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United States v. Green

United States Court of Appeals, Eleventh Circuit

September 29, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ROBERT WILLIAM GREEN, Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 3:14-cr-00007-RV-1

         ON PETITION FOR REHEARING

          Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO, [*] District Judge.

          JULIE CARNES, Circuit Judge

         In light of this Court's en banc decision in United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017), we hereby vacate our prior panel opinion, published at 842 F.3d 1299, and substitute it with the following opinion, which has been revised only in Section II.D. Accordingly, Defendant's motion for panel rehearing is denied as moot.

         A jury convicted defendant Robert Green of being a felon in possession of a firearm or ammunition in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Defendant to 262 months in prison followed by 3 years of supervised release. Defendant appeals his conviction and sentence. After careful review, we affirm.

         I. BACKGROUND

         A. Facts

         In early 2013, Defendant was charged with various state offenses. While on pre-trial release, Defendant wore a court-ordered GPS monitoring bracelet that reported his location to the Santa Rosa County Sheriff's Office. On April 3, 2013, the Sheriff's Office discovered that Defendant was no longer wearing the GPS bracelet. A week later, several officers went to the home of Jodi Simmons, where they believed they would find Defendant, [1] to arrest him. Initially, Ms. Simmons denied that Defendant was inside, but she gave the officers permission to enter the trailer and search for him. When they entered the master bedroom, the officers discovered a man's camouflage jacket hanging on the bedpost. The jacket was a large jacket and Jodi Simmons was not a large person. On the floor next to the bed, and on the same side of the room as the closet, the officers observed a pair of men's shoes. On a nearby nightstand, the officers saw a firearm loaded with .22 caliber ammunition, two pipes of the type typically used to smoke methamphetamine, a camouflage bag, and a washcloth. The camouflage bag contained a digital scale, .6 grams of methamphetamine, .22 caliber ammunition, and empty plastic baggies of the type used to hold drugs or ammunition. On the floor of the bedroom, near the man's jacket and pair of shoes, the officers also found a blue bag containing tools and ingredients used to manufacture methamphetamine, as well as more .22 caliber ammunition. The blue bag contained an identification card in the blue bag that did not belong to Defendant or Simmons.

         Confronting Simmons with their belief that Defendant was in fact in the trailer, Simmons said, "He went that way, " and pointed the officers back toward the master bedroom. An ATF agent who had accompanied the deputies to the trailer found Defendant hiding in in the master bedroom closet under a pile of clothes. He was wearing no shoes.

         Defendant resisted arrest and struggled with the officers, but eventually they were able to handcuff and place him in a patrol car. While Defendant was seated in the car, the ATF agent opened the car door and knelt down to speak to Defendant, reading to him Miranda rights and indicating that he wanted to talk to Defendant about the firearm that had been discovered. Defendant told him that he had only recently acquired the gun, having traded some methamphetamine for it. A local deputy, who had been summoned to transport Defendant to the jail, was standing at the back of the car at the time, but did not overhear the conversation between Defendant and the ATF agent. Several months later, when the same ATF agent transported Defendant from local custody to federal court on the present charge, Defendant volunteered to the agent that the firearm discovered in Simmons's trailer was not his, but that instead he owned only a BB gun.

         B. Procedural History

         The Government charged Defendant with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).[2] In support of

          Defendant's alleged felon status, the indictment listed 12 prior felony convictions. Before trial, Defendant stipulated to being a convicted felon. Accordingly, the district judge redacted the indictment to remove the listing of Defendant's 12 prior convictions in the copy of the indictment to be submitted to the jury. Over Defendant's objection, however, the district judge declined to remove the following sentence in the indictment: "For each of these crimes, ROBERT WILLIAM GREEN was subject to punishment by a term of imprisonment exceeding one year."

         Also before trial, the Government notified Defendant that it planned to introduce Defendant's 2006 Florida conviction for being a felon in possession of a firearm or ammunition under Federal Rule of Evidence 404(b). Defendant moved in limine to exclude the evidence because the conviction resulted from a plea of nolo contendere. After a lengthy colloquy with counsel, the district judge denied Defendant's motion and admitted Defendant's prior conviction.

