U.S. v. Newsom
| Decision Date | 29 June 2006 |
| Docket Number | No. 05-5030.,05-5030. |
| Citation | 452 F.3d 593 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kelvin Mondale NEWSOM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Jude T. Lenahan, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Courtney D. Trombly, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: Jude T. Lenahan, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Philip H. Wehby, Assistant United States Attorney, Nashville, Tennessee, for Appellee.
Before: COLE, GILMAN, and FRIEDMAN, Circuit Judges.*
Kelvin Mondale Newsom was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924. He was sentenced to a term of 86 months of imprisonment, to be followed by three years of supervised release. In this appeal, he raises challenges to (1) the sufficiency of the evidence supporting his conviction, (2) the admission of evidence regarding his tattoos that depict firearms, (3) the jury instructions regarding his other acts not charged in the indictment, and (4) the constitutionality of his sentence under Booker. For the reasons set forth below, we AFFIRM Newsom's conviction, but VACATE his sentence and REMAND the case for resentencing pursuant to Booker.
On November 23, 2003, Newsom was driven to his mother's residence by a friend, Alexis Craig. Newsom arrived and joined some family members outside to talk. A few minutes later, Carlos Blacksmith pulled up in a sport utility vehicle (SUV), stepped out to talk to the family, and left the vehicle running. Newsom told Blacksmith that "he didn't have no business riding around like that with that truck dirty like that." Blacksmith agreed and asked Newsom to take the SUV and "detail it up" for him. Prior to this date, Newsom had on occasion detailed (meaning cleaned) cars for money, earning approximately $30 to $40 per car plus tips. Often this cleaning was accomplished by taking vehicles to a mobile detailing van, which contained all of the equipment necessary to perform the required tasks (water hoses, vacuums, etc.).
Newsom got into Blacksmith's SUV and left to take it to the mobile detailing van. He was not wearing his seatbelt, and he lit a marijuana cigarette while driving. After Newsom drove a few blocks, a police officer in a patrol car started following the SUV because Newsom had failed to stop at a stop sign and was not wearing his seat belt. While following Newsom, the officer noticed him "moving around inside the car" and anticipated that he was going to get out and flee on foot. The officer testified in further detail about Newsom's movement in the vehicle:
I was looking through the back glass of the vehicle, and I could see the driver moving appeared [sic] to me as if he was maybe putting something under the seat. In the 12 years I have been a policemen [sic], several people have concealed things on me, and it is the same type of movement, a movement towards the front where the upper part of their body will disappear momentarily.
Eventually the officer pulled Newsom over and approached the SUV.
Newsom furnished someone else's photo identification upon the request of the officer. After the officer smelled the odor of burning marijuana and asked Newsom about it, Newsom replied that he was in fact smoking marijuana. Newsom gave the officer the remaining portion of the marijuana cigarette. After that, Newsom admitted to the officer that he had given him a false name at first because there was an outstanding warrant for Newsom's arrest stemming from a previous incident of driving without a license, and he knew that he was going to jail. The officer then asked Newsom to step out of the vehicle, handcuffed him, and put him in the back of the patrol car.
Upon returning to the vehicle, the officer immediately saw through the open door a pistol under the driver's seat. A full search of the vehicle revealed Newsom's wallet in the front seat, a magazine with 22 rounds of ammunition pushed between the driver's seat and the center console, and a single round of ammunition lying loose on the floorboard in front of the passenger's seat. The officer testified that he asked Newsom about the gun and that Newsom told him that "he had never touched the gun and didn't know it was there." But Newsom also said that the gun was not stolen. There were no fingerprints on the gun or ammunition.
In January of 2004, a federal warrant was issued for Newsom's arrest. He was apprehended by federal law enforcement agents the following month. While being transported to the federal building in downtown Nashville, Newsom asked the agents "what kind of time he was looking at for this charge." One of the federal officers said "that the maximum penalty was ten years but that there was [sic] a lot of variables that were taken into consideration to come up with his final sentence."
Those present gave differing accounts of Newsom's response to this information. One officer said that Newsom "stated that there was nothing he could do because he had that gun." The other officer testified that Newsom replied with In contrast, Newsom testified that he had replied: Newsom specifically denied making the statement "I had that gun."
Craig, the friend who drove Newsom to his mother's home, testified on direct examination that she had never seen Newsom with a gun. She also said that if she had thought that he had a gun when she went to pick him up on the day in question, she would not have let him get into the car. As cross-examination began, the government approached the bench and stated: Defense counsel responded by saying: "Judge, this is pretty far afield," and
The district court ruled that the fact that Newsom had tattoos depicting firearms The court later reaffirmed that the government was permitted to ask Craig about the tattoos "to challenge her credibility that she had [not] seen him with a gun because he had guns tattooed on him."
After the bench conference concluded, the following exchange took place between the government's counsel and Craig:
Q. Are you aware that the defendant has tattoos?
A. Yes.
Q. With firearms on his body?
Defense counsel then objected that the question was leading, but the court overruled the objection. Craig answered that she did not know what kind of tattoos Newsom had.
After this exchange, defense counsel felt that he had "[no] choice but to broach the subject" of Newsom's tattoos, so he asked his later witnesses about the tattoos that they had seen on Newsom's body. Newsom's nephew, Eddie Readus, said that he remembered tattoos with the names of his mother and brother. Newsom's sister, Teresa Sanders, testified about a tattoo with the name of Newsom's father and another with his daughter's face. Defense counsel's goal was to show that Newsom's tattoos were "not really about guns."
But the government's cross-examination drew out the details of Newsom's other tattoos. For example, Readus was asked whether he was aware "that [Newsom] has a [tattoo of] a man holding a gun that says `fuck y'all' on it," to which Readus replied "[n]o." More detail came out through the government's questions put to Sanders. The government questioned Sanders about the following other tattoos on Newsom's body:
• another "on his right forearm . . . [that] also ha[d] the word `thug life,'" and
• one "on his left arm [with the words] `live for and die for' around a bag of money."
During a discussion of whether to issue a jury instruction regarding the tattoos, the district court reiterated its position on the tattoo evidence:
The Court still feels that [the] tattoos are not really relevant to the issue or issues in this case, and the Court admitted it initially to challenge the testimony of a witness and for that purpose only. But it was expanded not through rulings by the Court but by I guess the lawyers' efforts to correct that challenge or to meet the challenge or to explain them more fully.
The district court instructed the jury with respect to Newsom's prior convictions, tattoos, and other acts as follows:
PRIOR CONVICTIONS
You have heard that before this trial the defendant was convicted of prior crimes.
These earlier convictions were brought to your...
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