USA. v. Clark

• Decision Date: 03 August 1999
• Docket Number: No. 97-3168,97-3168
• Citation: 184 F.3d 858,337 U.S. App. D.C. 278
• Parties: (D.C. Cir. 1999) United States of America, Appellee v. Andre P. Clark, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 858

184 F.3d 858 (D.C. Cir. 1999)

United States of America, Appellee v. Andre P. Clark, Appellant

No. 97-3168

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 1998

Decided August 3, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia(No. 97cr00006-01) James M. Johnstone, appointed by the court, argued the cause and filed the briefs for appellant.

Sharon A. Sprague, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher and Thomas C. Black, Assistant U.S. Attorneys.

Before: Silberman, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

After a jury trial, defendant Andre Clark was found guilty of unlawful possession of a firearm by a convicted felon, unlawful possession of ammunition by a convicted felon, and attempted bribery of a government official. He was sentenced to 90 months in prison on each count, to run concurrently. He challenges his convictions on the following grounds: (1) that the evidence was insufficient to warrant conviction on any count; (2) that the district court abused its discretion and failed to protect him from undue prejudice by permitting the jury to learn of his prior conviction; and (3) that the district court committed a series of prejudicial trial errors. We reject all of these challenges. Clark also contends that he should only have been convicted once rather than twice for unlawfully possessing both a firearm and the ammunition with which it was loaded. The government does not contest this point, and we agree that defendant is correct. Accordingly, we remand for vacation of one of the two possession convictions, and otherwise affirm the district court's judgment in all respects.

I

Early on the morning of December 11, 1996, police officers Otis McGinnis and Daymeion Harris stopped an automobile that was traveling over 40 miles per hour in a 25 miles per hour zone. Andre Clark was the driver and sole occupant of the car. Officer McGinnis approached the driver's side window, while Officer Harris went to the passenger's side. McGinnis asked Clark for his driver's license and car registration. Clark reached toward the back seat of the car and the back floorboard. Tr. 97-98. After feeling around on the back floorboard, he reached to the back seat and retrieved a document which he handed to the officer. Tr. 111-15. The document was a cellular phone contract in the name of Paul Green. When McGinnis realized what he had been given, he again asked for a license and registration. Tr. 98, 113-14.Clark returned the contract to the back seat, felt around again, and pulled out the same cellular contract. Id. Finally, Clark produced an expired learner's permit from New York which also bore the name Paul Green. Officer McGinnis asked whether defendant had his license, and when Clark said he did not, McGinnis asked him to step out of the car. Tr. 98-100, 116-17. After a radio check disclosed that defendant did not have a valid license, he was placed under arrest for driving without a permit.

Officer McGinnis then began to search the passenger compartment. The first place he looked was under the rear of the driver's seat, "because that's where I saw defendant reaching for his registration." Tr. 101. McGinnis found a loaded .45-caliber handgun on the floor to the rear of the seat, and immediately told his partner. Upon hearing this, Clark said to McGinnis: "I can call my girl right now and give you $5,000." Tr. 126; see id. at 102-04, 106-08, 140-41.As Officer Harris placed Clark in the squad car, Clark added:"Come on, man. I know what you all really want, I know what you all really want. You all could just go ahead and let me go. I know what you all really want." Tr 142, 167.Clark also told the officers his name was Paul Green. Tr. 142-43.

Clark was indicted on three counts: (1) unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); (2) unlawful possession of ammunition by a convicted felon, also in violation of section 922(g)(1); and (3) attempted bribery of a government official in violation of 18 U.S.C. § 201(b)(1)(A), (C). At trial, the government offered the testimony of the two police officers as well as a stipulation, entered into by both sides, that Clark "had been previously convicted of a criminal offense punishable by a term of imprisonment exceeding one year." The nature of Clark's previous conviction was not mentioned. The defense called Keisha Harling, the mother of Clark's then-6-week-old child and the owner of the car Clark was driving at the time he was arrested. Harling testified that, unbeknownst to Clark, she had purchased the gun from a man in the neighborhood and had left it under the driver's seat several days prior to the arrest. The defense also called Kevia Williams, a longtime friend of Harling's, who testified that she saw Harling purchase the gun in November 1996 and place it under the driver's seat in early December. The jury convicted Clark on all three counts.