         Nonetheless, pursuant to a request by defense counsel and a stipulation between the parties, the jury was informed only that Defendant had been convicted of possession of ammunition by a convicted felon and that the ammunition in question was shotgun shells. The district judge then gave the jury the standard cautionary instruction regarding Rule 404(b) evidence, explaining to them that they could not consider the above evidence to decide if Defendant had committed the acts charged in the indictment, but instead they must first find beyond a reasonable doubt from the other evidence whether Defendant had committed those acts. The court instructed that if the jury first found that Defendant had committed the charged acts, then it could consider the prior conviction to decide whether Defendant had the state of mind or intent necessary to commit the charged act.

         At the close of the Government's case, Defendant moved for a judgment of acquittal. He argued that the Government's evidence was insufficient to show that he had actual or constructive possession of the firearm or ammunition. Regarding his confession, Defendant asserted that it was unreliable, uncorroborated by the other evidence, and therefore insufficient to establish constructive possession. The district judge denied Defendant's motion. The jury returned a guilty verdict.

         The United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR set an adjusted base offense level of 28. Based on a lengthy and violent criminal record, Defendant had 26 criminal history points.[3]The PSR also recommended that Defendant be sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on the existence of four prior qualifying Florida convictions: (1) aggravated assault with intent to commit a felony; (2) resisting an officer with violence; (3) third-degree felony battery; and (4) felony battery causing great bodily harm. The ACCA enhancement resulted in a total offense level of 34. With a criminal history category of VI, the PSR yielded a sentencing range of 262 to 327 months' imprisonment.

         Defendant objected to the ACCA classification, arguing that his two felony battery convictions were not categorically violent and questioning whether the PSR's descriptions of the facts underlying the two convictions were drawn from Shepard documents. In response, the Government provided the statutory basis, charging document, and judgment for each conviction. The district court overruled Defendant's objection and sentenced Defendant to 262 months' imprisonment.

         Defendant now appeals his conviction and sentence.

         II. DISCUSSION

         On appeal, Defendant argues that the district court erred by (1) denying his motion for a judgment of acquittal; (2) refusing to change the word "crimes, " in the indictment's reference to Defendant's prior convictions, to the singular "crime"; (3) admitting evidence of his 2006 conviction under Rule 404(b); and (4) sentencing him under the ACCA.

         A. Judgment of Acquittal

         Defendant argues that the district court erred by denying his motion for a judgment of acquittal. "We review de novo the denial of a motion for judgment of acquittal, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences in favor of the jury's verdict." United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015). "The issue is not whether a jury reasonably could have acquitted but whether it reasonably could have found guilt beyond a reasonable doubt." Id. (quoting United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006)).

         To prove that Defendant violated § 922(g)(1), the Government had to show (1) that Defendant knowingly possessed a firearm or ammunition, (2) that Defendant was a convicted felon, and (3) that the firearm or ammunition was in or affecting interstate commerce. United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008). Defendant contests only the first element: his knowing possession of the firearm and ammunition.

         The parties agree that Defendant did not have actual possession of the firearm or ammunition at the time the officers found him: Defendant was in the closet, and the gun and ammunition were nearby. "[But] [t]he government need not prove actual possession in order to establish knowing possession; it need only show constructive possession through direct or circumstantial evidence." United States v. Beckles, 565 F.3d 832, 841 (11th Cir. 2009) (quoting United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006)). A defendant constructively possesses a firearm or ammunition if he (1) is aware of or knows of the firearm's or ammunition's presence and (2) has the ability and intent to exercise control over that firearm or ammunition. United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (per curiam). "However, a defendant's mere presence in the area of [an object] or awareness of its location is not sufficient to establish possession." Beckles, 565 F.3d at 841 (quotation marks and citation omitted).

         Here, a rational trier of fact could conclude that Defendant had both (1) knowledge of the presence of the firearm and ammunition in the bedroom where he was found and (2) the ability and intent to exercise control over the firearm and ammunition, as required to establish constructive possession. As to the first prong of the constructive possession test, the evidence reasonably permits an inference that Defendant knew that the firearm and ammunition were present in Simmons's bedroom. Defendant had spent significant time in Simmons's home in the weeks preceding his arrest. In fact, GPS data derived from the ankle bracelet worn by Defendant from March 12 through April 2, 2013 placed Defendant at Simmons's residence every day he wore the bracelet except for March 13 and March 14. Hiding in the closet under a pile of clothes when arrested, Defendant was in the same room as the firearm, which was in plain view on the nightstand. In fact, it appeared that Defendant had recently been in or near the bed next to the nightstand because, based on the shoes on the floor and his shoeless state when found, he had apparently beaten a hasty retreat to the closet upon the arrival of the officers. Plus, given Defendant's admission to the arresting officer that the firearm on the nightstand was his, one could obviously assume that he knew where he had put the gun. Thus, the above facts clearly support the jury's finding that Defendant was aware of the presence of the firearm and ammunition.

