United States v. Ortayvius Lesure

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10257 JAN 09 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00101-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORTAYVIUS LESURE,
HALEIFU GOLDSMITH,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(January 9, 2008)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
After a jury trial, Ortayvius Lesure appeals his conviction for possession of
multiple firearms and ammunition by a convicted felon, a violation of 18 U.S.C.
§§ 922(g)(1) and (2), and Haleifu Goldsmith appeals his conviction for aiding and
abetting the foregoing offense, a violation of 18 U.S.C. §§ 922(g)(1) and 2.1 On
appeal, the defendants challenge the sufficiency of the evidence to support their
convictions. More specifically, Lesure asserts that the government proved only
that he was in the “mere vicinity” of the firearms seized by law enforcement when
he was arrested, but not that he was in possession of those firearms. Goldsmith
contends that the evidence was insufficient to convict him of aiding and abetting
the crime of being a felon in possession of a firearm, because the government
failed to prove that Goldsmith knew that Lesure, the principal, was a convicted
felon. Goldsmith also asserts, for the first time on appeal, that the district court
erred by instructing the jury on aiding and abetting a § 922(g) offense, because the
instruction did not explain that the government was required to prove that he, as
the aider and abettor, had to know of the principal’s status as a convicted felon.
After careful review, we affirm.
I.
1
Lesure has abandoned any sufficiency challenge to his conviction for aiding and abetting
by failing to sufficiently develop an argument on that basis in his brief. Cf. United States v.
Jernigan, 341 F.3d 1273, 1284, n.8 (11th Cir. 2003) (concluding that an appellant abandoned a
Fed.R.Evid. 404(b) argument on appeal where his brief contained “only four passing references to
the evidence admitted under Fed.R.Evid. 404(b), each of which [was] embedded under different
topical headings”). For the same reason, Goldsmith has abandoned any such challenge to his
conviction for possession of a firearm by a convicted felon.
2
The relevant facts are these. On September 20, 2006, in a superceding
indictment, Lesure was charged with possessing multiple firearms and ammunition
after previously being convicted of a felony and Goldsmith was charged with
aiding and abetting the foregoing offense (“Count One”), in violation of 18 U.S.C.
§§ 922(g)(1) and 2; in Count Two of the superseding indictment, Goldsmith was
charged with possessing multiple firearms and ammunition after previously being
convicted of a felony and Lesure was charged with aiding and abetting the
foregoing offense (“Count One”), in violation of 18 U.S.C. §§ 922(g)(1), 924(e)
and 2. The defendants, through separate appointed counsel, both pled not guilty
and proceeded to a joint jury trial.
At trial, the government presented the following evidence. Deputy David
Brown, of the Escambia County Sheriff’s Office (“ECSO”), was working the late-
night shift on June 9, 2006, when he responded to a radio call regarding a
disturbance at room number 235 of the Western Inn, a motel in Pensacola, Florida.
When he arrived at the motel, he stood in the hallway for approximately one
minute and overheard two males arguing inside of room number 235. One of the
males was yelling that he wanted a gun in order to shoot someone.
At some point, one of the males, whom Deputy Brown later identified as
Goldsmith, opened the motel room door, observed Brown and other officers
3
standing outside, and immediately slammed the door shut. The officers then forced
entry into the motel room, at which point Deputy Brown observed Goldsmith
diving onto the floor and the other male, later identified as Lesure, standing near a
table at the edge of the bed. In addition to the defendants, there also was a minor
female, who was seated on the bed. As the officers entered the motel room, Lesure
and Goldsmith continued yelling and Lesure started saying that there were firearms
in the motel room. Thereafter, Deputy Brown observed in plain view two .22
caliber rounds on top of a microwave in the motel room and a loaded firearm, a .38
caliber handgun, on a shelf near the motel room door. Brown testified that the .38
caliber handgun was “readily accessible” to Goldsmith at the time he first opened
the motel room door and observed the officers standing outside.
