United States v. Harold Dorman , 860 F.3d 675 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2017 Decided June 23, 2017
No. 14-3064
UNITED STATES OF AMERICA,
APPELLEE
v.
HAROLD A. DORMAN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cr-00334-1)
Tony Axam Jr., Assistant Federal Public Defender, argued
the cause for appellant. With him on the brief was A.J. Kramer,
Federal Public Defender.
James A. Ewing, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Elizabeth Trosman,
Suzanne Grealy Curt, Anthony Scarpelli, and George P.
Eliopoulos, Assistant U.S. Attorneys.
Before: ROGERS, MILLETT and PILLARD, Circuit Judges.
ROGERS, Circuit Judge: The principal question in this
appeal is whether the government met its burden to show
beyond a reasonable doubt that Harold A. Dorman
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constructively possessed PCP seized from the laundry room of
his mother’s home. Constructive possession of unlawful
controlled substances is an expansive concept that this court has
held requires a showing of more than mere residence in a jointly
occupied home where drugs and guns are found in generally
accessible areas and are not in plain view. Because Dorman’s
constructive possession of a gun and ambiguous apology to his
mother fail to fill the evidentiary void, we reverse in part and
remand for resentencing.
I.
The seizure of the drugs and firearms from Dorman’s
mother’s home resulted from an investigation of a robbery at a
Kay Jewelers store in Maryland on October 22, 2013. Two
diamond rings were taken from the fingers of a sales clerk, and
the robber was captured on video getting into a white Dodge
Charger. The car was identified as a rental car on loan to
Dorman’s father. Dorman matched the physical description of
the robber, and was known by law enforcement to be facing
charges in Pennsylvania for the attempted robbery of a jewelry
store. Another videotape showed Dorman exiting the Dodge
Charger at a 7-11 convenience store in Maryland two days after
the robbery. The Dodge Charger was also spotted by FBI
Special Agent Catherine Hanna several days before the robbery
in an area she knew to be frequented by Dorman, with whom she
had previous interactions. With a GPS tracking system, the
Dodge Charger was found parked near 2317 Chester Street, S.E.,
Washington, D.C., which public records (including a prior arrest
record) listed as Dorman’s address. FBI agents subsequently
observed the car parked across the street from that address.
The home at 2317 Chester Street, S.E. consisted of two
floors and a basement. The basement, which was not locked off
from the main floor, included a family room and closet at the
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base of the stairs, and a laundry room and a bedroom off a
hallway; it also had an external exit at the rear. The entrance to
the basement bedroom was around a corner from the laundry
room. The bedroom contained men’s sneakers and clothing, as
well as judicial court papers in Dorman’s name, and was
decorated with a painting of him playing football.
Pursuant to the execution of a search warrant for 2317
Chester Street, S.E., law enforcement officers seized an array of
contraband unrelated to the Kay Jewelers robbery: (1) a Glock
9-millimeter handgun loaded with a 30-round extended
magazine hidden underneath a couch cushion in the living room
on the first floor; (2) a one-ounce vial of PCP on the living room
floor either inside or behind a vase, among other drug
paraphernalia (approximately fifty glass vials in a large plastic
bag, and scales and small plastic baggies in a baby formula
container) elsewhere in the room; (3) an empty gun box for a
Glock .40 caliber handgun on the basement stairs; (4) a loaded
Ruger 9-millimeter pistol wedged between the mattress and box
spring of the bed in the basement bedroom, with a digital scale,
plastic baggies, and boxes of .40 caliber Smith and Wesson
ammunition nearby; (5) a 15.2 ounce Tropicana juice bottle
filled to the brim with PCP on the floor of the basement laundry
room; and (6) a trash bag containing fifty or more empty
prescription pill bottles for oxymorphone underneath a blanket
in the hallway in the basement. Although the search did not
produce the stolen rings, packaging and price tags for jewelry
from other stores was found in the home.
Dorman was indicted on three counts: Count 1, unlawful
possession with intent to distribute 100 grams or more of PCP,
in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(iv); Count 2,
unlawful possession of a firearm or ammunition by a person
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1); and
Count 3, using, carrying, and possessing a firearm during a drug
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trafficking offense, in violation of 18 U.S.C. § 924(c)(1). The
district court denied his motion to suppress the items seized
during the search.