         Regarding the second prong of the constructive possession test, the same facts recited above bolster an inference that Defendant had the ability and intent to control the gun and ammunition. The loaded gun was on a nightstand next to the bed where Defendant's shoes were placed; the bag containing ammunition and drug paraphernalia were nearby. As noted, Defendant admitted to Officer Brent Carrier that the firearm was his. Accordingly, a jury could reasonably infer that Defendant had previously exercised control over the seized firearm, and maintained the ability to continue to do so.

         Defendant argues, however, that his admission was uncorroborated and therefore should not have been considered under United States v. Micieli, 594 F.2d 102, 107-09 (5th Cir. 1979).[4] This argument is unpersuasive. Micieli repeats the familiar rule that "a confession [must] be corroborated in order to sustain a conviction; a defendant cannot be convicted solely on the basis of his own admission." Id. at 108. The Micieli court emphasized, however, that "extrinsic evidence of a corroborative nature" can be used to establish the admission's credibility. Id.; see also Smith v. United States, 348 U.S. 147, 156 (1954) ("One available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense through the statements of the accused."). Here, as in Micieli, extrinsic evidence substantiates Defendant's admission that he engaged in a drugs-for-firearm transaction. As recited above, the circumstances surrounding his arrest suggest Defendant's connection to the firearm. Drug paraphernalia, methamphetamine, and .22 caliber ammunition were also in close proximity to Defendant. Thus, Defendant's admission was properly considered. In combination with all the other circumstantial evidence of Defendant's knowing possession of the firearm and ammunition, the jury could reasonably find constructive possession. Accordingly, the district judge correctly denied Defendant's motion for a judgment of acquittal.

         B. The Indictment's Reference to Multiple Felonies

         Because Defendant stipulated that he had a prior felony conviction, the district court removed from the indictment the list of Defendant's 12 prior felony convictions, before giving the indictment to the jury. Over Defendant's objection, however, the district court refused to change the word "crimes" to "crime" in the following sentence of the indictment: "For each of these crimes, ROBERT WILLIAM GREEN was subject to punishment by a term of imprisonment exceeding one year." The district court explained that it would be improper to re- word the indictment and that doing so would falsely suggest to the jury that Defendant had only one prior conviction.

         On appeal, Defendant argues that the indictment's reference to "crimes" (plural, rather than singular) was prejudicial, because it allowed the jury to infer that Defendant had more than one felony conviction, and irrelevant, because a single felony would have satisfied the convicted-felon element of the § 922(g) offense.

         We review a district court's evidentiary rulings under an abuse of discretion standard. Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir. 2014). "A district court abuses its discretion 'if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous.'" Id. (quoting Brown v. Ala. Dept. of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010)). To the extent that the district court based its determination on an interpretation of the Federal Rules of Evidence, our review is de novo. Doe No. 1 v. United States, 749 F.3d 999, 1003 (11th Cir. 2014).

         Defendant cites two cases in support of his argument that the district court abused its discretion in refusing to redact the indictment's references to Defendant's previous "crimes." Defendant first points to Old Chief v. United States, 519 U.S. 172, 174 (1997), which, in the context of a trial on a § 922(g) prosecution, addressed the question "whether a district court abuses its discretion if it . . . admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of [a] prior conviction." The Supreme Court answered that question in the affirmative, concluding that the district court abused its discretion by admitting the record of a specific conviction in the face of the defendant's general stipulation that he had a prior felony conviction. Id. at 191-92. In other words, the stipulation to the fact of a prior felony conviction sufficed, and gilding the lily with information concerning the details of that conviction was error. But Old Chief did not examine the issue presented here, which is whether a defendant willing to stipulate to the fact of a prior felony conviction is unfairly prejudiced when the indictment reveals, through its use of the plural word "crimes, " that the defendant has more than one prior felony conviction, albeit the nature or number of those convictions is not stated. Thus, while Old Chief's focus on avoiding unnecessary prejudice informs our analysis, it is not dispositive.

