United States v. Zwibel

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-22-2006
USA v. Zwibel
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2027
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2027
UNITED STATES OF AMERICA
v.
RAYMOND ZWIBEL,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 03-247)
District Judge: Honorable Gary L. Lancaster
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 19, 2006
Before: RENDELL and VAN ANTWERPEN, Circuit Judges, and ACKERMAN,*
District Judge
(Filed: May 22, 2006 )
____
OPINION OF THE COURT
____________
*The Honorable Harold A. Ackerman, Senior District Judge of the District of New
Jersey, sitting by designation.
VAN ANTWERPEN, Circuit Judge.
Before us is Raymond Zwibel’s appeal from his jury conviction for being a
convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In his
appeal, Zwibel takes the position that (1) the evidence was insufficient to support his
conviction; (2) the jury was not properly instructed on the issue of constructive possession
of a firearm; and, (3) 18 U.S.C. § 922(g)(1) is unconstitutional on its face and as applied.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and will affirm.
I.
Because we write solely for the parties, we set forth only those facts necessary to
our analysis and construe them in the light most favorable to the government, as we must
following the jury's guilty verdict. Glasser v. United States, 315 U.S. 60, 80 (1942).
At the time of the relevant events, Zwibel was serving the terms of a probation
arising out of prior state court felony convictions. Sometime before February, 2003,
Zwibel and his girlfriend moved into the home of Bernadette Conway, Zwibel’s mother.
After Zwibel had moved into Conway’s home, Delrice Bristo – Zwibel’s brother-in-law –
visited Zwibel in February, 2003. During that visit, Bristo and Zwibel examined two
guns which Bristo wrapped in a blanket and placed in a night stand in Zwibel’s bedroom.
On March 3, 2003, probation officers informed Zwibel that they were en route to
Conway’s home to conduct an inspection. When the probation officers arrived, they
identified themselves and sat down with Zwibel in the kitchen area of the house to discuss
2
the rules of Zwibel’s probation, one of which prohibited Zwibel from possessing any
firearms. At one point in the meeting, Zwibel “abruptly got up from the kitchen table and
walked back into his house,” but returned less than one minute later. App. 112.
Zwibel then brought the officers into the bedroom, whereupon the officers asked
Zwibel whether there were any firearms or other weapons in the bedroom. Glancing at
one of the night stands in the bedroom, Zwibel responded that his brother-in-law might
have left firearms in the bedroom. Appearing nervous, Zwibel then walked to a dresser at
the opposite side of the room and told the probation officers that “if there are any firearms
in this room, they would be behind this dresser.” App. 115. Zwibel then “walked to that
dresser, retrieved a roll of linoleum from behind the dresser, looked back there again, and
said no, there’s no firearms back there.” App. 115. Zwibel then told the officers, “[i]f the
firearms were there, they would be behind this dresser, and they wouldn’t be in any other
area of the house.” App. 115.
Observing that Zwibel appeared nervous, one of the officers approached the night
stand toward which Zwibel had glanced when asked whether any firearms were present in
the house. The officer then opened a compartment at the bottom of the night stand and
found the rolled-up sheet containing the two guns. The officer testified that it appeared
the guns had been “quickly rolled, not neat, but stuffed into the nightstand.” App. 117.
Zwibel told the officer that Bristo had left the guns and he had thought the guns were no
longer there.
3
On October 7, 2003, Zwibel was indicted by a grand jury in the Western District of
Pennsylvania for violating 18 U.S.C. § 922(g)(1).1 A jury found Zwibel guilty and
Zwibel was then sentenced to 70 months incarceration. This timely appeal followed.
II.
A.
Zwibel raises two challenges to the sufficiency of the evidence supporting his
conviction. First, he argues the government failed to prove the gun at issue in this case
was a “firearm” as defined under 18 U.S.C. § 921(a)(3). Second, he argues the
government failed to proffer sufficient evidence from which the jury could conclude he
constructively possessed the gun at issue.
“Our review of the sufficiency of the evidence after a conviction is ‘highly
deferential.’” United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001). Accordingly,
while we have plenary power to determine, after drawing all reasonable inferences in the
light most favorable to the government, whether the evidence would allow a rational jury
to convict, id., the jury’s verdict must be upheld if “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United States v.
Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996). This is a “heavy burden” for Zwibel. United
1
Although two guns were recovered from the night stand in Zwibel’s bedroom, one
of the two weapons may have been an “antique” as defined in 18 U.S.C. § 921(a)(3) and
could not serve as a predicate for a charge under 18 U.S.C. § 922(g)(1). Thus, Zwibel was
only charged with possession of the gun that was not an antique.
4
States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation omitted).
1.
Under 18 U.S.C. § 921(a)(3), “firearm” is defined as “any weapon . . . which will
or is designed to or may readily be converted to expel a projectile by the reaction of an
explosive.” Relying on the government’s firearms expert’s testimony failure to
personally inspect the gun at issue, Zwibel argues that the government did not prove
beyond a reasonable doubt that the gun was designed to or could expel a projectile by the
reaction of an explosive and that his conviction should therefore be vacated.
We disagree. While Zwibel is correct that the government expert did not
personally inspect the gun in question, the expert testified that he did not do so because he
relied on information provided to him by another agent who had personally inspected the
firearms. Furthermore, the gun at issue was identified as a Firearm International Regent
.22-caliber revolver for which ammunition was readily available. In light of the agents’
identification of the gun’s manufacturer and the gun’s caliber, and the fact that
ammunition for the gun was readily available, we are satisfied that there was sufficient
evidence from which the jury could conclude that the gun was a “firearm” within the
meaning of 18 U.S.C. § 921(a)(3).2 See United States v. Castillo, 924 F.2d 1227, 1230
2
To the extent that Zwibel argues the government was obligated to demonstrate that
the gun was operable to establish it was a “firearm” under 18 U.S.C. § 921(a)(3), a weapon
need not be operable to be considered a “firearm” under § 921(a)(3). See United States v.
Rivera, 415 F.3d 284, 286 (2d Cir. 2005) (Walker, C.J.) (collecting cases).
5
(2d Cir. 1991) (evidence sufficient to prove gun was “firearm” where witness was a
police officer who had “extensive training and familiarity in the identification and use of
firearms”); United States v. Rouco, 765 F.2d 983, 996 (5th Cir. 1985) (rejecting
sufficiency-of-the-evidence challenge to firearm conviction where Florida statute at issue
defined “firearm” as “any weapon (including a starter gun) which will, is designed to, or
may readily be converted to expel a projectile by the action of an explosive,” and
government presented testimony from agent familiar with handguns regarding the
weapon’s caliber).
2.
Zwibel next argues that because he did not place the firearm at issue in the night
stand and there was no testimony that he ever touched the firearm, there was insufficient
evidence to support the jury’s conclusion that he constructively possessed the firearm.
To establish constructive possession, the government must submit sufficient
evidence to support the inference that the individual “knowingly has both the power and
the intention at a given time to exercise dominion or control over a thing, either directly
or through another person or persons. Constructive possession necessarily requires both
‘dominion and control’ over an object and knowledge of that object’s existence.” United
States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992). “Mere proximity to [contraband] or
mere presence on the property where it is located or mere association with the person who
does control the [contraband] or the property,” does not establish constructive possession.
6
United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993). Accordingly, evidence that may
establish constructive possession includes a defendant’s attempt to hide or destroy
contraband, or that the defendant lied to police. United States v. Jenkins, 90 F.3d 814,
818 (3d Cir. 1996); accord United States v. Booker, 436 F.3d 238, 242 (D.C. Cir. 2006)
(“Although mere proximity to a gun is insufficient to establish constructive possession,
evidence of some other factor – including connection with a gun, proof of motive, a
gesture implying control, evasive conduct, or a statement indicating involvement in an
enterprise – coupled with proximity may suffice.”) (citation omitted).
When we view the evidence in this case in the light most favorable to the
government, as we must, we are satisfied that the jury’s verdict was supported by
sufficient evidence. Zwibel is correct in arguing that his proximity to and knowledge of
the gun are not by themselves sufficient to support a determination of constructive
possession. Brown, 3 F.3d at 680. However, the evidence in this case goes beyond
proving merely that Zwibel was aware of the presence of the guns in his bedroom.
The crucial evidence here is Zwibel’s interaction with the probation officers during
the March, 2003, home visit that led to the officers’ discovery of the guns.3 Before that
visit, Zwibel and Bristo had discussed the guns while in the bedroom, and Bristo testified
3
We note that Zwibel told a probation officer that he allowed the guns to remain in his
bedroom “because I haven’t seen a probation officer in months.” App. 199. This statement
could permit an inference that Zwibel had some measure of control over the guns in that it
suggests that had Zwibel known probation officers would inspect his residence, he could and
would have moved the guns, which would in turn be evidence of his control over the guns.