At trial, Dorman’s mother appeared as a government
witness. She testified that her son stayed in many places, but
conceded to having told the grand jury that 2317 Chester Street,
S.E. was his “home base.” Trial Tr. 107 (July 9, 2014). She had
“fixed up” the basement bedroom for him, id. at 122, and
identified as his some of the items in the room. She also
explained that when at her home, although he did not always
sleep in the basement bedroom, to her knowledge no one else
slept there. Multiple individuals had keys to the home,
including Dorman’s father and Cleavan Hill, a family friend
who lived at the home; the son of Dorman’s mother’s boyfriend
also had a key and temporarily lived at the home in 2012, but
had apparently lost the key since then. Only Dorman and his
mother had keys to the basement bedroom, although she
admitted on cross-examination that the door “was open all the
time.” Id. at 151. Dorman, his mother, Hill, the mother’s
boyfriend, and possibly the boyfriend’s son did laundry in the
basement laundry room. Various other individuals also
frequented 2317 Chester Street, S.E., including Dorman’s
friends regardless of whether he was there at the time. Hill
testified that on several occasions he had let people in the home
at Dorman’s request when no one else was there.
The jury found Dorman guilty as charged, and the district
court denied his motions for acquittal and a new trial.
Considering Counts 1 and 2 together, the district court sentenced
Dorman to concurrent terms of seventy months’ imprisonment
on each of these counts, and to a consecutive term of sixty
months’ imprisonment on Count 3, and thirty-six months’
supervised release. Dorman appeals, challenging his
convictions on three grounds, of which only his sufficiency
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challenge warrants extended discussion.
II.
“Criminal possession . . . may be either actual or
constructive.” United States v. Alexander, 331 F.3d 116, 127
(D.C. Cir. 2003). Constructive possession is a potentially
expansive concept, and this court has limited its reach. The
government must prove beyond a reasonable doubt that “the
defendant knew of, and was in a position to exercise dominion
and control over, the contraband.” United States v. Littlejohn,
489 F.3d 1335, 1338 (D.C. Cir. 2007) (quoting United States v.
Byfield, 928 F.2d 1163, 1166 (D.C. Cir. 1991)); see United
States v. Staten, 581 F.2d 878, 883–84 (D.C. Cir. 1978). This
avoids ensnaring “incidental bystander[s]” who happen to be in
the wrong place at the wrong time. United States v. Pardo, 636
F.2d 535, 549 (D.C. Cir. 1980). The court has addressed the
sufficiency of the evidence of dominion and control in three
circumstances: First, the court has held the evidence of
constructive possession is sufficient when contraband is found
in a home or bedroom where the defendant was the sole
occupant. See, e.g., United States v. Dykes, 406 F.3d 717, 722
(D.C. Cir. 2005); United States v. Morris, 977 F.2d 617, 620
(D.C. Cir. 1992). Second, where the defendant shares a home or
bedroom with other persons, the court has held the evidence of
dominion and control is sufficient only where there was
additional evidence linking the defendant to the contraband.
See, e.g., United States v. Boyd, 803 F.3d 690, 693 (D.C. Cir.
2015); United States v. Walker, 99 F.3d 439, 441 (D.C. Cir.
1996). Third, where law enforcement encountered the defendant
in close proximity to the contraband, the court has held the
evidence of constructive possession was sufficient where there
is “evidence of some other factor — including connection with
[contraband], proof of motive, a gesture implying control,
evasive conduct, or a statement indicating involvement in an
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enterprise.” Alexander, 331 F.3d at 127 (quoting United States
v. Moore, 104 F.3d 377, 381 (D.C. Cir. 1997)). Here, the
government sought to establish Dorman’s possession of the gun
in the basement bedroom under the first line of cases and his
possession of the PCP under the second.
