U.S. v. O'Shea

• Decision Date: 20 October 2005
• Docket Number: No. 04-1179.,04-1179.
• Citation: 426 F.3d 475
• Parties: UNITED STATES of America, Appellee, v. Patrick O'SHEA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

426 F.3d 475

UNITED STATES of America, Appellee, v. Patrick O'SHEA, Defendant, Appellant.

No. 04-1179.

United States Court of Appeals, First Circuit.

Heard May 6, 2005.

Decided October 20, 2005.

COPYRIGHT MATERIAL OMITTED

Stephen Neyman, on brief, for appellant.

Donald L. Cabell, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, were on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and BALDOCK,^* Senior Circuit Judge.

TORRUELLA, Circuit Judge.

Defendant-appellant Patrick O'Shea was convicted after a jury trial of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He now appeals, arguing that (1) there was insufficient evidence to support the jury verdict, (2) the district court's jury instruction on reasonable doubt constituted plain error, (3) the district court abused its discretion in denying his motion to exclude certain evidence, and (4) the district court erred in not striking, sua sponte, certain statements made by the prosecution during closing argument. We affirm.

I. Background

Because O'Shea was convicted, we review the facts in the light most favorable to the verdict. See United States v. Mercado, 412 F.3d 243, 245 (1st Cir.2005).

On January 22, 2002, shortly before 2:00 PM, Daniel Woods ("Woods") exited the Best Western Roundhouse Suites Hotel at 891 Massachusetts Avenue in Boston, Massachusetts. Woods got into his car and made a call on his cellular phone. As he made the call, a black sport utility vehicle ("SUV") pulled up behind his car and blocked him in. A white male approximately twenty-eight to thirty-one years old, with a shamrock tattoo on the right side of his neck, and wearing a black nylon jacket, a dark cap, and blue jeans got out of the driver's seat. The man approached the driver's side of Woods car, pointed a shiny silver revolver at Woods's head through the open window and demanded "the hotel receipts." The man also demanded that Woods open his trunk, and Woods complied. While the man was searching the trunk, Woods observed a passenger in the SUV. The man took around $100 from Woods, got back into the SUV, and drove away with the passenger.

Woods, who had written down the SUV's license plate number, immediately reported the robbery to the police, who radioed the information to other officers. Less than one minute after receiving the transmission, Boston police officers Richard Rackauskas ("Rackauskas") and Edward Norton ("Norton") spotted the SUV on Dorchester Avenue as they were traveling to the crime scene. They followed the SUV and turned on their lights and sirens. The SUV did not stop, and it eventually reached the intersection of Buttonwood Street and Columbia Road, where it entered Columbia Road going the wrong direction.¹ The police officers followed but stayed on the proper side of the road. The SUV was closest to Rackauskas, who was driving the patrol car. The officers' car was approximately four car lengths behind the SUV.

Columbia Road goes underneath Interstate 93 ("I-93") and leads to a rotary. Just before the SUV reached the I-93 overpass, Rackauskas observed the SUV's passenger stick his arm out the window. The passenger's arm had gray clothing on it. Rackauskas saw a "silver metallic shiny object" in the passenger's hand and observed the passenger waving his arm back and forth. He told Norton that "he's throwing something, there's something hanging out the window, he's got something out the window." Rackauskas only saw the object for a few seconds, did not see anything come out of the passenger's hand, and could not identify what the object was. Norton testified that he never saw an object and did not recall Rackauskas saying anything about such an object.

The officers lost sight of the SUV for about fifteen seconds as it traveled underneath the overpass and entered the rotary going clockwise, i.e., in the wrong direction.² However, they saw it emerging from the rotary onto Old Colony Avenue and continued their pursuit. The occupants of the SUV abandoned the vehicle outside the Maryellan McCormack housing projects and ran in front of the patrol car — which was between fifty to one hundred yards away — into the housing development. Rackauskas identified the occupants as two white males: one wearing a black jacket, black hat, blue jeans, and sneakers; the other wearing a blue and grey sweatshirt, blue jeans, and sneakers. The men ran into an apartment building at 433 Old Colony Avenue. Rackauskas and Norton, joined by another policeman, Officer Daniel Ryan ("Ryan"), saw the suspects enter the apartment building. All three officers initially entered the building, but Rackauskas quickly exited to cover the windows.

