United States v. Marcus D. Jones ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3706
___________
United States of America, *
*
Appellant, *
* Appeals from the United States
v. * District Court for the
* Western District of Missouri
Marcus De'Angelo Jones, *
*
Appellee. *
___________
Submitted: June 12, 2001
Filed: September 12, 2001
___________
Before MORRIS SHEPPARD ARNOLD and RICHARD S. ARNOLD, Circuit
Judges, and TUNHEIM,1 District Judge.
___________
TUNHEIM, District Judge.
Appellant Marcus De'Angelo Jones challenges his convictions for felony
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(e) as well as
for making false statements to acquire a firearm in violation of 18 U.S.C. § 922(a)(6)
and § 924(a)(1)(B). Jones challenges the sufficiency of the evidence, a number of
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
evidentiary rulings, and the district court2 decision to deny his motion to suppress
statements. We affirm.
BACKGROUND FACTS
On July 25, 2000, Jones was found guilty by a jury of the three counts in the
indictment: two counts of felony possession of a firearm and one count of making false
statements to acquire a firearm. He was sentenced to 327 months imprisonment on
each of the felon in possession counts and 60 months on the false statement count, the
sentences to run concurrently.
At trial, the government introduced evidence that Jones possessed a firearm on
two separate occasions: during a traffic stop on August 18, 1999; and during an
incident on October 9, 1999, when Jones reported being shot at. The prosecution also
introduced evidence of five prior felony convictions through the testimony of a federal
probation officer and a fingerprint expert. With respect to the charge of making false
statements to acquire a firearm, the government introduced evidence that Jones
provided false information about his criminal history on a form that he filled out before
purchasing a handgun.
A. December Arrest
On December 21, 1999, Jones was arrested at an Amoco Quick Store in
Columbia by Columbia Police Officer Ben White.3 Jones was not immediately read his
Miranda rights, but was transported to the police station in a squad car. Officer White
2
The Honorable Scott O. Wright of the United States District Court for the
Western District of Missouri presided over the trial and the sentencing of this matter.
3
The December 21, 1999, arrest was the result of drug purchases that Officer
Candy Cornman made from Jones in her undercover capacity.
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testified that at the police station Jones was processed, booked, and read his Miranda
rights. Officer White testified that he did not read the rights from a card, but recited
them from memory. After informing Jones of his rights, Officer White testified that
Jones agreed to answer some questions. Appellant explained to White that he had used
the name "Jones" to purchase a handgun from a pawn shop. Appellant also told Officer
White that he changed his name from "Lee" to "Jones" after being released from prison
in Tennessee. Jones admitted that the Columbia Police had seized his gun during an
earlier incident and that he knew that he was not supposed to have a gun.
Jones moved to suppress these statements before trial, arguing that he had not
been read his Miranda rights until after his conversation with Officer White was almost
over. The district court denied the motion to suppress and Officer White was permitted
to testify at trial about the arrest and subsequent statements of Jones.
B. Trial Testimony Regarding Firearm Purchase
At trial, the government introduced evidence that on August 18, 1999, Jones
purchased a 9mm Makarov semiautomatic handgun from the Callaway Pawn and Gun
Shop located in Callaway, Missouri. In order to purchase the gun, Jones filled out
Form 4473, a federal form that is required before any person may buy a handgun.
Certain answers on the Form 4473 disqualify a person from being able to purchase a
firearm. One of those questions is, "Have you ever been convicted in any court of a
crime for which a judge could have imprisoned you for more than a year, even if the
judge gave you a shorter sentence?" In response to that question on the Form 4473,
Jones answered "no." The owner of the pawn shop testified during trial that he
watched Jones fill out the Form 4473. The owner also testified that had Jones
answered "yes" to that question he would not have sold Jones the weapon. Before the
sale, Jones also filled out a state permit application for the gun. On the permit
application, Jones again answered that he had not been convicted of a crime that was
punishable by imprisonment for a term exceeding one year.
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After Jones filled out his state permit application, the Sheriff of Callaway County
performed a background check on him as required by law. Before a gun dealer may
release the firearm to the customer, the Sheriff must perform a background check and
issue a permit. The background check was completed and the permit issued to Jones.