Dorman contends that the evidence linking him to the drugs
and guns was insufficient because he was not present when the
items were seized and it was unreasonable to infer beyond a
reasonable doubt that he constructively possessed the items
discovered in areas of the home that were accessible to many
individuals. He was neither the lessee nor owner of 2317
Chester Street, S.E., and there was no evidence of mail
addressed to him at that address; paperwork from his arrest in
Pennsylvania in the basement bedroom listed 142 Yuma Street,
S.E., Washington, D.C., as his address. The evidence neither
showed that all of the items in the basement bedroom belonged
to him, nor how his belongings had come to rest there or how
long the seized items had been there. He points to this court’s
precedent holding that an occasional or even frequent occupant
of premises is not presumed to possess everything contained at
those premises, see United States v. Zeigler, 994 F.2d 845, 848
(D.C. Cir. 1993), and contrasts the evidence in his case to that
in Walker, 99 F.3d at 441, where at the time of the search and
seizure the defendant was “surrounded by drug paraphernalia in
the open” and drugs were “all over the floor” of a neighboring
room. In Dorman’s view, his case is more like United States v.
Thorne, 997 F.2d 1504, 1510 (D.C. Cir. 1993), where there was
non-exclusive use of a bedroom and no drugs or drug
paraphernalia were in plain view. The government rejects the
notion that any of these cases require reversal because, in its
view, when considered together the evidence of Dorman’s
primary occupancy of the basement bedroom, the combination
of drugs and guns in the home, including some readily apparent
drug paraphernalia, and his mother’s testimony that he phoned
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and told her “I’m sorry” while the search warrant was being
executed made it reasonable for the jury to conclude that
Dorman constructively possessed the drugs and guns.
This court must “view[] the evidence in the light most
favorable to the prosecution,” Boyd, 803 F.3d at 692 (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)), not
distinguishing between direct and circumstantial evidence, and
“giving full play to the right of the jury to determine credibility,
weigh the evidence and draw justifiable inferences of fact,”
United States v. Vega, 826 F.3d 514, 522 (D.C. Cir. 2016)
(quoting Dykes, 406 F.3d at 721). The government fails to meet
its burden of proof, however, if the evidence leaves a jury to
“base a verdict on mere speculation.” United States v. Gaskins,
690 F.3d 569, 578 n.3 (D.C. Cir. 2012) (quoting United States
v. Teffera, 985 F.2d 1082, 1088 (D.C. Cir. 1993)).
A.
The evidence regarding the contents of the basement
bedroom and his mother’s testimony established that Dorman
was the sole occupant of the basement bedroom, even if he did
not have exclusive control inasmuch as his mother stored some
belongings there. See Morris, 977 F.2d at 620; Dykes, 406 F.3d
at 722. It also established that he exercised dominion and
control over the bed where the gun was found. See United
States v. Edelin, 996 F.2d 1238, 1241 (D.C. Cir. 1993).
Dorman’s mother testified that, as far as she observed, Dorman
alone slept in the room and photo exhibits showed his personal
papers and effects next to the bed. Although Dorman was in
police custody when the search warrant was executed a couple
of hours later, he was home the night before, which narrowed
the time when someone else could have stashed the gun in the
basement bedroom without it being discovered by him. Cf.
United States v. Johnson, 592 F.3d 164, 168–69 (D.C. Cir.
2010). We therefore affirm his conviction on Count 2, unlawful
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possession of ammunition or a firearm by a convicted felon,
under 18 U.S.C. § 922(g)(1), based on his constructive
possession of the gun found in the basement bedroom and the
parties’ stipulation that Dorman had a prior felony conviction.
See United States v. Bryant, 523 F.3d 349, 354 (D.C. Cir. 2008).
B.
The evidence of Dorman’s constructive possession of the
PCP is more attenuated. “The natural inference is that those
who live in a house know what is going on inside, particularly
in the common areas.” United States v. Jenkins, 928 F.2d 1175,
1179 (D.C. Cir. 1991). But the court has emphasized the
importance of distinguishing between drugs found in plain view
in a common area and those that are hidden. See United States
v. Harris, 515 F.3d 1307, 1310 (D.C. Cir. 2008). “[A] contrary
view could unfairly sweep up unwitting roommates or
housemates and subject them to the harsh criminal punishments
associated with drug crimes.” Id. Constructive possession of
contraband found in a shared space in the defendant’s home can
be shown only where it was kept in plain view, see, e.g.,
Jenkins, 928 F.2d at 1179; Harris, 515 F.3d at 1310; United
States v. Davis, 562 F.2d 681, 685 (D.C. Cir. 1977), or where
there is additional evidence, including the defendant’s presence
and conduct at the time of the search or an item in his control,
linking him to the contraband, see, e.g., Johnson, 592 F.3d at
168–69; Jenkins, 928 F.2d at 1179; see also Thorne, 997 F.2d at
1510–11.