After the officers read Lesure and Goldsmith their Miranda rights, Lesure
indicated that more firearms were inside of a red bag near a chair and next to the
bed. The officers ultimately recovered six firearms and some ammunition from
this bag, as well as a small pocket firearm, a .22 Derringer, from behind the chair.
The Derringer and the bag of handguns were located in close proximity to where
Lesure was standing when the officers entered the motel room. The officers also
recovered six or seven “big pieces” of crack cocaine.
4
After the arrests, while he was sitting in the police car, Goldsmith stated that
he originally went to room number 235 to get a gun to shoot two people who had
allegedly robbed him of his drugs. Goldsmith also admitted that he was the person
whom Deputy Brown had overheard yelling for a gun to shoot some people. The
officers later determined that Lesure and his girlfriend had rented the motel room.
Deputy Krystal Jeffcoat, also of the ECSO, participated in the forced entry
into room 235 and subsequent arrest of the defendants. She testified consistently
with Deputy Brown’s description of the events. Deputy Jeffcoat described Lesure,
upon being detained, as sweating and repeatedly stuttering, “the bed, the bag, the
bed, the bag.” Deputy Jeffcoat also described Lesure as “real[ly] jumpy and
looking over his shoulder,” and “just acting very nervous.” At one point, Deputy
Jeffcoat asked Lesure where the bag of guns, to which Lesure had referred, was
located. Lesure nodded towards a chair right next to the bed. Another officer
retrieved a red book bag from under the chair, and discovered that it contained
firearms and ammunition.
Deputy Jeffcoat further indicated that Lesure provided at least three false
names, as well as a false address, Social Security number, and a date of birth.
Lesure eventually provided Deputy Jeffcoat with his correct name and information,
and explained that there were active warrants for his arrest. Deputy Jeffcoat asked
5
Lesure whether he was a convicted felon, to which Lesure responded affirmatively,
and whether Lesure knew that it was illegal for him to possess a firearm as a
convicted felon, to which Lesure also responded affirmatively.
Following Deputy Jeffcoat’s testimony, Lesure and Goldsmith both
stipulated that they were convicted felons, and that the firearms and ammunition
seized from room number 235 on June 9, 2006 had traveled in interstate
commerce. The government then rested, but reserved the right to present rebuttal
testimony. The following exchange followed:
THE COURT: . . . I do remind you [the jury] that the defendant is
not required to prove anything or call any witnesses or present any
evidence. This would be the opportunity for them to do so if they
wish. And reserving all rights for motions to the defendants, [defense
counsel for Goldsmith]?
[GOLDSMITH’S COUNSEL]: Your Honor, at this time we would
make a motion for judgment of acquittal.
THE COURT: I said, I’ll reserve those rights and we’ll attend to
those afterwards. So proceed on.
Goldsmith then testified on his own behalf. He first met Lesure in 1997 and
began purchasing dope from him “every now and then.” Goldsmith testified that
he traveled to the Western Inn Motel on June 9, 2006, because it was “a[] place to
get high [].” He said that after he arrived, he began “partying and stuff” and
smoking “dope” with a couple of people other than Lesure and the minor female.
6
Goldsmith eventually ran into Lesure in the motel’s hallway, and asked Lesure
whether he had any “dope.” Lesure responded that he had “dope,” as well as guns,
for sale.
Thereafter, Goldsmith proceeded to another person’s motel room to smoke
“dope,” and after doing so, left the motel premises. He later returned to the motel,
at which point he went to the other person’s motel room, where he smoked more
dope and where another person robbed him of the dope that he had and pulled a
gun on him. After he was robbed, Goldsmith left the room and then remembered
that Lesure also had a room at the motel. He proceeded to Lesure’s room, where
he explained what had happened to him, and asked for a gun. When Lesure
refused to give him a gun, Goldsmith became angry and decided to go elsewhere to
find help. When he opened the motel room door to leave, he observed the police
standing outside in the hallway.
