United States v. Norris

• Decision Date: 28 December 2021
• Docket Number: No. 19-1842,19-1842
• Citation: 21 F.4th 188
• Parties: UNITED STATES of America, Appellee, v. Douglas NORRIS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

21 F.4th 188

UNITED STATES of America, Appellee,

v.Douglas NORRIS, Defendant, Appellant.

No. 19-1842

United States Court of Appeals, First Circuit.

December 28, 2021

Ines McGillion, with whom Ines McGillion Law Offices, PLLC was on brief, for appellant.

Robert E. Richardson, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Lynch, Thompson, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

During the search of a Brockton, Massachusetts apartment pursuant to a warrant, police found a gun, ammunition, cocaine, and various drug paraphernalia. Douglas Norris, identified as one of the apartment's residents, was convicted by a jury of several contraband-possession offenses, including being a felon in possession of a firearm. On appeal, Norris raises four groups of errors. He claims that: (1) the district court improperly instructed the jury on joint possession; (2) the government presented insufficient evidence on the element of possession for all counts; (3) lay opinion testimony from law enforcement witnesses was improperly admitted at trial; and (4) the government did not allege or prove, and the jury was not required to find, that Norris knew of his status as a felon that prohibited him from possessing a firearm, contrary to the Supreme Court's decision in Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). For the reasons that follow, we find no reversible error and affirm Norris's convictions.

I.

A.

We begin, as did Norris's trial, with the apartment search at the heart of this case. Because Norris has challenged the sufficiency of the evidence against him, we recount the facts in the light most favorable to the verdict. United States v. McBride, 962 F.3d 25, 28 (1st Cir. 2020).

In the early morning of June 20, 2017, the Brockton Police Department's (BPD) Special Reaction Team (SRT) executed a search warrant at Apartment 2A of a building on North Warren Avenue. Upon entering the unit, the SRT encountered several occupants, though not Norris. In the first bedroom, referred to in the trial as "Bedroom 1," officers saw a woman identified as Nakaita Brown and a baby. Elsewhere in the apartment, they found a man named Jose Lora and his fiancée Adris Pimentel. All of the occupants were escorted to the kitchen while the search proceeded.

In Bedroom 1, officers observed clothing they identified as "adult male attire," including pants, shirts, and sneakers, as well as boxes for sneakers in men's sizes 10.5 and 11. Many of these articles were found and photographed within the bedroom's closet. Additionally, hanging in the closet was a black backpack that contained a loaded firearm, a plastic bag containing twenty loose rounds of .9 millimeter ammunition, and two digital scales. The backpack's front pocket contained a single .45 caliber round of ammunition and three plastic bags containing substances later determined to be cocaine hydrochloride and cocaine base. The gun, ammunition, and magazine were swabbed for DNA, and the parties stipulated that the lab identified a partial DNA profile "consistent with a mixture of DNA from at least three individuals," at least one of whom was male and at least one of whom may have been female.

Officers also found within the closet another digital scale with powder residue on it, a razor blade, some "cut baggies," a box of plastic sandwich bags, a metal object stamped with the words "The Brick Press" -- which was identified as a piece of a hydraulic press system (also called a "kilo press") used to pack powdered drugs into a brick form -- and loose pieces of mail in envelopes addressed to Norris.

Finally, one photograph of the closet depicts a hanging black studded jacket, which was the subject of questions from defense counsel at trial. The officers did not take the jacket into evidence because they thought it had "no value," and, when asked, the officers could not shed any light on whether the jacket belonged to a man or woman.

From other rooms in the apartment, officers recovered two additional plastic bags containing what was later identified as cocaine and cocaine base respectively, a money counter, additional scales, a rifle scope, a pistol magazine, and additional components of the Brick Press.

After concluding the search, the officers left the apartment around 6:30 or 7:00 A.M. and returned to the station. Around 7:50 A.M., BPD Detective Brian Donahue revisited the North Warren Avenue building to locate Norris, who had not been present for the search. Detective Donahue saw Norris leave the property, enter a gray Infiniti parked nearby, and drive away. Following in an unmarked car, Donahue called for a marked cruiser to stop Norris. Once the Infiniti was stopped, Donahue approached the vehicle and asked Norris for his name. Norris responded, "I'm the one you're looking for."

