U.S. v. Hodges, 02-1599.
| Decision Date | 09 January 2003 |
| Docket Number | No. 02-1599.,02-1599. |
| Citation | 315 F.3d 794 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carlan D. HODGES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Patty Merkamp Stemler (argued), Dept. of Justice Criminal Div., Appellate Section, Washington, DC, for Plaintiff-Appellee.
Renee E. Schooley (argued), Office of Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.
Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
A jury convicted Defendant Carlan D. Hodges of being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1) and of receiving stolen firearms in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). Following his conviction, Hodges filed a motion for a new trial based on newly discovered evidence, which the district court denied. The district court sentenced Hodges to 188 months' imprisonment followed by three years of supervised release and imposed a fine of $1,000 and a special assessment of $100.
While his direct appeal was pending, Hodges learned that the district court judge may have had ex parte communications with the jury. He then filed a second motion for a new trial, and we remanded the case for a ruling on the motion. The district court granted the motion without an evidentiary hearing; after a government appeal of that ruling, we reversed and remanded the matter for an evidentiary hearing. United States v. Bishawi, 272 F.3d 458 (7th Cir. 2001). After the hearing, the district court denied the motion for a new trial.
Hodges' instant appeal raises four issues: 1) whether the evidence was insufficient to support his convictions; 2) whether the district court abused its discretion by admitting evidence of his gang affiliation; 3) whether the district court abused its discretion in denying his motion for a new trial based on newly discovered evidence; and 4) whether the district court clearly erred by imposing a sentence enhancement under § 3B1.4 of the U.S. Sentencing Guidelines Manual for using a minor to commit a crime. For the reasons set forth below, we affirm.
On January 22, 1996, high school students Colby Thompson, Jeremy Midgett, and Matthew Dibble cut school to commit two robberies in the Marion, Illinois, area. Their intention was to take stolen items to Hodges' home so that he could fence them through connections in Chicago. Hodges had previously told Thompson, while Midgett was present, that he could unload stolen property through a connection he had in Chicago and that he could get the most money for guns. Alternatively, he proposed that he could exchange guns for drugs, which Hodges would then sell, giving the proceeds to Thompson, Dibble, and Midgett.
During one of the robberies, the three boys stole ten guns, a slug barrel for one of the guns, a Japanese ceremonial sword, small electronic items, and cassette tapes from the home of Gene Ruehmkorff. They loaded the items into their car and drove to Hodges' home where he and the three boys carried the stolen property into his apartment. Once inside, Hodges examined the guns and stated that he could sell the guns for as much as $700 or $800. After inspecting the guns, Hodges wiped them down and stored them under his bed and in a closet in his bedroom.
Several days after the robbery, Hodges and two men in a blue Chevy van drove to the boys' high school, and Hodges informed Thompson that he needed money for a bus ticket to Chicago. In early February 1996, the same two men in the blue Chevy drove to Hodges' apartment and, with Thompson and Dibble, loaded the Ruehmkorff guns into the van. Hodges told the boys that the two men were taking the guns to Chicago to sell. Hodges never paid Thompson, Midgett, or Dibble.
A Chicago Housing Authority Police Tactical Gang Unit recovered four of Ruehmkorff's guns on February 8, 1996, and sent them back to the Marion police. In the spring of 1996, Hodges contacted Officer James Webb of the Marion sheriff's department, and the two met in June 1996. At that meeting, Hodges told Webb that he had seen the guns in the parking lot of his apartment and that Dibble was living with him at the time. Hodges claimed that Dibble told him the guns were stolen and that he asked Hodges to fence the guns, which Hodges denied agreeing to do. When Webb asked about his connection to Chicago, Hodges told Webb that he moved back to Chicago in March 1996 and was affiliated with a Chicago street gang known as the Black Stones or Black P Stones.
Approximately five or six months after the burglaries, police arrested Thompson and Midgett, who provided information about the thefts, including Hodges' role. Thompson and Midgett subsequently testified at Hodges' trial, but Dibble could not be located. Thompson testified that he committed the robberies and that he first met Hodges in November 1995. He further testified that he stole another gun on May 18, 1996, which he also brought to Hodges to sell, but eventually sold to a third party. Midgett testified that he met Hodges at least one month before the burglaries and that he and Thompson decided to steal guns and other items and take them to Hodges because Hodges claimed he could fence them through connections in Chicago.
Thompson and Midgett also testified that the four guns recovered in Chicago resembled the ones they had stolen, and Officer Webb and Gene Ruehmkorff positively identified the guns as those stolen from Ruehmkorff's home. Webb further testified that the guns were recovered by a Chicago Housing Authority Police Tactical Gang Unit and that Hodges admitted his gang affiliation to Webb. During closing arguments, the prosecution also made a brief reference to Hodges' "gang buddies" to show how Hodges' admissions to Webb corroborated Thompson's and Midgett's testimony. Additional testimony was introduced that the guns functioned properly and that they traveled in interstate commerce to reach Illinois. While Hodges stipulated that he was convicted of a felony in 1991, he presented no further evidence at trial. A jury convicted him of being a felon in possession of four firearms and of receiving stolen firearms in violation of §§ 922 and 924.
