U.S. v. Grubbs

• Decision Date: 17 October 2007
• Docket Number: No. 04-5403.,04-5403.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest Wayne GRUBBS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

506 F.3d 434

UNITED STATES of America, Plaintiff-Appellee, v. Ernest Wayne GRUBBS, Defendant-Appellant.

No. 04-5403.

United States Court of Appeals, Sixth Circuit.

Argued: September 18, 2007.

Decided and Filed: October 17, 2007.

ARGUED: Michael A. Partlow, Morganstern, MacAdams & DeVito, Cleveland, Ohio, for Appellant. James E. Arehart, Assistant United States Attorney, Lexington, Kentucky, for Appellee. ON BRIEF: Michael A. Partlow, Morganstern, MacAdams & DeVito, Cleveland, Ohio, for Appellant. James E. Arehart, Charles P. Wisdom, Jr., Assistant United States Attorneys, Lexington, Kentucky, for Appellee.

Before: COLE and COOK, Circuit Judges; MILLS, District Judge^*.

OPINION

R. GUY COLE, JR., Circuit Judge.

A jury convicted Ernest Wayne Grubbs on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States District Court for the Eastern District of Kentucky sentenced Grubbs to a total of 195 months of imprisonment on this conviction as well as related charges to which he pleaded guilty. He now argues on appeal that (1) the district court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to support his felon-in-possession conviction, and (2) his case should be remanded for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons set forth below, we REVERSE and REMAND for an entry of a judgment of acquittal on the felon-in-possession charge as well as for resentencing under the now-advisory Sentencing Guidelines.

I. BACKGROUND

On October 4, 2001, Kentucky State Police officers executed a search warrant at the residence of Mae Grubbs ("Mae") in Four Mile, Kentucky, in connection with an investigation into stolen automobiles. Among the occupants of the residence during the search were Mae and her two adult sons, Paul Grubbs ("Paul") and Defendant-Appellant Ernest Wayne Grubbs ("Grubbs"). Paul lived at the house full-time with his mother. Grubbs, on the other hand, lived in South Carolina but made periodic visits to Kentucky during which he would stay with his mother and Paul. Grubbs had stayed at the house the night before the police executed the search warrant.

On July 25, 2002, Paul and Grubbs were indicted for multiple federal offenses in connection with transporting stolen vehicles, tampering with vehicle identification numbers, and operating a "chop shop." In addition, Grubbs was indicted on two counts of being a felon in possession of a firearm (counts three and five), and one count of being a felon in possession of ammunition (count four), all in violation of 18 U.S.C. §§ 922(g)(1) & 924(e)(1).¹ The firearm and ammunition charges stemmed from law enforcement's discovery of multiple guns during the search of Mae's residence.

Grubbs pleaded guilty on March 25, 2004 to three of the stolen-vehicle charges, and the Government subsequently dismissed the remainder of the related charges. Grubbs proceeded to trial on the firearm and ammunition charges.

One of the firearms recovered by the police during the search was a Beretta nine-millimeter handgun ("nine-millimeter" or "handgun"). Paul disclosed the presence of the handgun to the officers and told them it was located "up under [his] pillow."² (Joint Appendix ("JA") 194.) At trial, Paul testified that he owned the nine-millimeter and that he had purchased it at a flea market in London, Kentucky approximately one month before the search. The Government did not introduce any evidence contradicting Paul's testimony that the handgun was his or that it was discovered under the pillow on which he regularly slept. (See JA 82 (Detective Riley testified that "I know that Mae Grubbs, their mother, told me that Paul slept on the bed that had the 9mm under the mattress . . . .").) The Government also did not introduce any evidence contradicting Mae's testimony that Grubbs "slept on the couch" in a different room than where the handgun was found. (JA 108.) Moreover, although Grubbs's fingerprints were found on a rifle magazine, the Government did not introduce any evidence that Grubbs's fingerprints were found on the nine-millimeter supporting the felon-in-possession conviction.

