United States v. Morales

• Decision Date: 15 July 2014
• Docket Number: No. 13–3202.,13–3202.
• Citation: 758 F.3d 1232
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Juan D. MORALES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

758 F.3d 1232

UNITED STATES of America, Plaintiff–Appellee,

v.Juan D. MORALES, Defendant–Appellant.

No. 13–3202.

United States Court of Appeals,Tenth Circuit.

July 15, 2014.

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for Defendant–Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff–Appellee.

Before KELLY, MURPHY, and HARTZ, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Defendant-appellant, Juan D. Morales, was found guilty of being a convicted felon in possession of a firearm and sentenced to eighty-six months' imprisonment. In this appeal, Morales argues the evidence was insufficient to support his conviction. He also argues his Fifth Amendment due process rights were violated when he was placed in handcuffs and transported through the public area of the courthouse in view of the venire. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Morales's conviction and deny his request for a new trial.

II. DiscussionA. Sufficiency of the Evidence

In March 2010, Deputy Brandon Hornback of the Ford County Sheriff's Department stopped a vehicle in which Morales was a passenger. Morales immediately exited the vehicle and fled from the scene on foot. Deputy Hornback chased Morales through the side yard of a residence, apprehending him approximately one block from the spot where the traffic stop was initiated. After a shell casing was found inside the vehicle, officers searched for a weapon by retracing the path of Morales's flight. They found a loaded handgun in the yard through which Deputy Hornback chased Morales. They also found a cell phone on the ground near the vehicle. The phone was placed in Morales's property bag at the jail and Morales took it when he was released.

Morales was charged with, inter alia, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).¹ The matter was tried before a jury on May 16, 2013. At trial, Deputy Hornback described the stop of the vehicle, the subsequent foot chase, and the recovery of the firearm and the cell phone. Specifically, he testified Morales exited the vehicle immediately after it came to a stop and then ran approximately one block before he was apprehended. Deputy Hornback also testified he did not see Morales drop or throw any objects, but both the firearm and cell phone were found along the path Morales traveled as he fled. According to Deputy Hornback, the firearm was discovered near a tree on the side of a residence. It was not dusty, dirty, or wet. Based on the condition of the firearm when it was found, Deputy Hornback opined it had not “been lying there for very long.”

On appeal, Morales argues there was insufficient evidence to support his conviction. This court reviews Morales's sufficiency claim de novo, examining the evidence in the light most favorable to the Government. United States v. Cardinas Garcia, 596 F.3d 788, 794 (10th Cir.2010). To obtain the § 922(g)(1) conviction, the Government was required to prove (1) Morales is a convicted felon, (2) he knowingly possessed a firearm or ammunition, and (3) the possession was in or affecting interstate commerce. United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir.2004). On appeal, the only element Morales challenges is whether he knowingly possessed the firearm.

Possession of a firearm for purposes of § 922(g)(1) can be either actual or constructive. United States v. McCane, 573 F.3d 1037, 1046 (10th Cir.2009). “Actual possession exists when a person has direct physical control over a firearm at a given time. Constructive possession exists when a person knowingly holds the power and ability to exercise dominion and control over a firearm.” Id. (quotations and citation omitted). Morales raises several challenges to the Government's evidence. He asserts the Government failed to prove he actually possessed the firearm because there was no direct evidence he carried or dropped it. To the contrary, Deputy Hornback testified he lost sight of Morales for several seconds during the chase and did not see him throw the firearm. Morales also asserts there was no DNA or fingerprint evidence connecting him to the firearm. Finally, he argues the jury could not reasonably have found he constructively possessed the firearm because he did not have dominion or control over the yard in which it was located.

After thoroughly reviewing the record, Morales's arguments are easily rejected. “Like any other fact in issue, possession [of a weapon by a prohibited person] may be proved by circumstantial as well as direct evidence.” United States v. McCoy, 781 F.2d 168, 171 (10th Cir.1985) (quotation omitted). Based on the circumstantial evidence presented by the Government, viewed collectively, a reasonable jury could conclude Morales actually possessed the firearm. Officers testified it was uncommon to find loaded weapons in residential yards in Dodge City, Kansas. The Government presented testimony the firearm was found along Morales's path of travel and photographs showing it was free of dirt, dust, moisture, and debris when it was recovered. A jury could reasonably conclude from this evidence that the weapon was dropped by Morales as he ran from Deputy Hornback and recovered shortly thereafter.

