U.S.A v. Adams

• Decision Date: 11 May 2010
• Docket Number: No. 08-3920.,08-3920.
• Citation: 604 F.3d 596
• Parties: UNITED STATES of America, Appellee,v.Mark ADAMS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

604 F.3d 596

UNITED STATES of America, Appellee,v.Mark ADAMS, Appellant.

No. 08-3920.

United States Court of Appeals Eighth Circuit.

Submitted: Dec. 16, 2009.

Filed: May 11, 2010.

Rehearing and Rehearing En Banc Denied July 13, 2010.^*

Kevin L. Schriener, St. Louis, MO, for appellant.

Thomas S. Rea, AUSA, St. Louis, MO, for appellee.

Before RILEY, Chief Judge,¹ WOLLMAN, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

A jury found Mark Adams guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court ² sentenced Adams to 115 months' imprisonment. Adams appeals his conviction, arguing the district court abused its discretion in admitting certain evidence and clearly erred in rejecting his challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the government's peremptory strikes of African American venire persons. For the following reasons, we affirm.

I. Background

A grand jury returned a one-count indictment charging Adams with being a felon in possession of a firearm “on or about March 14, 2008.” At trial, Adams stipulated to his felon status. The government's main witnesses were St. Louis police officer Daniel Fox and one of Adams's roommates, Lamario Thomas.

Fox testified that he began investigating Adams in March 2008 based on information that Adams was distributing drugs out of the house he shared with Thomas and several other individuals. Fox also had information that Adams possessed firearms on the premises and determined Adams had a prior felony conviction. On three occasions between March 7 and March 10, 2008, Fox conducted surveillance of the residence and witnessed Adams engage in what he believed, based on his experience, to be a total of seven “hand-to-hand” drug transactions with different individuals. On March 12, Fox obtained a warrant for the house to search for drugs and firearms. The following day, Fox was patrolling in the vicinity of the house and observed Adams walking nearby. Fox approached Adams, explained he had a search warrant, detained Adams on an outstanding traffic warrant, searched him, and transported him back to the house.

Fox and other officers then executed the search warrant. In a second-floor bedroom, Fox discovered a loaded semiautomatic rifle lying on the floor next to the bed. On top of a speaker next to the bed, Fox found state identification paperwork, bearing Adam's name and photograph, but a different address. From a shoebox on top of a dresser, Fox recovered an AutoZone receipt with “M. Adams” on it and two bags of ammunition, one of which contained rounds consistent with the rifle. Officers did not recover drugs during the search. Adams was arrested on the additional charge of being a felon in possession of a firearm.

Thomas confirmed Adams lived with him and testified that he observed Adams possess the firearm at the house on four occasions prior to Adams's arrest. According to Thomas, Adams primarily used two rooms in the house: he slept and kept his belongings in the second-floor bedroom where the gun, papers, and ammunition were found and used another second-floor room, painted blue, for entertainment. In fall 2007, Thomas walked into the kitchen and observed the rifle on the kitchen table within arm's reach of Adams. Adams yelled at Thomas to leave, and Thomas ran out of the room. Later in 2007, Thomas entered the “blue room” without knocking and saw Adams with the rifle close to him. Adams again yelled at Thomas to leave and Thomas complied. In early 2008, Thomas heard rapid gunfire close to the back of the house. Thomas went to the kitchen and saw Adams emerge from the basement with the rifle. Adams apologized for scaring Thomas and promised to tell Thomas next time he decided to fire the gun. Finally, around February 2008, Thomas again heard a gun discharge in the backyard. Thomas met Adams when Adams returned to the house. Concerned that the shots had attracted the attention of police patrolling the area, Thomas exited the house and informed the police about what had occurred, though he did not indicate whether the police investigated the incident that night. Thomas testified that Adams was the only person he had seen possess or discharge the rifle at the residence.

II. Discussion

A. Prior possession testimony

Adams challenges the district court's rulings concerning his prior possession and discharge of the rifle. Before trial, the district court ruled the government could introduce the testimony pursuant to Rule 404(b) as evidence of knowledge or intent to possess the firearm. Citing our decision in United States v. Rock, 282 F.3d 548 (8th Cir.2002), the district court determined at trial that the evidence of prior possession was intrinsic to the charged offense. Although Adams does not concede the evidence could be properly admitted under Rule 404(b), he primarily argues on appeal that the district court erred in relying on Rock to treat the evidence as intrinsic to the crime charged and to admit it without a limiting instruction. Reviewing for abuse of discretion United States v. Nadeau, 598 F.3d 966, 968 (8th Cir.2010), we find no error in the admission of this evidence.