There is no evidence that PCP or PCP drug paraphernalia
were in plain view in the common areas of Dorman’s mother’s
home. As described by Agent Hanna, the seizing officer, neither
container of PCP was in plain view. The PCP in the laundry
room was on the floor, on the right side of the washing machine,
and Agent Hanna described it as not “necessarily” visible from
the front upon approach. Trial Tr. 9 (July 9, 2014). Similarly,
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Agent Hanna testified that the PCP in the living room was in a
vial found either inside or behind a floral vase sitting on the
floor beside the television, but not in “plain view.” Trial Tr. 179
(July 8, 2014). “[A] large plastic bag containing smaller glass
vials with black screw tops” was found on a chair in the living
room, Trial Tr. 185 (July 8, 2014), but neither trial testimony
nor the government’s supplemental appendix shows that the
vials were visible to a passerby. Even assuming the empty
prescription pill bottles found in the basement hallway could be
used to transport PCP, they were in a trash bag covered by a
blanket.
Nor was Dorman physically present or behaving
suspiciously during the search of his mother’s home. That
absence “magnifies the importance of these evidentiary holes in
the government’s case.” United States v. Lawrence, 471 F.3d
135, 142 (D.C. Cir. 2006).
Nor did the evidence in Dorman’s basement bedroom link
him to the PCP. The government points to the plastic baggies
and a digital scale found in the basement bedroom, Appellee Br.
50, but the government’s expert testified that PCP is distributed
in glass or plastic bottles, not plastic baggies, and is measured
by bottle size rather than by weight. The government also points
to the gun in Dorman’s bedroom mattress, relying on cases
upholding constructive possession convictions on the theory that
“drugs and guns go together.” Johnson, 592 F.3d at 169
(quoting Jenkins, 928 F.2d at 1179); see United States v.
McLendon, 378 F.3d 1109, 1113 & n.4 (D.C. Cir. 2004). The
link between guns and drugs is an example of a “plus factor[]”
that, when “‘coupled with proximity,’” can support a finding of
constructive possession. United States v. Booker, 436 F.3d 238,
242 (D.C. Cir. 2006) (quoting Alexander, 331 F.3d at 127).
Here there was no such close physical proximity between
Dorman and the PCP. Compare In re Sealed Case, 105 F.3d
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1460, 1464 (D.C. Cir. 1997) with Booker, 436 F.3d at 242–43,
and Moore, 104 F.3d at 381. The gun in the basement bedroom,
then, was not a “plus factor” to Dorman’s proximity to the PCP
in the laundry room; it was the primary connection. Relying on
the evidence of his constructive possession of the gun in his
basement bedroom to support his constructive possession of
PCP elsewhere would stretch the “drugs and guns” observation
beyond its common usage, piling inference upon inference. Cf.
Pereira v. United States, 347 U.S. 1, 16 (1954) (Minton, J.,
concurring in part and dissenting in part). In Jenkins, 928 F.2d
at 1179, where ammunition was found in the defendant’s private
bedroom and drug paraphernalia and remnants were found in
plain view in common areas, the court held that the evidence
was “just barely” sufficient to prove constructive possession of
drugs. The government cites no case and the court is aware of
none holding that constructive possession of a gun in one room
by itself can prove constructive possession of drugs in a separate
common area. Cf. Johnson, 592 F.3d at 169; United States v.
Dunn, 846 F.2d 761, 764 (D.C. Cir. 1988). The absence of case
law is not surprising: Because there are many lawful reasons to
have a gun, a court cannot lightly infer that a gun is being used
to protect a drug stash.
The government suggests that the gun, with its handle
protruding from the mattress, “was positioned for easy access
should someone intrude into the bedroom, so as to protect the
major stash of PCP around the corner in the laundry room.”