On both the Form 4473 and the state permit application, appellant used the name
"Jones" rather than the name under which he had previous felony convictions, "Lee."
In addition, the middle two digits of his social security number written on the Form
4473 were somewhat unclear. The actual two middle digits of his social security
number are "25," while the numbers on the form were mistaken for the number "28."
The name and social security number were the two primary pieces of information used
by the Sheriff's office to perform the background check.
C. Trial Testimony Regarding Firearm Possession
During its case in chief, the government introduced the testimony of Columbia
Police Detective Candy Cornman. In an undercover role for the Columbia Narcotics
Unit, Officer Cornman testified that she met with Jones on August 18, 1999 at a
supermarket in Columbia to purchase drugs from him. She testified that during the
meeting Jones told her that he had been stopped by the police earlier in the day and that
they had found his gun. Officer Cornman, however, did not see a gun at anytime during
their meeting.
Officer Melvin Buckner of the Columbia Police Department also testified at trial
that he stopped Jones on August 18, 1999 for running a stop sign. During the stop,
Jones told Buckner that he had a gun in the car. After seeing the gun, Officer Buckner
removed the weapon from the car and asked Jones for a driver's license. Officer Robert
Bennett then arrived at the scene. He secured the weapon and identified it as a 9mm
Makarov. He than ran a computer check on the weapon. After examining Jones's
paperwork for the weapon, Bennett returned the firearm to him when the computer
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check revealed that the gun was not stolen. Bennett noted that according to his permit,
Jones had purchased the gun that day. Bennett testified to these events at trial.
The government also introduced the testimony of another Columbia Police
Officer, Cathy Dodd, at trial. Officer Dodd testified that on October 9, 1999, she was
dispatched to an area in Columbia based on a "shots fired" report. Jones was the
complainant and reported to Officer Dodd that he had been shot at. Upon inspection
of the scene, Dodd noted that there was a hole in the hood of Jones's car and that the
vehicle had a flat tire. Dodd impounded the car as evidence, and when doing so saw
a gun between the seats of the car. At the police station, Jones admitted to Officer
Dodd that he had a gun with him in the car and he showed her his permit. Jones also
told Officer Dodd that he had fired off a round into the air, that the gun jammed, and
he had tried to fire another round. Jones was released after the interview, but the gun
was retained by the police.4
D. Trial Evidence Regarding Appellant's Prior Felony Convictions
The government introduced the testimony of Federal Probation Officer Paul Reed
at trial on the issue of appellant's status as a felon. Officer Reed testified that he knew
appellant by two names: "Marcus Deangelo Jones" and "Marcus Deangelo Lee." Reed
also testified that based on certified and other records uncovered during his
investigation, that appellant had been convicted of several felonies before 1999 and that
appellant had served a prison sentence of more than 1 year on one or more occasions.
He also testified that all of appellant's convictions were in Tennessee under the name
"Lee."
4
Columbia Police Officer Don Hawkins also testified at trial, corroborating
Officer Dodd's testimony. Officer Hawkins testified that he saw a handgun in the back
seat of Jones's vehicle and then seized the handgun. He also testified that he entered
the gun into evidence at the police station.
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Next, the government introduced the testimony of a fingerprint expert, Roy
Kutner, a Bureau of Alcohol, Tobacco and Firearms fingerprint examiner. Kutner
examined certified and other records of Jones's prior convictions that contained
fingerprints and compared those prints to the fingerprints taken by the Columbia Police
Department after Jones's December 21, 1999 arrest. Kutner concluded that the prints
on all of the documents he examined belonged to the same person.
E. Appellant's Trial Testimony
Jones testified at trial in his own defense. He testified that he was born Marcus
Lee, but that he changed his name to Marcus Jones in 1999. He also testified that his
social security number is XXX-XX-XXXX and that he lived in Columbia and Fulton,
Missouri.
Jones also admitted to purchasing a handgun at the Callaway County Pawnshop.
He said that he used his real social security number and the name "Jones" to purchase
the handgun. He testified that he told the pawn shop owner that he had done time in
Tennessee and also testified that he answered "yes" to the question of whether he had
been convicted of a prior felony. Jones admitted serving jail time, but thought that it
was possible his convictions might be wiped clean after five years. He also testified
that he knew he had been convicted of a felony. By the end of his testimony, Jones had
agreed that he had been convicted of five separate felonies. After Jones's testimony,
the case was submitted to the jury and Jones was found guilty on all three counts.
