United States v. Mosley, 073009 FED6, 08-1937

Docket Nº:08-1937
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAMOND MOSLEY, Defendant-Appellant.
Case Date:July 30, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DAMOND MOSLEY, Defendant-Appellant.

No. 08-1937

United States Court of Appeals, Sixth Circuit

July 30, 2009

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: MOORE and GILMAN, Circuit Judges; PHILLIPS[*], District Judge.

THOMAS W. PHILLIPS, District Judge.

Defendant was convicted, after a bench trial, of being a felon in possession of a firearm. The trial judge found that the sentencing enhancement in the Armed Career Criminal Act applied and sentenced defendant to 180 months of imprisonment. Defendant challenges his conviction and sentence, alleging: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in accepting a stipulation by the parties that the firearm affected interstate commerce; (3) the trial court erred in accepting expert testimony without ruling that the witness was qualified to testify as an expert witness; (4) his prior conviction for felonious assault was not a serious drug offense or violent felony under Michigan law; and (5) the sentencing enhancements under the Armed Career Criminal Act are unconstitutional. Finding no merit in defendant's arguments, we affirm his conviction and sentence.

I. Background

Defendant waived his right to a jury trial, and trial commenced before the Honorable Sean Cox in the Eastern District of Michigan on March 20, 2008. Prior to calling the first witness, the government placed two stipulations on the record. The first stipulation was that defendant had been convicted of a felony. The second stipulation was that the firearm in question, a Smith & Wesson .40 caliber semiautomatic pistol, was not manufactured in the State of Michigan and therefore traveled in and affected interstate commerce. The government then presented the testimony of the two officers who arrested defendant, and Chana Gudger, a forensic technician with the Detroit Police Department.

The trial transcript shows that on November 1, 2007, at approximately 12:30 a.m., two uniformed City of Detroit police officers observed a black Lincoln turn left without stopping at a red light. The officers made a U-turn, activated the overhead lights and effected a traffic stop on the Lincoln. Defendant was the sole occupant in the vehicle. After the officers pulled the Lincoln over, they parked directly behind the vehicle and kept the patrol car's headlights on to illuminate the inside of the vehicle. Officer Tomaszewski approached on the passenger side and Officer Woodcum approached on the driver's side.

As Tomaszewski approached, he saw the defendant make a downward motion with his right arm and right shoulder. Tomaszewski shined his flashlight on the driver, but the driver's right hand was not visible because it was between the driver's seat and the passenger seat. Tomaszewski saw the driver pull his hand from between the driver's seat and the passenger seat, place his hand on his lap, and then grab the steering wheel in a hurried manner.

Officer Woodcum approached the driver's side door of the vehicle and requested defendant to present his driver's license, registration, and proof of insurance. Defendant complied. After Woodcum engaged in a brief conversation with defendant, the two officers walked back in the direction of the patrol vehicle. Tomaszewski alerted Woodcum that he had observed defendant making furtive gestures as though he were attempting to conceal something in the Lincoln. The officers immediately returned to the Lincoln. Woodcum asked defendant to exit the vehicle and obtained defendant's consent to search the car. Defendant got out of the Lincoln and Woodcum patted him down and escorted him back to the patrol car. Tomaszewski searched the Lincoln between the driver's seat and the center console, where he previously had observed defendant's hand hidden from view. He shined his flashlight in the area and observed an upside down handgun. It was a loaded .40 caliber blue steel automatic handgun. The officers placed defendant under arrest and the vehicle was further searched, but no additional contraband was found.

On November 2, 2007, the firearm was sent to an evidence lab, where Chana Gudger, a forensic technician, examined it for latent fingerprints. Gudger was unable to lift a latent fingerprint from the firearm or the live rounds, but was able to lift a latent fingerprint from the magazine, which was then sent to another unit for further analysis. This latent fingerprint was later determined unsuitable for comparison purposes.

II. Analysis

A. Substantial Evidence Supports Defendant's 18 U.S.C. § 922(g)(1) Conviction.

Defendant first challenges his conviction on the basis that there was insufficient evidence introduced at trial to demonstrate that he possessed the firearm found in the car he was driving. This court reviews a defendant's sufficiency of the evidence claim to consider "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Copeland, 321 F.3d 582, 600 (6th Cir. 2003). In undertaking this analysis, this court neither independently weighs the evidence nor judges the credibility of witnesses who testified at trial. United...

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