United States v. Facen, Docket Nos. 13–3031–cr

• Decision Date: 08 February 2016
• Docket Number: Docket Nos. 13–3031–cr,13–3727–cr.,13–3159–cr
• Parties: UNITED STATES of America, Appellee–Cross–Appellant, v. Tabari FACEN, Defendant–Appellant–Cross–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

812 F.3d 280

UNITED STATES of America, Appellee–Cross–Appellant,

v.Tabari FACEN, Defendant–Appellant–Cross–Appellee.

Docket Nos. 13–3031–cr

13–3159–cr

13–3727–cr.

United States Court of Appeals, Second Circuit.

Argued: Nov. 9, 2015.

Decided: Feb. 8, 2016.

Mark D. Funk, Law Offices of Mark D. Funk, Rochester, New York for Defendant–Appellant–Cross–Appellee, Tabari Facen.

Monica J. Richards, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

Before: JACOBS, LEVAL, and LYNCH, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

Tabari Facen appeals from a judgment of conviction entered following a five-day jury trial in the United States District Court for the Western District of New York (David G. Larimer, Judge ). The government cross-appeals from the district court's entry of judgments of acquittal, overturning the jury's guilty verdict on certain counts.

Facen was found guilty by a jury of possessing 28 grams or more of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) ; using and maintaining a place to manufacture, distribute, or use a controlled substance in violation of 21 U.S.C. § 856(a)(1) ; possessing a firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1) ; and possessing a firearm and ammunition as a felon in violation of 18 U.S.C. § 922(g)(1). The district court overturned those convictions on Facen's motion for a judgment of acquittal pursuant to Rule 29, Fed.R.Crim.P., with the exception of the convictions for possessing with intent to distribute 0.126 grams of cocaine base and possessing ammunition as a felon, both of which related to items found in plain view in the room where he was arrested.¹

Facen appeals from those remaining convictions, arguing that the evidence was insufficient to support the jury's verdict on those counts. The government cross-appeals from the district court's judgment of acquittal with respect to an additional 34.49 grams of cocaine base, which was found in the room with Facen but not in plain view, and the use and maintenance charge. The government does not appeal from the judgment of acquittal with respect to additional amounts of cocaine base found in other parts of the house, the § 924(c)(1) charge, and the § 922(g)(1) charge as it relates to a firearm. For the reasons set forth below, we vacate the district court's judgment acquitting Facen of certain charges, affirm the remaining judgment of conviction, and remand for resentencing.

BACKGROUND

Because the jury found Facen guilty of all charges relevant to this appeal, "we view the evidence in the light most favorable to the government." United States v. Mergen, 764 F.3d 199, 202 (2d Cir.2014) (internal quotation marks omitted).

The charges against Facen stem from the execution of a search warrant by officers of the Rochester Police Department early in the afternoon of September 26, 2011, at 303 Lakeview Park, Rochester, New York ("303 Lakeview"), which led to the seizure of narcotics, drug trafficking paraphernalia, a firearm, and ammunition. Facen was the only person present in the house when the officers arrived. He was found in the largest bedroom on the second floor, unclothed on the bed. He was lying on top of a roll of currency, and additional currency was found behind the headboard. The currency found in and behind the bed totaled $1235.

The following items were located in plain view in the bedroom with Facen: a box of ammunition; a grinder; clear, unused Ziplock baggies; and a dime bag containing 0.126 grams of cocaine base. Additionally, officers found a pair of white shorts in a pile of clothes on the bedroom floor. In the pocket of the white shorts, officers found a bag containing 34.49 grams of cocaine, as well as other small bags containing materials often used as cutting agents for cocaine. The white shorts were not seized. The officers did, however, photograph the white shorts; the photograph shows the number "38" on the label. Apart from the testimony of the officers who found the white shorts and a post-arrest picture of Facen sitting on the bed, handcuffed, wearing only underwear, no additional evidence regarding ownership of the white shorts was presented in the government's case-in-chief. In summation, the government argued that Facen could have taken off the white shorts and thrown them on the floor when he heard the officers enter the house. There is no evidence in the record regarding the clothing Facen put on after his arrest.

