United States v. Houston

Decision Date08 February 2016
Docket NumberNo. 14–5800.,14–5800.
Citation813 F.3d 282
Parties UNITED STATES of America, Plaintiff–Appellee, v. Rocky Joe HOUSTON, Defendant–Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

813 F.3d 282

UNITED STATES of America, Plaintiff–Appellee,
v.
Rocky Joe HOUSTON, Defendant–Appellant.

No. 14–5800.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 9, 2015.
Decided and Filed: Feb. 8, 2016.

Rehearing En Banc Denied April 15, 2016.


813 F.3d 285

ARGUED:Steven R. Jaeger, The Jaeger Firm PLLC, Erlanger, Kentucky, for Appellant. David C. Jennings, United States Attorney's Office, Knoxville, Tennessee, for Appellee. ON BRIEF:Steven R. Jaeger, The Jaeger Firm PLLC, Erlanger, Kentucky, for Appellant. David C. Jennings, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

Before: ROGERS and DONALD, Circuit Judges, and ROSE, District Judge.*

ROGERS, J., delivered the opinion of the court in which DONALD, J., joined, and ROSE, D.J., joined in part. ROSE, D.J. (pp. 296–97), delivered a separate opinion concurring in all but Part II.A. of the majority opinion.

OPINION

ROGERS, Circuit Judge.

Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother's rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston's reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads. Houston's remaining arguments on appeal—challenges to certain evidentiary decisions, to his classification as a "prohibited person" under § 922(g)(1), and to the reasonableness of his sentence—also lack merit.

I.

In 2012, the Roane County Sheriff's Department informed the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") that Rocky Houston was a convicted felon in open possession of firearms at his residence. Houston had been convicted by a Tennessee jury of a felony in March 2010, although his conviction was still pending on direct appeal when the sheriff's department contacted the ATF and throughout the ATF's subsequent investigation.

Houston and his brother Leon Houston reside on the "Houston family farm," which is comprised of three adjacent properties. Houston resides in a red brick building, Leon in a trailer, and Houston's adult daughter in a farmhouse. Billboards and hand-painted signs critical of government officials and depicting the dead bodies of a law enforcement officer and his civilian ride-along companion (the murders of whom Houston and his brother were tried, but ultimately acquitted) hang approximately twenty yards off the road. While the farm is not enclosed by fencing or other artificial barriers, blue tarps

813 F.3d 286

blocked views of the trailer's doors and foliage initially blocked views of Houston's house.

ATF agents first attempted to conduct drive-by surveillance of the farm. However, they were unable to observe for any length of time because their vehicles "[stuck] out like a sore thumb" at the rural property. As a result, on October 9, 2012, at the direction of the ATF and without a warrant, the utility company installed a surveillance camera on a public utility pole located roughly 200 yards from Leon's trailer. The camera broadcasted its recordings via an encrypted signal to an IP address accessed through a log-in and password. The camera could move left and right and had a zoom function. The ATF agents trained the camera primarily on Leon's trailer and a nearby barn because they understood that Houston spent most of his time in and around the trailer and occasionally slept there. At trial, an ATF agent (Special Agent Dobbs) testified that the view that the camera captured was identical to what the agents would have observed if they had driven down the public roads surrounding the farm.

Warrantless monitoring occurred for ten weeks, from October 10, 2012, until December 19, 2012. On December 19, 2012, this court issued United States v. Anderson–Bagshaw, 509 Fed.Appx. 396 (6th Cir.2012), in which we expressed "some misgivings" about the constitutionality of long-term warrantless surveillance of an individual's backyard via a pole camera. Id. at 405. In response, the ATF obtained a warrant for the continued use of the pole camera later on the same day that Anderson–Bagshaw was issued.

On January 11, 2013, ATF agents arrested Houston when he was away from the farm. No firearms were found on his person. On the same day, agents also executed search warrants for the three residences at the farm. Agents seized twenty-five firearms attributable to Houston and his brother: seventeen from Houston's house, five from Leon's trailer, and three from Leon's person. Houston was originally indicted for fourteen counts of violating § 922(g)(1). However, before trial, the Government moved to dismiss Counts 2–14 as multiplicitous and instead pursued a single count of possession of a firearm on or about January 11, 2013.

Before trial, the district court rejected all of Houston's various motions to suppress and motions in limine. First, the district court denied Houston's motion to suppress video footage obtained from the pole camera. The district court ruled that even if the long-term warrantless surveillance violated Houston's Fourth Amendment rights, the exclusionary rule would not bar admission of the evidence due to the good-faith exception. Additionally, regarding Houston's argument that the video footage that was recorded after the agents obtained a warrant should be suppressed due to lack of probable cause supporting the warrant, the district court ruled that the warrant was supported by probable cause based on the previous warrantless footage as well as the statements from four individuals that Houston openly possessed firearms at his farm.

At trial, footage from the warrantless use of the camera was introduced to show Houston possessing firearms on seven dates during the ten-week surveillance. A post-warrant video of Houston with a firearm was also admitted. While some of the videos show Houston standing in fields or near barns with firearms, others capture him standing near the trailer with firearms.

Second, the district court denied Houston's motion to prohibit the Government from introducing video or photographic evidence purporting to show Houston possessing

813 F.3d 287

firearms absent a foundation that the firearm in the image is one of those confiscated on January 11, 2013. The district court reasoned that because Houston was charged with only one count of continuous possession of a firearm, video and photographic evidence of Houston possessing firearms in the weeks before his arrest would be relevant, highly probative, and not unduly prejudicial to proving that one count.

Third, the district court denied Houston's pretrial motion to prohibit the Government from introducing lay opinion testimony of Special Agent Dobbs regarding the footage. At trial, Houston also requested permission to voir dire Dobbs outside the presence of the jury, but the district court denied his request. During his testimony, Dobbs identified for the jury when the recordings showed Houston, his brother, or firearms. Dobbs had become familiar with the brothers through conducting drive-bys and personally observing the brothers, as well as through studying the surveillance footage. Dobbs was also permitted to testify that one of the firearms in the video was a "Ruger Mini 14" because he gained personal familiarity with that type of firearm when a relative owned one.

Fourth, the district court denied Houston's motion to dismiss the indictment. Houston argued that he was not a "prohibited person" under § 922(g)(1), because the appeal of his state felony conviction was still pending when the possessions of firearms alleged in the indictment occurred. Relying on State v. Vasser, 870 S.W.2d 543 (Tenn.Crim.App.1993), the Tennessee Rules of Evidence, the Tennessee Rules of Criminal Appellate Procedure, this court's precedent, and the legislative intent of § 922(g)(1), the district court ruled that Houston was indeed a "prohibited person" at the time of his alleged possessions of firearms, notwithstanding the pendency of the direct appeal of his predicate felony conviction.

A jury convicted Houston on March 19, 2014. At Houston's sentencing, the district court's Presentence Investigation Report set the base level offense at twenty-two due to the presence of an IMEZ Saiga, 7.62 caliber rifle; the Report then assigned six additional levels for the twenty-five firearms deemed to be in Houston's possession. Houston also had a criminal history category of II. Accordingly, the Guidelines imprisonment range was 87–108 months. The district court sentenced Houston to 108 months of imprisonment.

At the sentencing hearing, Houston objected to the six-level enhancement because he argued that he could not have had constructive possession over the three firearms found on his brother's person when the agents searched the residences on January 11, 2013. The district court rejected this argument because it...

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