U.S. v. Mabry, s. 92-2943
| Decision Date | 22 September 1993 |
| Docket Number | 92-2996 and 92-3013,Nos. 92-2943,92-2992,s. 92-2943 |
| Citation | 3 F.3d 244 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael R. MABRY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Calvin Cornelius EDWARDS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mark Anthony CLEARMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David L. EDWARDS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John R. Cullom, Kansas City, MO, for defendant-appellant Mabry.
Bruce C. Houdek, Kansas City, MO, for defendant-appellant Calvin Edwards.
Kenneth W. Morgens, Kansas City, MO, for defendant-appellant Clearman.
Max D. Goracke, Kansas City, MO, for defendant-appellant David L. Edwards.
Kathryn M. Geller, Kansas City, MO, for plaintiff-appellee.
Before McMILLIAN, MAGILL, and LOKEN, Circuit Judges.
Appellants Michael R. Mabry, Calvin Cornelius Edwards, Mark Anthony Clearman, and David L. Edwards were charged with conspiracy to distribute phencyclidine (PCP) in violation of 21 U.S.C. Sec. 846, and with additional drug distribution and firearm offenses. After a joint trial, Calvin Edwards was convicted of conspiracy, various substantive drug offenses, three counts of money laundering, and two counts of using a firearm in relation to a drug trafficking offense. Clearman and David Edwards were convicted of conspiracy. Mabry was acquitted of the conspiracy charge but found guilty of substantive drug offenses and of being a felon in possession of a firearm. On appeal, they argue that the district court 1 committed numerous trial and sentencing errors. We affirm.
A. Mabry argues that there was insufficient evidence to convict him of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g). In considering a claim of insufficiency, we must view the evidence at trial in the light most favorable to the jury verdict. See, e.g., United States v. Knox, 950 F.2d 516, 518 (8th Cir.1991).
The evidence showed that Calvin Edwards purchased large quantities of PCP from Clearman and others in California. The PCP was transported to Kansas City, stored at Calvin Edwards's home, and distributed from there to dealers around Kansas City. Mabry obtained PCP from Edwards and directed sales of PCP from his own home. The firearms in question, two unloaded shotguns, were seized on October 11, 1990, during execution of the first of two warrants to search Mabry's home. Police discovered the shotguns in a second floor bedroom. Although Mabry was not present during the search, he arrived shortly thereafter and admitted that the residence was his home. The second warrant was executed on November 26, 1990. No guns were recovered, but Mabry was found on the second floor of the house.
Proof of constructive possession, that is, proof that the defendant "exercised ownership, dominion or control over the firearms or dominion over the premises," will support a Sec. 922(g) conviction. United States v. DePugh, 993 F.2d 1362, 1364 (8th Cir.1993) (emphasis added). In the absence of evidence refuting the normal inference of dominion, showing that a firearm was discovered at the defendant's residence suffices to prove constructive possession. See United States v. Apker, 705 F.2d 293, 309 (8th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984); United States v. Kurck, 552 F.2d 1321, 1323 (8th Cir.1977).
In this case, the shotguns were found at Mabry's home. Mabry relies on his mother's testimony that the shotguns had belonged to Mabry's deceased grandfather and were kept in a room accessible only through her locked bedroom. However, this witness's testimony was quite contradictory, and there was other evidence that she sold PCP at the home in Mabry's absence, and that he had been seen carrying a .38 revolver at the home. Viewed in its entirety, the evidence was sufficient to permit the jury to find Mabry guilty of possessing the shotguns. In addition, the fact that the shotguns were old and unloaded and that no ammunition was discovered on the premises do not preclude a Sec. 922(g) conviction. See United States v. York, 830 F.2d 885, 891 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988).
Mabry also argues that the prosecutor in her closing argument improperly stated that police found the shotguns and Mabry on the second floor during the same search. Mabry did not object to this comment at trial. The comment was at most ambiguous. It was not plain error, and it was not unduly prejudicial.
