United States v. Guice, Reginald , 238 F. App'x 167 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 12, 2007
Decided August 8, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3937
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 05 CR 27
REGINALD GUICE,
Defendant-Appellant. Samuel Der-Yeghiayan,
Judge.
ORDER
A jury found Reginald Guice guilty of two separate counts of possessing
firearms after having been convicted of a felony, see 18 U.S.C. § 922(g)(1), and the
district court sentenced him to two concurrent 100-month terms of imprisonment.
On appeal Guice challenges only one of those convictions. We affirm.
I
After Chicago police officers recovered handguns from his automobile, Guice
was indicted on two counts of violating § 922(g)(1)—one count for a handgun on
which he was sitting in the passenger compartment, and another for three
handguns found in the trunk. He also was indicted on two counts of possessing
firearms that had the manufacturer’s serial number removed. See 18 U.S.C.
§ 922(k). Guice exercised his right to be tried by a jury, and after he stipulated that
No. 06-3937 Page 2
he had at least one prior felony conviction, the government presented the following
evidence.
Police Officers Steven Cieciel and Mario Acosta were patrolling the Garfield
Park neighborhood in western Chicago, Illinois, during the early morning hours of
July 1, 2003, when they saw a gold Chrysler Cirrus heading the wrong way down a
one-way street directly toward their squad car. The officers decided to stop the
Cirrus and activated their squad car’s emergency lights; in response the driver of
the Cirrus abruptly stopped, reversed quickly, “fishtailed,” turned down an
intersecting street, and sped off. The officers gave chase, and the Cirrus and its two
occupants zoomed “recklessly” through the residential neighborhood. The chase
ended just a couple of blocks later when the Cirrus pulled into a parking lot located
at the end of a dead-end street. The driver of the Cirrus jumped out of the car before
it came to a complete stop and fled into the Chicago Housing Authority development
adjoining the parking lot, while the passenger remained inside the automobile. The
officers got out of their squad car, with Cieciel pursuing the fleeing driver and
Acosta staying behind to secure the Cirrus.
Officer Acosta approached the passenger side of the Cirrus with his gun
drawn and ordered the passenger—who was later identified as Guice—to raise his
hands and exit the automobile. Guice raised his hands in response, and Acosta
waited for Officer Cieciel to return before ordering Guice to exit the car. Cieciel
returned a few moments later and informed Acosta that he had lost the driver in
the nearby housing development. Acosta then ordered Guice out of the car, but
Guice responded that he was unable to comply because he could not walk without a
cane. With Cieciel acting as back up, Acosta reached into the Cirrus to pat down
Guice while he sat in the car; the search revealed a loaded handgun concealed
under Guice’s thigh.
Officer Acosta seized the handgun and arrested Guice. The officers informed
Guice of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and asked him
to identify the driver of the Cirrus. Guice responded that he did not know the driver
and, moreover, did not know what was going on because “he was asleep” during the
car chase. With Guice detained in the squad car, the officers searched the Cirrus
and recovered from its trunk three additional handguns that had been concealed in
the car’s spare tire; the serial numbers had been removed from three of the four
total handguns recovered. Upon further questioning Guice again denied knowing
the driver, reiterated that he slept through the car chase, and asserted that he did
not know from where the four guns came. Guice did volunteer, however, that
recently he was the victim of a shooting in a nearby neighborhood and that he had
sustained injuries that required him to wear a colostomy bag. Later investigative
work revealed that Guice owned the Cirrus, having purchased it recently from an
automobile dealership.
No. 06-3937 Page 3
After the government rested its case, Guice moved for an acquittal on the
basis that the government had not sufficiently proved that he possessed all of the
handguns found in the Cirrus. See Fed. R. Crim. P. 29(a). The district court denied
the motion, and Guice proceeded to present his sole witness, Kenyatta Williams,
who lived in the housing development adjoining the parking lot where Guice was
arrested. Williams testified that she knew Guice through her boyfriend, Keith
Michaels, who served as Guice’s driver because Guice’s injuries prevented him from
driving himself. In return for acting as his driver, Guice allowed Michaels to drive
his Cirrus whenever Michaels wanted. Williams stated that Michaels visited her at
her apartment a few hours before Guice was arrested, and that at that time he was
driving Guice’s Cirrus alone. She also stated that in the early morning hours of July
1, Michaels showed up at her apartment “[n]ervous, scared, and panicky.”