The officers also found, in a safe in the bedroom, Facen's birth certificate and two vehicle titles in Facen's name, one of which had been signed over to Yvette Wilson. Next to the bed, the officers found two plates, one of which bore a white residue, a scalpel, and Facen's fingerprints. The residue was not tested for controlled substances. Underneath a stack of items on which the plates were resting, the officers found a manila envelope containing mail addressed to Facen at an address other than 303 Lakeview. Inside a cabinet, the officers discovered a fork with white residue and a digital scale. The residue was not tested. The officers also found, in the closet in the same room, a handbag containing a firearm and a black duffle bag containing ammunition.²

In the living room, the officers found a single piece of mail addressed to Facen at the 303 Lakeview address bearing a postmark dated April 25, 2011, about five months before the arrest. The officers also found additional cocaine base in the kitchen.³

The 303 Lakeview residence was rented by Wilson. The government presented no evidence regarding the reasons for Facen's presence on the premises. At trial, however, Facen's girlfriend, Marilyn Parker, testified on his behalf. She testified that Facen spent every night at her residence, but that on the evening of September 25, 2011, she and Facen had fought about his relationship with Wilson. She further testified that Facen left her house after the fight.

Wilson, who has Facen's name tattooed on her neck, also testified at trial. She testified that she had a longstanding romantic relationship with Facen, and that he spent two nights per week at her house. According to Wilson, on the evening of September 25, Facen called her to ask if he could come over. Wilson was working that night, but told her daughter, Hattie Gilbert, to let him into the house. According to Gilbert's testimony, Facen arrived sometime between midnight and 3 a.m. on the morning of September 26. Gilbert further testified that he was not carrying anything when he arrived.⁴

At trial, the defense primarily argued, based on the testimony of Wilson and Gilbert, that the drugs and weapons belonged to Wilson's former boyfriend, Kevin Ross. Gilbert and Wilson both testified that the white shorts containing the cocaine base found in the bedroom belonged to Ross. Additionally, Wilson identified several additional items as belonging to Ross, including: a size 4XL sweatshirt; a size 42 pair of jeans; a size 3XL sweatshirt; a size 58 pair of jeans; and a size 4XL shirt. In summation, the government argued that someone who wore such large clothing was unlikely to also own size 38 shorts.

At the end of the government's case, and again after the close of all proof, Facen moved for a judgment of acquittal pursuant to Rule 29, Fed.R.Crim.P. The district court reserved decision on both motions until after the jury's verdict.

During his charge to the jury, the judge instructed the jury that, in order to find Facen guilty of violating 21 U.S.C. § 856(a)(1), it must find that Facen used and maintained the 303 Lakeview premises for a drug crime. The verdict form similarly required the jury to find that Facen used and maintained the premises for a drug crime. While the government's proposed jury instructions, submitted before the trial, would have required use or maintenance, the government did not object at trial to the jury instructions or the verdict form. Additionally, the government stated in its summation that, in order to convict Facen of violating 21 U.S.C. § 856(a)(1), the jury must determine "that the defendant maintained or leased or maintained permanently or temporarily maintained" the 303 Lakeview residence, G.A. 34, and must consider "whether or not the defendant maintained 303 Lakeview Park for the purposes of manufacturing, distributing and using cocaine base." G.A. 38.

The jury convicted Facen of all charges in the indictment. After the trial, however, the district court granted Facen's Rule 29 motion in part, concluding that the evidence was insufficient to convict Facen of possessing any of the items that were not in plain view in the bedroom where Facen was arrested. That included the cocaine base located in the pocket of the white shorts, the cocaine base in the kitchen, and the firearm and ammunition in the closet.⁵ court also concluded that the evidence was insufficient to convict Facen of maintaining the 303 Lakeview residence because he lacked "supervisory control" over the premises. S.A. 7–8. The district court upheld Facen's conviction for possessing cocaine base with intent to distribute to the extent it was based on the small quantity of cocaine that was located in plain view. Similarly, the district court upheld Facen's conviction for being a felon in possession of ammunition based on the ammunition located in plain view.

The district court subsequently sentenced Facen principally to forty-one months' imprisonment on each remaining count, to run concurrently.⁶ Both sides appealed.

DISCUSSION

Facen appeals his remaining convictions, arguing that, because the evidence showed him to be a mere visitor to 303 Lakeview, it was insufficient to permit the jury to find beyond a reasonable doubt that he possessed the bag of cocaine base and ammunition found in plain view. He further argues that even if the evidence of his possession was sufficient, the evidence...