United States v. Grubbs

• Decision Date: 24 October 2014
• Docket Number: No. 13–6594.,13–6594.
• Citation: United States v. Grubbs, 773 F.3d 726 (6th Cir. 2014)
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ernest Wayne GRUBBS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

773 F.3d 726

UNITED STATES of America, Plaintiff–Appellee,

v.Ernest Wayne GRUBBS, Defendant–Appellant.

No. 13–6594.

United States Court of Appeals, Sixth Circuit.

Oct. 24, 2014.

ON BRIEF:Michael A. Partlow, Kent, Ohio, for Appellant.Charles P. Wisdom, Jr., United States Attorney's Office, Lexington, Kentucky, Vijay Shanker, United States Department of Justice, Washington, D.C., for Appellee.

Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

OPINION

CLAY, Circuit Judge.

DefendantErnest Wayne Grubbs appeals from the district court's order denying his motion pursuant to 28 U.S.C. § 2513 for a certificate of innocence on the charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).For the reasons set forth below, weAFFIRMthe district court's order.

BACKGROUND

Grubbs' petition for a certificate of innocence relates to his 2003 conviction for possession of a certain nine-millimeter handgun, overturned by this court for lack of sufficient evidence in United States v. Grubbs,506 F.3d 434(6th Cir.2007)(“ Grubbs I ”).In October 2001, Kentucky State Police officers executed a search warrant at the home of Defendant's mother¹ in Four Mile, Kentucky.Id. at 436.The search warrant was related to an investigation into stolen automobiles and allegations that Defendant and his brother Paul were operating a “chop shop.”Id.At the time of the search, Defendant was living in South Carolina but made periodic visits to Kentucky to stay at his mother's house.Id. at 436.Paul was living at their mother's house full time.Id.The officers recovered the handgun after Paul told them to look under his bedding.Id. at 437.

Defendant pleaded guilty to three counts related to the stolen vehicle allegations and went to trial on two firearms charges and one count of possessing ammunition as a felon.Id.At the close of the evidence, the district court granted Defendant's motion for a judgment of acquittal on a charge for another firearm, a rifle that was discovered in another bedroom of his mother's house.Id. at 438.The jury acquitted Defendant of the ammunition charge and convicted him only of possessing the nine-millimeter handgun.Id.In Grubbs I,this Court summarized the evidence tying Defendant to the nine-millimeter handgun as follows:

One of the firearms recovered by the police during the search was a Beretta nine-millimeter handgun (“nine-millimeter” or “handgun”).Paul disclosed the presence of the handgun to the officers and told them it was located “up under [his] pillow.”^{[ ]} At trial, Paul testified that he owned the nine-millimeter and that he had purchased it at a flea market in London, Kentucky approximately one month before the search.The Government did not introduce any evidence contradicting Paul's testimony that the handgun was his or that it was discovered under the pillow on which he regularly slept.( See JA 82 (Detective Riley testified that “I know that Mae Grubbs, their mother, told me that Paul slept on the bed that had the 9mm under the mattress....”).)The Government also did not introduce any evidence contradicting Mae's testimony that Grubbs “slept on the couch” in a different room than where the handgun was found.Moreover, although Grubbs's fingerprints were found on a rifle magazine, the Government did not introduce any evidence that Grubbs's fingerprints were found on the nine-millimeter supporting the felon-in-possession conviction.

The Government concedes that the sole evidence tying Grubbs to the nine-millimeter for purposes of establishing a violation of the felon-in-possession statute was the testimony of Edward Jones.Jones, who lived three houses away from Mae's residence, recounted an altercation with Grubbs “at least a month or two” before the police interviewed him in connection with their investigation of Paul and Grubbs, where Grubbs threatened him with a handgun.Jones testified that as he was driving home one night, Grubbs flagged him down and approached the driver's side of his car.According to Jones, Grubbs “was just cussing, talking about his sister and me and my uncle was supposed to be seeing her and all that stuff, breaking her heart.”Although the record is not entirely clear, it appears that the dispute between Grubbs and Jones had to do with an alleged affair that Jones, a married man, was carrying on with Grubbs's sister.Jones testified that Grubbs had a “dark-colored,”“automatic” pistol in his right hand, and that Grubbs threatened to shoot Jones.When Jones noticed his wife drive up behind him, he pulled out and continued driving home.Jones's wife Reva also testified to seeing Grubbs with a gun the night of the altercation.However, Reva could not describe the gun because all she saw “was the top of the barrel.”At trial, she was never asked whether the recovered firearm was the same one she saw Grubbs carrying.Jones apparently never left his car, shots were never fired, and the whole episode lasted “[j]ust a matter of minutes.”

