U.S. v. Robinson

• Citation: 756 F.2d 56
• Decision Date: 28 February 1985
• Docket Number: No. 84-1663,84-1663
• Parties: UNITED STATES of America, Appellee, v. Dirk Lee ROBINSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 56

756 F.2d 56

UNITED STATES of America, Appellee, v. Dirk Lee ROBINSON, Appellant.

No. 84-1663.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1984.

Decided Feb. 28, 1985.

Patricia L. Cohen, St. Louis, Mo., for appellant.

Dean R. Hoag, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

HENLEY, Senior Circuit Judge.

Dirk Lee Robinson appeals his conviction by a jury of being a felon in possession of a firearm in violation of 18 U.S.C.App. Sec. 1202(a)(1). The district court ¹ sentenced him to two years imprisonment. He made two post-trial motions, one for a judgment of acquittal alleging insufficiency of the evidence to support his conviction, which was summarily denied, and another for a new trial claiming a denial of his sixth amendment right to an impartial jury, which was denied after a hearing to determine its merits. Robinson appeals the denial of these motions and in addition claims that evidence was seized in violation of his fourth amendment rights. We affirm.

On March 17, 1983 two St. Louis police officers, Barry Berry and Beverly Noble, received information from an informant that appellant was selling marijuana from his apartment and that the source had been present during one such transaction. The informant stated that the marijuana was purchased by ringing appellant's doorbell and Robinson making the sale at the door. Officers Berry and Noble placed the residence under surveillance and observed numerous transactions occur in the manner described by the informant, but never determined whether it was marijuana that changed hands.

On March 21, 1983 the officers obtained a warrant to search the apartment which Robinson shared with his girlfriend, sister and nephew. While searching the residence Officer Berry noticed an object in appellant's hand and ordered him to "drop it." The officers then picked up from the floor a Ceska Zbrojovka-Narodni Podnik Strakonice .25 caliber automatic pistol manufactured in Czechoslovakia in 1948. Officer Berry unloaded six live rounds from it. In addition to the marijuana listed in the warrant and the weapon, the officers discovered a letter from the state probation and parole office addressed to Robinson.

At trial appellant's sister testified that although she did not see an object in his hand, Robinson later told her that he had a gun when the officer ordered him to "drop it." For the defense, Robinson's girlfriend testified that it was her gun from a former boyfriend and that the officers seized it from her zippered purse. In rebuttal the government presented her former boyfriend who stated that he never gave her a gun, but that there had been one in the apartment they shared. This witness apparently recognized one of the jurors as a friend's brother, and spoke with him briefly.

Appellant argues that his motion for judgment of acquittal was improperly denied in that the evidence showing possession of the weapon was insufficient. In considering this allegation, we must examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences and reverse only if a reasonable jury could not have found guilt beyond a reasonable doubt. United States v. Martin, 706 F.2d 263, 265-66 (8th Cir.1983); Potter v. United States, 691 F.2d 1275, 1280-81 (8th Cir.1982); United States v. Jackson, 680 F.2d 561, 563 (8th Cir.1982). To prosecute Robinson for violating Sec. 1202(a)(1), the government had to prove (1) defendant's prior felony conviction; (2) the weapon's connection with interstate commerce; and (3) knowing possession of the weapon by defendant. ² Martin, 706 F.2d at 266; United States v. Bruce, 704 F.2d 1048, 1049 (8th Cir.1983); Jackson, 680 F.2d at 563. Appellant asserts that the evidence of possession was insufficient because of the conflicting testimony of the officers and Robinson's girlfriend. While the evidence was contradictory, resolving this conflict and determining the credibility of the different witnesses were issues best settled by the jury rather than this court which lacks the opportunity to observe the witnesses and their demeanor first hand. Graham v. Solem, 728 F.2d 1533, 1541 (8th Cir.1984); United States v. Snider, 720 F.2d 985, 993 (8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1613, 80 L.Ed.2d 142 (1984); United States v. Parker, 586 F.2d 1253, 1256 (8th Cir.1978). We find no error in the denial of the judgment of acquittal in that a jury could have found evidence of possession beyond a reasonable doubt based on the testimony of the officers and the corroborating statements of the appellant's sister.

Appellant next contends that his sixth amendment rights were violated by the government's failure to place the name of its rebuttal witness on the witness list, and by the extrajudicial contact between the rebuttal witness and a juror.

Appellant argues that the government's failure to place the witness's name on the list denied him the opportunity to examine the prospective jurors as to their relationship with the witness; however, testimony at the post-trial hearing revealed that the juror did not know or recognize the witness until the witness introduced himself outside the courtroom. Therefore, placing the witness's name on the list would not have enabled appellant to explore the witness's relationship with the juror as the juror would have honestly responded to any questions that he had no prior knowledge of the witness.

The alleged extrajudicial communication facially is somewhat more serious, as any communication outside of the courtroom on a matter pending before the jury is presumptively prejudicial to defendant's sixth amendment rights. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); United States v. Delaney, 732 F.2d 639, 642 (8th Cir.1984); United States v. Sublet, 644 F.2d 737, 740 (8th Cir.1981). This presumption, however, is not conclusive. Remmer, 347 U.S. at 229, 74 S.Ct. at 451; Delaney, 732 F.2d at 642. The trial court properly conducted a hearing on this issue and heard the testimony of Robinson's girlfriend, the rebuttal witness and the juror. At the hearing it developed, as indicated, that the juror did not know or recognize the witness when they met at an elevator in a hall. The witness recognized the juror from having stayed where the juror and the juror's brother stayed some twenty years before. The witness said he was there as a witness. The juror said he was on jury duty. At that point the elevator came and the conversation terminated. The witness testified, but the juror did not recall, that later on the juror waved good-bye saying, "you got to do what you got to do." Substantial discretion is placed with the trial court in determining whether an extrajudicial communication results in prejudice. Delaney, 732 F.2d at 642. The district court determined that the meeting between the witness and the juror was casual, unintentional and did not result in any prejudice to appellant. The trial court's findings in this regard were eminently correct. Thus, we conclude that appellant's sixth amendment rights were not denied by any incidences involving the government's rebuttal witness.

Last, appellant argues that his fourth amendment rights were violated because the search of his apartment was based on an improperly issued warrant, and the seizure of the weapon was beyond the scope of the warrant which listed marijuana but not weapons. Robinson argues that the warrant's supporting affidavits were insufficient under the "basis of knowledge" and "veracity" standards of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), because the informant's information was corroborated by innocent or nonsuspicious activities. This argument is based on the fact that the only corroborating evidence was the officers' observation of persons going to Robinson's door and making exchanges of unknown items.

Appellant's contention is unconvincing in light of recent decisions by the Supreme Court interpreting the fourth amendment starting with Illinois v....