U.S. v. Richardson
| Citation | 333 U.S. App. D.C. 178,161 F.3d 728 |
| Decision Date | 27 October 1998 |
| Docket Number | No. 97-3152,97-3152 |
| Parties | UNITED STATES of America, Appellee, v. John M. RICHARDSON, Appellant. District of Columbia Circuit |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Douglas Wham, appointed by the Court, argued the cause and filed the briefs for appellant.
Michael Fitzpatrick, Assistant United States Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, United States Attorney, John R. Fisher, Elizabeth Trosman, Diana Harris Epps and Brenda B. White, Assistant United States Attorneys.
Before: EDWARDS, Chief Judge, WALD and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
A jury convicted John M. Richardson of the unlawful possession of a firearm by a convicted felon, the unlawful possession of ammunition by a convicted felon, and of threatening to injure another person. On appeal, appellant challenges his convictions and sentence on a number of grounds, including (1) insufficient evidence for the jury to convict him of constructive possession of a loaded firearm; (2) improper joinder of the local District of Columbia threats charge with the federal firearm and ammunition counts; (3) an improper appeal to the racial sensitivities of the jury in the government's closing argument; and (4) error by the district court in designating a prior conviction of appellant as a crime of violence for purposes of determining the guidelines base offense level. 1
Although this is a close case, we find that there was sufficient evidence for the jury to convict appellant of constructive possession of a loaded firearm. However, we agree with appellant that the district court erred in failing to dismiss the local threats charge for lack of jurisdiction and that certain remarks made by the prosecutor constituted improper appeals to the racial sensitivities of the jury. Given the closeness of the case, we find these errors to be substantial and prejudicial, necessitating the reversal of appellant's convictions on both the weapons and the threats counts. 2 Finally, although our reversal of the convictions renders the sentencing issue moot, we think it prudent to register our observation that designating a prior conviction of appellant as a crime of violence for purposes of determining the guidelines base offense level was mistaken because the court did not have before it the necessary information to determine whether that conviction constituted a crime of violence as defined by the guidelines.
On January 16, 1997, the government charged appellant in a three-count indictment with (1) unlawful possession of a firearm by a convicted felon, (2) unlawful possession of ammunition by a convicted felon, both in violation of 18 U.S.C. § 922(g)(1), and (3) threats to injure another person, in violation of D.C.Code § 22-2307. All three offenses allegedly occurred on the night of December 18, 1996. The firearm and ammunition possession counts both arose from appellant's alleged possession of a loaded gun, specifically described in the indictment as a Glock 9mm semi-automatic pistol. The threats charge, a District of Columbia offense for which the maximum punishment is twenty years, was based on remarks appellant made to a police officer after he had been arrested for possession of a loaded gun and transported to the police station. 3 Appellant filed several pretrial motions, including a motion for dismissal of the local threats charge, arguing that the district court lacked jurisdiction over the charge because it had been improperly joined with the weapons counts under Federal Rule of Criminal Procedure 8(a). The district court heard oral argument on the joinder issue on two different occasions but ultimately rejected appellant's motion.
A jury trial began on April 8, 1997. At the end of the government's case, appellant moved for a judgment of acquittal as to all three counts. The district court denied this motion. After the defense presented its evidence, appellant renewed his motion for a judgment of acquittal. The court took this motion under advisement. Later that same day, the jury returned verdicts of guilty as to all three counts. With respect to the firearm and ammunition counts, the jury found appellant guilty on a theory of constructive possession rather than actual possession. Appellant filed a written post-trial motion for judgment of acquittal, which the district court also denied.