At trial, Jones was presented with the nine-millimeter handgun recovered from the Grubbs residence.When asked to compare the gun at trial with the gun he observed in Grubbs's hands the night of their altercation, Jones testified that the gun at trial “[l]ooked like it.”Jones said that he had “seen guns all [his] life” but he admitted that he could not be certain that the handgun he inspected while on the witness stand was the same handgun Grubbs had carried one or two months earlier: “As far as [I] know laying another one down just like that, no, I can't say this one, that one, which one.I know it was a gun.I know it was automatic.”Further, Jones was asked, “Can't even say with 100% certainty that was the actual gun and not, a replica, can you?”Jones responded, “It could have been.It was a gun.I don't know whether it was a real gun, toy gun, or what.It was a gun.”

506 F.3d at 437–38(record citations omitted).

We held that this evidence was insufficient to prove beyond a reasonable doubt that Defendant possessed the nine-millimeter gun.While the jury could choose not to credit testimony that Paul owned the nine millimeter, the government “still [had] the burden to come forward with evidence connecting [Defendant] with the firearm.”Id. at 440.We concluded that Edward Jones' testimony about his altercation with Defendant did not provide “the substantial evidence we need to uphold a conviction for constructive possession.”Id. at 441.Jones was only able to describe the gun as “dark-colored” and “automatic.”Id.As this Court concluded, “these attributes are too common to support a conviction for constructive possession.”Id. at 441.Additionally, this Court found insufficient temporal proximity between the altercation with Jones and the discovery of the handgun during the search, calculating that, if viewed in the light most favorable to the government, Jones' testimony allows an inference that Defendant had threatened him with a gun ten days prior to the search—though the incident may have occurred as much as a month earlier.Id. at 442–43.We observed that ten days was “far more time” than had elapsed in United States v. Arnold,486 F.3d 177(6th Cir.2007), a case where the evidence was held sufficient to support a conviction based in part on testimony that the defendant threatened the victim with a gun minutes before officers found the weapon in close proximity to the defendant.Grubbs I,506 F.3d at 442.Thus, while “[a]t best”Edward Jones' testimony could support a conclusion “that Grubbs possessed a black, semiautomatic firearm at some point before the arrest,” his testimony was insufficient to establish beyond a reasonable doubt that Defendant possessed the particular firearm found in the search and charged in the indictment.Id. at 441.

The case was remanded for entry of a judgment of acquittal on the firearm count as well as resentencing on the stolen vehicle charges under United States v. Booker,543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621(2005).Id. at 444.In January 2008, Defendant was resentenced on the stolen auto charges and released.(R. 124, Amended Judgment, J.A.at 310–15.)

The present appeal arises from Defendant's October 17, 2013, motion for a certificate of innocence on the handgun charge pursuant to 28 U.S.C. § 2513.The district court denied the motion on the grounds that the preponderance of the evidence introduced at trial established that Defendant did commit the crime of possessing the nine-millimeter gun as a felon.This appeal followed.

DISCUSSION

A person wrongly convicted of a federal crime may seek compensation in the Court of Federal Claims for the years that person spent wrongly incarcerated, provided that the person first obtains a certificate of innocence.28 U.S.C. §§ 1495and2513 (2012).The statute is “a remedial act designed by a fair-minded government as a means of at least partially righting an irreparable wrong done to one of its citizens.”Osborn v. United States,322 F.2d 835, 839(5th Cir.1963)(quotingMcLean v. United States,73 F.Supp. 775, 778(W.D.S.C.1947)).This Court has not had occasion to interpret the provisions governing entitlement to a certificate of innocence since 1952.SeeUnited States v. Brunner,200 F.2d 276(6th Cir.1952)(applying the predecessor statute, 18 U.S.C. §§ 729,730).Similarly, our sister circuits have decided only a handful of cases concerning a petitioner's right to a certificate of innocence since the procedure was first instituted in 1938.²

Applying the plain language of the statute and guidance from the admittedly scant case law to the present case, we conclude that the district court did not abuse its discretion in denying Grubbs a certificate of innocence.Although the evidence tying Defendant to the nine-millimeter handgun fell short of supporting a criminal conviction, in a civil action such as this the district court could credit Jones' testimony as evidence that Defendant did...