At the close of evidence the district court met with the parties regarding the
jury instructions. Defense counsel proposed to add this instruction: “A defendant’s
mere presence, in the proximity of firearms, without more, is insufficient to show
possession of those firearms. A defendant’s mere association with those who may
have possessed firearms is insufficient to show possession.” The district court
declined to provide the proposed instruction, explaining that it was not supported
by “the totality of the case.” Instead, the court gave this instruction on the
definition of “possession”:
Possession of an object is the ability to control it. Possession may
exist even when a person is not in physical contact with the object but
knowingly has the power and intention to exercise direction or control
over it either directly or through others. A person need not own an object
to possess it.
Possession may be sole possession or joint possession. If one person
alone has possession of an object, he has sole possession of the object. If
two persons share possession of an object, the persons have joint
possession of the object. It does not matter that the other individual may
have had access to an area where an object was possessed nor does it
matter that the other individual shared the ability to exercise control over
the object.
If you find beyond a reasonable doubt that the defendant had
possession over the object either solely or jointly with others, you should
find that the defendant possessed the object. . . .
[T]he government must prove beyond a reasonable doubt that the
defendant knowingly possessed at least one of the firearms alleged in
No. 06-3937 Page 4
Count Three [involving the handguns found in the trunk] and you must
unanimously agree upon which firearm or firearms alleged in Count
Three that the defendant knowingly possessed.
The court further instructed the jury that “[i]t is the defendant’s theory of defense
that on July 1, 2003, another person, and not the defendant, possessed the firearms
found in the automobile in which the defendant was a passenger.”
The parties presented closing arguments after the district court instructed
the jury. The government argued that the evidence established that Guice
possessed the handguns found in his Cirrus, either solely or jointly with Michaels.
Guice, on the other hand, asserted that the guns were Michaels’s only, and that
without his knowledge Michaels had hid the guns in the Cirrus while driving the
car alone earlier in the night. Thus, Guice contended, he could not be held
responsible for the guns.
The jury found Guice guilty on both § 922(g)(1) counts, but it acquitted him of
the two counts of possessing firearms that had the manufacturer’s serial number
removed. Before sentencing, Guice filed a series of post-verdict motions, again
challenging the sufficiency of the evidence showing that he possessed all four
handguns, and also arguing that the district court erred by not adopting his
proposed “mere-presence” jury instruction. The court rejected both arguments,
entered convictions on both possession counts, and sentenced Guice to two
concurrent terms of 100 months’ imprisonment.
II
On appeal Guice does not challenge his conviction for possessing the handgun
found under his thigh. Instead he renews his argument that the evidence did not
establish that he possessed the three handguns recovered from the trunk of his
Cirrus. Guice also contends that the trial court erred by refusing to adopt his
proposed “mere-presence” jury instruction.
Before we address Guice’s arguments, however, we take a slight detour. At
oral argument we asked the government whether the district court violated Guice’s
right to be free from double jeopardy by entering separate judgments of conviction
on the two handgun-possession counts, when the handguns were all recovered from
Guice’s Cirrus and there was no evidence suggesting that he acquired the guns at
separate times. See United States v. Conley, 291 F.3d 464, 470 (7th Cir. 2002);
United States v. Buchmeier, 255 F.3d 415, 423 (7th Cir. 2002); United States v.
McKinney, 919 F.2d 405, 418 (7th Cir. 1990). In a supplemental submission the
government responded that the separate convictions were justified because Guice
stored the handguns in “two separate and distinct places” in his car—in the
No. 06-3937 Page 5
passenger compartment and in the trunk. This argument fails to come to grips with
the holdings of other cases, in which courts have found that a defendant did
exercise control over two different areas in the same apartment, or the same
vehicle. See United States v. Ankeny, No. 05-30457, 2007 U.S. App. LEXIS 14350, at
*6, 20 (9th Cir. June 19, 2007) (holding that only one § 922(g)(1) conviction was
warranted when one gun was found under cushion in chair in living room, second
gun was recovered on adjacent chair, third and fourth guns were found in closet in
upstairs bedroom, and fifth gun was located in basement); United States v. Dunford,
148 F.3d 385, 387, 389-90 (4th Cir. 1998) (holding that only one § 922(g)(1)
conviction was supported when police recovered five guns from inside mattress in
one bedroom, an ammunition clip from top of the bed, another rifle from inside
mattress of another bed, and ammunition from another bedroom); United States v.