After his conviction, Hodges' attorney learned that Hodges did move from Marion back to Chicago in early April 1996. Believing that this information, which was apparently new only to Hodges' attorney, put into doubt Thompson's testimony about a gun he took to Hodges' home in Marion in May 1996, Hodges filed a motion for a new trial. The district court denied the motion.
A sentencing hearing was held, at which time Hodges disputed a two-level increase in his base offense level pursuant to § 3B1.4 of the U.S. Sentencing Guidelines Manual for using a minor, Jeremy Midgett, to commit a crime. Hodges did not dispute that Midgett was a minor at the time of the robbery, but argued that it was Thompson who "used" Midgett. The government pointed to Midgett's role in helping to carry the guns into Hodges' apartment as well as conversations between Hodges and Thompson while Midgett was present concerning Hodges' ability to fence stolen guns. The district court found that Hodges "used" Midgett to commit the crimes and increased Hodges' base offense level by two. This increase resulted in a sentence of 188 months in prison, followed by three years of supervised release, and a $1,000 fine and $100 special assessment. Following the procedural turns related to the district court judge's ex parte communications with the jury, this appeal ensued.
We first discuss Hodges' argument that there was insufficient evidence to support his convictions by a jury beyond a reasonable doubt. We review this claim in a light most favorable to the government and will overturn a conviction only if no rational trier of fact could have found Hodges guilty beyond a reasonable doubt. United States v. Emerson, 128 F.3d 557, 560 (7th Cir.1997).
To convict Hodges of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), the government must have proven beyond a reasonable doubt that: 1) Hodges had a prior felony conviction; 2) he possessed or received a firearm; and 3) the firearm traveled in or affected interstate commerce. 18 U.S.C. § 922(g)(1) (2002); United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir.1990). To be convicted of receiving stolen firearms under 18 U.S.C. § 922(j), the government needed to prove beyond a reasonable doubt that: 1) Hodges received or possessed stolen firearms; 2) which moved or were shipped in interstate commerce before or after being stolen; and 3) Hodges knew or had reasonable cause to believe that they were stolen. 18 U.S.C. § 922(j); United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir.2001).
Hodges does not dispute that he was convicted of a felony in 1991, nor that the guns traveled in interstate commerce. Nor does he dispute that he knew the guns were stolen. So, the only issue with respect to the convictions is whether there was sufficient evidence for a rational jury to conclude beyond a reasonable doubt that Hodges possessed or received the firearms in question.1
On the issue of Hodges' possession and receipt of the stolen guns, both Thompson and Midgett testified: 1) that they stole the guns and took them directly to Hodges' apartment; 2) that they carried them into his home with Hodges' help; 3) that he then inspected the guns and told the boys he could sell them for $700 or $800; and 4) that he wiped them down to remove his fingerprints and stored the guns in his bedroom. Hodges contends that Thompson's and Midgett's credibility is suspect because both boys have criminal pasts and because Midgett gave conflicting statements to the grand jury. Specifically, Hodges points to Midgett's trial testimony that Hodges helped carry the guns into his apartment, whereas...
To continue reading
Request your trial
-
Tillman v. Burge
...merely impeaching or cumulative,” and that it “probably would lead to an acquittal in the event of a new trial.” United States v. Hodges, 315 F.3d 794, 801 (7th Cir.2003). As such, the allegedly withheld information must be compelling enough to raise the likelihood of acquittal in a new tri......
-
U.S. v. Webber
...United States v. Woolfolk, 197 F.3d 900, 904 (7th Cir.1999), or resolve testimonial inconsistencies, see United States v. Hodges, 315 F.3d 794, 799 (7th Cir.2003). The court, taking the evidence in the light most favorable to the Government, "will overturn a conviction based on insufficient......
-
State v. High
...with such an affiliation as a person of bad character or someone prone to aggressive or violent behavior”). But see United States v. Hodges, 315 F.3d 794, 801 (7th Cir.2003) (“Without any testimony of particular prior bad acts Hodges participated in as a gang member, we find that evidence o......
-
U.S. v. Seals
...at trial. Fed.R.Evid. 401; Old Chief v. United States, 519 U.S. 172, 178-79, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); United States v. Hodges, 315 F.3d 794, 800 (7th Cir.2003); United States v. Stevens, supra, 935 F.2d at 1401-06. That criterion is satisfied here, my colleagues to the contrar......