U.S. v. Penniegraft

• Decision Date: 02 June 2011
• Docket Number: No. 09–4959.,09–4959.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Eugene Shaner PENNIEGRAFT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

641 F.3d 566

UNITED STATES of America, Plaintiff–Appellee,

v.Eugene Shaner PENNIEGRAFT, Defendant–Appellant.

No. 09–4959.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 10, 2010.Decided: June 2, 2011.

ARGUED: Stacey Dawn Rubain, Quander & Rubain, Winston–Salem, North Carolina, for Appellant. Lisa Blue Boggs, Office of the United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney, Greensboro, North Carolina, for Appellee.Before AGEE and DAVIS, Circuit Judges, and DAVID A. FABER, Senior United States District Judge for the Southern District of West Virginia, sitting by designation.Affirmed by published opinion. Senior Judge FABER wrote the opinion, in which Judge AGEE and Judge DAVIS joined.

OPINION

FABER, Senior District Judge:

Appellant Eugene Shaner Penniegraft was convicted of possession with intent to distribute cocaine base and aiding and abetting, in violation of 18 U.S.C. §§ 841(a) and 2; possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1). He appeals his convictions on three grounds.¹ First, he contends there was insufficient evidence to support his convictions. Penniegraft also contends that the district court erred in admitting certain Rule 404(b) evidence. Finally, he argues that the court erred in continuing to poll the jury after one juror indicated that the verdict was not unanimous. Finding Penniegraft's claims to be without merit, we affirm.

I.

Viewed in the light most favorable to the government, the evidence at trial established the following. In December 2007, based on information received from a confidential informant, officers of the Greensboro Police Department began conducting surveillance of a residence located at 916 Willow Road in Greensboro, North Carolina. During surveillance of that address, law enforcement observed foot and vehicle traffic that was consistent with drug trafficking. In addition, authorities arrested several people leaving the residence with crack cocaine during that timeframe.

Thereafter, on December 29, 2007, authorities obtained and executed a search warrant for the residence at 916 Willow Road. At the time of the search, Penniegraft, Juwana Bates, Jeffrey Hampton, and Vermont Carmack were present at the residence. Upon seeing authorities approaching, Hampton fled into the bathroom carrying a firearm that he placed in the sink.

During a search of the den/living room area, law enforcement found several caches of plastic baggies, marijuana, a bag containing crack cocaine, a box of ammunition, a digital scale with white residue, two crack pipes in the living room, and a black airsoft pistol. They also discovered a black, unlocked box containing crack cocaine, currency, and marijuana under the couch in that room. Digital scales with white residue and a bag of ammunition were recovered from the laundry room. Also discovered in a bedroom closet were a bag of cocaine, digital scales, and a loaded rifle. In that same bedroom, officers discovered a loaded 9mm handgun behind a dresser, empty baggies, a bag of marijuana in the nightstand, two pieces of glass with white residue, digital scales, and $135.00. Finally, officers recovered the .357 Smith & Wesson handgun that Hampton had placed in the bathroom sink.

The occupants of the house were arrested and, upon searching Penniegraft, authorities discovered $1200 and a key to the house on his person.

II.

On June 30, 2008, a federal grand jury in the Middle District of North Carolina returned a six-count indictment charging Penniegraft, Bates, and Hampton with various drugs and weapons offenses. Penniegraft was named in Counts Two, Three, and Five of the indictment, charging him with (1) possession with intent to distribute cocaine base (“crack”) and aiding and abetting, in violation of 18 U.S.C. §§ 841(a) and 2; (2) possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (3) being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1).

Prior to trial, Penniegraft moved to exclude evidence of a prior arrest that the government intended to introduce pursuant to Federal Rule of Evidence 404(b). Over Penniegraft's objection, the court found the evidence admissible. At trial, Officer Mark Ingram testified that, on August 11, 2007, defendant was arrested in possession of 3.2 grams (gross weight) of a substance containing cocaine base or “crack”. At that time, Penniegraft told Ingram that he lived at 916 Willow Road, the residence he shared with Bates.

At the close of the evidence, defendant unsuccessfully moved for a judgment of acquittal. The jury then returned a verdict of guilty on all counts. At defendant's request, the court polled the jury. During the polling, the clerk had the following exchange with one of the jurors:

CLERK: Juror Number 5, Miss Underwood, does the verdict as published constitute your individual verdict in all respects?

