United States v. Walker

• Decision Date: 20 August 2013
• Docket Number: Nos. 12–3166,12–3167.,s. 12–3166
• Citation: 734 F.3d 451
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Terrance WALKER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

734 F.3d 451

UNITED STATES of America, Plaintiff–Appellee,

v.Terrance WALKER, Defendant–Appellant.

Nos. 12–3166, 12–3167.

United States Court of Appeals, Sixth Circuit.

Argued: July 30, 2013.

Decided and Filed: Aug. 20, 2013.

ARGUED:Joseph Cascio, Kirkland & Ellis LLP, Washington, D.C., for Appellant. Benjamin C. Glassman, United States Attorney's Office, Cincinnati, Ohio, for Appellee. ON BRIEF:Joseph Cascio, Kirkland & Ellis LLP, Washington, D.C., for Appellant. Anthony Springer, United States Attorney's Office, Cincinnati, Ohio, for Appellee.

Before: GIBBONS, SUTTON, and KETHLEDGE, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

A federal jury convicted Terrance Walker of being a felon in possession of ammunition transported in foreign commerce. See18 U.S.C. §§ 922(g)(1) & 924(a)(2). On appeal, Walker argues that the government did not introduce sufficient evidence at trial to prove that he possessed the firearm containing this ammunition. He also claims that the government constructively amended or prejudicially varied from the indictment with respect to its evidence showing that the ammunition he possessed traveled in foreign commerce. Finally, Walker challenges the district court's decision to sentence him to an additional twenty-four months in prison because his crime violated the terms of his supervised release. For the reasons that follow, we affirm the district court's judgment.

I.

On November 11, 2010, undercover officers from the Cincinnati Police Department riding in an unmarked car observed a Chrysler 300 with heavily tinted windows “playing very loud [music]” at a drive-thru restaurant in Cincinnati's Avondale neighborhood. The undercover officers called in a “uniformed” police car with authorization to initiate a traffic stop of the Chrysler. The “uniformed” car pulled over the Chrysler, and the four officers in the unmarked car—Nathan Asbury, Shemel Davis, Steven Peponis, and an “Officer Hamlet”—exited their car and approached the Chrysler. Asbury testified that as they approached, the occupants of the car did not roll down the windows. After knocking on the Chrysler's windows several times, Antonio Evans, the driver and owner of the car, and Walker, the front seat passenger, rolled down the windows and began speaking to the officers. The officers smelled marijuana once the car windows were opened. Peponis also noticed that Walker was agitated, as he could “see [Walker's] heart beating through his T-shirt.” Asbury, who was standing near the front driver's side window, directed Evans to exit the vehicle, which he did without incident.

Once Evans exited the vehicle and was under Hamlet's supervision, Peponis asked Walker to step out of the vehicle according to his instructions and keep his hands in the officers' sight at all times. He first told Walker to “unlatch your seatbelt with your right hand and release it.” Instead, as Walker “unlatched the seatbelt, he held onto the clasp of the seatbelt and began following it across his body with his hands.” Asbury, who was observing Walker's actions from the driver's side of the car, testified that “both [of Walker's] hands began to slowly move [the seatbelt] across his waistband back down toward the floor where I could no longer see his hands.” According to Peponis, Walker “continued to follow the seatbelt with his right hand to such a point where he had his entire body turned[,] his shoulders were square” with Peponis's shoulders, and his hands were positioned near his right hip in a place where Peponis and Asbury could not see them. Peponis believed that Walker was “reaching between the passenger seat and the passenger door.” Asbury described Walker's movements as “completely unnatural” because the seatbelt retractor was at shoulder height.

Peponis and Asbury gave Walker several warnings to release the seatbelt and show his hands. Walker ignored the warnings and “continued doing what he was doing, moving his hands away, down and away, toward the floorboard.” Peponis reached through the car window, grabbed Walker's hands, and dragged them through the passenger window in order to secure him. Davis quickly joined Peponis in order to help restrain Walker. Another officer, Kim Lowry, approached the Chrysler to provide further assistance while Davis and Peponis were restraining Walker. She opened the car's back door on the same side as the front passenger seat and saw a gun on the floor of the car between the passenger's seat and the door, near the floor mounting for the front passenger's seat belt. According to the officers, the gun was loaded, had a round in the chamber, and was positioned “where you could reach and grab it and come up with it like it was a normal hold” from the front passenger's seat.