Norris was charged in the operative superseding indictment with four counts: being a felon in possession of a firearm and ammunition ( 18 U.S.C. § 922(g)(1) ); possessing a substance containing cocaine base with intent to distribute ( 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) ); possessing cocaine with intent to distribute ( 18 U.S.C. § 841(a)(1) ); and possessing a firearm in furtherance of a drug trafficking crime ( 18 U.S.C. § 924(c)(1)(A) ).

B.

Beyond the evidence described above, the government offered at Norris's trial additional evidence concerning Norris's connection with Apartment 2A. First, about six months earlier, BPD officers had responded to a 911 call at Apartment 2A and encountered Norris, Brown, and a baby. Norris then told the officers that he and Brown had had a disagreement, that he had disconnected the cellphone service maintained in his name, and that Brown wanted to leave. Officers stayed while Brown packed some things and left the apartment.

Then, on June 14, 2017 -- six days before the search -- Norris attended a housing court trial where he successfully defended against an eviction action for the second-floor apartment at the North Warren Avenue address.

The next day, June 15, BPD Detective Gary Mercurio conducted surveillance of the North Warren Avenue property and observed Norris leave the building, get into and out of a gray Infiniti parked around the corner, then walk back to the building.

Finally, on June 17, Lora and his fiancée Pimentel moved into a bedroom -- designated throughout the trial as "Bedroom 3" -- in Apartment 2A, after arranging with Brown to pay a portion of the rent. Lora testified that Norris, Brown (who he knew as "Coco"), and the baby were living in the apartment, in Bedroom 1, when Lora and Pimentel moved in. In the three days that Lora lived in Apartment 2A before the search on June 20, he saw Norris use Bedroom 1 to change clothes. Norris frequently left the apartment, but Lora did see Norris at the apartment daily before the search, including to share a Father's Day dinner prepared by Brown and Pimentel. By contrast, Lora saw Brown "at the apartment almost all the time." Pimentel testified that she saw Norris go into Bedroom 1, "usually just [to] go to sleep," and Norris had told her that the landlady was trying to evict him and Brown.

Lora also testified that at some point during his time living at Apartment 2A, Brown had told him that she owned a gun and had a license to carry. It is undisputed that Brown did not in fact have a license to carry a firearm or own any lawfully-registered firearms.¹

As part of the government's case-in-chief, the prosecution entered a stipulation that Norris had previously been "convicted in a court of a crime punishable by imprisonment for a term exceeding one year within the meaning of 18 U.S.C. § 922(g)(1)." This was the only evidence offered to prove Norris's status as a felon.²

After a four-day trial, the jury found Norris guilty on all four counts. The district court denied Norris's post-trial motions for judgment of acquittal and a new trial, and he timely appealed the convictions and those denials.

II.

Norris raises on appeal four categories of error, which we address in turn. Because our understanding of the jury instruction on joint possession informs the analysis of the sufficiency of the evidence of possession, we first assess the propriety of that instruction.

A.

In its proposed jury instructions, the government submitted an instruction for "possession" that included a more-or-less standard form of a so-called joint-possession instruction, telling the jury that they could convict even if Norris possessed the contraband jointly with someone else. Norris objected to the inclusion of this instruction, arguing, as he does now, that joint possession was not "the government's case" because the government had argued that Norris alone possessed the gun and drugs.³ The district court rejected Norris's argument and found the instruction appropriate: "I think that is the case actually. I mean, [the evidence has] presented an excellent picture, actually, that [Brown] was in that bedroom, and she was in there most of the time." The court ultimately included the following in its instruction defining "possession" for the jury:

Possession also includes both sole possession and joint possession. If one person alone has actual or constructive possession, the possession is sole. If two or more persons share actual or constructive possession, possession is joint. So whenever I use the term "possession" in these instructions, and I'll be using it again, the term includes actual and constructive possession, as well as joint and sole possession.

Norris renewed his objection to this instruction after it was given. We review his preserved objection de novo. United States v. Howard, 687 F.3d 13, 18 (1st Cir. 2012).

"When crafting jury instructions a judge must consider all of the evidence introduced at trial, in other words, the government's as well as the defense's." Id. at 19. In Howard, we held that a defendant may open the door to a joint-possession...