U.S. v. Farris

Decision Date05 October 1995
Docket NumberNo. 94-3920,94-3920
Citation67 F.3d 300
PartiesNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Edward Joseph FARRIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Before: WELLFORD, MILBURN and SUHRHEINRICH, Circuit Judges.

PER CURIAM.

Defendant appeals his convictions for unlawful possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a)(2), collection of extensions of credit by extortionate means in violation of 18 U.S.C. Sec. 894(a)(1), possession of an unregistered firearm silencer in violation of 26 U.S.C. Secs. 5861(d) and 5871, and unlawful possession of a firearm silencer without a serial number in violation of 26 U.S.C. Secs. 5861(i) and 5871. On appeal, the issues are (1) whether defendant waived his right to challenge on appeal the sufficiency of the evidence supporting his convictions on counts six, seven, and eight of the indictment because he failed to specify lack of proof of possession as a ground for his motion for judgment of acquittal under Federal Rule of Criminal Procedure ("Fed.R.Crim.P.") 29; (2) whether the evidence demonstrating that defendant possessed firearms and ammunition, which were in or affected interstate commerce, was sufficient to sustain defendant's convictions for possession by a convicted felon of a firearm and ammunition in counts one, two, three, four, and six of the indictment; and (3) whether the district court violated defendant's Sixth Amendment right to a fair trial and right to confront witnesses against him by overruling his hearsay objection and by denying his motion for a mistrial after certain testimony by the victim about defendant's reputation admitted pursuant to 18 U.S.C. Sec. 894(c). For the reasons that follow, we affirm.

I.
A.

On May 3, 1994, a federal grand jury returned a second superseding indictment against defendant Edward Joseph Farris. Counts one, two, three, four, and six of the indictment charged defendant with unlawful possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a)(2). Count five charged defendant with collection of extensions credit by extortionate means in violation of 18 U.S.C. Sec. 894(a)(1). Count seven charged defendant with possession of an unregistered firearm silencer in violation of 26 U.S.C. Secs. 5861(d) and 5871. Count eight charged defendant with unlawful possession of a firearm silencer without a serial number in violation of 26 U.S.C. Secs. 5861(i) and 5871.

A jury trial commenced on July 5, 1994. On July 8, 1994, the jury returned verdicts convicting defendant of all eight counts charged in the indictment. On August 17, 1994, defendant was sentenced to 28 months imprisonment and three years supervised release. This timely appeal followed.

B.

This case involved a series of events that occurred around Youngstown, Ohio, between April and November of 1992. At the trial, the government presented the testimony of eight witnesses. The second witness to testify for the government was Albert Mike, the victim of defendant's efforts to collect extensions of credit by extortionate means.

Mike testified that he received a telephone call from defendant in August 1992 after Mike had stopped making payments on debts he owed to Anna Marie Massullo. Mike informed defendant that he had an attorney, and defendant indicated that he would contact Mike's attorney about collecting the debts. Mike stated that he later met with defendant in late September or early October 1992. He testified that defendant told him that he collects money for Massullo and her father Andy Marino, that he was the "last person they come to" to collect their money, and that Mike was "going to get hurt" if the debts were not paid. J.A. 113-14.

Mike further testified that as a result of this meeting with defendant, he contacted his attorney Jim Gentile. Mike learned from his attorney that defendant had a reputation. The following examination took place:

Q Did you have the occasion to learn whether Mr. Farris had a reputation in the Youngstown area.

MR. MANDEL: Objection.

THE COURT: Overruled.

A Yes, I did. Jim Gentile says you know who you're messing with.

MR. MANDEL: Objection.

THE COURT: Overruled.

A He said you knew who you're messing with. I said I don't know the guy, I've never met him. I've never had any contact with him, why would I. He said this is Ed Farris the bang, bang, bang. I said what do you mean. He said that's the way he works, with a gun.

J.A. 118-19. Defendant immediately objected and moved for a mistrial on the basis that the testimony about defendant's reputation was unduly prejudicial and it was hearsay. The district court overruled defendant's motion for a mistrial. The government then presented the remainder of its case.

