United States v. Hughes

File Name: 05a0482n.06
Filed: June 8, 2005
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 04-5659
UNITED STATES COURT OF APPEAL
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
MARSHA HUGHES, )
) OPINION
Defendant-Appellant. )
)
Before: NELSON and MOORE, Circuit Judges, and RESTANI,* Judge.
RESTANI, J. Defendant-appellant Marsha Hughes pleaded not guilty to the felony charge
of knowing possession of ammunition by a previously convicted felon, in violation of 18 U.S.C. §
922(g)(1) (2000). Hughes was convicted after a jury trial and sentenced to ninety two months in jail.
She appeals her conviction and her sentence, raising various claims of error. We determine that no
error or combination of errors require reversal of Hughes’s conviction, but we vacate the sentence
and remand for resentencing under the now advisory United States Sentencing Guidelines.
I. BACKGROUND
On December 11, 2002, the Memphis Police Department pulled over a vehicle driven by
Marsha Hughes because it matched the witness description of a vehicle used in a burglary at 3195
*
The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
Periwinkle. She was unable to produce a driver’s license, so Officer Elrod asked Hughes and her
co-passenger, Carmelita Jackson, to step out of the vehicle. Noticing a large bulge in Hughes’s right
front pocket, Officer Elrod performed a pat down search and retrieved an ammunition clip
containing nine rounds of .22 caliber ammunition, a driver’s license, and a credit card, all of which
had been stolen from the house at 3195 Periwinkle. Subsequent to the burglary, Hughes had driven
Jackson to a gas station, and Jackson handed her the ammunition, credit card, and driver’s license
and Hughes placed them in her pocket. The police concluded that Jackson was involved in the
burglary, but not Hughes. Hughes was charged with a felony for knowing possession of ammunition
by a previously convicted felon.
At trial, the defense stipulated that Hughes possessed the ammunition clip in her right front
pocket on December 11, 2002, and had been convicted of a felony prior to that date. There was also
no dispute that the ammunition had traveled in interstate commerce. Hughes disputed solely that
she knowingly possessed the ammunition. The defense requested that the district court preclude the
government from introducing evidence that the clip of ammunition had been stolen from 3195
Periwinkle because it was irrelevant to the issue of her knowledge. The district court denied the
defense counsel’s motion, stating that “it’s important to show what occasioned the contact between
Ms. Hughes and the police.” Joint Appendix (“J.A.”) at 13 (Tr. of Trial at 21). According to the
court, disallowing the testimony “might invite speculation by the jury of harassment by the police.”
J.A. at 14 (Tr. of Trial at 22). After Officer Elrod testified to the burglary evidence, the district court
gave the following limiting instruction:
Members of the jury, you have just heard testimony from the officer
regarding a certain burglary.
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I caution you that you are not to consider that evidence as any evidence that
Ms. Hughes committed this crime. You are only allowed to consider that
evidence for the limited purpose of showing how it is that the police made
contact with Ms. Hughes, that’s the only purpose for which it may be
considered. You may not consider it for any other purpose.
J.A. at 34 (Tr. of Trial at 61).
At the close of evidence, the prosecution proposed a jury instruction covering the theories
of both actual and constructive possession. Defense counsel objected to the proposed jury charge
on constructive possession because the proof was not disputed that Hughes physically possessed the
ammunition. The court overruled the objection “particularly in light of the testimony of Ms.
Jackson who said I handed it to her and intended to get it back.” J.A. at 90 (Tr. of Trial at 147).
Subsequently, the court charged the jury as follows:
The law recognizes two kinds of possession, actual possession and constructive
possession. Either of these if proved by the government is enough to convict. To
establish actual possession the government must prove that the defendant had direct
physical control over the ammunition and knew that she had control of it. To
establish constructive possession the government must prove that the defendant had
the right to exercise physical control over the ammunition and knew that she had this
right and that she intended to exercise physical control over it at sometime either
directly or through other persons.
J.A. at 120-121 (Tr. of Trial at 195-96). The court also gave the jury a cautionary charge as to the
burglary evidence:
Now you have heard that the defendant was in an automobile suspected to
have been involved in a burglary. Ms. Hughes is not on trial for burglary.