7
that he had wrapped the guns in a blanket and placed them in the night stand. From this
testimony, a rational jury could infer that Zwibel knew – before the probation officers’
March, 2003, home visit – that the guns were hidden in the night stand. See Iafelice, 978
F.2d at 94 (observing that this Court “presume[s] that the jury properly evaluated
credibility of the witnesses, found the facts, and drew rational inferences”).
That the jury could have permissibly inferred Zwibel knew the guns were in the
night stand is critical. When probation officers asked whether there were any guns in his
bedroom, Zwibel glanced at the night stand and then told the officers that any guns in the
room would be behind a dresser. Zwibel then reached behind the dresser, and finding no
guns, told the officers “[i]f the firearms were there, they would be behind this dresser, and
they wouldn’t be in any other area of the house.” App. 115 (emphasis added). Thus, the
jury could reasonably conclude that Zwibel, knowing the guns were in the night stand,
had attempted to divert the probation officers’ attention from the guns’ true location by
directing the officers toward the dresser and then telling the officers that there were no
guns elsewhere in the house. Lying to authorities or engaging in otherwise evasive
conduct is probative of constructive possession, Booker, 436 F.3d at 242; Jenkins, 90
F.3d 818, and we are satisfied that the evidence of Zwibel’s misdirection of the probation
officers supports the jury’s ultimate conclusion that he constructively possessed the guns.4
4
While we agree with Zwibel that our decisions in United States v. Brown, 3 F.3d 673
(3d Cir. 1993), and United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996), are relevant to the
issue of constructive possession, we find them distinguishable because the defendants in
8
B.
Zwibel next argues the District Court’s jury instructions did not properly explain
the concept of constructive possession. We exercise plenary review over the legal
standards enunciated in a jury instruction but review the wording of the instruction for
abuse of discretion. United States v. Lee, 359 F.3d 194, 203 (3d Cir. 2004). We review
the jury charge as a whole “to determine whether, taken as a whole, they properly
apprized the jury of the issues and the applicable law.” Id. at 203-04 (citation omitted).
The jury charge regarding constructive possession reads as follows:
“To possess means to have something within a person’s control. This does not
mean the person must hold it physically in his hand, that is, to have actual holding
on to it or possession of it. As long as the firearm is within the person’s control or
the person has the power and intention to exercise control over the firearm, he
possesses it.”
App. 200 (emphasis added). Focusing on the last sentence of this instruction, Zwibel
claims the instruction was improper because the “within the person’s control” language of
that sentence authorizes a conviction based merely on a physical capacity to seize the
guns and thus “jettisons” the requirement of intent required to support a finding of
constructive possession. We disagree.
Reviewing the instruction as a whole, as we must, Lee, 359 F.3d at 203-04, we are
satisfied that it correctly presented the issue of constructive possession to the jury. The
those cases did not attempt to impede authorities’ ability to find contraband.
9
first sentence of the instruction identifies possession as defined by a person’s control over
an object. The second sentence informs the jury that one may possess objects beyond
those items held in one’s hand. The first part of the final sentence of the instruction
simply restates the first sentence – i.e., that possession of a firearm relates to a person’s
control over it – and the second part of that sentence correctly states that constructive
possession of a firearm may be established by a person’s power and intent to exercise
control over the firearm. Accordingly, we read “[a]s long as the firearm is within the
person’s control or the person has the power and intention to exercise control over the
firearm, he possesses it,” as setting forth the proper definition of constructive possession,
Iafelice, 978 F.2d at 96, and we discern no error in the instruction.
C.
Zwibel finally argues 18 U.S.C. § 922(g)(1) is unconstitutional on its face and as
applied. However, our decision in United States v. Singletary, 268 F.3d 196 (3d Cir.
2001), held otherwise, and Zwibel concedes he raises the issue merely to preserve it for
possible en banc or Supreme Court review. Br. at 46.
III.
We have considered all other arguments made by the parties on appeal, and
conclude that no further discussion is necessary. For the foregoing reasons, we will
affirm the District Court’s Order of judgment and conviction.
10