United States v. Benjamin

• Decision Date: 26 March 2013
• Docket Number: No. 11–2906.,11–2906.
• Citation: 711 F.3d 371
• Parties: UNITED STATES of America v. Nathaniel BENJAMIN, a/k/a James Burch Nathaniel Benjamin, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

711 F.3d 371

UNITED STATES of America

v. Nathaniel BENJAMIN, a/k/a James BurchNathaniel Benjamin, Appellant.

No. 11–2906.

United States Court of Appeals, Third Circuit.

Argued: Sept. 11, 2012.

Filed: March 26, 2013.

Sarah S. Gannett, Esq. (Argued), Brett G. Sweitzer, Esq., Leigh M. Skipper, Esq., Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, for Appellant.

Zane David Memeger, Esq., Robert A. Zauzmer, Esq., Eric B., Henson, Esq. (Argued), Office of the Attorney General, Philadelphia, PA, for Appellee.

Before: SMITH, CHAGARES, and GARTH, Circuit Judges.

OPINION

CHAGARES, Circuit Judge.

Nathaniel Benjamin raises four issues on appeal from the District Court's judgment of conviction and sentence. First, Benjamin argues that there was insufficient evidence supporting one of his felon-in-possession convictions and his conviction for possession with intent to distribute marijuana and cocaine base. Second, Benjamin contends that if the evidence was sufficient to convict him of gun possession in the house, then his conviction on that count should have merged with his conviction on another felon-in-possession charge involving the same gun at a gun range. Third, Benjamin argues the District Court abused its discretion by allowing repeated references at trial to Benjamin's parole status. Fourth, Benjamin contends that the felon-in-possession statute is facially unconstitutional or, in the alternative, unconstitutional as applied to him. For the reasons that follow, we will affirm the judgment of the District Court in part and remand in part.

I.

At the time of his arrest, Benjamin was on parole and living with his fiancée, Stacy Esprit, her four children, and her infant grandchild in Norristown, Pennsylvania. Benjamin supplemented his income by buying and refurbishing cars. Although his own driver's license was suspended, he obtained a license under the name “James Burch,” using his own photograph. Benjamin's parole officer, who knew that Benjamin's driver's license had been suspended, observed Benjamin driving, and he organized a search of Esprit's home where Benjamin was residing.

In the search of the master bedroom, agents found a bag underneath the foot of the bed containing hearing and eye protection, targets from a shooting range, receipts for ammunition, a postcard with Benjamin's name and address on it, and a handgun trigger lock. Agents found a box of 9 millimeter ammunition next to maxi-pads and a gold purse in the master bedroom closet. On the right side of the bed, agents found an envelope containing car titles in the name of James Burch, as well as the James Burch driver's license, an identification card for Nathaniel Benjamin, Benjamin's social security card, and receipts for payment on an auto loan for James Burch. Agents also found a notebook that, according to the Government's narcotics trafficking expert, contained car information, cell phone information, and illegal drug information. The District Court sustained some objections to the expert's testimony as speculative, but allowed him to testify that he understood the ledger to contain information about illegal drugs as well as other items. Agents also found a digital cooking scale just to the right of the bed, which Esprit testified she did not recognize.

In the basement, Esprit directed agents to a loaded 9 millimeter Kel–Tec handgun in a black bag underneath a flowered blanket. The bag also contained Esprit's permit to carry a concealed handgun and a box of empty ammunition. At trial, Esprit testified that she had the gun on her person and was folding laundry in the basement when the agents knocked at the door. When she came upstairs, Benjamin told her that his parole officer was at the door, at which point she went back to the basement and put the gun on the table with clothes on top of it. Esprit also testified that she knew Benjamin was not allowed to be in the vicinity of a gun, and explained that she always carried the gun with her and had loaded it with ammunition that day because she was planning on going to the shooting range.

At trial, Esprit explained that she had gone with Benjamin to purchase the handgun for herself because she wanted to be able to protect herself from an abusive ex-spouse who was soon to be released from prison, and that Benjamin suggested a different model than the gun she purchased. According to Esprit, the day after the gun purchase, Benjamin accompanied her to the gun range where he used the name James Burch to fill out paperwork. Esprit's testimony that Benjamin fired two clips at the range forms the basis for Benjamin's first conviction of being a felon in possession of a firearm.