Appellee Br. 44. This theory is undermined by “the spatial
separation between the defendant, the gun, and the drugs.”
Booker, 436 F.3d at 242–43. In Booker, the court held that “a
rational juror could reasonably conclude Booker constructively
possessed the gun lying next to his drugs,” id. at 243, rather than
in a different room as here. Additionally, Booker was “never
more than 50–80 feet away,” from the contraband. Id. at 242.
The evidence here is more akin to that in In re Sealed Case, 105
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F.3d at 1464–66, where the court held that the evidence failed to
show the defendant, who was in a restaurant, constructively
possessed a gun found under the driver’s seat of a parked car
from which his brother sold drugs; even assuming the defendant
knew of the gun and was a joint participant in an ongoing drug
trafficking enterprise, the evidence failed to show the defendant
was “in a position to exercise dominion and control over the
gun,” id. at 1464. So, too, here as the PCP was found in
common areas of the home beyond Dorman’s presence or
control.
Of course, the evidence showed that his mother’s home,
which she described as Dorman’s “home base,” contained drugs
and drug paraphernalia in several rooms, and Hill’s description
of visitors at Dorman’s request lends weight to a reasonable jury
finding that unlawful drug activities were going on in the
mother’s home. But evidence of participation in an ongoing
drug business by itself would not ordinarily support a finding of
constructive possession, see id., and here, despite what the jury
could reasonably infer was Dorman’s frequent presence in his
mother’s home, there was no evidence that Dorman exercised
knowing dominion and control over the PCP. The stipulation
informing the jury that Dorman had a prior felony conviction did
not identify the offense. Agent Hanna testified there was no
tangible evidence, such as fingerprints or DNA evidence,
connecting Dorman to the contraband found in 2317 Chester
Street, S.E. Fingerprints recovered from the prescription pill
bottles found in the basement hallway matched those of Khalid
Davis and Ibrahim Ahmed Adam Mohamed, and while Davis
may have had a phone contact with Dorman, no evidence
connected either Davis or Mohamed to the PCP or the guns.
Too many other individuals had access to the home whose
activities were not specifically described. Suspicion, much less
speculation, is insufficient to demonstrate that the government
has met its burden of proof. See Gaskins, 690 F.3d at 578 n.3;
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United States v. Salamanca, 990 F.2d 629, 638 (D.C. Cir. 1993).
Nor does Dorman’s apology to his mother fill the
evidentiary gap. “The trouble with absence of evidence is that
it is consistent with any hypothesis.” Pardo, 636 F.2d at 549
(quoting United States v. Holland, 445 F.2d 701, 703 (D.C. Cir.
1971)) (emphasis in original). Dorman had phoned his mother
while the search warrant was being executed. According to her,
she told him the police were “all over my house” and that she
was “upset and yelling about the situation.” Trial Tr. 137 (July
9, 2014). Dorman responded “Ma, I’m sorry.” Id. at 143. The
government suggests this testimony was “devastating” to
Dorman because it was an admission the contraband was his.
Appellee Br. 46. Although “I’m sorry” may be a capacious
statement, the evidence never established what he was sorry for
or even that he knew drugs had been discovered in his mother’s
home. The record does not indicate when during the search the
phone call occurred. Dorman’s mother was outside “for two
hours in the hot sun” during the search, Trial Tr. 156 (July 9,
2014), leaving unclear whether she knew of the drugs when he
phoned. Theoretically, Dorman could have been apologizing
because he brought the PCP into her home, but it is at least as
likely that he could have been apologizing because of his
robbery at Kay Jewelers, for which he had just been arrested, or
just to calm down his mother who was extremely upset.
Dorman’s statement is not in the nature of a vague expression of
guilt that can only be understood as a confession to one
particular criminal act, see United States v. Brinson-Scott, 714
F.3d 616, 624 (D.C. Cir. 2013), and leaves the jury to speculate
about what he meant.