DISCUSSION
I. Sufficiency of the Evidence
In reviewing the sufficiency of the evidence, the Court looks "at the evidence in
the light most favorable to the verdict and accept[s] as established all reasonable
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inferences supporting the verdict." United States v. Davis, 154 F.3d 772, 786 (8th Cir.
1998). We will reverse a conviction only if no reasonable jury could have found
defendant guilty beyond a reasonable doubt. United States v. Frayer, 9 F.3d 1367,
1371 (8th Cir. 1993).
Jones challenges the sufficiency of the evidence supporting his conviction for
making a false statement in acquiring a firearm.5 Jones argues that to be convicted he
must have known that the statement he made was false or fictitious. The alleged false
statement made by Jones was his response of "no" to the questions on Form 4473
concerning prior felony convictions. Specifically, Form 4473 asked, "Have you been
convicted in any court of a crime for which a judge could have imprisoned you for more
than a year, even if the judge actually gave you a shorter sentence?" He answered "no"
to a similar question on the state permit application.
There was sufficient evidence presented to the jury that it could infer Jones's
knowledge that his answer to that question was false. Appellant used the name "Jones"
on the Form 4473 (and the permit application) even though all of his previous
convictions were under the name "Lee." Further, Jones admitted at trial that he had
told the pawn shop owner that he had served time in Tennessee. He also admitted
during trial that he knew he had been convicted of multiple felonies. Jones's knowledge
5
It does not appear that Jones is challenging the sufficiency of the evidence for
the felony possession convictions. However, in the event Jones intended to challenge
those convictions, the Court has no difficulty finding that the government proffered
sufficient evidence that the jury could find appellant guilty on both counts. The only
argument Jones makes concerning the sufficiency of the evidence is that he did not
have knowledge of his prior felony convictions. The government need not prove
knowledge, but only the fact of a prior felony conviction. United States v. Kind, 194
F.3d 900, 906 (8th Cir. 1999) ("it is well settled in this circuit that the government need
only prove defendant's status as a convicted felon and knowing possession of the
firearm), cert. denied, 528 U.S. 1180 (2000). There was ample evidence presented to
the jury of appellant's prior felony convictions.
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of his prior felony convictions was also corroborated by the testimony of Officer White,
who testified at trial to statements Jones made to him after the December 21, 1999
arrest. Given this evidence, the jury could reasonably conclude that Jones knew his
answer to the question on the Form 4473 regarding prior felony convictions was false.
There was sufficient evidence to support the verdict on all counts.
II. Evidentiary Issues
A. Use of Multiple Convictions to Prove Appellant's Status as a Felon
Jones challenges the district court decision permitting the government to
introduce evidence of five prior felony convictions to prove appellant's status as a felon
for purposes of the felon in possession counts. We will reverse this evidentiary ruling
only if there was a clear abuse of discretion. United States v. Whitfield, 31 F.3d 748,
749 (8th Cir. 1994).
In order to establish the essential elements of felony possession of a firearm, the
government had the burden to prove that Jones possessed a firearm and that he had
been convicted of a crime punishable by a term exceeding one year. 18 U.S.C. §
922(g)(1). Appellant argues that the decision by the district court to allow the
government to introduce evidence of more than one conviction was prejudicial and
should have been excluded pursuant to Federal Rule of Evidence 403. We disagree.
In this case, the government made numerous offers to Jones, both before trial and
during trial, to stipulate to his status as a felon. Jones rejected all overtures by the
government and instead chose to put the government to its burden of proof on that
element of the crime. The government then introduced evidence, through a probation
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officer and fingerprint expert, that Jones had been convicted of five prior felonies.6 The
testimony concerning each felony was limited to the fact that Jones had been confined
for more than one year on each conviction and that it was, in fact, Jones who was
convicted. The government did not introduce evidence concerning the nature or the
name of the convictions. Compare Old Chief v. United States, 519 U.S. 172, 190-92
(1997) (explaining that a court that denies a defense stipulation to felon status and
permits the prosecution to introduce evidence of the name and nature of prior
convictions may be an abuse of discretion). Multiple convictions were introduced to
ensure that the government could satisfy its burden of proof in the event Jones was
successful in contesting one or more of the convictions in front of the jury.
