U.S. v. Arnold

• Citation: 467 F.3d 880
• Decision Date: 16 October 2006
• Docket Number: No. 05-40877.,05-40877.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcus Tremain ARNOLD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

467 F.3d 880

UNITED STATES of America, Plaintiff-Appellee, v. Marcus Tremain ARNOLD, Defendant-Appellant.

No. 05-40877.

United States Court of Appeals, Fifth Circuit.

October 16, 2006.

Robert Lavelle Hobbs, Asst. U.S. Atty. (argued), Beaumont, TX, for U.S.

Bruce Wayne Cobb (argued), Conley, Schexnaider & Associates, Beaumont, TX, for Arnold.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING, GARWOOD and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Marcus Tremain Arnold ("Arnold") was convicted by a jury of possession with intent to distribute more than 50 grams of cocaine base ("crack"), possession of a firearm by a felon, and possession of a firearm in furtherance of drug trafficking. He was sentenced to life imprisonment for the first crime under an enhancement provision for two-time felony drug offenders. On appeal, Arnold challenges (1) the sufficiency of the evidence on all counts, (2) the admission of Federal Rule of Evidence 404(b) evidence of a prior conviction, and (3) the district court's ruling that an incorrectly-cited statute in the Government's pre-trial 21 U.S.C. § 851 sentencing enhancement notice constituted clerical error. Because we find no error as to Arnold's first two challenges, we affirm his conviction on all three counts. Lacking an adequate record to rule on his third challenge, we remand the case to the district court for the limited purpose of determining whether Arnold was prejudiced by the citation error in the Government's notice.

I

On April 28, 2004, officers of the Orange (Texas) Police Department executed a search warrant at 418 Dewey Street in Orange, a residence rented to Arnold. No one was at home. During their search of the house, the officers found 99.78 grams of cocaine base ("crack") in a box of Betty Crocker Instant Mashed Potatoes and a loaded Ruger 9mm semiautomatic pistol, among other contraband not relevant to this appeal.

Arnold was named in a one-count indictment on May 19, 2004, charging him with possession with intent to distribute more than 50 grams of crack in violation of 21 U.S.C. § 841(a). Exactly three months later on August 19, 2004, Arnold was named in a three-count first superseding indictment. The first charge was the same as that in the original indictment ("Count 1"), while the second alleged possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) ("Count 2") and the third alleged possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) ("Count 3"). Arnold's first trial ended in a mistrial on November 10. On January 5, 2005, a second jury was empaneled and the trial concluded the next day with a verdict of guilt on all three counts.

During the second trial, the district court conducted a Beechum¹ hearing on the admissibility of evidence of Arnold's prior crimes and bad acts pursuant to Rule 404(b) of the Federal Rules of Evidence. (Arnold was convicted of drug-related crimes in Texas in 1992, 1993 and 1995). The court excluded evidence of the first two convictions but allowed the Government to present evidence of a 1995 arrest and conviction for possession of roughly four grams of crack.

The Government originally filed a Notice of Information of Prior Convictions for Purpose of Increased Punishment on August 16, 2004, fulfilling the command of 21 U.S.C. § 851. The notice stated that the Government intended to rely on Arnold's previous felony drug convictions to enhance his sentence as provided by 21 U.S.C. § 841(b)(1)(B). On February 22, 2005, after Arnold's conviction on all counts, the Government offered an amended notice of enhancement. The only change was to the statutory citation, replacing the above with the adjacent subparagraph, § 841(b)(1)(A).²

After the U.S. Probation Department provided the parties with a pre-sentence report, Arnold challenged the report, arguing that its reliance on the February 22, 2005 amended notice to establish a statutory sentence range of life imprisonment for Count 1 was improper. At the sentencing hearing on May 23, 2005, the district court overruled Arnold's challenge and sentenced him to life in prison for Count 1. Arnold timely appealed.

II

Arnold challenges (1) the sufficiency of the evidence on all three convictions, (2) the admission of Rule 404(b) evidence and (3) the district court's decision that the Government's citation mistake in its initial § 851 notice was clerical error. We consider each in turn.

