United States v. Barnard

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1920
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY PAUL BARNARD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Selya, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Howard, Circuit Judge.
Marvin H. Glazier for Appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on the briefs, for Appellee.
June 14, 2005
*
Of the Tenth Circuit Court of Appeals, sitting by
designation.
BALDOCK, Senior Circuit Judge. A grand jury indicted
Defendant Jeffrey Paul Barnard on one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g).
Defendant filed a motion to suppress statements allegedly obtained
in violation of his Miranda rights prior to trial. The district
court denied the motion. Defendant proceeded to trial and a jury
convicted him. The district court denied Defendant’s subsequent
motion for a new trial, see Fed. R. Crim. P. 33, sentenced
Defendant to 103 months’ imprisonment, and entered final judgment.
Defendant appeals, arguing: (1) insufficient evidence exists to
support his conviction under 18 U.S.C. § 922(g); (2) the district
court erred in denying his motion to suppress statements obtained
in violation of his Miranda rights; and (3) the district court
erred in denying his motion for a new trial on the basis of newly
discovered evidence.1 We have jurisdiction, 28 U.S.C. § 1291, and
affirm.
I.
The evidence presented at trial was as follows:
Defendant, a convicted felon, resided in Millinocket, Maine, with
1
Defendant raises a fourth issue, which we summarily reject.
Defendant argues the district court’s jury instruction relating to
“possession” under § 922(g) violated the Supreme Court’s decision
in Blakely v. Washington, 124 S.Ct. 2531 (2004) and other
sentencing cases. Defendant’s argument is misguided. Blakely and
its progeny concern only the Sixth Amendment in the context of
determinate sentencing schemes. Defendant, however, only appeals
his underlying conviction. He does not appeal his sentence. Such
cases, therefore, are wholly irrelevant.
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his wife and stepson. Defendant’s former friend, Walter Cote,
testified that he first met Defendant in 1999. Cote was a frequent
visitor to Defendant’s home. There, Cote observed a .22 bolt
action rifle and a SKS semi-automatic rifle on numerous occasions.
Cote explained that the .22 rifle was “usually out in plain sight”
and he had seen the SKS rifle in Defendant’s bedroom. Cote also
testified that in the summer of 2000, he sold Defendant a 12-gauge
shotgun and a gun cabinet. After selling Defendant the cabinet,
Cote visited Defendant’s home and observed the cabinet in
Defendant’s bedroom. Defendant and Cote had a falling out in
November 2000. Thereafter, Cote notified law enforcement of
Defendant’s gun possession.
Law enforcement officers checked Defendant’s criminal
record and confirmed his status as a convicted felon. Officers
executed a search warrant at Defendant’s residence on the morning
of December 3, 2000. Officers found Defendant in his bedroom and
placed him in custody. Officers found a loaded .22 rifle leaning
against the wall next to Defendant’s bed. Officers also seized a
SKS rifle, shotgun, and ammunition from a gun cabinet in
Defendant’s bedroom.
Officers transported Defendant to the police station.
There, Defendant complained of extreme back pain and numbness in
his legs. Officers called an ambulance. While waiting for the
ambulance, Officer Robert Johansen testified that Defendant asked
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him “why we were doing this to him?” Defendant then stated the
guns were only at his house to protect his family. Johansen
testified that he never asked Defendant any questions, but told
Defendant “now is not the time to discuss any matters with me.”
Nevertheless, once at the hospital, Defendant again told Johansen
that he only had the guns to protect his family.
Defendant’s stepson, Wayde Batchelder, testified in
Defendant’s defense and claimed that he, his brother Harold
Edwards, and their friend, Jason Hartley, had placed the .22 rifle,
SKS rifle, and shotgun in Defendant’s home. The three witnesses
claimed they owned the guns and placed them in Defendant’s gun
cabinet, with a lock, in late November 2000. Defendant also
testified and denied (1) purchasing a shotgun from Cote, and (2)
that Cote was a frequent visitor to his home. The jury convicted
Defendant of being a felon in possession of a firearm.
II.
A.
Defendant first argues that insufficient evidence exists
to support his felon-in-possession conviction under § 922(g). We
review sufficiency of the evidence claims de novo, drawing all
reasonable inferences in favor of the Government. United States v.
Rivera-Ruiz, 244 F.3d 263, 266 (1st Cir. 2001). Under § 922(g),
the Government must prove: (1) the defendant had a previous felony
conviction; (2) the defendant knowingly possessed a firearm; and
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(3) the firearm was in or affecting interstate commerce. United
States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992). Possession,
under the second element, may be actual or constructive. See id.This circuit has consistently defined constructive possession as
follows: “Constructive possession exists when a person knowingly
has the power and intention at a given time to exercise dominion
and control over an object either directly or through others.”
United States v. Carlos Cruz, 352 F.3d 499, 510 (1st Cir. 2003)
(internal quotations omitted). “Constructive possession for
§ 922(g) purposes does not require ownership of the gun.” United
States v. Liranzo, 385 F.3d 66, 69 (1st Cir. 2004). When reviewing
a sufficiency of the evidence challenge to a § 922(g) conviction,
we must uphold any verdict the record supports. Id.