B. Mabry next argues that the district court erred in allowing a police detective to testify as an expert about user-versus-seller amounts of PCP and to opine that PCP users are sometimes sellers. These questions were highly relevant because a seller-size vial was seized at Mabry's home, yet his principal trial defense was that he was only a user of PCP, not a dealer.
The district court has broad discretion to admit expert testimony. See United States v. Sparks, 949 F.2d 1023, 1026 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1987, 118 L.Ed.2d 584 (1992). It may allow law enforcement officers to testify as experts about drug-related activities unfamiliar to most jurors. See United States v. White, 890 F.2d 1012, 1014 (8th Cir.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3254, 111 L.Ed.2d 763 (1990). In this case, we agree with the district court that most jurors would not know what size vials users and sellers of PCP typically favor, and might not know that users of PCP are many times sellers as well. The district court's decision to allow the detective, an experienced undercover narcotics buyer, to testify as an expert on these carefully limited subjects was not an abuse of its discretion.
C. In her rebuttal closing argument, the prosecutor argued: Defendants moved for a mistrial, asserting that this statement violated their Fifth Amendment right not to testify. The district court sustained the objection, denied the mistrial, and instructed the jury to "disregard the last statement of the prosecutor." On appeal, relying on Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965), Mabry, Calvin Edwards, and David Edwards argue that this Fifth Amendment violation so prejudiced their cases that they are entitled to a new trial.
A prosecutor's indirect or ambiguous comments on the evidence violate the Fifth Amendment only if they "either (1) manifest the prosecutor's intention to call attention to the defendant's failure to testify, or (2) are such that the jury would naturally and necessarily take them as a comment on the defendant's failure to testify." Knox, 950 F.2d at 520-21. Here, the prosecutor's contemporaneous explanation of her comment--that it referred to the weakness of the evidence adduced by defendants rather than their failure to testify--is as plausible as defendants' more sinister explanation. Having reviewed this comment in the context of all the closing arguments, we conclude that it did not manifest an improper intent to comment on the defendants' failure to testify, nor would the jury necessarily take it to be such a comment. Thus, although the district court quite properly sustained the defense objection, there was no Fifth Amendment violation. See Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974); United States v. Carl, 978 F.2d 450, 452-53 (8th Cir.1992). And after instructing the jury to disregard the comment, the district court did not abuse its discretion in denying the motion for a mistrial. See United States v. Figueroa, 900 F.2d 1211, 1215-16 (8th Cir.1990), cert. denied, 496 U.S. 942, 110 S.Ct. 3228 (1990).
D. Mabry and David Edwards argue that the prosecutor's closing argument included three comments on the reasonable doubt standard that impermissibly lowered the government's burden of proof. The prosecutor first commented:
[T]he government bears the burden of proof in this case. And by burden of proof, what we mean is that we must show what the evidence is so we have a chance to come back.
Mabry's objection to this comment was sustained, but his motion for mistrial was denied. Later, the prosecutor argued:
[R]easonable doubt is a doubt based upon reason and common sense and not the mere possibility of innocence. When the defendant's counsel states to you that there is a possibility that he is innocent, the law says that a reasonable doubt is not based upon the mere possibility of innocence.
It also says that proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Not proof beyond all possible doubt because this is life, because that is not the way life operates, because witnesses see things differently, because you must use your common sense to analyze the evidence.
The district court overruled Mabry's objection to this comment. Finally, near the end of her argument, the prosecutor revisited this subject again:
It's a doubt based on reason. Think about what is reasonable. This is life. This is not science, this is not math. This is life. This is the way real witnesses testify, this is the way that real witnesses are. These are people who don't take notes the way that you do, that are asked to remember everything from five years.
Neither Mabry nor David Edwards objected to this comment. Nor did they object to the district court's instruction on reasonable doubt, which was taken from Eighth Circuit Model Jury Instruction No. 3.11.
Mabry argues that the prosecutor's attempt to relate the reasonable doubt standard to "real life" was confusing and improper. However, the prosecutor's last two comments were...
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