United States v. Bonee

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0622n.06
Filed: July 26, 2005
No. 04-6227
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
BOBBY BONEE, ) WESTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant )
Before: ROGERS and SUTTON, Circuit Judges; ROSEN, District Judge.*
ROGERS, Circuit Judge. The defendant-appellant, Bobby Bonee, appeals his conviction
on charges of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).
Specifically, Bonee argues that the government failed to prove that Bonee possessed, either actually
or constructively, the firearms which formed the basis of the charge of felon in possession of a
firearm. For the following reasons, we affirm.
I. Background
*
The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 04-6227
United States v. Bonee
On November 27, 2003, deputies from the Henderson County Sheriff’s Department went to
Bonee’s house as part of an ongoing investigation. While deputies were talking with Bonee outside
of his home, it began to rain heavily. At the deputies’ request, Bonee allowed the deputies to enter
his trailer and, after being advised of his Miranda rights, gave the officers permission to search the
trailer. The search of the trailer led to the discovery of seven firearms located in Bonee’s bedroom
in an unlocked gun cabinet. In particular, the search revealed a Remington Model 700, a .270-
caliber Winchester, a Winchester Model 370 12-gauge shotgun, a Winchester single-shot Model 370
16-gauge shotgun, a Winchester Model 1300 12-gauge shotgun, a .17-caliber Marlin rifle, and a
Remington Speed Master Model 552 .22-caliber rifle.
After the discovery of the firearms, Bonee was transported to the Henderson County Sheriff’s
Department. After again being advised of his Miranda rights, Bonee gave a statement to
Investigators Tolley and Stanford. At the defendant’s request, Tolley wrote the defendant’s
statement “word-for-word.” Tolley testified that, after every sentence, he and Bonee went back
through the statement for accuracy. After Bonee was finished with the statement, Tolley read it back
to Bonee, and then let Bonee read and review the statement for accuracy. Finally, Bonee signed the
statement to indicate that the information was truthful.
In the statement to investigators, Bonee admitted ownership of some of the weapons.
Specifically, Bonee stated: (1) that he bought the .270 from a Gene Moore, who lived in Scott’s Hill,
Tennessee, about two years prior; (2) that he traded for the .22-caliber about eleven years ago; (3)
that he bought one of the 12-gauge shotguns from a Jeremy Marshbanks last summer; (4) that he
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No. 04-6227
United States v. Bonee
received the other 12-gauge shotgun as a Christmas gift when he was 15; (5) that he traded with his
brother for the 16-gauge in 1988; and (6) that he traded with a boy in Crump, Tennessee for a 20-
gauge firearm.
Despite Bonee’s statement to the contrary, the defense presented several witnesses who
testified that the guns did not belong to Bonee, but instead belonged to Bonee’s wife, Tammy
Barrett. These witnesses testified as to how Barrett received the weapons and for what purposes
Barrett used the weapons.
At the end of prosecution’s case, and again at the end of the defense’s case, the defendant
moved for a motion for judgment of acquittal. The court denied both of the defendant’s motions and
sent the case to the jury. The jury returned a verdict of guilty and, on September 27, 2004, the
district court entered a judgment sentencing the defendant to 51 months’ incarceration, to be
followed by two years of supervised release. Bonee appeals his conviction, arguing that the
government failed to prove that Bonee possessed the firearms in question. Because there was
sufficient evidence to support the jury’s verdict, we affirm.
II. Analysis
When a conviction is attacked for insufficiency of the evidence, an appellate court must
determine whether, taking the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found each essential element of the offense beyond a reasonable doubt.
United States v. Barnett, 398 F.3d 516, 521-22 (6th Cir. 2005).
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No. 04-6227
United States v. Bonee
In this case, Bonee was charged with being a felon in possession of a firearm, in violation
of 18 U.S.C. 922(g). The essential elements of a § 922(g) violation are as follows: (1) the defendant
had a previous felony conviction; (2) the defendant possessed a firearm; and (3) the firearm had
traveled in or affected interstate commerce. See United States v. Walker, 160 F.3d 1078, 1087 (6th
Cir. 1998). The term “possession,” as it is used in § 922(g), includes actual possession and
constructive possession. United States v. DeJohn, 368 F.3d 533, 545 (6th Cir. 2004). “‘Both actual
and constructive possession may be proved by circumstantial evidence.’” Id. (quoting United States
v. Schreane, 331 F.3d 548, 560 (6th Cir. 2003)). In this case, Bonee argues that there was
insufficient evidence to establish the second element of the offense—that he possessed, either
actually or constructively, the guns found in his bedroom. Bonee’s argument lacks merit.
When viewed in the light most favorable to the government, the evidence against Bonee is
sufficient to allow a reasonable juror to infer that Bonee possessed the firearms in question. The
guns at issue were found in an unlocked gun cabinet in Bonee’s bedroom. While mere proximity
to contraband may not be sufficient to indicate ownership, see United States v. White, 932 F.2d 588,
589-90 (6th Cir. 1991), in this case, more than physical proximity tied Bonee to the firearm—Bonee
admitted to the police that he owned several of the guns in question. While Bonee now attempts to
downplay the significance of his confession by arguing that, because the confession was not actually
written by the defendant, it was “not credible,” this court has previously upheld the admission of a
confession taken in similar circumstances. See United States v. Soto, No. 03-2295, 2005 WL 548786
(6th Cir. March 7, 2005) (affirming the admittance of defendant’s statement where officers read the
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No. 04-6227
United States v. Bonee
defendant questions and then recorded the defendant’s answer in writing). Moreover, Bonee had
the opportunity to read and review the statement as recorded by the investigators, and Bonee signed
the statement indicating that it accurately reflected what Bonee had told investigators. Under such
circumstances, the jury was entitled to rely on Bonee’s statement that he owned several of the guns
and to discount the testimony of defense witnesses who stated that the guns did not belong to Bonee,
but instead belonged to Bonee’s wife, Tammy Barrett.
Quite simply, Bonee’s admission that he owned several of the guns in question, coupled with
the location of the guns in Bonee’s bedroom, was sufficient evidence from which a jury could infer
that Bonee possessed the guns in question. See United States v. Gardner, No. 90-2182, 1991 WL
53297 (6th Cir. April 11, 1991) (holding that defendant’s residency in an apartment where firearms
were located, coupled with the defendant’s admission that he owned the firearms, was sufficient
evidence to sustain his conviction for being a felon in possession of a firearm). Bonee’s conviction
is accordingly affirmed.
IV. Conclusion
Because there was sufficient evidence to support the jury’s verdict in this case, Bonee’s
conviction is affirmed.
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