United States v. Penniegraft
2011 U.S. App. LEXIS 11143
| 4th Cir. | 2011Background
- December 2007 surveillance of 916 Willow Rd Greensboro on drug-trafficking info; arrests of residents leaving with crack.
- December 29, 2007 search of 916 Willow Rd yielded drugs, firearms, scales, cash; Hampton fled with a firearm and Penniegraft possessed a house key.
- June 30, 2008 grand jury returned six-count indictment; Penniegraft charged with crack possession with intent, firearms in furtherance, and felon in possession.
- Court admitted Rule 404(b) evidence of an Aug. 11, 2007 arrest; Penniegraft argued lack of similarity and improper timing.
- Trial resulted in guilty verdicts on all counts; after verdict, jury polling occurred despite Juror No. 5’s hesitation; modified Allen charge was given and issue preserved on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for crack possession with intent | Penniegraft lacks possession evidence | Penniegraft contesting possession/intention | Substantial evidence supports Count Two |
| Sufficiency of evidence firearms in furtherance | Firearms linked to drug activity and possession | Insufficient link to drug trafficking | Ample evidence supports Count Three (in furtherance) |
| Rule 404(b) admission | Prior arrest probative of intent/knowledge | Evidence too remote, not similar | Admission not error; probative and reliable |
| Jury polling after lack of unanimity | Polling allowed under Rule 31(d) | Polling after hesitancy coercive | Not reversible error; continued polling proper under standard |
| Plain error review on unobjected polling | N/A | Narrowed standard applies | No plain error; not reversible |
Key Cases Cited
- United States v. Burgos, 94 F.3d 849 (4th Cir. 1996) (possession with intent to distribute crime elements)
- United States v. Lomax, 293 F.3d 701 (4th Cir. 2002) (constructive possession guidance)
- United States v. Perry, 560 F.3d 246 (4th Cir.) (factors for possession in furtherance)
- Brasfield v. United States, 272 U.S. 448 (1926) (inquiry into jury division is per se reversible)
- Lyell v. Renico, 470 F.3d 1177 (6th Cir. 2006) (polling after verdict not per se coercive)
- United States v. Gambino, 951 F.2d 498 (2d Cir. 1991) (continued polling after dissents noncoercive unless coercive)
- United States v. Fiorilla, 850 F.2d 172 (3d Cir. 1988) (polling after dissent noncoercive depending on facts)
- Amos v. United States, 496 F.2d 1269 (8th Cir. 1974) (coercion assessment in polling varies by case)
- United States v. Brooks, 420 F.2d 1350 (D.C.Cir. 1969) (courts defer to trial judge on polling in many cases)
- Spitz, 696 F.2d 916 (11th Cir. 1983) (link to coercive polling standard (fact-specific))
- Queen v. United States, 132 F.3d 991 (4th Cir. 1997) (abuse-of-discretion standard for Rule 404(b))