USA v. KELLY

• Decision Date: 30 December 2010
• Docket Number: No. 09-3712.,09-3712.
• Citation: 625 F.3d 516
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. A.J. KELLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

625 F.3d 516

UNITED STATES of America, Plaintiff-Appellee,

v.A.J. KELLY, Defendant-Appellant.

No. 09-3712.

United States Court of Appeals,Eighth Circuit.

Submitted: May 12, 2010.

Filed: Nov. 22, 2010.

Rehearing Denied Dec. 30, 2010.

Jennifer L. Gilg, AFPD, argued, Michael F. Maloney, AFPD, on the brief, Omaha, NE, for appellant.

Michael D. Wellman, AUSA, argued, Deborah R. Gilg, U.S. Attorney, on the brief, Omaha, NE, for appellee.

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

BYE, Circuit Judge.

A jury convicted A.J. Kelly of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and Kelly was sentenced to 115 months' imprisonment followed by three years of supervised release. Kelly appeals his conviction on the ground there was insufficient evidence of his possession or control of a firearm. Kelly also challenges a special condition of his supervised release barring him from possessing any material which “contains nudity or that depicts or alludes to sexual activity or depicts sexual arousing material,” arguing this condition is not reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a) and is overbroad in violation of his rights under the First Amendment. Although we reject Kelly's sufficiency-of-evidence argument and affirm his conviction, we find merit in his arguments regarding the special condition and remand for further consideration of such condition and resentencing.

I

While executing a search warrant at Kelly's residence in Omaha, Nebraska, on April 21, 2008, law enforcement discovered a Colt .22 caliber pistol, some ammunition, and a 2007 receipt for the sale of ammunition, all wrapped in a towel and placed inside three plastic bags. The items were found on top of a basement closet high in the rafters. Also found in the basement was a Cricket telephone bill issued in Kelly's name. It is undisputed that the only two individuals who resided at the house were Kelly and his elderly ailing father.

Upon discovery of the gun, Sergeant Jonathan Waller of the Omaha Police Department read Kelly his Miranda rights and spoke to him after Kelly had agreed to waive them. According to Waller, Kelly admitted during the interview the pistol had been given to him by his grandfather seven years ago. Initially Kelly insisted he had not touched the gun for years, but when Waller confronted him with the ammunition sale receipt dated 2007, Kelly admitted to handling the gun a few times during the intervening years. Although Kelly conceded he was a convicted felon, Waller recalled, he did not believe the law prohibiting felons from possessing firearms applied to the family heirloom pistol given to him by his grandfather.

At trial, Kelly vehemently disputed Waller's account of their conversation. He denied telling Waller the pistol was his grandfather's gift or making any statements concerning the handling of the pistol on prior occasions. According to Kelly, he took responsibility for the gun only after Waller had threatened to charge Kelly's father if Kelly himself did not claim the gun. Speculating about the potential owner of the gun, Kelly noted his grandfather had lived at the house several years ago and three of his siblings, too, had access to the house during the relevant period.

Kelly was indicted on June 18, 2008, on two counts: felon in possession of firearm and a criminal forfeiture count under 18 U.S.C. § 924(d). He was convicted on the first count following a single-day jury trial; he was found guilty on the forfeiture count by the judge. On November 16, 2009, the district court sentenced him to 115 months' imprisonment, the upper point of his 92-115 months Guidelines range, and imposed a three-year term of supervised release, subject to several special conditions of supervision. Kelly is to serve his sentence consecutive to the 35 to 50 years' sentence he received on a state-court conviction for sexual assault of a child earlier that year. Apparently because Kelly had two sexual assault convictions, the district court restricted his access to sexually explicit materials through a broadly-phrased provision challenged on this appeal. Kelly timely appealed both his conviction and his sentence.