The two suspects entered the second floor apartment of Ernest Washburn ("Washburn"), who was home at the time. As Norton and Ryan banged on the door, one of the suspects begged Washburn not to open the door. Washburn opened the door, however, and the suspects jumped out of a window into the courtyard below. In the meantime, Rackauskas had gone around to the back of the building where the courtyard was located. He saw O'Shea, who was dressed in a blue and grey sweatshirt, jeans, and sneakers, limping. Rackauskas ordered O'Shea to stop. O'Shea initially did not obey but eventually surrendered. Soon afterwards, the officers found the other suspect, Kevin Kelley ("Kelley"), in a nearby apartment building. Kelley was wearing a black jacket, had a tattoo on his neck, and was also limping.

Because the dispatch had reported that a silver handgun was used in the robbery, the police searched Kelley and O'Shea, the Maryellan McCormick housing project, and the SUV for the weapon. They did not find a firearm, but found an empty holster in plain view sitting by the center console between the two front seats. Rackauskas directed another policeman, Officer Robert Lucas ("Lucas"), to search the area around I-93 leading to the rotary. Officer Lucas searched the interior island of the rotary and found a silver handgun laying on the ground with nothing on top of it.

On March 26, 2003, a grand jury issued a superseding indictment charging O'Shea with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). To convict under § 922(g), a jury must to find that a defendant (1) has previously been convicted of a crime punishable by a term of imprisonment exceeding one year, and (2) has knowingly possessed a firearm, (3) that was in or affected interstate commerce. See United States v. Carpenter, 403 F.3d 9, 10 (1st Cir.2005). The parties stipulated that O'Shea was a felon and that the gun found at the rotary had traveled in interstate commerce. The only issue at trial therefore was whether O'Shea had knowingly possessed the firearm.

After a four-day trial in the United States District Court for the District of Massachusetts, a jury convicted O'Shea. On January 16, 2004, the district court sentenced O'Shea to 180 months imprisonment. O'Shea appealed on January 27, 2004.

II. Discussion

A. Sufficiency of the Evidence

At the close of evidence, O'Shea filed a motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29(a), arguing that the evidence was insufficient to prove that he had knowingly and intentionally possessed the firearm. The district court denied the motion.³ After the jury verdict, O'Shea again filed a Rule 29 motion, which the district court denied.

We review de novo the denial of a Rule 29 motion for acquittal. United States v. Mercado Irizarry, 404 F.3d 497, 503 (1st Cir.2005). "In doing so we must decide, viewing the evidence in the light most favorable to the verdict of guilt, whether a reasonable factfinder could find the defendant guilty of the crime beyond a reasonable doubt." Id. This standard of review is "formidable," United States v. Loder, 23 F.3d 586, 589 (1st Cir.1994), and "[d]efendants challenging convictions for insufficiency of evidence face an uphill battle on appeal." United States v. Hernández, 218 F.3d 58, 64 (1st Cir.2000). In our review of Rule 29 determinations, "`no premium is placed upon direct as opposed to circumstantial evidence; both types of proof can adequately ground a conviction.'" Id. (quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992)).

O'Shea argues that the district court erred in denying his Rule 29 motions because there is no evidence, direct or circumstantial, to support his conviction. He asserts that, although he was observed in the passenger seat of the SUV, there was no evidence linking him to the initial robbery at the Best Western, he was never seen with the gun in his hand, and the silver object seen by Rackauskas could have been anything, something Rackauskas admitted on cross-examination. O'Shea also notes that the gun was located "a good distance" from where Rackauskas observed the shiny metal object in the SUV passenger's hand.

The government argues that there was ample evidence for the jury to conclude that O'Shea was with Kelley when Kelley robbed Woods and that O'Shea threw the silver firearm used in the robbery out the SUV's window as the police chased him and Kelley. We agree that the government has proven its case. There was sufficient evidence for the jury to conclude beyond a reasonable doubt that O'Shea possessed the firearm in the SUV.

The evidence supports the conclusion that O'Shea was the passenger in the SUV when Kelley robbed Woods with a silver handgun. Woods testified that he saw a passenger in the SUV as he was being robbed and that he called the police as soon as the SUV drove off. The report was immediately sent to officers over the radio, and Rackauskas and Norton spotted the SUV less than one minute after receiving the dispatch. It was reasonable for the jury to conclude that the passenger in the SUV when Woods was robbed was the same passenger in the SUV when the officers spotted the vehicle minutes later.

Thus, it was also reasonable for...