U.S. v. Sanders

• Decision Date: 20 April 2005
• Docket Number: No. 04-3181.,04-3181.
• Citation: 404 F.3d 980
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William SANDERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

404 F.3d 980

UNITED STATES of America, Plaintiff-Appellee, v. William SANDERS, Defendant-Appellant.

No. 04-3181.

United States Court of Appeals, Sixth Circuit.

Argued: March 10, 2005.

Decided and Filed: April 20, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Terry H. Gilbert, Friedman & Gilbert, Cleveland, Ohio, for Appellant. Linda H. Barr, Assistant United States Attorney, Youngstown, Ohio, for Appellee.

ON BRIEF:

Terry H. Gilbert, Friedman & Gilbert, Cleveland, Ohio, for Appellant. Linda H. Barr, Assistant United States Attorney, Youngstown, Ohio, for Appellee.

Before: MARTIN and GILMAN, Circuit Judges; COHN, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

William Sanders appeals his jury conviction for being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1), and requests that this case be remanded for re-sentencing in light of United States v. Booker, ___ U.S. ___ 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, ___ L.Ed.2d ___ (2005). For the following reasons, Sanders's conviction is AFFIRMED but the case is REMANDED for re-sentencing.

I.

Youngstown, Ohio, police officers Michael Brindisi and Paul Brown were on patrol at approximately 10:00 p.m. on December 20, 2002, when Officer Brindisi observed a vehicle — which he later identified as a silver and brown Pontiac Parisienne — nearly strike the front of their squad car. Officer Brindisi also observed the driver of the vehicle consuming some type of liquid from a can. As a result, Officer Brindisi turned the squad car around and began to follow the vehicle. After he activated the emergency lights and siren, the Pontiac accelerated and a chase ensued.

After briefly losing sight of the vehicle, Officer Brindisi spotted it in a back alley behind an apartment complex on a nearby street. When he shined a spotlight in its direction, he and Officer Brown observed an individual running from the passenger side and the driver apparently preparing to exit the vehicle. Officer Brindisi testified that the driver proceeded to exit the vehicle and look back at the officers, at which point a gun fell from his jacket that he picked up and placed back in his jacket. According to Officer Brindisi, the driver then began running away through back yards, and he chased after him on foot. The driver jumped a small fence surrounding a garden and then scaled a higher chain-link fence a short distance away. As the driver cleared the second fence, Officer Brindisi testified, the gun again fell from his jacket. At that point, the two men were approximately an arm's length from each other, though on opposite sides of the fence, and Officer Brindisi noted that the driver was dressed all in black, had braided hair and was wearing a skull cap. The driver left the gun on the ground and continued running. Officer Brindisi, unable to scale the second fence, yelled to Officer Brown and used his radio to notify other officers in the area about the pursuit. Officer Brindisi testified that he proceeded to retrieve the weapon that the driver had dropped and secured it in his patrol car. At trial, he described the weapon as a Hi-Point .40 caliber semi-automatic firearm loaded with five rounds of ammunition; one round was chambered and four rounds were in the magazine.

In response to Officer Brindisi's radio transmission, Officers Joseph Moran and Jason Simon responded to the scene and began looking for the driver. Officer Simon located defendant Sanders hiding inside a dumpster located on the property of a nearby local business. Sanders was handcuffed and transported to Officer Brindisi's patrol car. At trial, Officer Brindisi identified Sanders as the driver of the vehicle and the individual whom Officers Moran and Simon had apprehended.

Several other notable pieces of evidence were introduced at trial. First, Officer Brindisi testified about certain items that were discovered in and taken from the Pontiac — namely, a blue and black backpack containing an awl, a crow bar, a flashlight, a surgical mask and a winter cap, as well as a can of Budweiser beer and a honey dispenser filled with gasoline. A label affixed to the backpack read "William Birch" and listed an address, but Officer Brindisi testified that he never had any contact with a person by that name.

Second, Beverly Bryant testified on behalf of the United States that, in the summer of 2002, she sold her used Pontiac Parisienne to Sanders, who was her neighbor at the time. Bryant testified that Sanders wanted her to title the car in his girlfriend's name, but that Bryant refused because she wanted to "do it the right way." She filled out the seller's portion of the title and then gave it to Sanders; she did not see him fill out the buyer's portion.

