United States v. Demario Griffin , 394 F. App'x 349 ( 2010 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    Nos. 08-3099
    ___________
    United States of America,                *
    *
    Appellee,                   * Appeal from the United States
    * District Court for the
    v.                                 * Western District of Missouri.
    *
    Demario B. Griffin,                      *      [UNPUBLISHED]
    *
    Appellant.                  *
    ___________
    Submitted: September 3, 2010
    Filed: September 29, 2010
    ___________
    Before BYE, BOWMAN, and COLLOTON, Circuit Judges.
    ___________
    PER CURIAM.
    Demario Griffin appeals from the judgment of the District Court,1 entered after
    a bench trial, finding him guilty of being a felon in possession of ammunition, 
    18 U.S.C. §§ 922
    (g)(1), 924(e)(1), and sentencing him to 327 months in prison and five
    years of supervised release. For reversal, Griffin challenges the voluntariness of his
    jury-trial waiver, the sufficiency of the evidence, and the application of a sentencing
    enhancement based upon his status as an armed career criminal. For the reasons that
    follow, we affirm.
    1
    The Honorable Dean Whipple, United States District Judge for the Western
    District of Missouri.
    The Sixth Amendment right to a jury trial in a criminal case, though
    fundamental, Duncan v. Louisiana, 
    391 U.S. 145
    , 149 (1968), is a right that a
    defendant can waive, Fed. R. Crim. P. 23(a) (noting that a defendant's jury-trial waiver
    must be in writing, with government consent and court approval); see also United
    States v. Williams, 
    559 F.3d 607
    , 609 (7th Cir. 2009) ("For the defendant’s waiver to
    be valid, it must be voluntary, knowing, and intelligent."), cert. denied, 
    130 S. Ct. 1137
     (2010); Fitzgerald v. Withrow, 
    292 F.3d 500
    , 504 (6th Cir.) (noting that the
    Constitution does not require that a jury-trial waiver take any particular form), cert.
    denied, 
    537 U.S. 1009
     (2002). In this case, Griffin requested a waiver through
    counsel in a written motion. Testimony at a hearing on his motion demonstrated that
    Griffin knowingly and voluntarily elected to waive his right to a jury trial in
    accordance with his counsel’s advice, which was based in part on counsel’s concern
    that a jury would be improperly influenced by Griffin’s history of domestic assaults.
    See United States v. Diaz, 
    540 F.3d 1316
    , 1322 (11th Cir. 2008) (per curiam)
    (explaining that the adequacy of a jury-trial waiver is a mixed question of fact and law
    that is reviewed de novo); Brown v. Burns, 
    996 F.2d 219
    , 221 (9th Cir. 1993) (per
    curiam) (noting that compliance with Rule 23(a)'s writing requirement provides "the
    best record evidence of a defendant’s express consent"). The waiver was also made
    with the government’s consent and the District Court’s approval.
    At trial, the evidence established that law enforcement officers responded to a
    911 call. In the course of looking for a gun that Griffin allegedly brandished while
    assaulting his girlfriend, the officers found ammunition in a bedroom closet at the
    home shared by Griffin and his girlfriend. According to a detective who interviewed
    Griffin after advising him of his rights, Griffin admitted that the ammunition found
    in the bedroom closet belonged to him and indicated that he was unaware that as a
    convicted felon, he was not allowed to have ammunition. There were later claims that
    the ammunition belonged to the girlfriend and that Griffin was not living with her at
    the time of the assault. But the detective’s testimony about Griffin’s initial admission,
    Griffin’s stipulation that he had been convicted of a crime punishable by a term of
    -2-
    imprisonment exceeding one year, and undisputed evidence that the ammunition had
    traveled in interstate commerce were sufficient to support the verdict. See 
    18 U.S.C. § 922
    (g); United States v. Thompson, 
    285 F.3d 731
    , 733 (8th Cir. 2002) (reviewing
    de novo a district court’s denial of a motion for judgment of acquittal, viewing the
    evidence in the light most favorable to the verdict and according that evidence all
    reasonable inferences); United States v. Moore, 
    212 F.3d 441
    , 445 (8th Cir. 2000)
    (noting that the court of appeals does not reweigh the evidence or judge the credibility
    of witnesses and concluding that the evidence was sufficient to support a felon-in-
    possession conviction where an officer testified that the defendant admitted post-arrest
    that the gun found in a bedroom belonged to him); United States v. Anderson, 
    78 F.3d 420
    , 422 (8th Cir. 1996) (explaining that possession may be either actual or
    constructive, and "[c]onstructive possession exists when a person has ownership,
    dominion, or actual control over the contraband").
    As for Griffin’s sentence, to the extent he preserved his challenges to the
    armed-career-criminal enhancement, we find no error. See 
    18 U.S.C. § 924
    (e)
    (requiring that a person who violates § 922(g) and has three previous convictions for
    a violent felony or a serious drug offense be imprisoned not less than fifteen years);
    U.S.S.G. § 4B1.4; United States v. Jones, 
    574 F.3d 546
    , 549 (8th Cir. 2009) (standards
    of review). Griffin’s qualifying convictions include his Missouri convictions for first-
    degree felony domestic assault, second-degree felony domestic assault, and possession
    with intent to distribute a controlled substance, the last of which occurred when
    Griffin was age seventeen but had been certified as an adult.
    The judgment is affirmed. Griffin’s pending motions are denied.
    ______________________________
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