In sum, the government’s attempt to demonstrate there was
sufficient evidence of Dorman’s constructive possession of the
PCP fails under the court’s precedent. True, his bedroom was
around the corner from the laundry room, a gun was found in his
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bedroom, and the home contained some non-PCP drug
paraphernalia in plain view, but multiple individuals had a key
or otherwise had access to the home when Dorman was not
present and no tangible evidence connected him to the PCP,
which was not found in plain view. Viewed cumulatively in the
light most favorable to the government, the evidence is
equivocal about Dorman’s relationship to the PCP and his
ability to exercise dominion and control over it, and is thus
insufficient to show, under Count 1, that he constructively
possessed 100 grams or more of PCP with intent to distribute.
See United States v. Douglas, 482 F.3d 591, 596–97 (D.C. Cir.
2007). This also means, notwithstanding the sufficiency of the
evidence that Dorman constructively possessed a firearm under
Count 2, that there was insufficient evidence of a drug
trafficking offense to support his Section 924(c) conviction
under Count 3. See United States v. Kelly, 552 F.3d 824, 832
(D.C. Cir. 2009). We therefore reverse the judgment of
conviction on Counts 1 and 3.
III.
Dorman’s evidentiary and constitutional challenges to his
convictions — that the affidavit for the search warrant was
insufficient to establish probable cause and the district court
unduly limited his counsel’s cross-examination of his mother —
do not require reversal of his conviction under Count 2,
unlawful possession of a firearm by a convicted felon.
A.
“The task of a judge reviewing an affidavit for probable
cause ‘is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit
before him, . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.’” United
States v. Washington, 775 F.3d 405, 407 (D.C. Cir. 2014)
14
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Under
Franks v. Delaware, 438 U.S. 154 (1978), to challenge the
validity of a search warrant affidavit, “the defendant must show
that (1) the affidavit contained false statements; (2) the
statements were material to the issue of probable cause; and (3)
the false statements were made knowingly and intentionally, or
with reckless disregard for the truth.” United States v.
Richardson, 861 F.2d 291, 293 (D.C. Cir. 1988). This reasoning
applies as well to “material omissions” from a search warrant
affidavit. United States v. Johnson, 696 F.2d 115, 118 n.21
(D.C. Cir. 1982) (quoting 2 W. LAFAVE, SEARCH AND SEIZURE
§ 4.4 (Supp. 1982)). In this context, “material” means that the
“inclusion [of the omitted information] in the affidavit would
defeat probable cause.” United States v. Spencer, 530 F.3d
1003, 1007 (D.C. Cir. 2008) (quoting United States v. Colkley,
899 F.2d 297, 301 (4th Cir. 1990)). Our review of the district
court’s legal conclusions is de novo and of its factual findings is
for clear error. United States v. Glover, 681 F.3d 411, 417 (D.C.
Cir. 2012).
In contending that the district court erred as a matter of law
and fact in denying his motion to suppress the evidence seized
from his mother’s home, Dorman points out that the affidavit
omitted any mention of his non-identification by the Kay
Jewelers sales clerk from whose hand the rings were taken. In
Dorman’s view, the district court erred as a matter of law by not
considering whether there was probable cause had the omitted
information been included in the affidavit, and its error was
“exacerbated” when it found that the omission was “‘not that
relevant.’” Appellant Br. 40 (quoting Mot. H’g Tr. 121 (Jun. 25,
2014)). There is no record basis to conclude that inclusion of
the sales clerk’s uncertainty when presented with the photo array
would have “negate[d] probable cause.” Spencer, 530 F.3d at
1008. Even viewing the omitted non-identification as a material
omission, probable cause for the search did not rise or fall on the
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identification of Dorman as the robber; rather the link was
between the Dodge Charger and the robbery, Dorman and the
Charger, and Dorman and 2317 Chester Street, S.E. See Part I,
supra. Dorman speculates that law enforcement officers
“fear[ed]” inclusion of the sales clerk’s statement “would
jeopardize a probable cause finding.” Appellant Br. 41. MPD
Detective Scott Brown, who prepared the affidavit, testified that
he chose not to include the sales clerk’s statement in his
affidavit because “it didn’t help the search warrant” because the
sales clerk was uncertain, but it also “didn’t hurt the search
warrant” because the clerk said Dorman’s photograph had some
resemblance to the robber. Mot. H’g Tr. 91. Dorman’s rank
speculation is far from the “preponderance of the evidence”
required to demonstrate that the officer knowingly or recklessly
omitted this statement, much less overcome the district court’s
contrary finding on clear error review. United States v.