According to Goldsmith, the officers then entered room number 235, and
threw him to the floor and searched him after Lesure alleged that Goldsmith was in
possession of a firearm. After the officers were unable to locate a gun on
Goldsmith, Lesure pointed to a shelf directly behind Goldsmith and said that a gun
was on a shelf. Both Goldsmith and the officer who searched him turned towards
the shelving unit, and Goldsmith observed, apparently for the first time, a gun
7
lying on a shelf. Goldsmith immediately denied that he knew anything about the
gun. An officer then removed Goldsmith from the room, and Goldsmith overheard
Lesure asking his girlfriend, the minor female, to tell the police that the firearm
belonged to Goldsmith. Goldsmith, at some point, explained the situation
regarding the robbery to the police, but the police nevertheless took him to jail.
Defendant Lesure presented the testimony of “M. Rich,” the minor female
who was in room number 235 on the night of June 9, 2006. She said that on that
evening, she, her boyfriend (Lesure), and her mother went to have dinner at the
Waffle House around 9:00 p.m. Approximately one hour later, Rich and Lesure
returned to the Western Inn Motel, where they ran into Goldsmith. Rich went
inside the motel room, while Lesure remained in the hallway talking to Goldsmith.
Thereafter, Goldsmith and Lesure entered the motel room, purportedly
because Goldsmith wanted to eat Lesure’s leftovers from the Waffle House. Rich
said that when he entered, Goldsmith was carrying a zipped burgundy and black
book bag. Goldsmith sat down at the table in the room, and set the zipped book
bag by a chair. However, Goldsmith then stood up and walked out of the motel
room, returning approximately five minutes later, when he asked Lesure to hand
him a gun from the book bag so he could rob someone. Lesure, apparently
realizing for the first time that the book bag contained firearms, told Goldsmith to
8
leave the motel room. Goldsmith, in turn, opened the door to exit the motel room,
and, upon observing the police standing outside in the hallway, threw a firearm that
he was holding behind one of the chairs.
At one point, Rich testified that she did not actually observe Goldsmith in
possession of any firearms other than the one that he threw behind the chair, but
Goldsmith had walked near the shelf on which the officers discovered another
firearm. At another point, however, Rich testified that she actually observed
Goldsmith place the firearm on the shelf. Lesure never opened the book bag, and
the book bag remained zipped the entire time. After Rich’s testimony, Lesure
rested.
Goldsmith then moved for a judgment of acquittal, arguing that the
government had failed to satisfy its burden “as to aiding and abetting or possession
in this matter.” He also later asserted he was entitled to a judgment of acquittal
because there was insufficient evidence to prove, beyond a reasonable doubt, that
he possessed a firearm on June 9, 2006. Notably, for purposes of this appeal,
Goldsmith did not argue for an acquittal on the aiding and abetting count on the
ground that there was no evidence that he knew, or should have known, that
Lesure, the principal, was a convicted felon. Lesure also moved for a judgment of
9
acquittal, asserting that there was insufficient evidence to find that he possessed,
either actually or constructively, the firearm.
After the district court denied the motions for judgments of acquittal, the
court charged the jury, including the following Eleventh Circuit Pattern Jury
Instruction with respect to aiding and abetting:
[T]he guilt of a defendant in a criminal case may be proved without
evidence that the defendant personally did every act involved in the
commission of the crime charged. The law recognizes that[,]
ordinarily[,] anything a person can do for one's self may also be
accomplished through the direction of another person as an agent[,] or
by acting together with[,] or under the direction of[,] another person
or persons in a joint effort.
So, if the acts or conduct of an agent, employee[,] or other
associate of the defendant are willfully directed or authorized by the
defendant, or if the defendant aids and abets another person by
willfully joining together with that person in the commission of a
crime, then the law holds the defendant responsible for the conduct of
that other person just as though the defendant had personally engaged
in such conduct.