In Rock, we held evidence that the defendant burgled a storage unit, carried firearms to the residence he shared with his girlfriend, and displayed them to various people on a date prior to his arrest “was not merely evidence of other wrongs” but “directly supported” the government's charge that the defendant possessed the firearms. Id. at 550-51. The defendant in Rock argued that while the display of the weapons at other times was evidence of possession, the government did not need the burglary evidence to prove its case. Id. at 551. We concluded that 404(b) did not bar presentation of the entire episode because it “completes the story of the crime or explains the relationship of the parties or the circumstances surrounding a particular event.” Id. Adams's argument that the prior possession testimony neither completes the story nor gives a “total picture” of his possession of the rifle on March 14, 2008 misses the mark. This testimony is evidence of possession that “directly supports” the charge.

Even if we were to find Rock inapplicable, we affirm nonetheless. See United States v. Gettel, 474 F.3d 1081, 1087 (8th Cir.2007) (court of appeals may affirm the admission of evidence on any basis supported by the record). The government could prove that Adams knowingly possessed the gun by showing he actually or constructively possessed it. United States v. Byas, 581 F.3d 723, 726 (8th Cir.2009). Constructive possession may be established by evidence demonstrating ownership, dominion, or control over a gun. Id. (quotation omitted). Here, the testimony indicates that the same individual was in sole, knowing possession of the same rifle in the same house on four successive occasions leading up to the charged date. Such testimony therefore helps to establish his ownership or control of the gun. As the evidence “tends logically to prove [an] element of the crime charged,” it is not subject to Rule 404(b). Moore v. United States, 178 F.3d 994, 1000 (8th Cir.1999). Such evidence is still subject to Rule 403. Id. We have little trouble in concluding that Rule 403 would not bar the testimony here. How the defendant used and controlled the weapon under similar circumstances is directly relevant to the charged offense. See Rock, 282 F.3d 548.

Adams next asserts that the prior possession testimony constructively amended the indictment because it altered the date of the offense. The government counters Adams is really arguing a variance arose instead. The difference between the two is well established, though at times difficult to apply: “a constructive amendment changes the charge, while the evidence remains the same; a variance changes the evidence, while the charge remains the same.” United States v. Stuckey, 220 F.3d 976, 981 (8th Cir.2000). A constructive amendment primarily affects the defendant's Fifth Amendment right to indictment by a grand jury and constitutes reversible error per se, while a variance implicates the defendant's Sixth Amendment right to notice of the nature of the charge and is subject to harmless error analysis. Id. Upon de novo review see id. at 979, we conclude neither constructive amendment nor a variance occurred.

Because Adams argues the testimony changed the date of the offense, not the offense charged, no constructive amendment occurred. See United States v. Howe, 538 F.3d 842, 850 (8th Cir.2008) abrogated on other grounds by United States v. Villareal-Amarillas, 562 F.3d 892 (8th Cir.2009). We conclude no variance occurred either, particularly because the government never wavered in its theory of the case at trial: the location where the gun was found established Adams possessed the firearm “on or about” the charged date and Thomas's testimony simply provided confirmation of possession. See Howe, 538 F.3d at 851 (no variance where government's theory did not change and allegedly problematic closing argument merely summarized that theory); cf. United States v. Johnson, 934 F.2d 936, 941-42 (8th Cir.1991) (no constructive amendment for same reason). In sum, we reject Adams's arguments that there was either a constructive amendment to or a variance in the indictment.

B. Surveillance and drug transaction testimony

Adams also argues that the district court should have limited Officer Fox's testimony to the execution of the search warrant. According to Adams, the testimony concerning the surveillance was irrelevant and unfairly prejudicial, and the testimony of hand-to-hand transactions amounted to propensity evidence in violation of Rule 404(b). The district court had excluded baggies and a digital scale found in the same room as the firearm out of a concern that the trial would become a narcotics case. Adams reasons the same should have applied to other evidence of drug dealing as...