Also in the basement, agents discovered a pit bull in a cage and, stacked by the back door, the stereo and car equipment Benjamin used to fix cars. In ceiling joists near the back door, agents found bags containing 6.62 grams of cocaine base and 326.93 grams of marijuana. Esprit denied any knowledge of the drugs in the basement. She testified that none of her children had ever had any problems with drugs and that she had a zero tolerance policy for drugs. She also stated that her granddaughter's father, her two godsons, and their friend used to visit the house and would congregate in the basement to play pool and air hockey.

When they searched the kitchen, agents found an open box of nitrile gloves, which Esprit testified she used for cleaning. In Benjamin's cars, agents also found latex and nitrile gloves. The Government's narcotics expert testified that individuals on parole used those types of gloves when packaging narcotics so that they would not be caught with drugs present in their system in a random drug test. He also testified that the facts and circumstances of the case were consistent with distribution rather than personal use. He based his opinion on how the drugs were packaged, the amount of drugs, the presence of the scale, and the lack of any crack pipe in the house. The drug expert further stated that he believed Benjamin to be the drug dealer based on the nitrile gloves in Benjamin's car, Benjamin's familiarity with guns, the presence of the pit bull, Benjamin's use of the alias “James Burch,” Benjamin's use of multiple vehicles registered to the alias, and the presence of the notebook that the expert believed to be a drug ledger.

Benjamin was charged with one count of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); one count of possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); and two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).¹ The case was tried to a jury, with the felon-in-possession charges bifurcated from the first set of charges. Benjamin was convicted on all counts on March 9, 2011.

Benjamin filed a post-trial motion challenging the sufficiency of the evidence and certain evidentiary rulings, which the District Court denied on July 5, 2011. On July 13, 2011, the District Court sentenced Benjamin to twenty years of imprisonment, consisting of twenty years on the cocaine base count and ten years each on the other counts, running concurrently. The District Court further sentenced Benjamin to eight years of supervised release, consisting of eight years on the cocaine base count, four years on the marijuana count, and three years on each felon-in-possession count, all to run concurrently, as well as a fine of $2,000 and a special assessment of $400. Benjamin timely appealed.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and this Court has jurisdiction pursuant to 28 U.S.C. § 1291. Benjamin raises four issues on appeal. We will address each in turn.

A.

Benjamin does not challenge his conviction for being a felon in possession of a firearm at the gun range, but argues that the Government's evidence on the second felon-in-possession charge, for possession inside the house, was insufficient. Benjamin further contends that the evidence offered to support his convictions on the counts of possession with intent to distribute drugs was insufficient.

“In reviewing a jury verdict for sufficiency of the evidence, we ‘must consider the evidence in the light most favorable to the government and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt.’ ” United States v. Brown, 3 F.3d 673, 680 (3d Cir.1993) (quoting United States v. Frorup, 963 F.2d 41, 42 (3d Cir.1992)).

The convictions on both the felon-in-possession charge for the gun in the house and the drug charges rested on a theory of constructive possession. Constructive possession occurs when “ ‘[a] person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.’ ” United States v. Garth, 188 F.3d 99, 112 (3d Cir.1999) (quoting United States v. Blackston, 940 F.2d 877, 883 (3d Cir.1991)). “Dominion and control are not established, however, by ‘mere proximity to the [item], or mere presence on the property where it is located or mere association with the person who does control the [item].’ ” United States v. Jenkins, 90 F.3d 814, 818 (3d Cir.1996) (quoting Brown, 3 F.3d at 680). “Such dominion and control need not be exclusive but may be shared with others.” United States v. Davis, 461 F.2d 1026, 1035 (3d Cir.1972).

In Brown, defendant Baltimore had a key to a “cut house” where large quantities of illegal drugs were found. Brown, 3 F.3d at 680–81. Although she referred to the building as “my own house,” and her shorts and switchblade were found on the premises, id. at 680, we noted that none of her possessions were found in a room where drugs were found, that her fingerprints were not found on any...