U.S. v. Jernigan

• Decision Date: 15 August 2003
• Docket Number: No. 00-16199.,00-16199.
• Citation: 341 F.3d 1273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randy JERNIGAN, Wendell Nelson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

341 F.3d 1273

UNITED STATES of America, Plaintiff-Appellee, v. Randy JERNIGAN, Wendell Nelson, Defendants-Appellants.

No. 00-16199.

United States Court of Appeals, Eleventh Circuit.

August 15, 2003.

COPYRIGHT MATERIAL OMITTED

Debra G. Gomez, Scott Chandler Huggins (Court-Appointed), Macon, GA, for Defendants-Appellants.

George R. Christian, Macon, GA, for Plaintiff-Appellee.

Appeals from the United States District Court for the Middle District of Georgia.

Before BIRCH and MARCUS, Circuit Judges, and FULLAM^*, District Judge.

MARCUS, Circuit Judge:

These direct criminal appeals stem from the November 7, 2000 convictions of appellants Randy Jernigan and Wendell Nelson, each on one count of being a felon in possession a firearm, in violation of 18 U.S.C. § 922(g). Although appellants were tried together, their claims on appeal are largely distinct, with only one substantive claim being advanced by both Jernigan and Nelson. In the end, we conclude that no claim advanced by either appellant is meritorious, and accordingly we affirm their convictions in all respects.

I

On April 15, 1998, Jernigan was driving a type of tow truck known as a "wrecker" with Nelson riding in the passenger seat when the vehicle was pulled over by police in Macon, Georgia for having an expired license plate tag. Officers questioned Jernigan, quickly learned that he was driving with a suspended drivers' license, and arrested him. Although Jernigan initially gave the officers a false name, they found a driver's license bearing his picture and true name. After running a background check, the officers learned that Jernigan was a convicted felon. Incident to this arrest, the officers searched the vehicle, which, instead of individual bucket seats, had a single padded bench with a cushioned back support that traversed the width of the truck's cab. Stuffed between the back of the seat and the bench the officers found a loaded .380 semi-automatic pistol wrapped in a red bandanna.¹ Upon discovering this weapon the officers showed it to Nelson, who spontaneously exclaimed that he was on probation and that the weapon was not his. The officers took Nelson into custody as well.

Once they had returned to the station, the officers again questioned Nelson about the gun. He reiterated that it was not his, and explained that Jernigan, upon realizing that he was being pulled over, had removed the gun from his pants, wrapped it in a red bandana and placed it between the seat and the backing where it was subsequently found. Nelson also repeated his statement that he was on probation. Indeed, on October 15, 1994, Nelson shot another person from inside a car, which led to an April 7, 1995 aggravated assault conviction in the Superior Court of Bibb County, Georgia. Subsequently, on November 5, 1996, he was convicted in the same court of possession of a firearm by a convicted felon. This latter conviction stemmed from an August 20, 1996 incident in which Nelson was a passenger in a car that was stopped by Macon police officers for traffic violations. When the vehicle was searched, officers found a shotgun on the floorboard of the back and two handguns under the front seat, as well as cocaine.

Jernigan also was a convicted felon, and as such was legally barred from possessing a firearm. Specifically, he had been found guilty on February 22, 1985 of violating Georgia's Controlled Substance Act. Subsequently, on June 19, 1997, Jernigan was convicted of being a felon in possession of a firearm in the Superior Court of Monroe County, Georgia. In that case, Jernigan had been stopped at a sobriety checkpoint when a Sheriff's deputy spotted a loaded Smith and Wesson semi-automatic pistol tucked into the seat. Although he gave the deputy a false name, Jernigan's true identity was quickly revealed, as was his status as a felon, and he was arrested.

After a delay of approximately one year and nine months following their initial arrest (and their subsequent release), Jernigan and Nelson both were charged in this case with being felons in possession of a firearm, in violation of 18 U.S.C. § 922(g), and were arraigned on March 29, 2000. On April 21, 2000, the government notified Jernigan and Nelson that it intended to introduce evidence of their prior bad acts pursuant to Fed.R.Evid. 404(b), and on April 28, 2000 Nelson filed a motion in limine to preclude the admission of such evidence. Then, on September 20, 2000, Nelson moved to dismiss the indictment based on an alleged violation of the Speedy Trial Act, 18 U.S.C. § 3161. The district court denied this motion, and the case proceeded to trial on November 6, 2000.

