U.S. v. Bryant

Decision Date25 April 2008
Docket NumberNo. 06-3129.,06-3129.
Citation523 F.3d 349
PartiesUNITED STATES of America, Appellee, v. William Ray BRYANT, a/k/a Derrick Tongue, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia, (No. 05cr00139-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Lara G. Quint, Assistant Federal Public Defender, entered an appearance.

John P. Gidez, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III and Thomas J. Tourish, Jr., Assistant U.S. Attorneys.

Before: RANDOLPH and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

Concurring opinion filed by Circuit Judge RANDOLPH.

EDWARDS, Senior Circuit Judge:

Appellant William Bryant and his codefendant, Timothy Walker, were arrested on February 9, 2005 and subsequently charged with possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). Both men were convicted on March 27, 2006 on both counts. On August 29, 2006, appellant was sentenced to concurrent prison terms of 46 months on each count, followed by three years of supervised release.

On appeal, Bryant alleges that his convictions on both counts should be overturned because the Government presented insufficient evidence that he constructively possessed the two weapons in question, and because the District Court gave an erroneous and misleading supplemental jury instruction regarding the definition of constructive possession. In the alternative, he argues that the unregistered firearm count should be dismissed, because his trial was commenced beyond the 70-day limit required by the Speedy Trial Act ("STA"), 18 U.S.C. § 3161(c)(1). Finally, appellant seeks a remand of the case with instructions to the District Court to review the preserved jury records from his trial and to hold a hearing to determine whether his jury venire violated the Jury Selection and Service Act ("JSSA"), 28 U.S.C. § 1861 et seq.

We reject appellant's sufficiency claim on the § 922(g)(1) charge. After reviewing the trial record "in the light most favorable to the government," United States v. Booker, 436 F.3d 238, 241 (D.C.Cir.2006) (internal quotation marks omitted), we conclude that the jury reasonably "could have found the essential elements of the crime beyond a reasonable doubt," Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because it appears that appellant failed to raise his jury instruction claim with the District Court, we normally would be constrained to review this claim pursuant to the narrow plain error standard. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). This is a moot question, however, because we find no error. We also find no violation of the JSSA.

Finally, we reverse appellant's conviction on the § 5861(d) charge — possession of an unregistered firearm — because his trial was commenced more than 70 non-excludable days after the speedy trial clock began running, in violation of the STA. We remand the case with instructions to the District Court to dismiss Count One of the superseding indictment and determine whether the dismissal should be with prejudice.

I. BACKGROUND

On February 9, 2005, Officer Charles Monk of the Metropolitan Police Department (MPD) was working an off-duty security job at the Red Roof Inn in the Chinatown area of Washington, D.C. At about 3:00 a.m., Officer Monk observed a black Land Rover sport utility vehicle ("SUV") pull up and park in the 800 block of 5th Street N.W. Two men exited the SUV while it was parked illegally in a bus zone. The driver, who was later identified as Timothy Walker, wore a ski mask that partially obscured his face, and a black and red Chicago Bulls hat. The passenger — later identified as the appellant — also wore a ski mask. Although it was an unusually mild night, both men wore heavy black winter coats; in contrast, other people in the area were wearing light jackets and t-shirts without jackets. After Walker stepped out of the SUV, he reached back inside and, from the rear of the SUV, retrieved a bulky item which he slid inside his coat. Appellant also leaned into the SUV, but Officer Monk did not see him retrieve anything.

Walker and appellant crossed the street and headed toward a charter bus that was parked in the 500 block of H Street and waiting for passengers. Walker was "kind of limping[,] favoring his left side." Trial Tr. (3/21/06) at 50 (Testimony of Officer Monk). Appellant and Walker kept looking at each other and then finally approached the front of the bus. Officer Monk briefly lost sight of the two men, but saw the bus driver stand and look towards the door of the bus while shaking his head. Walker and appellant started walking away from the bus, "back towards the corner of Fifth and H Street." Id. at 52. Officer Monk noted that the two men were communicating with each other nonverbally. Walker and appellant stood in an alley for a minute or two, then walked back to the SUV. Appellant got into the vehicle, while Walker "walked to the driver's side, and he opened the door, retrieved the item out of his jacket, placed it in back, [and] got inside the vehicle." Id. at 55. Then Officer Monk watched them drive northbound on Fifth Street.