You may only consider this other evidence for the limited purpose of
showing why the officers made contact with Ms. Hughes in the first instance.
You cannot consider this testimony as evidence that the defendant committed
the crime charged in the indictment that she is now on trial for. Remember
that the defendant is on trial here only for the crime charged in this
indictment, not for any other acts. Do not return a guilty verdict unless the
government proves the crime charged in the indictment beyond a reasonable
doubt.
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J.A. at 122 (Tr. of Trial at 198). The same day, the jury found Hughes guilty of knowing possession
of ammunition by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The judge
imposed a sentence of ninety two months imprisonment in accordance with the perceived mandatory
Sentencing Guidelines.
On appeal to this court, Hughes argues that the evidence is not sufficient to prove beyond
a reasonable doubt that she knowingly possessed the gun clip of ammunition. Moreover, she argues
that the district court erred by (1) permitting the government to introduce burglary evidence over
her objection, and (2) overruling her objection to the jury instruction concerning constructive
possession. Finally, in the event that this court decides not to reverse the district court’s decision,
Hughes requests that we vacate her sentence and remand for resentencing under the now advisory
Sentencing Guidelines.
II. ANALYSIS
A. There was sufficient evidence to prove that Hughes knowingly possessed
ammunition in violation of 18 U.S.C. § 922(g)(1).
Hughes challenges the sufficiency of the government’s proof that she knowingly possessed
ammunition in violation of 18 U.S.C. § 922(g)(1). In reviewing a claim of insufficient evidence,
“we examine the evidence in the light most favorable to the government and draw all inferences in
the government’s favor in order to determine whether any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt.” United States v. Riffe, 28 F.3d 565, 567 (6th
Cir. 1994).
Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon “to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce, any firearm or ammunition . . . .” To
support a conviction, the government must prove beyond a reasonable doubt that “(1) the defendant
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had a previous felony conviction, (2) the defendant [knowingly] possessed a firearm or ammunition,
and (3) that the firearm traveled in or affected interstate commerce.” United States v. Layne, 192
F.3d 556, 571-72 (6th Cir. 1999). Here, Hughes concedes the first and third element, but disputes
the sufficiency of the evidence that she knowingly possessed ammunition. We conclude that the
evidence is plainly sufficient for a rational trier of fact to determine that Hughes knowingly
possessed ammunition.
There is no dispute that Hughes accepted an ammunition clip containing nine .22 caliber
bullets from Ms. Jackson and placed it in her right front pocket. Hughes claims that she took the
ammunition clip without looking at it and was unaware that it was in her pocket. Yet, the
ammunition clip was sufficiently noticeable that Officer Elrod observed a bulge in her front pocket.
Further, when Officer Elrod recovered the magazine clip, it was not concealed within any type of
covering. J.A. at 113-14 (Tr. of Trial at 174-75). These facts are sufficient for a jury to conclude
beyond a reasonable doubt that Hughes had knowledge of the ammunition in her pocket.
B. Even if the district court abused its discretion by admitting testimony related
to an uncharged burglary, the error was harmless.
Hughes argues that the district court allowed the government to use impermissible character
evidence when it allowed testimony regarding the burglary of 3195 Periwinkle. See Fed. R. Evid.
404(b). According to Hughes, the burglary evidence was not relevant because she only disputes
whether she knew that she possessed the ammunition. Moreover, Hughes argues that the burglary
evidence was prejudicial because it tends to show that Hughes was involved in the burglary. We
review evidentiary rulings by the district court for abuse of discretion. See United States v.
Haywood, 280 F.3d 715, 720 (6th Cir. 2002).
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Federal Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action in conformity therewith.”
This Circuit has recognized an exception for background or res gestae evidence, which does not
implicate Rule 404(b). See United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000). The
background evidence exception has been applied where other acts are a prelude to the charged
offense, are directly probative of the charged offense, arise from the same events as the charged
offense, form an integral part of a witness’s testimony, or complete the story of the charged offense.
Id.In the instant case, the district court admitted evidence of the burglary under the background
circumstances exception for evidence that completes the story of the charged offense. See United
States v. Moore, 735 F.2d 289, 292 (8th Cir. 1984) (upholding district court’s admission of evidence
that a firearm had been found in a drug raid, in order to explain the officer’s presence in the
defendant’s house at the time the firearm was found and to avoid jury confusion); United States v.