Because appellant chose not to stipulate to his status as a felon, it was not
improper for the district court to allow the prosecution to present limited evidence of
multiple felony convictions in order to sustain its burden of proof on that element of the
crime. United States v. Garner, 32 F.3d 1305, 1311 (8th Cir. 1994) (finding no error
when the government was allowed to present evidence of five prior felony convictions);
United States v. Lloyd, 981 F.2d 1071, 1072 (9th Cir. 1992) (finding that the court may,
in its discretion, permit the government to introduce more than one prior felony
conviction if defendant refuses to stipulate to status as a felon).
B. Testimony of Probation Officer
Jones also contends that the district court's decision to admit the testimony of a
federal probation officer concerning his presentence investigation interview with
appellant was erroneous. We review a district court's denial of a motion to suppress
under the clearly erroneous standard. United States v. Jacobs, 97 F.3d 275, 279 (8th
Cir. 1996) (citing United States v. Meirovitz, 918 F.2d 1376, 1379 (8th Cir. 1990)).
6
The record indicates that Jones had actually been convicted of eleven prior
felonies, but the government chose to introduce only five convictions.
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Jones argues that he should have been given Miranda warnings before the
presentence interview and that he should have been permitted to have his attorney
present. The record shows that the only information Officer Reed disclosed at trial
from his presentence interview with Jones was appellant's address. The remaining
information concerning Jones's prior convictions about which Officer Reed testified,
was information that he gathered through a review of certified and other records.
Requests for routine information such as name and address, which is necessary
for basic identification purposes, is not interrogation for purposes of Miranda.7 United
States v. McLaughlin, 777 F.2d 388, 392-93 (8th Cir. 1985) (questioning by a pretrial
services officer relating to employment and home address not interrogation under
Miranda). The information sought by the probation officer in this case was routine
identification information and resulted from the officer's normal fact-finding
responsibility. Id. at 394. Accordingly, the district court did not err in permitting
Officer Reed's testimony.
C. Testimony of a Previously Unendorsed Witness
Jones asserts that the district court committed error by permitting Columbia
Police Officer Cathy Dodd to testify despite the fact that she had not been previously
included on the prosecution's witness list. We review a decision to admit evidence over
a party's objection under an abuse of discretion standard. Whitfield, 31 F.3d at 749.
7
The Court notes that there is a question about whether Miranda is even
implicated in a situation such as this, involving a federal probation officer. Baumann
v. United States, 692 F.2d 565, 575-77 (9th Cir. 1982) (Miranda not applied to routine
presentence interviews); United States v. Jackson, 886 F.2d 838, 842 n.4 (7th Cir.
1989) (finding that Fifth Amendment is not implicated by federal probation officer);
United States v. Rogers, 921 F.2d 975, 979 (10th Cir. 1990) ("Miranda warnings are
not required prior to routine post conviction presentence interviews").
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We will reverse only when an erroneous evidentiary ruling affected the substantial
rights of the defendant. United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir. 1994).
While it may have been improper for the district court to permit Officer Dodd
to testify when she was not previously disclosed as a witness to the appellant, any error
here was harmless and did not affect appellant's substantial rights. Officer Dodd was
called to testify about the incident on October 9, 1999, when she responded to a "shots
fired" report involving Jones. Although Officer Dodd's name was not on the original
witness list, her name was read as a potential witness during voir dire. Moreover,
Officer Dodd's police report from October 9 was turned over to Jones during discovery
before trial. Although Jones objected to Officer Dodd's testimony at trial, appellant did
not move for a continuance or suggest that he was unprepared to cross-exam the
witness. Further, Officer Hawkins testified at trial and corroborated Officer Dodd's
testimony concerning the handgun found in Jones's vehicle that day. The prejudicial
effect to appellant under these circumstances is minimal and the district court did not
abuse its discretion in permitting Officer Dodd to testify. United States v. Bissonette,
164 F.3d 1143, 1145 (8th Cir. 1999); United States v. McClendon, 587 F.2d 384, 398
(8th Cir. 1978); United States v. Wood, 780 F.2d 555, 561 (6th Cir. 1986).