One to two minutes later, Officer Monk saw the same vehicle circling back to the area. They parked in a legal parking space that was approximately 15 feet in front of their earlier parking spot. Officer Monk observed that Walker "reached back into the vehicle, retrieved an item," and "stuck it back down inside his jacket. This time he pulled his face mask back down over his face." Id. at 56. Appellant also pulled his face mask down. Appellant "walked freely, as if nothing was wrong with him," but Walker was limping, "favoring his left side." Id. at 57. They walked back towards the bus, and Officer Monk called the police dispatcher to request assistance to stop "two suspicious males." Id. Officer Monk indicated that he "believed that one of the individuals had a weapon." Id. at 58.

Meanwhile, Walker and appellant stood on the corner of 6th and H Streets. Both men were "looking around nervously" when Officer Monk saw a marked FBI police car drive by. Id. at 59. The men noticed the car as well, and both of them moved their ski masks so that their whole faces were revealed. Two MPD police cars then arrived on the scene. Officer Monk used his radio to speak with the officers in one of the police cars — Officers James Burgess and Steven Greene — and gave them a description of Walker and the appellant. Appellant and Walker "began to walk away" from the area; after turning onto Sixth Street, they "began walking at a faster than normal pace." Id. at 134 (Testimony of Officer Greene). Walker was walking "with a limp, stiff legged" as if he "were trying to conceal or carry a large object in a portion of [his] body under [his] clothes." Id. at 135. Officers Burgess and Greene got out of their squad car and approached Walker and appellant. They asked the two gentlemen to stop. Appellant remained on the scene and was detained by Officer Burgess. Walker, however, broke into a "full sprint," showing no sign of a limp. Id. at 144. Walker was cornered a few blocks later by Officer Greene and another police officer in a fenced-in area behind the MPD Traffic Division building at 501 New York Avenue, N.W. Officer Greene ordered Walker to get on the ground. "As he was getting on the ground," Walker "dropped a .12-gauge shotgun into" an "exterior window basin." Id. at 143. According to Officer Greene, the shotgun appeared to have been concealed in Walker's sleeve. Id. at 144. After Walker was taken into custody, Officer Greene, using a flashlight, looked through the grate into the window well and saw the shotgun. Id. at 193. Meanwhile, MPD Officer Steven Schwalm, who had also responded to the call for assistance, found a sawed-off shotgun on the passenger's side floorboard of the SUV that Walker and Bryant had been using.

Officer Burgess patted down appellant while detaining him, but found no weapons of any kind. The shotgun recovered from the window well was a sawed-off Stevens .12-gauge shotgun, loaded with one .12-gauge shotgun shell. The firearm found in the SUV was a sawed-off, Harrington and Richardson Bay State Model 7 shotgun. The Harrington and Richardson gun was 18 inches long (with a 12-inch barrel). The weapon had been modified in a way that required it to be registered in the National Firearms Registration and Transfer Record. It was not registered, however. No fingerprints were recovered from either gun. A partial print was recovered from the shotgun shell, but it was of no value.

Appellant and Walker were each indicted on one count of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d) on April 21, 2005. This indictment was defective, because it specified that appellant and Walker had possessed both shotguns without properly registering them; however, only the Harrington and Richardson shotgun had to be registered pursuant to 26 U.S.C. § 5845(a). On February 16, 2006 — a week before trial was scheduled to begin — the Government filed a superseding indictment, correcting the error in the unregistered firearm counts by deleting the reference to the gun that had been recovered from the window well and adding felon-in-possession counts against both appellant and Walker, and charging them with possession of the car gun, the window-well gun, and the ammunition from the window-well gun. At a hearing on February 17, 2006, counsel for defendant Walker...

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