II

Clark argues that the government lacked sufficient evidence to support the jury's verdict on either the possession or the bribery charges. We review such a challenge de novo, United States v. Lucas, 67 F.3d 956, 959 (D.C. Cir. 1995), and must affirm the jury's verdict if " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). In making that determination, "the prosecution's evidence is to be viewed in the light most favorable to the government, drawing no distinction between direct and circumstantial evidence, and giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact."United States v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986) (internal citations and quotations omitted).

A

Clark's felon-in-possession charges were based on the theory that he was in constructive possession of the weapon found under his seat. See United States v. Morris, 977 F.2d 617, 619-20 (D.C. Cir. 1992). This "requires [evidence] that the defendant knew of, and was in a position to exercise dominion and control over" the weapon, but does not require that it be on his person. United States v. Byfield, 928 F.2d 1163, 1166 (D.C. Cir. 1991). Constructive possession may be inferred from circumstantial evidence, see United States v. Raper, 676 F.2d 841, 847-48 (D.C. Cir. 1982), but neither knowledge nor proximity alone is sufficient to permit a jury to infer possession. See, e.g., Morris, 977 F.2d at 619-20. "There must be some action, some word, or some conduct that links the individual to the [contraband] and indicates that he had some stake in [it], some power over [it]." United States v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980).

Although the case for constructive possession is relatively close, contrary to Clark's characterization this is not simply a case in which the defendant was found in a car that happened to contain a gun. Nor does the fact that the officers never saw Clark look under the seat establish, as defendant claims, that he did not know it was there. Officer McGinnis testified that Clark felt around on the back floorboard behind his seat, that this made McGinnis suspicious enough to cause him to search that area first, and that when he did he immediately found the gun "where I saw him reaching." Tr. 101, 115.Clark's reaching actions are sufficient to link him to the gun and to indicate that "he had some stake" in it--and the fact that it was located directly under his seat further indicates that he had "some power over [it]." Pardo, 636 F.2d at 549. As we said in United States v. Hernandez with respect to a very similar fact pattern: "[I]f proximity is coupled with a gesture toward the contraband, suggesting an ability to control the item in question, constructive possession may be inferred. An occupant of a car therefore need merely signify control of a particular space in the car to give rise to an inference of constructive possession of contraband later found in that space." 780 F.2d 113, 117 (D.C. Cir. 1986) (internal citations omitted). Accordingly, in Hernandez we held there was sufficient evidence to sustain a jury verdict where the defendant "ben[t] over and ma[d]e a motion in front of his [car] seat," and the officer subsequently found a loaded weapon on the floorboard "where he had seen [defendant] bend down." 780 F.2d at 115. See Morris, 977 F.2d at 620 (holding that "proximity coupled with 'evidence of some other factor--including ... a gesture implying control ...' is enough to sustain a guilty verdict" for constructive possession) (quoting United States v. Gibbs, 904 F.2d 52, 56 (D.C. Cir. 1990)); see also Unites States v. (John) Richardson, 161 F.3d 728, 732-33 (D.C. Cir. 1998).

Based on this case law, the officers' testimony is sufficient to sustain a verdict on the prosecution's theory: that Clark's purported effort to reach behind his seat for his license and registration was only a ruse to permit him to push the gun farther out of the officers' view. This theory is further bolstered by the fact that, as he finally conceded to the officers, Clark had neither document. It is also supported by the fact that the location in which Clark ostensibly searched for the documents, the car's rear floorboard, would have been an unusual place to store them--even if he had had them.

It is true that there are some inconsistencies between McGinnis' testimony and that of his partner. McGinnis testified that Clark first reached to the floorboard, and then grabbed the cellular contract from the back seat. Tr. 98.Harris testified that the events occurred in the reverse order. Tr. 137-38....