggers’s landlord and property manager
    established that, despite his absence from the lease, the store
    did in fact belong to him. Their testimony showed that Drig-
    gers co-leased the store month-to-month with another man,
    Yashmine Odom. Odom was apparently the store’s principal
    occupant, but Driggers paid the rent for the most part and
    made at least some repairs.
    Additionally, police searched Driggers’s store during their
    investigation, and ATF Agent Jason Vachy described that
    search in detail at trial. He explained that the agents found a
    hodgepodge of merchandise (some of which appeared to be
    stolen), various personal documents and items belonging to
    Driggers and Odom, and a gun hidden in a tire in the
    backroom. That gun’s serial number matched one of the guns
    stolen during the train robbery. There was a fingerprint on
    that gun, but it did not come from Driggers.
    The government also presented trial testimony and phone
    records that showed that shortly after Driggers allegedly pur-
    chased the 30 stolen guns, he contacted Warren Gates, a co-
    defendant who pleaded guilty. Before Driggers’s trial, Gates
    admitted to possessing 17 of the guns from the train robbery.
    Notably, during the first four months of 2015, there were zero
    contacts between Driggers’s and Gates’s cell phones, but
    shortly after the train robbery, there were 46 such contacts.
    Police searched Gates’s storage units and found six of the sto-
    len guns. Gates confessed to possessing these guns and fur-
    ther admitted that he had purchased them, as well as 11 others
    from the train robbery. In his own case, Gates stated that he
    purchased those guns from two of the robbers, Elgin Lip-
    scomb and Alexander Peebles; in Driggers’s case, the prose-
    cution argued that Gates had bought them from Driggers. The
    4                                                     No. 17-2994
    government further urged that the jury could infer from Drig-
    gers’s contacts with Gates and Gates’s gun purchases that
    Driggers possessed and sold guns from the train robbery.
    II
    A
    As we indicated, Driggers raises only two points on ap-
    peal: one about the admission of testimony concerning Gates,
    and the other about the joint-possession jury instruction. We
    begin with the latter.
    Driggers does not assert that the joint-possession instruc-
    tion used by the district court misstated the law. Instead he
    argues that the court should not have included the instruction
    because neither party’s theory of the case involved joint pos-
    session, and so it only served to confuse the jury.
    We review a district court’s decision to give a jury instruc-
    tion for abuse of discretion. United States v. Tanner, 
    628 F.3d 890
    , 904 (7th Cir. 2010). A joint-possession instruction is
    proper where “[t]here was substantial evidence that more
    than one person could have possessed the gun.” United States
    v. Rainone, 
    816 F.3d 490
    , 494 (7th Cir. 2016). Indeed, we have
    gone so far as to say that “a joint possession instruction is ‘nec-
    essary’ when contraband is recovered from a jointly-occupied
    residence.” 
    Id. (quoting United
    States v. Lawrence, 
    788 F.3d 234
    ,
    246 (7th Cir. 2015)) (emphasis added).
    Driggers is correct that the government primarily focused
    on his alleged purchase and subsequent sole possession of the
    stolen guns. But he ignores the fact that the jury had before it
    evidence that he and Odom jointly possessed the firearm that
    the officers found in his store. Driggers co-leased the store
    with Odom, and both Driggers’s and Odom’s personal
    No. 17-2994                                                     5
    effects—including mail, a birthday card, and bank state-
    ments—were found there. The owner and the property man-
    ager of the store also testified that they observed both Drig-
    gers and Odom exhibiting control over the store, such as by
    making rent payments or offering to make repairs.
    Given the substantial personal effects addressed to both
    Driggers and Odom found within the store, as well as the tes-
    timony suggesting that both occupied the store, there was am-
    ple basis for a joint-possession instruction. The district court
    acted well within its discretion to provide the jury this guid-
    ance.
    B
    Driggers also complains that the introduction of evidence
    about his contacts with Gates, including the evidence about
    the guns from the train robbery found in Gates’s storage
    locker, was improper. He first argues that the evidence was
    irrelevant under Federal Rule of Evidence 401. In addition, he
    asserts that the court’s decision to admit the evidence violated
    his due process rights, because the government offered incon-
    sistent theories about how Gates obtained the guns. A “dis-
    trict court has ‘wide discretion’ when it rules on the admission
    of evidence.” United States v. Boros, 
    668 F.3d 901
    , 907 (7th Cir.
    2012). We thus review “a district court’s decision to admit or
    exclude evidence for abuse of discretion.” 
    Id. We review
    the
    question whether a defendant’s due process rights were vio-
    lated de novo. See United States v. Kielar, 
    791 F.3d 733
    , 736 (7th
    Cir. 2015).
    In fact, Driggers’s Rule 401 argument and his due process
    argument are intertwined. The potential relevance of any ev-
    idence regarding Gates could be limited because, based on the
    6                                                   No. 17-2994
    government’s contentions in Gates’s own prosecution, it ap-
    pears that Driggers did not sell Gates any of the particular
    guns Gates was prosecuted for possessing. On the other hand,
    if Driggers had sold any of the guns he allegedly bought from
    the train robbers to Gates, evidence about the contacts be-
    tween Driggers and Gates, as well as the fact that those guns
    were found in Gates’s possession, would have been highly
    relevant.
    In either scenario, the district court did not abuse its dis-
    cretion in finding that the Gates evidence passed the thresh-
    old for Rule 401. The standard for relevance is low. Tennard v.
    Dretke, 
    542 U.S. 274
    , 284–85 (2004). When determining
    whether evidence is relevant, we ask only whether it has
    “‘any tendency to make a fact more or less probable than it
    would be without the evidence’ [when] ‘the fact is of conse-
    quence in determining the action.’” 