A

The first issue presented on appeal is the sufficiency of the evidence to support Arnold's convictions. "Where, as here, the defendants moved for judgment of acquittal at the close of the evidence, we decide whether the evidence is sufficient by `viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict' and determining whether `a rational jury could have found the essential elements of the offenses beyond a reasonable doubt.'" United States v. Valdez, 453 F.3d 252, 256 (5th Cir.2006) (quoting United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.1992)).

Arnold's challenge to Count 1 contends that the Government did not prove beyond a reasonable doubt that he knowingly had constructive possession of the drugs. The Government must prove that the defendant knowingly possessed a controlled substance, that the substance was in fact crack and that the defendant possessed the substance with the intent to distribute it. United States v. Delgado, 256 F.3d 264, 274 (5th Cir.2001). Possession may be either actual or constructive. Constructive possession is found if the defendant knowingly has "ownership, dominion or control over the contraband itself or over the premises in which the contraband is concealed." United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir.1984).

Arnold first argues that several other individuals lived in the residence at 418 Dewey Street and that therefore this is a case of joint occupancy. While admitting that he was the sole tenant on the lease, Arnold points to the testimony of Greg Richards ("Richards") at trial that Richards and others lived at the house for extended periods. Arnold also appears to argue that he did not live in the house. Instead, he only came to 418 Dewey Street for weekends and holidays. Citing the testimony of Richards and that of Arnold's two sisters, Arnold claims that at the time of the search in April 2004, he was living at his girlfriend's apartment.

The Government cites ample evidence of Arnold's individual control and dominion over the house, in particular that Arnold (1) rented the property in his own name and paid all rent from January 2003 to January 2005, (2) changed the lock after moving in to restrict access, (3) installed a video surveillance system to monitor the front door, (4) paid all utility bills, and (5) listed 418 Dewey Street as his place of residence on his driver's license and automobile insurance. Responding to the claim that Arnold lived at his girlfriend's apartment, the Government also contends that Arnold listed 418 Dewey Street as his address when he rented a car from Enterprise on three occasions in April 2004. Further, the Government submits that the jury simply did not find Richards credible, citing inconsistencies in his testimony at different stages in the proceedings. It also points to Richards's two admissions under oath that he did not have a key to the residence. As the Government notes, "it is well-settled that credibility determinations are the sole province of the jury." United States v. Cathey, 259 F.3d 365, 368 (5th Cir.2001).

Given all of the evidence cited by the Government, this is not a case of joint occupancy. Nor is it difficult to see why the jury did not credit Arnold's argument that he lived elsewhere. Viewing the evidence in the light most favorable to the jury's verdict, it is clear that a rational jury could have concluded that Richards was not credible, that Arnold occupied the house at 418 Dewey Street as its resident and therefore that he had constructive possession of the crack through his "dominion or control . . . over the premises in which the contraband is located." Cardenas, 748 F.2d at 1019.

Arnold's challenge to the sufficiency of the evidence to convict him on Count 2 (possession of a firearm by a felon) recapitulates much of what he argued as to Count 1, namely that he did not have dominion and control over the residence. We reject this argument for the reasons cited above. The additional claim here is based on Richards's testimony at trial that he purchased the pistol, it belonged to him, and he put it in the location in the house where it was found by police. Arnold also contends that no evidence ties him directly to the gun. Support for the jury's finding that Richards was not credible on this issue, the Government offers, can be found in his admission under cross-examination that he had previously testified that the gun was a Glock, rather than a Ruger brand pistol.

In the light of the inconsistencies in Richards's testimony as to the gun's maker and the jury's finding that Arnold was in possession of a gun that Richards stated belonged to him (Richards), it is clear that the jury did not find Richards to be credible. And that was a determination for the jury to make. Cathey, 259 F.3d at 368.

Arnold's challenge to the sufficiency of the evidence to convict him on Count 3 (possession of a firearm in furtherance of a drug trafficking crime) does not cover any new ground. For Count 3, the Government had to prove beyond a reasonable doubt that Arnold used or carried a firearm during and in relation to a drug trafficking crime. United States v. Tolliver, 61 F.3d 1189, 1218 (5th Cir.1995). Arnold's challenge to the predicate drug crime is the same as analyzed above as to Count 1. Arnold also claims again that no evidence showed Arnold "using or carrying the firearm" and that the gun belonged to...