Cardoza, 713 F.3d 656, 658 (D.C. Cir. 2013).
Dorman also fails to show plain error as a result of “the
false statement” in the affidavit that the attempted robbery in
Pennsylvania involved a rental car when, in fact, it involved a
car borrowed from its rightful owner. Appellant Br. 39; see
United States v. Williams, 773 F.3d 98, 105 (D.C. Cir. 2014).
The district court dismissed this statement as a “simple error,”
without objection from Dorman, Mot. H’g Tr. 121, and Dorman
points to no evidence that Detective Brown knowingly or
recklessly included this information in his affidavit, see
Richardson, 861 F.2d at 293.
B.
The district court “enjoys broad discretion to control cross-
examination,” United States v. Hite, 769 F.3d 1154, 1171 (D.C.
Cir. 2014), but its discretion is not unbounded. The district
court “may not restrict the right of cross-examination by the
defense on a matter brought out before the jury on direct until
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that right has been ‘substantially and fairly exercised.’” United
States v. Pugh, 436 F.2d 222, 225 (D.C. Cir. 1970) (quoting
Lindsey v. United States, 133 F.2d 368, 369 (D.C. Cir. 1942)).
Where the district court “deprives a defendant of a fair trial” by
violating the defendant’s constitutional rights, United States v.
Lathern, 488 F.3d 1043, 1046 (D.C. Cir. 2007), the government
must show that the error was “harmless beyond a reasonable
doubt,” Chapman v. California, 386 U.S. 18, 24 (1967); accord
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
Dorman contends that the district court’s limitations on
cross-examination of his mother violated his right under the
Confrontation Clause of the Sixth Amendment and his Fifth
Amendment Due Process right to present a complete defense.
The limitations on defense counsel’s cross-examination
concerned whether other individuals had access to Dorman’s
mother’s home, including for the purpose of doing their laundry
in the basement. In response to the prosecutor’s objection that
“we don’t know what the time period is,” Trial Tr. 147 (July 9,
2014), the district court directed defense counsel “to give times
and . . . to be more specific” because otherwise “there’s no
foundation for [the question,]” id. at 148. Thereafter, on three
additional occasions, one apparently sua sponte, the district
court cut off defense counsel’s questions about others having
access. Instructing defense counsel to be more specific, the
court allowed counsel to inquire whether Dorman had visitors at
the home during the six months prior to the search.
Given the government’s constructive possession theory for
Dorman’s prosecution, the defense was entitled to some leeway
in attempting to establish that others had frequent or regular
access to his mother’s home. His mother was a key government
witness, and the evidence Dorman’s counsel sought to obtain
was a key part of the defense. As this court has stated, “there
should be great latitude for cross-examination on issues raised
17
in direct testimony.” United States v. Stock, 948 F.2d 1299,
1302 (D.C. Cir. 1991). Ambiguities can be corrected on
redirect. The court need not decide, however, whether the
district court’s limitations on cross-examination impermissibly
violated Dorman’s Fifth and Sixth Amendment rights because
if error, it was harmless beyond a reasonable doubt as to his
conviction under Count 2. The evidence showed that only
Dorman slept in the basement bedroom and that he was present
in his mother’s home the night before the search warrant was
executed. Dorman suggests that further cross-examination could
have produced evidence that others may have possessed the
PCP, and that evidence would have raised an inference they
possessed the firearms and ammunition to protect their drugs.
Such an attenuated inference lacks probative force because the
gun found in the basement bedroom was visible to its occupant
and easily accessible to someone lying in bed. As the court
observed in Walker, 99 F.3d at 441, “it would be rather illogical
for a user of the room to leave any material in the bedroom of
the primary occupant under the assumption that such material
would remain undetected by the primary occupant — at least
absent a showing that the material was hidden in places not
normally utilized.” So understood, no reasonable juror could
find that a guest would leave a gun visible in someone else’s bed
to protect a stash of drugs found elsewhere in a generally
accessible part of the home.
Accordingly, we affirm Dorman’s conviction on Count 2,
reverse his convictions on Counts 1 and 3, and remand the case
to the district court for resentencing.