    Boros, 668 F.3d at 907
    (quoting FED. R. EVID. 401). Even if Driggers did not directly
    sell Gates the guns police found in Gates’s storage locker, the
    fact that Driggers had 46 contacts with a known buyer of sto-
    len guns immediately after he allegedly bought 30 stolen guns
    supported the government’s theory that Driggers served as
    the robbers’ fence. This flurry of contacts was additionally
    suspicious because Driggers and Gates were not in contact at
    all during the four months preceding the robbery. The district
    court thus did not abuse its discretion in finding that this evi-
    dence satisfied Rule 401.
    Before turning more directly to the due-process argument,
    we explain how the Gates prosecution differed from the case
    against Driggers. The government first proceeded against
    Gates; that case was resolved with a plea agreement. In that
    agreement, Gates admitted that he “purchased approximately
    No. 17-2994                                                   7
    seventeen of the firearms [from the train robbery] from co-de-
    fendants PEEBLES and LIPSCOMB on or after April 13, 2015.”
    Plea Agreement at 3, United States v. Gates, No. 1:15-cr-350-3
    (N.D. Ill. July 19, 2016), ECF No. 173 (capitalization in origi-
    nal). Gates also admitted that at the time the officers searched
    his storage units, he kept 13 firearms in those units, six of
    which he had bought from Peebles and Lipscomb and “seven
    additional firearms unrelated to the train theft.” 
    Id. This ver-
    sion of the offense—that Gates purchased 17 firearms from
    Peebles and Lipscomb, with officers recovering six of those 17
    guns from Gates’s storage units—was repeated by both ATF
    Agent Vachy in Gates’s Presentence Investigation Report and
    by the prosecution in Gates’s sentencing memorandum.
    By contrast, in Driggers’s prosecution, the government
    represented to both the district court and to the jury that the
    guns it had previously contended Gates bought from Peebles
    and Lipscomb were in fact sold to him by Driggers. The gov-
    ernment has not explained to us (or to anyone else) how these
    two conflicting factual representations can coexist, and we are
    at a loss to reconcile them.
    The question is thus what to do about this inconsistency.
    The circuits are split on the question whether the prosecu-
    tion’s use of inconsistent theories in multiple prosecutions vi-
    olates due process. Compare United States v. Frye, 
    489 F.3d 201
    , 214 (5th Cir. 2007) (“[A] prosecutor can make inconsistent
    arguments at the separate trials of codefendants without vio-
    lating the due process clause.”), with Smith v. Groose, 
    205 F.3d 1045
    , 1049–52 (8th Cir. 2000) (agreeing with the Ninth Circuit
    that “inconsistent prosecutorial theories can, in certain cir-
    cumstances, violate due process rights”); see also Bradshaw v.
    Stumpf, 
    545 U.S. 175
    , 190 (2005) (Thomas, J. concurring) (“This
    8                                                     No. 17-2994
    Court has never hinted, much less held, that the Due Process
    Clause prevents a State from prosecuting defendants based
    on inconsistent theories.”). Though several litigants have
    raised this argument before us, we have thus far declined to
    choose a side in this matter. We have not needed to address
    the constitutional issue because the defendants who have ad-
    vanced this theory were either not prejudiced by the prosecu-
    tion’s behavior, see United States v. Flournoy, 
    842 F.3d 524
    , 530
    (7th Cir. 2016), or because the government did not actually
    “take fundamentally opposite positions in its two prosecu-
    tions.” United States v. Presbitero, 
    569 F.3d 691
    , 702 (7th Cir.
    2009). We likewise take a pass here, because Driggers was not
    prejudiced by the government’s actions.
    A defendant is entitled to a new trial only when “there is
    a reasonable possibility that the trial error had a prejudicial
    effect on the jury’s verdict.” 
    Flournoy, 842 F.3d at 530
    . Here,
    there is a simple reason that the Gates evidence was not prej-
    udicial to Driggers: the jury acquitted him of the possession
    of a stolen firearm charge that the Gates evidence supported.
    Even if we totally disregard the Gates evidence, as well as the
    other testimony and argument it bolstered, there is still suffi-
    cient evidence to support the jury’s verdict on the other
    charge. This is because the jury could find Driggers guilty of
    being a felon in possession based solely on the gun found in
    his store—a gun that had no connection to Gates. See Jackson
    v. Virginia, 
    443 U.S. 307
    , 319 (1979) (“Once a defendant has
    been found guilty of the crime charged, the factfinder’s role
    as weigher of the evidence is preserved through a legal con-
    clusion that upon judicial review all of the evidence is to be con-
    sidered in the light most favorable to the prosecution.”). As
    we noted earlier, Driggers’s connection to, and control over,
    the store was strongly supported by the evidence. The gun
    No. 17-2994                                                    9
    was found hidden in a tire in the store’s backroom. This was
    enough to permit the jury to convict Driggers of being a felon
    in possession of a firearm in violation of 18 U.S.C. § 922(g).
    For purposes of that count, it did not matter whether the
    gun was stolen. And apparently the jury was not convinced
    that Driggers knew, for purposes of the other count (under 18
    U.S.C. § 922(j)), that the gun in his store came from the train
    robbery, because it acquitted him on that charge. Even if the
    government’s theories in the Gates prosecution were incon-
    sistent with those it used against Driggers, there is thus no
    reasonable possibility that this tactic created a prejudicial ef-
    fect on the jury’s verdict.
    III
    Because the district court did not improperly instruct the
    jury, and because Driggers suffered no prejudice from any er-
    ror that may have existed in the treatment of the Gates evi-
    dence, we AFFIRM Driggers’s conviction and sentence.