At the close of the government's case, defendant moved for judgment of acquittal under Fed.R.Crim.P. 29. With regard to counts one through four and count six, defendant argued only that the government had failed to prove that defendant's possession of the firearms and the ammunition had affected interstate commerce. As to count seven, defendant argued that the government had failed to prove whether the firearm silencer had been registered prior to the effective date of the statute and that the government had failed to prove that defendant had an obligation to register the firearm silencer. With respect to count eight, defendant argued only that the government had failed to prove whether defendant had applied for permission to obliterate the serial number of the firearm silencer. Defendant did not cite any specific grounds for his Rule 29 motion with respect to count five. The district court denied defendant's Rule 29 motion.

Without calling any witnesses or presenting any evidence, defendant rested his case subject to the reading to the jury of the formal stipulations entered into by the parties. Defendant then renewed his previously made Rule 29 motion, and the district court again denied defendant's motion. Subsequently, the stipulations were read to the jury. Defendant stipulated to, among other things, the fact that "all of the pistols and ammunition described in the indictment were manufactured outside of the state of Ohio and traveled in interstate commerce." J.A. 190. The stipulation included specific descriptions of all the firearms, the ammunition, and the firearm silencer underlying counts one through four and counts six through eight of the indictment.

II.
A.

Defendant argues that the evidence was insufficient to sustain his convictions for possession of a firearm and ammunition by a felon in counts six, seven, and eight of the indictment because the government failed to prove the essential element of possession. The government takes the position that defendant waived his right to challenge on appeal the sufficiency of the evidence supporting his convictions on counts six, seven, and eight because he failed to specify lack of proof of possession as a ground for his motion for judgment of acquittal under Fed.R.Crim.P. 29.

"Although specificity of grounds is not required in a Rule 29 motion, where a Rule 29 motion is made on specific grounds, all grounds not specified are waived." United States v. Dandy, 998 F.2d 1344, 1356-57 (6th Cir.1993) (citation omitted), cert. denied, 114 S.Ct. 1188 (1994); see also United States v. Rivera, 388 F.2d 545, 548 (2d Cir.), cert. denied, 392 U.S. 937 (1968). As earlier stated, defendant cited specific grounds for his Rule 29 motion with respect to counts six, seven, and eight. We have thoroughly reviewed the transcript of trial proceedings on that motion and find no mention of the sufficiency of the evidence supporting the fact of defendant's possession (or, for that matter, constructive possession) of the firearms, the ammunition, or the firearm silencer. Therefore, we accept the government's position that defendant waived his right to challenge the sufficiency of the evidence of possession on counts six, seven, and eight. See Dandy, 998 F.2d at 1357. We would point out, however, that even if defendant had not waived his right to challenge the sufficiency of the evidence as to counts six, seven, and eight, there was sufficient evidence of defendant's constructive possession of the firearms, ammunition, and silencer.

B.

In addition, defendant argues that the evidence was insufficient to sustain his convictions for possession by a convicted felon of a firearm and ammunition in or affecting interstate commerce in counts one, two, three, four, and six of the indictment because the government failed to present sufficient evidence demonstrating how the firearms or the ammunition had affected interstate commerce. The government argues that its proof that the firearms were manufactured in a state other than the state in which defendant possessed them was sufficient to show that the firearms affected interstate commerce.

"A defendant claiming 'insufficiency of the evidence bears a very heavy burden.' " United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.) (quoting United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983)), cert. denied, 476 U.S. 1123 (1986). In reviewing the sufficiency of the evidence in support of a criminal conviction, we must determine "whether the relevant evidence could be accepted by a reasonably minded jury as adequate and sufficient to support the conclusion of guilt beyond a reasonable doubt." United States v. Cooperative Theatres of Ohio, Inc., 845 F.2d 1367, 1373 (6th Cir.1988) (per curiam) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see also United States v. Vincent, 20 F.3d 229, 232-33 (6th Cir.1994). "[W]e will reverse a judgment for...

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    • United States
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    ...commerce. Thus, § 922(g) clearly does not share the defect which prompted the Court to invalidate § 922(q). See United States v. Farris, 67 F.3d 300 (6th Cir.1995) (per curiam) (holding that the rationale of Lopez was not applicable to 18 U.S.C. § 922(g) since, unlike 18 U.S.C. § 922(q), th......

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