         The second case Defendant relies on is United States v. Dortch, 696 F.3d 1104 (11th Cir. 2012). That decision is also helpful, but ultimately not controlling. In Dortch, the district court gave the jury an unredacted copy of the indictment, which listed several of the defendant's previously undisclosed felony convictions. Id. at 1110. On review, we held that even assuming the district court erred, any error was harmless. Id. at 1111. Because Dortch was limited to harmless error review, however, this Court did not decide whether it would have been error had the jury been informed only that the defendant had more than one conviction, without any elaboration on the nature of those convictions. Thus, even had we reached the merits in Dortch, the error alleged in that case differs from that alleged here, which is, whether, when the defendant has stipulated to being a convicted felon, there should typically be no need to indicate that he may have sustained more than one prior conviction.

         Three of our sister circuits have addressed this issue. The Eighth Circuit has held that "it is not error to allow the government to introduce more than one conviction in a case where only a single conviction is necessary to make the case, " even when a defendant stipulates to having a felony conviction. United States v. Garner, 32 F.3d 1305, 1311 (8th Cir. 1994). Even more to the point at issue here, the Eighth Circuit has also held that a district court does not err by requiring that a defendant stipulate to the existence of "one or more felony offenses" "to avoid misleading the jury into believing [the defendant] had only one prior conviction." United States v. Einfeldt, 138 F.3d 373, 376 (8th Cir. 1998) (explaining that "there was nothing unfair about the court's form of stipulation, " which was intended to avoid "mislead[ing] the jury as to [the defendant's] criminal history"). Thus, the Eighth Circuit presumably would allow a district court to submit to the jury an indictment that references a defendant's prior "crimes" despite the fact that the defendant stipulated to being a convicted felon.[5]

         The Seventh Circuit has taken the opposite approach, cautioning that "indictments and evidence should not make the jury cognizant of any prior convictions beyond those necessary as an element of the offense." United States v. King, 897 F.2d 911, 913 (7th Cir. 1990); accord United States v. Wilson, 922 F.2d 1336, 1339 (7th Cir. 1991) ("The indictment read to the jury, however, correctly listed only one of [the defendant's] three prior convictions."). The Seventh Circuit suggested that the district court erred by "introducing evidence in the form of a stipulation that King had been convicted of felonies on three prior occasions." King, 897 F.2d at 913. Evidence of one conviction was sufficient when the defendant had stipulated to having a prior felony. Id. Ultimately, however, the court upheld the defendant's conviction on harmless error review. Id. at 914.

         The Fifth Circuit has taken a similarly dim view of allowing evidence of additional convictions when a defendant has stipulated to being a convicted felon. In United States v. Quintero, 872 F.2d 107, 111 (5th Cir. 1989), the defendant argued that the indictment's reference to his three prior convictions for "violent felonies" was prejudicial.[6] In response, the Government argued that it was free to allege more than one prior felony conviction to establish that the defendant was a convicted felon for purposes of § 922(g). Id. The Fifth Circuit held that because the defendant had stipulated to having a prior felony conviction, which is all that is necessary to prove the second element of a § 922(g) offense, "evidence regarding [the defendant's] two additional felony convictions was both unnecessary and irrelevant, and should not have come before the jury." Id. at 111. Nevertheless, the court credited the Government's argument that any error was harmless because "[v]iewing this record as a whole, . . . the trial court's error in admitting evidence of [the defendant's] additional convictions had little, if any, influence on the jury's verdict." Id. at 113.

         We conclude that the approach adopted by the Seventh and Fifth Circuits strikes a more prudent balance under Federal Rule of Evidence 403 in the mine run of cases, and when redaction is requested by the defendant. Accordingly, we conclude that the district court should have granted Defendant's request to redact the indictment to remove any reference to "crimes" (plural), given that Defendant had stipulated to having a prior felony conviction. First, a district court has the power to redact an indictment to avoid unfair prejudice. Cf. Fed. R. Crim. P. 7(d) ("Upon the defendant's motion, the court may strike surplusage from the indictment or information."); United States v. Adkinson, 135 F.3d 1363, ...


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