D. Testimony Concerning Events Occurring on August 18, 1999
Jones asserts that the district court erred in permitting Columbia Police Officer
Candy Cornman to testify about a conversation that she had with appellant on
August 18, 1999. Jones contends that he was acquitted in a different trial of a firearm
charge in connection with a narcotics transaction about which Officer Cornman
testified. Jones argues that the district court should have excluded the evidence
concerning the drug transaction because it was evidence of other crimes pursuant to
Federal Rule of Evidence 404(b) and because it violated the Double Jeopardy clause
of the Fifth Amendment of the United States Constitution. Denial of a double jeopardy
claim is reviewed de novo. United States v. Ivory, 29 F.3d 1307, 1310 (8th Cir. 1994).
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In order to succeed on a double jeopardy claim, appellant must show that the two
offenses charged are in law and fact the same offense. United States v. Okolie, 3 F.3d
287, 289 (8th Cir. 1993). The critical issue in determining whether two crimes
constitute the same offense for purposes of double jeopardy is whether they consist of
the same elements. United States v. Rogers, 18 F.3d 1425, 1428 (8th Cir. 1994).
Felony possession of a firearm requires proof of three elements: (1) a prior felony
conviction; (2) knowing possession of a firearm; and (3) an interstate nexus. 18 U.S.C.
§ 922(g)(1). The crime of carrying a firearm during a narcotics transaction requires
proof of two elements: (1) that defendant carried a firearm during a narcotics
transaction; and (2) guilt of an associated narcotics felony. 18 U.S.C. § 924(c).
The Supreme Court has previously explained that "[t]he applicable rule is that
where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact which the other does not."
Albernaz v. United States, 450 U.S. 333, 337 (1981); United States v. Townsley, 843
F.2d 1070, 1081 (8th Cir. 1988). Here, the felony possession charge required proof of
a previous felony, a fact not required for proving the crime of carrying a weapon during
a narcotics transaction. Similarly, carrying a firearm during a narcotics transaction
requires that the government prove guilt of a narcotics charge, a fact that is unnecessary
for the felony possession offense. Because each offense requires proof of fact which
the other does not, the double jeopardy clause is not implicated in this case.
Appellant also argues that the testimony of Officer Cornman was improperly
admitted pursuant to Federal Rule of Evidence 404(b). Related to this assertion of
error, appellant argues that because Officer Cornman's testimony was permitted, he
should have been allowed to introduce evidence of his acquittal to the charge of
carrying a firearm during a narcotics transaction. The latter decision is reviewed under
an abuse of discretion standard. United States v. McMurray, 34 F.3d 1405, 1411 (8th
Cir. 1994); United States v. Whitfield, 31 F.3d 747, 749 (8th Cir. 1994).
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However, the district court decision to admit Officer Cornman's testimony is
subject only to plain error review. When the specific grounds for an objection are not
made at trial, the evidentiary ruling is entitled to plain error review. United States v.
Swanson, 9 F.3d 1354, 1357 (8th Cir. 1993); United States v. Helmel, 769 F.2d 1306,
1316-17 (8th Cir. 1985). Having reviewed the trial transcript, the Court finds that
defense counsel never made clear the basis for his objection to the testimony of Officer
Cornman.8 As such, plain error review of the district court's decision to admit the
testimony of Officer Cornman is appropriate. Under the plain error standard, we will
reverse the district court only if the error prejudices the substantial rights of the
defendant, and would result in a miscarriage of justice. Id. The Court cannot find that
any such error occurred in this case.
While we have some concern that the testimony of Officer Cornman regarding
the reason for meeting with Jones, i.e., to purchase drugs, was prejudicial, there was
no plain error. The district court presumably allowed the testimony of Officer Cornman
because it was an admission by Jones of carrying a firearm earlier in the day. This
evidence is direct evidence of one element of the crime rather than improper character
evidence under 404(b) as appellant suggests. Moreover, Officer Cornman's testimony
on this issue was not the only evidence admitted at trial that Jones was in possession
of a weapon that day. Officer Buckner, the officer who actually stopped Jones earlier
in the day and discovered the weapon, also testified during the trial. Given these
circumstances, the district's court's ruling on this testimony did not prejudice the
substantial rights of the defendant.