JUROR NO. 5: Can you describe that one better for me, put it in a different way?

CLERK: Is the verdict as read your true verdict?

COURT: Do you agree unanimously with all of the—with all of the answers to the questions in the verdict, that is, the guilty finding on all counts?

JUROR NO. 5: I'm still kind of iffy.

COURT: All right, ma'am. If you would, Ms. Solomon, complete polling the jury.

JA 629–30. Without objection from either party, the clerk completed the polling and the remaining jurors indicated their assent to the verdict.

The court then held a bench conference whereupon Penniegraft objected to allowing the jury to continue deliberations and requested a mistrial. The court took a brief recess to give the attorneys an opportunity to research the issue and make suggestions about how to proceed. After the recess, Penniegraft argued that the court should (1) declare a mistrial; (2) inquire whether Juror No. 5 would feel comfortable deliberating further; or (3) give the jury a modified Allen charge. The court denied the request for a mistrial but questioned whether the court's continued polling of the jury after one juror expressed hesitation about the verdict in open court was coercive. The court also denied defendant's request to question Juror No. 5 further, finding that it would be coercive to do so. The court then gave a modified Allen charge, to which defendant consented, instructing the jury to further deliberate.

The jury again returned a verdict of guilty on all counts. After the court denied defendant's motion for a judgment notwithstanding the verdict based on sufficiency of the evidence, the court reiterated its concern regarding the propriety of the continued polling of the jury after Juror No. 5 had expressed reservations. After another hearing, the court concluded that it was without jurisdiction to entertain a motion for a new trial on the polling issue but that the issue was preserved for appeal.

Penniegraft was sentenced to 327 months on Count Two, 60 months on Count Five to run consecutive to Count Two, and 120 months of imprisonment on Count Three to run concurrent to Count Two, for a total of 387 months of imprisonment. Defendant filed a timely notice of appeal.

III. Sufficiency of the Evidence

Penniegraft argues that there was insufficient evidence to support the guilty verdicts on all counts of conviction. Specifically, Penniegraft argues that the evidence failed to establish he possessed either the drugs or firearms as charged in the indictment. Furthermore, according to Penniegraft, even if the government could meet its burden of showing he was in possession of the firearms, the evidence did not show that his possession was in furtherance of a drug trafficking offense.

A.

This court reviews the denial of a Rule 29 motion de novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir.2005), cert. denied, 547 U.S. 1113, 126 S.Ct. 1925, 164 L.Ed.2d 667 (2006). In reviewing the sufficiency of the evidence following a conviction, the court is to construe the evidence in the light most favorable to the government, assuming its credibility, and drawing all favorable inferences from it, and will sustain the jury's verdict if any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Lomax, 293 F.3d 701, 705 (4th Cir.), cert. denied, 513 U.S. 1135 (2002). “If there is substantial evidence to support the verdict, after viewing all of the evidence and the inferences therefrom in the light most favorable to the Government,” the court must affirm. United States v. Murphy, 35 F.3d 143, 148 (4th Cir.1994), cert. denied, 513 U.S. 1135, 115 S.Ct. 954, 130 L.Ed.2d 897 (1995). Furthermore, this court “cannot make [its] own credibility determinations but must assume that the jury resolved all contradictions in testimony in favor of the Government.” United States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1402 (4th Cir.1993).

B.

1.

In order to establish the offense proscribed by 21 U.S.C. § 841(a)(1), possession with intent to distribute cocaine base, the Government had to prove beyond a reasonable doubt that Penniegraft possessed cocaine base, that he did so knowingly, and with an intent to distribute. United States v. Burgos, 94 F.3d 849, 873 (4th Cir.1996) (en banc).

The law recognizes two kinds of possession: actual possession and constructive possession. See id. “ ‘Actual possession’ is defined as ‘[p]hysical ... control over property.’ ” United States v. Scott, 424 F.3d 431, 435 (4th Cir.2005) (quoting Black's Law Dictionary 1201 (8th ed.2004)). The government may prove constructive possession by demonstrating that a defendant exercised, or had the power to exercise dominion and control over an item. Id.;...