However, before any defendant can be held criminally
responsible for the conduct of others, it is necessary that the defendant
willfully associate in some way with the crime, and willfully
participate in it. Mere presence at the scene of a crime and even
knowledge that a crime is being committed are not sufficient to
establish that a defendant either directed or aided or abetted the crime.
Now, you must find beyond a reasonable doubt that the defendant was
a willful participant and not merely a knowing spectator.
See also 11th Cir. Pattern Jury Instruction (Crim.), Special Instruction 7. Neither
Lesure nor Goldsmith objected to the court’s use of this Circuit’s Pattern Jury
10
Instruction for aiding and abetting, nor did either defendant propose any other
version of the instruction for aiding and abetting.
The jury found the defendants guilty, as charged in both counts. Goldsmith
later filed a written motion for a judgment of acquittal, or, alternatively, for a new
trial, pursuant to Fed. R. Crim. P. 29. Concerning the aiding and abetting offense
charged in Count One, Goldsmith argued that the evidence demonstrated that when
he entered the motel room, Lesure already was in possession of the firearms. Thus,
according to Goldsmith’s argument, he could not have been guilty of aiding and
abetting Lesure in the principal offense, because that offense had already been
committed when he arrived on the scene. Goldsmith also asserted that there was
no evidence that he willfully joined together with Lesure to aid and abet Lesure’s
possession of the firearms. Notably, Goldsmith did not argue that knowledge of a
principal’s status as a convicted felon was an essential element of the offense of
aiding and abetting a § 922(g) violation, nor did he assert that the government
failed to satisfy this element.
The district court denied Goldsmith’s post-trial motion. The district court
sentenced Lesure to a 120-month term of imprisonment on Count One and a 42-
month term on Count Two, with the terms to run consecutively. The district court
sentenced Goldsmith to a 120-month term of imprisonment on Count One and a
11
360-month term on Count Two, with the terms to run concurrently. This appeal
followed.
II.
We first address Lesure’s challenge to the sufficiency of the evidence to
support his conviction for violating 18 U.S.C. § 922(g), as charged in Count One.
We review a challenge to the sufficiency of the evidence de novo, resolving all
reasonable inferences from the evidence in favor of the jury’s verdict. See United
States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). The evidence is sufficient
where a reasonable trier of fact, choosing among reasonable interpretations of the
evidence, could find guilt beyond a reasonable doubt. United States v. Hasson,
333 F.3d 1264, 1270 (11th Cir. 2003). “The evidence may be sufficient though it
does not ‘exclude every reasonable hypothesis of innocence or [is not] wholly
inconsistent with every conclusion except that of guilty. . . . A jury is free to
choose among reasonable constructions of the evidence.’” United States v.
Alvarez-Sanchez, 774 F.2d 1036, 1039 (11th Cir. 1985) (citation omitted).
To sustain a conviction under § 922(g), the government must prove, beyond
a reasonable doubt, three elements: “(i) that the defendant has been convicted of a
crime punishable by imprisonment for a term exceeding one year, (ii) that the
defendant knowingly possessed a firearm or ammunition, and (iii) such firearm or
12
ammunition was in or affected interstate commerce.” United States v. Funches,
135 F.3d 1405, 1406-07 (11th Cir. 1998). Since Lesure stipulated to the first and
third elements, the only element at issue is the second element: whether he
knowingly possessed a firearm or ammunition.
“[A]ny firearm possession, actual or constructive, by a convicted felon is
prohibited by [18 U.S.C. § 922(g)].” United States v. Howell, 425 F.3d 971, 977
(11th Cir. 2005). The government can establish actual possession of a firearm by
proving that “the defendant either had physical possession of or personal dominion
over the thing allegedly possessed.” United States v. Leonard, 138 F.3d 906, 909
(11th Cir. 1998). “[T]he government can establish constructive possession of a
firearm by proving ‘ownership, dominion, or control over the firearm.’” United
States v. Thompson, 473 F.3d 1137, 1143 (11th Cir. 2006) (citations omitted),
cert. denied, 127 S. Ct. 2155 (2007). A defendant can be in constructive
possession of a firearm even if it is not on him or near his person. United States v.
Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). Moreover, a defendant may be
deemed to be in constructive possession of contraband where he owns or exercises
dominion and control over the premises in which the contraband is concealed.
United States v. Molina, 443 F.3d 824, 829 (11th Cir. 2006).
13
Viewing the evidence in the light most favorable to the jury’s guilty verdict,
we conclude that there was ample evidence from which a reasonable juror could
conclude, beyond a reasonable doubt, that Lesure was, at the very least, in
constructive possession of multiple firearms at the time of his arrest in the motel
room. Although he was not holding a firearm when the police entered the motel
room, the government demonstrated that he exerted dominion and control over the
firearms and ammunition through evidence that he had rented the motel room in
which the contraband was seized, and that the book bag of firearms and
ammunition were located “right next to him” when the police officers entered the
room. Moreover, according to Deputy Jeffcoat, after Lesure was detained, but
before the officers discovered the book bag of guns, he was “real[ly] jumpy and
looking over his shoulder,” and “just acting very nervous.” He also began
sweating and repeatedly stuttering, “[T]he bed, the bag, the bed, the bag,” and then
mentioned something about a bag of guns in the motel room. According to Deputy
Jeffcoat, Lesure initially provided at least three false names, and a false address,
Social Security number, and date of birth. On this record, there was sufficient
evidence on which a reasonable juror could have relied to conclude that Lesure
was guilty, beyond a reasonable doubt, of possession of a firearm by a convicted
felon.
14
III.
As for Goldsmith’s challenge to the district court’s denial of his motion for a
judgment of acquittal, based on the insufficiency of the evidence to convict him of
aiding and abetting, as well as his related challenge to the jury instruction on aiding
and abetting, we likewise discern no reversible error. We normally review such
claims de novo. See Rudisill, 187 F.3d at 1267 (sufficiency of the evidence);
United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) (jury instruction).
However, in the district court, Goldsmith never asserted the arguments he makes
on appeal -- that the government was required to prove that he knew of Lesure’s
status as a convicted felon, but failed to do so, and that the district court was
required to so instruct the jury.2 Accordingly, our review is for plain error only.
See United States v. Hasson, 333 F.3d 1264, 1277 (11th Cir. 2003) (jury
instruction); United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998)
(sufficiency of the evidence). Plain error is found only where the defendant
demonstrates: (1) there is an error; (2) the error is plain; (3) the error affects the
defendant’s substantial rights; and (4) the error “seriously affects the fairness,
2
His general objection to the sufficiency of the evidence did not preserve the more
specific claim he now makes in this Court. Cf. United States v. Dennis, 786 F.2d 1029, 1042 (11th
Cir. 1986) (“To preserve an issue at trial for later consideration by an appellate court, one must raise
an objection that is sufficient to apprise the trial court and the opposing party of the particular
grounds upon which appellate relief will later be sought. A general objection or an objection on
other grounds will not suffice”).
15
integrity, or public reputation of a judicial proceeding.” United States v. Olano,
507 U.S. 725, 732 (1993).
To sustain a conviction for aiding and abetting, the evidence must show that
the defendant shared the criminal intent of the principal and committed an overt act
in furtherance of the criminal venture. See United States v. Guida, 792 F.2d 1087,
1095 (11th Cir. 1986); see also United States v. Schwartz, 666 F.2d 461, 463 (11th
Cir. 1982) (holding that to prove a defendant guilty of aiding and abetting the
commission of a crime, in violation of 18 U.S.C. § 2, the government must prove
“that the defendant associated himself with a criminal venture, participated in it as
something he wished to bring about, and sought by his actions to make it succeed”
(quotation and citation omitted)). Even when the government provides little direct
evidence of an aider-and-abettor’s intent, a jury’s conviction will not be overturned
if there is adequate circumstantial evidence from which the jury could infer the
defendant’s knowledge of the criminal scheme. See United States v. Griffin, 324
F.3d 330, 357-58 (5th Cir. 2003).