8
The Court notes that counsel for Jones made clear that he was objecting to
Officer Cornman's testimony on double jeopardy grounds. However, in his second
objection to the testimony, counsel for Jones did not articulate any specific ground for
the objection.
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Additionally, the decision not to permit Jones to introduce evidence of his
previous acquittals was not an abuse of discretion. The general rule is that "a judgment
of acquittal is not generally admissible to rebut inferences that may be drawn from
evidence that was the basis of a previous trial." Prince v. A.L. Lockhart, 971 F.2d 118,
122 (8th Cir. 1992). This rule is based on the fact that acquittals are hearsay and that
judgments of acquittal are usually not relevant because they do not prove innocence,
but only show that the government did not meet its burden of proof. Id. In this case,
permitting evidence of appellant's acquittal on the firearm possession charge in
connection with the narcotics transaction would not have proven that Jones did not
possess a firearm. The acquittal in the earlier trial could have been based on any one
of a number of findings by the jury. Because the acquittals were hearsay and did not
prove any one fact, appellant's substantial rights were not prejudiced by the refusal to
allow the evidence to be heard by the jury.
III. Motion to Suppress
Jones argues that his statements made to police officers after his arrest on
December 21, 1999 should have been suppressed because he was not read his Miranda
rights. Jones also contends that at the time of his arrest he was placed in a police-
dominated atmosphere and his liberty was restrained, triggering the need for a Miranda
warning. The district court did not err in denying Jones's motion to suppress the
statements.
Jones sought to suppress two separate statements he made on December 21,
1999. The first statement, made after Jones was arrested while he was in the police car
on the way to the station, was not used during trial. Because this statement was not
used at trial, the Court need not address whether Jones's motion was properly denied.
United States v. Alvarado-Delgado, 98 F.3d 492, 494 (9th Cir. 1996) (noting that
defendant's initial statements were not admitted at trial and the court therefore need not
consider whether the pre-Miranda statements were admissible); Reynolds v. A.L.
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Lockhart, 497 F.2d 314, 315 (8th Cir. 1974) (explaining that none of petitioner's
incriminating statements were admitted at trial and the exclusionary rule therefore has
no application).
Jones's second statement was made after he was processed and booked at the
police station. He claims that no Miranda warning was given to him until after he made
incriminating statements at the police station to Officer White. Officer White testified
that he informed Jones of his Miranda rights at the time of the booking, reciting them
from memory. The district court found that Jones had been given his Miranda rights
by Officer White at the police station and then knowingly and voluntarily waived those
rights.
The question before this Court is essentially one of credibility: whether the
testimony of Officer White or the testimony of Jones was more credible. Credibility
determinations are best left to the sound discretion of the trial judge. United States v.
E.R.B., 86 F.3d 129, 130 (8th Cir. 1996). There is nothing in the record before this
Court to call into question the credibility determination made by the district court that
Officer White recited Miranda rights to Jones at the time of booking. Accordingly, the
district court decision to deny Jones's motion to suppress statements made to the police
after his arrest is affirmed.9 Untied States v. Sturgis, 238 F.3d 956, 958 (8th Cir. 2001)
(affirming district court decision based on credibility determination); United States v.
Moss, 138 F.3d 742, 744 (8th Cir. 1998) (affirming district court drug quantity
determination based on a credibility determination); United States v. Lank, 108 F.3d
9The Court also notes that there is no evidence in the record to indicate that
there was any coercion on the part of the police officers. Even if this Court were to
have found that defendant was not read his Miranda rights, the absence of any coercion
would still result in the affirmance of the district court's decision to deny defendant's
motion to suppress. Colorado v. Connelly, 479 U.S. 157, 167 (1986); United States
v. Kime, 99 F.3d 870, 880 (8th Cir. 1996).
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860, 862 (8th Cir. 1997) (stating that court would not disturb district court credibility
finding).
CONCLUSION
For the reasons set forth above, appellant's convictions are affirmed.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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