At trial, pursuant to a stipulation among both defendants and the government, tapes of Nelson's two statements inculpating Jernigan, i.e., his spontaneous exclamation when first showed the weapon and his subsequent, formal statement at the police station, were played for the jury. The government also introduced Jernigan's June 19, 1997 conviction for being a felon in possession of a firearm, Nelson's November 5, 1996 conviction for this same offense² and Nelson's April 7, 1995 aggravated assault conviction.³ Because these offenses all involved the knowing possession of a firearm, the district court deemed them admissible under Fed.R.Evid. 404(b) to establish appellants' knowledge that the weapon was present in the cab of Jernigan's truck, and it charged the jury that no propensity inference could be drawn from them. Although Jernigan objected to the presentation of this "prior bad acts" evidence, Nelson did not.

In addition, the government introduced the testimony of Deputy Marshall Brad Bennett, one of the officers who had arrested Jernigan on February 11, 2000 on a warrant based on the indictment in this case. As noted, there was a lengthy delay between appellants' initial arrest and their indictment, and during this time Jernigan and Nelson were not in custody. Bennett told the jury that when he attempted to recapture Jernigan following the indictment, he spotted Jernigan's car leaving an Atlanta apartment complex. Although Bennett tried to stop the vehicle, Jernigan fled by backing the car the wrong way down a one-way street. Later that day Jernigan was found sitting on the front stoop of his apartment with the front door partially open. Incident to this arrest officers conducted a protective sweep of the apartment where they found an unloaded semi-automatic rifle, which Jernigan admitted to owning, and a 30-round magazine. Jernigan objected to the introduction of this evidence as well.

For his part, Jernigan was permitted to introduce evidence that Nelson was a member of the Bloods gang, and that this gang used the color red as a symbol of membership. In allowing the presentation of this evidence, the district court rejected Nelson's objection that the evidence of his gang membership was more prejudicial than probative of his guilt of the § 922(g) offense, and thus inadmissible under Fed.R.Evid. 403. Jernigan also introduced the testimony of Roger Stembridge, a probation surveillance officer who told the jury that an August 19, 1999 search of Nelson's residence — the search having resulted from a probation violation — yielded .380 caliber ammunition, the same as in the instant case, and pictures of Nelson and other known gang members wearing the color red and flashing gang signs. This testimony was corroborated by investigator Melanie Hoffman, who also testified that it is common practice for gang members to wrap their weapons in their own bandannas.

On November 7, 2000, the jury returned guilty verdicts against Jernigan and Nelson. On February 5, 2001, Jernigan was sentenced to 240 months imprisonment and Nelson was sentenced to 120 months imprisonment.

On February 1, 2001, Jernigan moved for a new trial based on what he deemed newly discovered admissions made by Nelson to Michael West, a fellow inmate. By West's account, Nelson admitted that the weapon found in Jernigan's truck belonged to him, and that he had placed the gun behind the bench seat without Jernigan's knowledge. West said that Nelson had told him that he (Nelson) was helping to convict an innocent man. West also stated that neither Jernigan nor defense counsel was aware of Nelson's admission until after the conclusion of the trial, when he wrote a letter informing the district court of the same. The district court denied this motion on August 1, 2001.

On appeal, Jernigan and Nelson both challenge their convictions on sufficiency of the evidence grounds, arguing specifically that the government failed to present evidence from which a reasonable juror could conclude that they knowingly possessed a firearm and that the district court erred by denying a motion for a judgment of acquittal on this basis. Additionally, Nelson contends that the district court erred by (1) failing to dismiss the indictment in his case based on a Speedy Trial Act violation; (2) admitting evidence of his past crimes under Fed.R.Evid. 404(b); and (3) rejecting his challenge under Fed.R.Evid. 403 to the admission of evidence regarding his gang membership. Jernigan, in turn, contends that the district court erred by denying his motion for a new trial based on West's testimony and by admitting Nelson's two hearsay statements that the gun belonged to Jernigan.⁴

II

A. Appellants' Sufficiency of the Evidence Claims

Although our review of the sufficiency of the evidence against appellants is de novo, see United States v. Anderson, 326 F.3d 1319, 1326 (11th Cir.2003) (citation omitted), in making this determination we "view the evidence `in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government's favor.'" United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir.2003) (quoting United States v. Miles, 290 F.3d 1341, 1355 (11th Cir.2002)). In the end, "[a] jury's verdict will be affirmed `if a reasonable trier of fact could conclude that the...