The Government introduced two other pieces of circumstantial evidence that provide additional support for the jury's verdict. First, Morales fled when the vehicle in which he was traveling was pulled over for a traffic violation. “It is well recognized that a defendant's intentional flight from police officers may be used as circumstantial evidence of guilt.” United States v. Fernandez, 18 F.3d 874, 879 n. 4 (10th Cir.1994). There was testimony Morales was on parole at the time of the traffic stop and, thus, faced the possibility of being returned to prison if found in possession of a weapon. Thus, the jury could reasonably conclude Morales fled to avoid being found with the firearm in his possession. Additionally, the jury heard testimony that a cell phone was found along the path Morales took while fleeing from Deputy Hornback. The phone was retained by Morales after he was released from jail. From this evidence, the jury could reasonably conclude (1) the phone belonged to Morales and (2) he had actual possession of both the phone and the firearm at the time he exited the vehicle, dropping both as he ran.

Viewing all the evidence collectively ² and in the light most favorable to the Government, a reasonable jury could conclude Morales had “direct physical control over [the] firearm” immediately before discarding it during the chase. McCane, 573 F.3d at 1046. Accordingly, the evidence was sufficient to sustain the jury's finding that Morales knowingly possessed the firearm.

B. Handcuffing

Morales also argues his Fifth Amendment due process right to a fair trial was violated when he was transported through the courthouse in handcuffs. According to Morales, during a break in the jury selection process, United States Marshals placed him in handcuffs and walked him through the hallway in front of potential jurors. Counsel described the incident to the district court as follows:

Your Honor, my concern is that the marshals cuffed my client. I don't think any jurors saw that. But then they walked him through the hallway. He was cuffed. I walked beside him. I tried to hide the handcuffs with my hand. But then we got to the elevator, well, there were several jurors standing around the elevator. Well, the marshals told them to get away, that they had to take charge of the elevator. They put him in the elevator....

Counsel requested impanelment of a new venire, and argued it was unnecessary to handcuff Morales because he is “not an individual who presents any threat.” During the in camera hearing, the district court revealed the Marshals had informed the court in advance they intended to handcuff Morales when they transported him through the courthouse based on their security concerns. The court engaged in a colloquy with Morales's counsel over possible alternatives to the handcuffing, but concluded the alternatives were either similarly prejudicial or failed to address the security concerns. The district court refused to impanel a new venire but agreed to admonish the jury and invited Morales to address the incident during voir dire if he so chose. Nothing in the record indicates Morales questioned the venire about the incident.³

Morales raised the handcuffing issue again in his Motion for Judgment of Acquittal and the Government filed a response. In its written order denying the motion, the district court rejected the Government's reliance on United States v. Simpson, a case in which this court held that “an isolated view of jurors of a defendant in handcuffs does not justify a new trial in the absence of a showing of actual prejudice.” 950 F.2d 1519, 1522 (10th Cir.1991). The court, instead, applied the test from Deck v. Missouri, concluding Morales was not entitled to a new trial because security concerns justified the handcuffing. 544 U.S. 622, 624, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (holding the use of visible shackles during the penalty phase violates the Fifth Amendment “unless that use is justified by an essential state interest—such as the interest in courtroom security—specific to the defendant on trial” (quotation omitted)).

This court reviews the district court's denial of Morales's motion for a new trial for an abuse of discretion. United States v. Wardell, 591 F.3d 1279, 1293 (10th Cir.2009). “The Fifth ... Amendment [ ] prohibit[s] the use of physical restraints visible to a jury absent a trial court determination, in the exercise of its discretion, that they are justified by a [governmental] interest specific to a particular trial.” Deck, 544 U.S. at 629, 125 S.Ct. 2007; see also id. at 626, 125 S.Ct. 2007 (“The law has long forbidden...