Oliver, 683 F.2d 224, 226, 232-33 (7th Cir. 1982) (stating that firearms and
ammunition were stored in same place in van for purpose of one § 922(g)(1)
conviction when FBI agent found one handgun on the floor of passenger seat,
another gun and ammunition under driver’s seat, ammunition in ashtray, and
ammunition in defendant’s pants pocket); cf. United States v. Gann, 732 F.2d 714,
717, 721 (9th Cir. 1984) (concluding that firearms were stored separately when one
was recovered from defendant’s vehicle and other was found in residence). We see
no material difference between those cases and this one, and thus we conclude that
the district court should not have entered two separate convictions for the two sets
of guns.
This alone, however, is not enough to permit Guice to prevail. He failed to
raise the double jeopardy issue before the district court and thus he bears the
burden of showing that the entry of the two § 922(g)(1) convictions was plain error
and resulted in a “miscarriage of justice.” See United States v. Van Waeyenberghe,
481 F.3d 951, 958 (7th Cir. 2007); United States v. Baldwin, 414 F.3d 791, 796 (7th
Cir. 2005). This he cannot do; the entry of multiple convictions merely resulted in
the imposition of an additional concurrent sentence and corresponding $100 special
assessment, consequences that we have deemed not serious enough “to be described
as a miscarriage of justice and thus ... plain error.” Baldwin, 414 F.3d at 796(internal quotation marks and citation omitted); see also United States v. McCarter,
406 F.3d 460, 464 (7th Cir. 2005) (stating that plain error did not exist because
future effect of second conviction was too “speculative,” and imposition of extra
special assessment “trivial”).
With that said, Guice’s challenges to his handgun-possession conviction are
meritless. Guice faces “a nearly insurmountable hurdle” when challenging the
sufficiency of the evidence underlying his conviction for possessing the handguns
recovered from the trunk of his Cirrus. See United States v. Jackson, 177 F.3d 628,
630 (7th Cir. 1999). We view the evidence presented at trial in the light most
favorable to the government, United States v. Stevens, 453 F.3d 963, 965 (7th Cir.
No. 06-3937 Page 6
2006), and will “overturn a verdict only when the record contains no evidence,
regardless of how it is weighed,” from which a jury could conclude beyond a
reasonable doubt that Guice is guilty, United States v. Gougis, 432 F.3d 735, 743-44
(7th Cir. 2005) (internal quotation marks and citation omitted).
The evidence comfortably supports Guice’s conviction. As pertinent here, at
trial the government bore the burden of showing that Guice possessed the firearms
in the trunk. See 18 U.S.C. § 922(g)(1); United States v. Allen, 383 F.3d 644, 646-47
(7th Cir. 2004). The government did not need to show that Guice actually possessed
the handguns; constructive possession was enough, which the government could
prove by showing that Guice had “the power and intent to exercise control” over the
handguns “either directly or through others.” Stevens, 453 F.3d at 965-66; see also
United States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003). At trial the government
established that Guice had the power and intent to control the handguns found in
the trunk based on the evidence that he (1) owned the Cirrus in which the
handguns were recovered; (2) was present in his Cirrus when the handguns were
recovered; and (3) controlled who had access to his Cirrus. See United States v.
Parra, 402 F.3d 752, 762 (7th Cir. 2005) (“[W]e have found possession with intent to
distribute a controlled substance when the defendant denied knowledge of drugs
that were located in the car that she was driving or in which she was a passenger.”);
United States v. Covarrubias, 65 F.3d 1362, 1369-70 (7th Cir. 1995); cf. United
States v. Harris, 325 F.3d 865, 869-70 (7th Cir. 2003) (holding evidence sufficient to
find defendant guilty of possessing drugs where drugs were found in defendant’s
home, even though defendant claimed that she was not aware of drugs); Thomas,
321 F.3d at 636 (“[W]here we have found constructive possession of firearms when
they are found in close proximity to the defendants, the weapons were found in
areas over which the defendant exercised control, such as a bedroom, garage, or
workplace.” (citations omitted)); United States v. Kitchen, 57 F.3d 516, 521 (7th Cir.