In this case, sufficient evidence exists to support
Defendant’s felon-in-possession conviction under § 922(g).
Defendant stipulated at trial that he was a convicted felon and
that the firearms affected interstate commerce. The sole issue,
therefore, was whether Defendant “possessed the firearms.” The
evidence clearly supports the jury’s verdict that Defendant
possessed the firearms. Cote testified he observed a .22 rifle and
a SKS rifle in Defendant’s home on numerous occasions. Further,
law enforcement officers testified they searched Defendant’s house
and found a loaded .22 rifle leaning against the wall in
Defendant’s bedroom where Defendant had been sleeping. A
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reasonable jury, based upon this and other evidence, could conclude
Defendant, at a minimum, had constructive possession of the .22
rifle because he exercised exclusive dominion and control over the
bedroom in which the firearm was located. See Liranzo, 385 F.3d at
70. Defendant’s arguments to the contrary focus mainly on
testimony indicating he did not own the firearms. A conviction
under § 922(g), however, does not require proof of ownership of the
firearms in question. See id. at 69.
B.
Defendant next argues the district court erred in denying
his motion to suppress statements obtained in violation of his
Miranda rights. We review the district court’s legal conclusions
on a motion to suppress de novo and its factual findings for clear
error. United States v. Meade, 110 F.3d 190, 193 (1st Cir. 1997).
It is well established that “the prosecution may not use statements
. . . stemming from custodial interrogation of the defendant unless
it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination.” Miranda v.
Arizona, 384 U.S. 436, 444 (1966). In order for a defendant to
make out a claim under Miranda, “his statements must have been the
product of custodial interrogation.” United States v. Lopez, 380
F.3d 538, 545 (1st Cir. 2004). The “custody” element is satisfied
if the defendant is under arrest. United States v. Ventura, 85
F.3d 708, 710 (1st Cir. 1996). For Miranda purposes,
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“interrogation is ‘express questioning or its functional
equivalent.’” United States v. Genao, 281 F.3d 305, 310 (1st Cir.
2002) (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).
Interrogation occurs only when police conduct is reasonably likely
to elicit an incriminating response from the suspect. See id. A
defendant’s voluntary statements, even if incriminating, generally
do not amount to a custodial interrogation. Lopez, 380 F.3d at
546.
The district court did not err in denying Defendant’s
motion to suppress the incriminating statements he made to Officer
Johansen regarding possession of the firearms. Defendant was under
arrest and therefore “in custody” when he made the challenged
statements. Defendant, however, was never interrogated and Miranda
warnings were not required. The district court found Officer
Johansen’s testimony at the suppression hearing credible. We are
extremely deferential to the district court’s credibility
determinations. United States v. Zapata, 18 F.3d 971, 975 (1st
Cir. 1994). Officer Johansen testified he never questioned
Defendant regarding his possession of the firearms. Further,
Officer Johansen testified that he informed Defendant not to make
any statements to him when Defendant began voluntarily supplying
information regarding his possession of the firearms. As a result,
any statements Defendant made to Johansen, incriminating or
otherwise, were not in response to direct questioning or the
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functional equivalent of direct questioning. See Genao, 281 F.3d
at 310-11. Therefore, Miranda warnings were not required.
C.
Finally, Defendant argues the district court erred in
denying his motion for a new trial based upon newly discovered
evidence. We review the denial of a motion for a new trial for a
“manifest abuse of discretion.” United States v. Colon-Munoz, 318
F.3d 348, 357 (1st Cir. 2003). We hold, after reviewing the
record, that the district court did not manifestly abuse its
discretion in denying Defendant’s motion for substantially the same
reasons set forth in the district court’s thorough order.
See United States v. Barnard, 304 F.Supp. 2d 96 (D. Maine 2004).
As the district court aptly noted, Defendant’s “new
evidence,” which apparently consisted of evidence showing Cote may
not have sold Defendant the shotgun introduced at trial, was known
and available to Defendant at the time of trial. Further,
Defendant’s failure to develop the evidence was due to a lack of
diligence on his part. See United States v. Mello, 469 F.2d 356,
358 (1st Cir. 1972); see also United States v. Vigneau, 337 F.3d
62, 69 (1st Cir. 2003). At trial, defense counsel, without going
into specifics, informed the district court he had discovered some
evidence that he might have to bring to the attention of the court.
Defendant, however, later notified the court that he was not going
to pursue the issue because it would only confuse matters.
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Defendant’s knowledge of the evidence at the time of trial and his
failure to develop the evidence precludes his motion for a new
trial. See United States v. Falu-Gonzalez, 205 F.3d 436, 442 (1st
Cir. 2000) (explaining that a motion for a new trial must be denied
if the defendant fails to carry his burden as to any one of the
applicable factors).
III.
Based upon the foregoing, Defendant’s conviction is
AFFIRMED.
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