The Government concedes that the sole evidence tying Grubbs to the nine-millimeter for purposes of establishing a violation of the felon-in-possession statute was the testimony of Edward Jones. Jones, who lived three houses away from Mae's residence, recounted an altercation with Grubbs "at least a month or two" (JA 119) before the police interviewed him in connection with their investigation of Paul and Grubbs, where Grubbs threatened him with a handgun. Jones testified that as he was driving home one night, Grubbs flagged him down and approached the driver's side of his car. According to Jones, Grubbs "was just cussing, talking about his sister and me and my uncle was supposed to be seeing her and all that stuff, breaking her heart." (JA 121.) Although the record is not entirely clear, it appears that the dispute between Grubbs and Jones had to do with an alleged affair that Jones, a married man, was carrying on with Grubbs's sister. Jones testified that Grubbs had a "dark-colored," "automatic" pistol in his right hand, and that Grubbs threatened to shoot Jones. (JA 123-24.) When Jones noticed his wife drive up behind him, he pulled out and continued driving home. Jones's wife Reva also testified to seeing Grubbs with a gun the night of the altercation. However, Reva could not describe the gun because all she saw "was the top of the barrel." (JA 148.) At trial, she was never asked whether the recovered firearm was the same one she saw Grubbs carrying. Jones apparently never left his car, shots were never fired, and the whole episode lasted "[j]ust a matter of minutes." (Id.)

At trial, Jones was presented with the nine-millimeter handgun recovered from the Grubbs residence. When asked to compare the gun at trial with the gun he observed in Grubbs's hands the night of their altercation, Jones testified that the gun at trial "[l]ooked like it." (JA 124.) Jones said that he had "seen guns all [his] life" (JA 136,) but he admitted that he could not be certain that the handgun he inspected while on the witness stand was the same handgun Grubbs had carried one or two months earlier: "As far as [I] know laying another one down just like that, no, I can't say this one, that one, which one. I know it was a gun. I know it was automatic." (JA 136.) Further, Jones was asked, "Can't even say with 100% certainty that was the actual gun and not, a replica, can you?" (JA 137.) Jones responded, "It could have been. It was a gun. I don't know whether it was a real gun, toy gun, or what. It was a gun." (JA 137.)

Both at the close of the prosecution's case-in-chief, and at the close of all the evidence, Grubbs moved for a judgment of acquittal on all three counts. The district court denied the motion as to counts three and four, but granted it as to count five. On November 25, 2003, the jury convicted Grubbs on count three, finding that he unlawfully possessed the nine-millimeter handgun, but not the Ruger .223 caliber rifle that was also charged in count three. The jury acquitted Grubbs on count four, the felon-in-possession-of-ammunition charge. Following the jury's verdict, Grubbs again moved for judgment of acquittal as to count three, but the district court denied his motion. Grubbs also moved for a new trial on the grounds that the Government had failed to disclose material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court denied Grubbs's motion for a new trial.

The district court sentenced Grubbs on March 25, 2004, on both the stolen-vehicle charges to which he had pleaded guilty and the felon-in-possession-of-a-firearm charge, of which the jury convicted him. Relying on the then-mandatory Sentencing Guidelines and the Presentence Investigation Report, the district court calculated a base offense level of 33 and a criminal history category of IV. This suggested a Guidelines range of 188 to 235 months of imprisonment. The court sentenced Grubbs to 195 months on count three, the felon-in possession charge, 120 months on each of counts seven and eleven, the stolen vehicle charges, and 60 months on count fifteen, the charge for altering vehicle identification numbers, all to be served concurrently.

II. DISCUSSION

On appeal, Grubbs argues that (1) the district court erred in denying his motion for judgment of acquittal as to count three of the indictment because the evidence was insufficient to support his felon-in-possession conviction; (2) the district court erred in denying his motion for a new trial; and (3) the case must be remanded for resentencing in light of Booker. Each of these arguments will be discussed in turn.

A. Sufficiency of the Evidence

Because Grubbs moved for a judgment of acquittal twice during the trial—at the close of the prosecution's case and at the close of all the evidence—we review his motion for judgment of acquittal de novo. United States v. Kone, 307 F.3d 430, 433 (6th Cir.2002). In a sufficiency-of-evidence challenge to a conviction, the question is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir.1991) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). "[W]e will reverse a judgment for insufficiency of evidence only if, viewing the record as a whole, the judgment is not supported by substantial and competent evidence." Id. But while this means "we do not weigh the evidence" or "assess the credibility of the witnesses," United States v. Wright, 16 F.3d 1429, 1440 (6th Cir.1994), this Court's power of review in ...