Third, Agent Thomas Hopkins of the Bureau of Alcohol, Tobacco and Firearms testified for the United States that the Winchester.40 Smith and Wesson caliber ammunition that was found in the firearm that Sanders had allegedly dropped was manufactured by Winchester in Illinois and therefore traveled in interstate commerce. He also testified that the firearm itself was manufactured in Ohio and, therefore, did not travel in interstate commerce.

Sanders presented only one witness, Herb Rhoades, an investigator for the Ohio Bureau of Motor Vehicles, who testified that on the evening in question, Sanders's driver's license was under suspension.

Sanders moved for acquittal pursuant to Federal Rule of Criminal Procedure 29 at the close of the prosecution's case and again at the close of the defense's case. The district court denied both motions and submitted the case to the jury, which returned a verdict of guilty. Sanders was sentenced to 188 months of imprisonment followed by three years of supervised release. This timely appeal followed.

II.

A. Evidentiary Rulings

The first issue that Sanders has raised in this appeal concerns the propriety of the district court's admission of two categories of evidence. The first category consists of the backpack and its contents — an awl, a crowbar, a flashlight, a surgical mask and a winter cap — that the police discovered in the Pontiac Parisienne, along with Officer Brindisi's testimony regarding those items. The second category consists of Beverly Bryant's testimony that, approximately six months prior to the alleged crime, she sold her used Pontiac Parisienne to Sanders, who indicated his preference that the car be titled in his girlfriend's name instead of his own.

Sanders concedes that his trial counsel failed to object to the admission of this evidence at trial and that, as a result, we may grant relief on this ground only if we find plain error. United States v. DeJohn, 368 F.3d 533, 540 (6th Cir.2004). Plain error exists where there is an error that is plain, that affects the defendant's substantial rights and that, in our discretionary view, seriously affects the fundamental fairness, integrity or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

Sanders argues that the district court's admission of the backpack evidence and Bryant's testimony constituted error for two alternative reasons: (1) the evidence was irrelevant; and (2) even if relevant, it was unfairly prejudicial. We disagree on both fronts.

Evidence is "relevant" under Rule 401 when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Rule 402 provides that evidence that is not relevant within the meaning of Rule 401 is inadmissible. Fed.R.Evid. 402. Pursuant to 18 U.S.C. § 922, it is unlawful for a felon "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(1). To convict a defendant under 18 U.S.C. § 922(g)(1), the government must prove beyond a reasonable doubt that: (1) the defendant had a previous felony conviction; (2) the defendant knowingly possessed a firearm or ammunition; and (3) the firearm or ammunition had traveled in or affected interstate commerce. United States v. Layne, 192 F.3d 556, 571-72 (6th Cir.1999). The parties had stipulated that Sanders had a previous felony conviction, thereby satisfying the first element, and Sanders effectively concedes that Agent Hopkins's trial testimony was sufficient to establish the third element. Sanders's argument, therefore, focuses upon the second element — whether he knowingly possessed the ammunition. He contends that neither the backpack evidence nor Bryant's testimony was relevant to the issue of whether he possessed any ammunition and, therefore, each category of evidence was inadmissible pursuant to Rule 402.

The United States offers several reasons why, in its view, the backpack evidence was relevant to the case, only one of which we find persuasive. In United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir.1987), the defendant was prosecuted for being a felon in possession of a firearm in violation of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 1202(a)(1). The trial court admitted certain items that were consistent with burglary tools, which the police had seized during a search that also recovered the firearm in question. This court affirmed the admission of that evidence, reasoning that the discovery of burglary tools in the van was probative of the defendant's "knowledge of the presence of the gun, which could be considered a tool of the burglary trade and useful in protecting ill-gotten booty." 815 F.2d at 1073; see also id. at 1072 (citing United States v. Taylor, 728 F.2d 864 (7th Cir.1984) (holding that evidence of a defendant's possession of cocaine, jewelry, cash and merchandise lacking identification...