A sentencing hearing was held on November 17, 1997. The Presentence Investigation Report ("PSR") calculated appellant's offense level at 20 based on a determination that appellant had been convicted of a prior crime of violence, a 1982 Virginia conviction for statutory burglary. 4 The sentencing guidelines define a "crime of violence" as, inter alia, the "burglary of a dwelling." U.S.S.G. § 4B1.2(a)(2). However, the Virginia statute to which appellant apparently pled guilty covers burglaries of non-dwelling structures as well. Appellant thus argued at sentencing that the court could not increase his offense level for having been convicted of a prior crime of violence without having before it a charging document, plea agreement or the like which would reliably indicate that appellant had in fact pled guilty to the burglary of a dwelling and not of some other structure. The government argued that the court could rely on a description of the crime listed in the PSR provided by the United States Probation Office for the Western District of Virginia which indicated that the burglary was of a dwelling, noting the names of its owners and what was stolen from it. After hearing substantial argument on the issue, the district court ruled that the 1982 Virginia conviction did qualify as a "crime of violence" both because it was a burglary of a dwelling and because it involved conduct that presented a serious potential risk of physical injury to another. 5
The district court accordingly determined that appellant was properly assigned an offense level of 20 which, coupled with a criminal history category of V, produced a sentencing range for the gun and ammunition counts of 63-78 months. The court sentenced appellant to a term of 78 months of imprisonment for each of these counts, to run concurrently, and imposed a consecutive sentence of 4-12 years for count three, the D.C. threats charge.
Appellant first argues that the evidence was insufficient to support his convictions on the weapons counts. In assessing this claim, we must view the evidence in the light most favorable to the government, drawing all reasonable inferences in the government's favor. See, e.g., United States v. Dingle, 114 F.3d 307, 310 (D.C.Cir.1997). Moreover, our inquiry is "limited to the question of whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Appellant was convicted of constructive possession of a loaded firearm. Constructive possession requires "evidence supporting the conclusion that the defendant had the ability to exercise knowing 'dominion and control' over the items in question." United States v. Morris, 977 F.2d 617, 619 (D.C.Cir.1992) (quoting United States v. Hernandez, 780 F.2d 113, 116 (D.C.Cir.1986)). Generally, neither "mere proximity" to nor "mere knowledge of the presence" of contraband alone is enough to prove constructive possession, see Morris, 977 F.2d at 619-20; Hernandez, 780 F.2d at 116; however, "proximity coupled with 'evidence of some other factor--including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise' is enough to sustain a guilty verdict." Morris, 977 F.2d at 620 (quoting United States v. Gibbs, 904 F.2d 52, 56 (D.C.Cir.1990)).
The government's evidence against appellant on constructive possession of a loaded gun consisted primarily of the testimony of Lamar Hazelton. Hazelton testified that on December 18, 1996, at 10:00 p.m., he was standing with some friends in front of a carry-out in D.C. when he was approached by a man who asked in a threatening tone if Hazelton had seen "Roger," a friend of Hazelton. Hazelton replied that he had not. The man then circled Hazelton and his friends several times before walking away. About five to ten minutes later, the man again approached Hazelton and demanded to know Roger's whereabouts. When Hazelton replied that he had no idea where Roger was, the man became agitated and told Hazelton to tell Roger that he was going to "burn" him. The man then opened his coat to show Hazelton the handle of a gun protruding from an inside pocket. After this second encounter, Hazelton left the area. As he was leaving, Hazelton observed the man approach the driver's side of a car, lean into the front driver's side window, and appear to talk to the driver.
Hazelton returned to the same area about five minutes later where he encountered Metropolitan Police Officer Eldrick Creamer, who was patrolling the area. Hazelton told Creamer about his two encounters with the man and provided Creamer with a description of the suspect--black man, wearing black clothes, with a bald head. 6 Upon receiving this information, Creamer moved through an alley to another street, where he observed a man talking on a cellular phone who fit the description given to him by Hazelton. That man was appellant. Creamer detained appellant with the help of fellow officer, Paul Regan. During appellant's detention, Hazelton, who had followed Creamer onto the second street, walked past appellant and gave Creamer an affirmative nod to indicate that he had the right man. Appellant was searched but no gun was found on him.
When Creamer apprehended him, appellant was standing about 10-15 feet away from a car...
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