1995) (“Constructive possession can be established by a showing that the firearm
was seized at the defendant’s residence.” (internal quotation marks and citation
omitted)). Guice’s sufficiency-of-the-evidence argument therefore fails.
Equally unavailing is Guice’s argument that the district court erred by not
using his proposed “mere-presence” jury instruction. To challenge the district
court’s refusal to provide his proposed instruction successfully, Guice must show,
among other things, that the instruction was supported by “evidence consistent
with a theory of mere presence.” United States v. Glover, 479 F.3d 511, 519 (7th Cir.
2007); see also United States v. Al-Shanin, 474 F.3d 941, 947 (7th Cir. 2007). This
means that Guice must point to evidence suggesting that he “was standing around
while others engaged in criminal activity.” Glover, 479 F.3d at 519. Guice was not
entitled to have his particular proposed instruction presented to the jury; rather, he
was entitled only to have his theory of defense presented. See Al-Shanin, 474 F.3d
at 947. Thus, even if the proposed instruction was supported by evidence, the
No. 06-3937 Page 7
district court did not need to provide the exact instruction Guice proposed if the
proposed instruction’s “essential points are covered in another instruction” and the
jury instructions, viewed as a whole, adequately conveyed his theory of defense.
United States v. Manjarrez, 258 F.3d 618, 626 (7th Cir. 2001); see also United States
v. Robinson, 96 F.3d 246, 251-52 (7th Cir. 1996). We review the district court’s
decision not to provide Guice’s proposed instruction for abuse of discretion. See
United States v. Van Sach, 458 F.3d 694, 702 (7th Cir. 2006).
Contrary to Guice’s assertion, the evidence presented at trial was not
consistent with a “mere-presence” instruction. Rather, the evidence showed that not
only was Guice present where the firearms were seized, but also that he (1) owned
the Cirrus in which the guns were found; (2) rode in the car as a passenger;
(3) controlled who had access to and drove the automobile; (4) literally “went along
for the ride” when the person he commissioned to drive his automobile decided to
lead police officers on a high-speed chase; (5) incredibly claimed that he did not
know the person who was driving his car when fleeing from the police; and (6) was
sitting on a loaded handgun. Such evidence hardly established that Guice was
merely “standing around while others engaged in criminal activity.” Glover, 479
F.3d at 519; see also United States v. Claxton, 276 F.3d 420, 424 (8th Cir. 2002)
(holding “mere-presence” instruction was not supported by evidence where
defendant “was a passenger in an automobile from the right front window of which
a shotgun was disposed of as a police officer approached”); United States v.
Linwood, 142 F.3d 418, 424 (7th Cir. 1998). Thus, the district court cannot be
faulted for omitting Guice’s “mere-presence” instruction.
We further note that the district court’s jury instructions encompassed the
essential elements of Guice’s theory of defense and his proposed “mere-presence”
instruction. After the court thoroughly instructed the jury on the different ways in
which it could find that Guice possessed the handguns found in the Cirrus’s trunk,
it stated that Guice’s theory of defense was that “another person, and not [Guice],
possessed the firearms found in the automobile in which [he] was a passenger.”
These instructions covered the central theory underlying Guice’s defense and
proposed instruction: that Michaels, and not he, solely possessed the handguns
found in the trunk, and that his own proximity to the guns in the trunk and
association with Michaels alone could not establish that he possessed those guns.
Guice thus cannot quarrel with the district court’s refusal to provide the specific
instruction he proposed. See Manjarrez, 258 F.3d at 626; United States v. Koster,
163 F.3d 1008, 1011 (7th Cir. 1998); see also United States v. Rice, 995 F.2d 719,
725 (7th Cir. 1993) (“We have rejected the contention that possession instructions
must include a qualifier that ‘mere proximity’ is not possession.”).
AFFIRMED.