The government indicted Walker on a single count of being a felon in possession of a firearm or ammunition shipped or transported in interstate or foreign commerce.¹ Before trial, all parties agreed that the gun found in the car was manufactured in Ohio, meaning the government had to prove that the ammunition found in the gun had a connection to interstate or foreign commerce to convict Walker. Davis, Asbury, Peponis, and Lowry testified about the traffic stop during Walker's three-day trial.

The government also called two expert witnesses during trial. The first, Steven Villing, was an expert on fingerprint evidenceworking for the Cincinnati Police Department. Villing testified that he could not retrieve any usable fingerprints that would indicate Walker actually held the gun or the ammunition in the gun, largely because the surfaces of the gun and the ammunition were poor for retention of fingerprints.

The second expert witness, Joshua Bezy, testified on the ammunition's connection to foreign commerce. His analysis of the markings on the bullet casings of the rounds found in the gun led him to conclude that the rounds were manufactured in Russia. On cross-examination, Bezy acknowledged it was theoretically possible that the rounds in the guns were “reloads” that had been manufactured in Ohio with casings from used Russian bullets or that some Ohio manufacturer had made bullets that copied the casings of the Russian manufacturer known for using those casing marks. He clarified this statement on redirect examination by noting that the “reload” possibility was remote because it would have been “cost prohibitive” to make “reloads” out of such an inexpensive form of ammunition.

Walker moved for a judgment of acquittal at the close of the government's case-in-chief under Federal Rule of Criminal Procedure 29, but the district court denied the motion. He presented no witnesses of his own. The jury reached a guilty verdict on July 27, 2011. At Walker's sentencing hearing on February 7, 2012, the district court imposed a sentence of forty-four months' imprisonment for the offense. Moreover, because Walker's conduct violated the terms of his supervised release from a prior federal conviction, the district court imposed an additional, consecutive sentence of twenty-four months' imprisonment. Walker filed a notice of appeal on the same day the judgment of sentence issued.

II.

This court reviews denials of motions for acquittal de novo. United States v. Grubbs, 506 F.3d 434, 438 (6th Cir.2007). “[T]he relevant question” on appeal is the same one the district court considered: “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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Grubbs, 506 F.3d at 438. To convict a defendant under 18 U.S.C. § 922(g), the government must prove that Walker (1) was a convicted felon who (2) possessed ammunition that (3) traveled in or affected interstate or foreign commerce. See United States v. Beasley, 583 F.3d 384, 393 (6th Cir.2009).

Walker's sufficiency-of-the-evidence argument is directed at the element of possession. Possession can either be “actual” or “constructive.” United States v. Schreane, 331 F.3d 548, 560 (6th Cir.2003). A weapon is “actually” possessed if it “is within the immediate power or control of the individual.” United States v. Murphy, 107 F.3d 1199, 1207–08 (6th Cir.1997). A weapon is “constructively” possessed if the government can show the defendant “knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.1973). Possession of either variety may be proven by direct or circumstantial evidence. United States v. Arnold, 486 F.3d 177, 181 (6th Cir.2007).

The government argues that Walker actually possessed the gun found in the Chrysler. Under its theory of the case, Walker's “highly unusual behavior” suggested that he knew the gun was in the car and was trying to grab it when the officers were directing him to remove his seatbelt. Walker responds that the government proved neither actual nor constructive possession. He relies primarily on United States v. Bailey, 553 F.3d 940 (6th Cir.2009), in which we held that the government had not adduced sufficient facts to show the defendant constructively possessed a handgun. “[T]he only evidence supporting [the defendant's] conviction [in Bailey ] for constructive possession of the firearm [was] the fact that the loaded gun was found underneath [the defendant's] seat in the stolen car he was driving and that he had attempted to evade police.” 553 F.3d at 945. But the efforts to evade the police “prove [d] little” because the defendant was also in possession of crack cocaine and may have been attempting to avoid arrest for that crime. Id. at 946. Because the government “did not advance any evidence establishing constructive possession beyond the fact that [the defendant] drove the car in which the gun was found,” this court...