Weeks, 716 F.2d 830, 832 (11th Cir. 1983) (upholding district court’s admission of evidence that
the defendant was under investigation for stealing vehicles, in order to explain the federal agent’s
presence at the scene of an assault and the assailant’s animosity toward the agent). The court
concluded that the burglary was admissible to avoid jury confusion as to the basis for the officer’s
pat down search. The government presented a plausible argument that this evidence is admissible
background evidence, and we do not find that the district court abused its discretion by admitting
it as background evidence. Even if the evidence were inadmissible under Rule 404(b), the error
would be harmless.
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Where the district court errs, “we will presume that the district court’s error was reversible
unless we can say, ‘with fair assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substantially swayed by the error . . .
.’” Haywood, 280 F.3d at 724 (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
“Whether the jury was ‘substantially swayed’ by the improper admission of evidence of other acts
in a criminal trial generally depends on whether the properly admissible evidence of the defendant’s
guilt was overwhelming.” Id. Here, the evidence is overwhelming because it shows that Hughes
was handed the ammunition clip and placed it in her pocket. Furthermore, the jury was aware of
Hughes’s prior felony conviction, so the mention of a burglary did not likely create unfair prejudice.
Finally, the district court gave an appropriate limiting instruction that Hughes was on trial only for
the crime charged in the indictment. Therefore, any error in the district court’s ruling on background
evidence was harmless.
C. Even if the district court erred by instructing the jury on actual and
constructive possession, the error was harmless.
Hughes argues that the district court erred by unnecessarily instructing the jury on
constructive possession when it was not supported by the government’s proof. We review the
district court’s choice of jury instructions “as a whole to determine whether they adequately inform
the jury of relevant considerations and provide a sound basis in law to aid the jury in reaching its
decision.” United States v. Layne, 192 F.3d at 574.
We recognize that boilerplate instructions “should not be used without careful consideration
being given to their applicability to the facts and theories of the specific case being tried.” United
States v. Wolak, 923 F.2d 1193, 1198 (6th Cir. 1991). Here, the district court considered Ms.
Jackson’s testimony that she intended to get back the ammunition from Hughes and the court
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concluded that a constructive possession instruction would assist the jury. Yet, there is no record
evidence supporting a theory of constructive possession. Both parties agree that Hughes physically
possessed the ammunition. There is no evidence to suggest that at any time when she did not
physically possess the ammunition, she had effective control over the ammunition. Accordingly,
we agree that the trial court should not have instructed the jury on constructive possession; however,
we hold that the district court’s failure does not require reversal of an otherwise valid conviction.
See Griffin v. United States, 502 U.S. 46, 60 (1991) (holding that the refusal to remove an
insufficiently supported theory from the jury’s consideration does not provide an independent basis
for reversing an otherwise valid conviction).
Where one of two grounds for conviction is unsupported by the evidence and sufficient
evidence supports the other ground for conviction, an error claimed as to the unsupported charge is
harmless as a matter of law. United States v. Mari, 47 F.3d 782, 786 (6th Cir. 1995). Here, the
focus of the government’s proof throughout the trial was on whether Hughes had actual possession
of the ammunition. There is no reason to believe that the jury convicted Hughes based on the
alternative theory of constructive possession because there is no evidence on the record to support
that charge. Accordingly, the district court’s constructive possession instruction is harmless as a
matter of law.
D. The district court erroneously considered itself bound by the Sentencing
Guidelines.
In light of the Supreme Court’s decision in United States v. Booker, 125 S.Ct. 738 (2005),
the district court committed plain error by imposing a mandatory sentence on Hughes under the now
advisory Sentencing Guidelines. See United States v. Barnett, 398 F.3d 516, 529-31 (6th Cir. 2005).
Accordingly, we vacate the sentence and remand the case for resentencing.
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III. CONCLUSION
For the reasons stated above, we AFFIRM Hughes’s conviction, but we VACATE her
sentence, and REMAND the case to the district court for reconsideration of the sentence under the
advisory Sentencing Guidelines.
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