United States v. Kenneth Osteen ( 2021 )

FILED
NOT FOR PUBLICATION
DEC 16 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50261
Plaintiff-Appellee, D.C. No.
2:19-cr-00585-JFW-1
v.
KENNETH OSTEEN, AKA Ken Bone, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted December 8, 2021**
Pasadena, California
Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Kenneth Osteen (Osteen) appeals his conviction, following a jury trial, of
violating 18 U.S.C. § 922(g)(1) (felon in possession of firearm and ammunition).
Osteen contends that, although the evidence at trial may have been sufficient to
show his knowledge of the firearm and intent to exercise control over it, the
evidence did not demonstrate his power to actually exercise control over the
firearm.
We review de novo the district court’s denial of Osteen’s motion for
acquittal asserting a lack of sufficient evidence to support his conviction. See
United States v. Gagarin, 950 F.3d 596, 602 (9th Cir. 2020). We will uphold a
conviction if, “viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proved beyond a reasonable doubt.” United States v. Bailon-Santana, 429 F.3d
1258, 1262 (9th Cir. 2005) (citation omitted).
Osteen would be considered to have exercised control over the firearm if he
constructively possessed it. “Constructive possession is established when a person,
though lacking . . . physical custody, still has the power and intent to exercise
control over the object. . . .” Henderson v. United States, 575 U.S. 622, 626 (2015)
(citations omitted). Based on the evidence at trial, a rational trier of fact could find
that Osteen constructively possessed the firearm and ammunition. On recordings
2
made while he was in jail, Osteen is heard saying that he had “a new thing at the
house” which he described as “Ninth Street.” He stated that it was “brand new,”
had “like 15 or 16 passengers,” and urged the person on the other end to “find
somebody to sell it,” explaining that he needed “like five or six” for it. At multiple
times Osteen repeatedly referred to the “new thing” as belonging to him.
Los Angeles Sheriff’s Department Detective McGaughey decoded the
language used by Osteen during the calls, and informed the jury that Osteen’s
jargon actually referenced a firearm. Detective McGaughey also testified to
executing a warrant at Osteen’s home based on the information gathered from the
calls and finding a gun loaded with 15 bullets.
Given the recorded calls, the detective’s testimony, and the seized firearm, a
rational trier of fact could have found that Osteen, though lacking physical
custody, had the power and intent to exercise control over the firearm. See id.Therefore, sufficient evidence existed to support Osteen’s conviction. See
Gagarin, 950 F.3d at 602.
AFFIRMED.
3