II

[1] [2] We begin with the easier question of whether Kelly's conviction was supported by sufficient evidence. “We review a challenge to the sufficiency of evidence de novo, considering the evidence in the light most favorable to the government.” United States v. Gentry, 555 F.3d 659, 664 (8th Cir.2009). Because it does not appear Kelly moved for judgment as a matter of law or for a new trial, the court could review the claim of insufficient evidence for plain error. United States v. Anderson, 570 F.3d 1025, 1029 (8th Cir.2009); Boone v. Moore, 980 F.2d 539, 542 n. 3 (8th Cir.1992). However, because the record is not entirely clear about these procedural facts and because the government does not assert forfeiture of the issue, we choose to apply the usual standard for evaluating sufficiency-of-evidence claims. See United States v. Ojeda-Estrada, 577 F.3d 871, 875 (8th Cir.2009) (choosing to overlook potential forfeiture of full review of the sufficiency-of-evidence claim “out of an abundance of caution” where both parties were uncertain as to whether Rule 29 motion was ever made and the transcript was unreliable due to certain irregularities). Thus, we must affirm the conviction if “any rational jury could have found the defendant guilty beyond a reasonable doubt.” Id. at 874 (citing United States v. Inman, 558 F.3d 742, 747 (8th Cir.2009)).

“Felony possession of a firearm requires proof of three elements: (1) a prior felony conviction; (2) knowing possession of a firearm; and (3) an interstate nexus.” United States v. Jones, 266 F.3d 804, 813 (8th Cir.2001). Kelly lodges his sufficiency-of-evidence challenge only with respect to the second, knowing possession element. In support of his argument, he points to “inconclusive” results of the DNA testing and asserts that Sergeant Waller's testimony concerning Kelly's confession is unverified and unreliable.

We make short work of Kelly's argument. Whether well-founded or not, Kelly's doubts about Waller's credibility are not for us to resolve. “It is axiomatic that we do not review questions involving the credibility of witnesses, but leave credibility questions to the jury.” United States v. Montano, 506 F.3d 1128, 1133 (8th Cir.2007) (internal quotation marks and citation omitted). As it was free to do, the jury in this case chose to credit the testimony of Sergeant Waller that Kelly had admitted to being the pistol's owner. See United States v. One Star, 979 F.2d 1319, 1321 (8th Cir.1992). The jury was also entitled not to attach excessive significance to the “inconclusive” results of the DNA testing, especially where those results did not positively exclude Kelly, and indeed found Kelly's DNA in several locations on the pistol. Therefore, we conclude Kelly's conviction for being a felon in possession of a firearm was supported by sufficient evidence.

[3] It leaves Kelly's second claim for relief-the argument that the district court exceeded its discretion in imposing special condition of supervision 15. The condition in question prohibits Kelly from

possess[ing] [or] hav[ing] under his ... control any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity or depicts sexually arousing material. This includes, but is not limited to, any material obtained through access to any computer, including a computer for employment purposes, or any other material linked to computer access or use.

Judgment at 5.

District courts have broad discretion in imposing conditions of supervised release, as long as each condition “1) is reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a); 2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a); and 3) is consistent with any pertinent policy statements issued by the Sentencing Commission.” United States v. Bender, 566 F.3d 748, 751 (8th Cir.2009) (citing 18 U.S.C. § 3583(d) and United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007)) (internal quotation marks omitted). In Kelly's view, the condition in question fails both the first and the second prong of the test.

[4] [5] [6] We first address Kelly's argument as to special condition 15 not being reasonably related to § 3553(a) sentencing factors. We review the condition for abuse of discretion. United States v. Davies, 380 F.3d 329, 332 (8th Cir.2004). “A condition is reasonably related to the statutory factors if tailored to the nature and circumstances of the offense, the defendant's history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant's educational, vocational, medicinal, or other correctional needs.” United States v. Fenner, 600 F.3d 1014, 1026 (8th Cir.2010) (internal quotation marks and citation omitted). Courts can impose special conditions of supervised release not directly related to the offense for which the defendant is being sentenced where “the special conditions are related to another offense that the defendant previously committed.” United States v. Smart, 472 F.3d 556, 559 (8th Cir.2006) (approving the imposition of sex-offender-related conditions as part of a sentence for felon in possession of a firearm where the defendant was previously convicted of two sexual abuse offenses, was still on probation for one of them, and was sought on an arrest warrant for violating the conditions of probation). However, in crafting any special conditions, district courts must be careful to conduct an inquiry “on an individualized basis,” looking at the specific facts of the defendant's criminal history and his particular offenses. United States v. Davis, 452 F.3d 991, 995 (8th Cir.2006...