Given the applicable standard of review, it is notable to observe at the outset
that “[w]hen neither the Supreme Court nor [we have] resolved an issue, and other
circuits are split on it, there can be no plain error in regard to that issue.” United
States v. Evans, 478 F.3d 1332, 1338 (11th Cir.), cert. denied, 128 S.Ct. 25716
(2007). As Goldsmith recognizes in his brief, neither this Court nor the Supreme
Court has addressed whether a defendant’s knowledge that the principal was a
convicted felon is an essential element of the offense of aiding and abetting a
Section 922(g) violation. Moreover, the circuits that have addressed the issue of an
aider-and-abettor’s intent, within the context of a § 922(g) offense, are split on the
issue. Compare United States v. Canon, 993 F.2d 1439, 1442 (9th Cir. 1993)
(“The government did not have to prove Canon, as a principal, knew he was a
felon. No greater knowledge requirement applies to [an aider and abettor]”)
(internal citation omitted), and United States v. Moore, 936 F.2d 1508, 1527-28
(7th Cir. 1991) (concluding that a defendant satisfied the “association” prong of the
“aiding and abetting” test because he was aware of the principal’s use of a gun in
multiple armed robberies), with United States v. Gardner, 488 F.3d 700, 715 (6th
Cir. 2007) (holding that “in order for aiding-and-abetting liability to attach under §
922(g), the government must show that the defendant knew or had cause to know
that the principal was a convicted felon”), and United States v. Xavier, 2 F.3d
1281, 1286 (3d Cir. 1993) (“The government concedes ‘proof of knowledge (or
reasonable cause to believe) of an ex-felon’s status is a required element for
conviction, as an aider and abettor, under Section 922(g)(1).’ We agree.”).
17
Thus, given the sharp difference of opinion on the issue, even if we were to
find error,3 it is clear that Goldsmith cannot satisfy his burden to show that such
error was plain. In short, neither the district court’s denial of Goldsmith’s motion
for judgment of acquittal nor the district court’s use of the Pattern Jury Instruction
on aiding and abetting was plain error since it is not plain under Supreme Court
precedent, or our law, that an aider and abetter’s knowledge of the principal’s
status as a convicted felon is an essential element of the offense of aiding and
abetting a § 922(g) violation.
AFFIRMED.
3
As for the elements of the underlying substantive crime, again, to establish a violation of
§ 922(g), the government must prove: “(i) that the defendant has been convicted of a crime
punishable by imprisonment for a term exceeding one year, (ii) that the defendant knowingly
possessed a firearm or ammunition, and (iii) such firearm or ammunition was in or affected
interstate commerce.” Funches, 135 F.3d at 1406-07. Given Goldsmith’s failure on the second
prong of the plain error test, we need not reach the first prong of the test, but pause to note that as
to the principal, knowledge of felon status is not an element of a § 922(g) offense. Cf. United States
v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997) (discerning no error in district court’s § 922(g)
instruction to the jury that it was not necessary for the defendant to know that he had been convicted
of a felony; citing United States v. Langley, 62 F.3d 602, 604-606 (4th Cir. 1995) (holding that proof
that a defendant had knowledge of his status of a convicted felon is not needed in order to prove that
a defendant knowingly possessed a firearm after a felony conviction)); United States v. Miller, 105
F.3d 552, 555 (9th Cir. 1997) (“We agree with the decisions from other circuits that the § 924(a)
knowledge requirement applies only to the possession element of § 922(g)(1), not to the interstate
nexus or to felon status.”). We would be hard-pressed to require the government to satisfy a greater
knowledge requirement as to a § 922(g) aider and abettor. See United States v. Canon, 993 F.2d
1439, 1442 (9th Cir. 1993) (“The government did not have to prove Canon, as a principal, knew he
was a felon. No greater knowledge requirement applies to [an aider and abettor]”) (internal citation
omitted)).
18