Lead Opinion
Albert Terrell Ellis was convicted by a jury of possessing a firearm as a felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e); possessing heroin with intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(C); and carrying a firearm during and in relation to a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A). He argues on appeal that the government’s evidence was insufficient to support the jury’s guilty verdicts and that the district court
Ellis first argues that the government’s evidence against him was insufficient to support his convictions. We review the sufficiency of the evidence to support a conviction de novo, considering the evidence in the light most favorable to the government and accepting all reasonable inferences that may be drawn therefrom in favor of the verdict. United States v. Maloney,
On October 10, 2012, Clancey and Guinn engaged in a violent physical altercation at the apartment over heroin and money. Sometime during the altercation, Ellis, who was not present when 'the argument began, arrived at the apartment and separated the two women. Clancey then telephoned her mother, crying and claiming that she was frightened, that she felt unsafe, that “something bad [was] happening,” and that her mother should telephone, the Duluth police. Clancey’s mother called 911 and asked the dispatcher to send an officer to Clancey’s home to check on her welfare. Clancey told Ellis and Guinn that the police were on the way, and she demanded that Guinn move out of the apartment immediately. Ellis warned Clancey not to “tell anybody or else he’s coming back,” whereupon he and Guinn began to remove Guinn’s belongings from the residence.
Duluth Police- Officer Daniel Rendulich responded to the 911 call, arriving at the apartment to find Ellis in the front yard, loading .Guinn’s belongings into a Ford Expedition that Ellis had borrowed from a friend. Ellis told Rendulich that Clancey and Guinn had been fighting and that he was helping Guinn move out of the apartment. When Duluth. Police Officer Matt McShane arrived, the officers went inside the apartment to speak with Clancey. McShane soon saw Guinn outside the apartment, and, having heard that she “had drugs on her person,” went outside and asked to look inside her bag, in which he found evidence of heroin use, including syringes and a spoon coated with burned residue.
In the meantime, Rendulich was inside the apartment speaking with Clancey, who “appeared nervous and upset,’’.“leaned in close” to speak with him, and “look[ed] constantly over [his] shoulder at the door ... as if she was concerned about somebody coming in or interrupting what she was saying.” Clancey told Rendulich that she had discovered a firearm in her basement that she believed belonged to Ellis, and she offered to show Rendulich where she had hidden it. Clancey led Rendulich to the wooden trapdoor in the basement floor, but the firearm was no longer there. Rendulich, concerned that there was a firearm on the scene that had not beén accounted for, advised McShane by radio to conduct a pat down of Ellis to ensure that he was not armed. The pat down revealed that Ellis was not armed but was carrying a “quantity of cash” in his pocket that was “bundled into a few separate packages or packets,” which, according to McShane, was typical “of individuals who sell con
Meanwhile, after Clancey and Rendulich failed to find the firearm where Clancey had hidden it beneath the trapdoor, Clan-cey led Rendulich to the basement closet where she had originally discovered the firearm. Inside the closet was a plastic grocery bag that held two boxes of ammunition, but no firearm. Clancey then told the officers that Ellis had retrieved the heroin he supplied her and the others from his vehicle, and that she suspected that the firearm, as well as Ellis’s drug stash, would be in that vehicle. She then pointed the officers to Ellis’s Envoy, which was parked on the street in front of the duplex, resting on a jack and missing a rear tire. A day or two earlier, Ellis had asked Johnson to fix a flat tire on the Envoy, but Johnson had been unable to remove the spare tire from its rack under the vehicle, leading Ellis to use the Expedition to take the flat tire to a repair shop on the morning of October 10, from where he planned to pick up the repaired tire later that afternoon. After Clancey identified Ellis’s Envoy, Rendulich ran its license plates and determined that the vehicle was registered to Ellis’s mother in Illinois. He then called for a police canine unit to conduct a drug sniff of the vehicle, and McShaiie contacted Investigator Scott Williams to obtain a warrant to search the vehicle. Two canine units eventually arrived, and both dogs alerted to the vehicle.
After Williams arrived with a warrant, the officers searched the Envoy andrecov-ered from its gas-cap compartment a clear plastic bag, which held several separate, smaller-quantity packets of crack cocaine and heroin. Subsequent analysis confirmed that-the bag contained a total of .08 grams of heroin and 1.6 grams of crack cocaine. The officers recovered from, under the vehicle’s hood a loaded .45-caliber handgun wrapped in a brown plastic grocery bag, which Clancey testified resembled the firearm and grocery bag she had discovered in her basement. After the officers found the drugs and the firearm, McShane reentered the apartment and, learning that Clancey had left and Johnson had arrived, obtained permission from Johnson to retrieve the ammunition from the basement closet,
The handgun and 'the ammunition, as well as the plastic grocery bags in which they were found, were submitted for fingerprint and DNA analysis. Although Ellis’s fingerprint was found on the ammunition evidence, neither his fingerprints nor his DNA was found on the firearm or the plastic bag in which it was found.
In addition to the foregoing evidence, the jury heard testimony-from- several government ' experts. The government’s expert in drug trafficking and drug organizations explained, among other things, that firearms are an essential tool used by .drug traffickers to protect themselves, their drugs, and their drug proceeds. The government’s fingerprint • expert explained that if the surface of a firearm is “dirty or textured,” or if an individual has very dry hands or is wearing gloves while handling the firearm, it may not be possible to recover fingerprint evidence from the firearm. The government’s DNA expert explained that if a firearm had been “cleaned or wiped down,” there may be no DNA evidence present. The expert, also stated that firearms are often, coated in “oils and grease,” which “inhibit DNA from showing up,” and that firearms “get hot when they’re shot,” which “breaks down DNA.”
At the close of the government’s case, the district court ruled on-the government’s motion to.introduce evidence of Ellis’s 1996 state felony conviction for heroin delivery, stating:
*576 I think the heroin, particularly since it is possession with intent and this case involves heroin and a defense it does not belong to the defendant but another heroin user — there’s multiple heroin users who are in question and whose credibility is challenged before the Court — it may assist the jury in determining who the heroin belonged to and recovery from the vehicle in light of the defense. So I will allow inquiry into the 1996 Cook County possession of a controlled substance with intent to deliver, which is an exact same possession of the exact same drug in this case. So I will allow its admissibility under 404(b).
Following the denial of his motion for judgment of acquittal, Ellis testified in his own defense, during which his counsel raised the subject of the 1996 conviction. On cross-examination, the government elicited follow-up testimony from Ellis to clarify the year of the conviction and to confirm that it involved the delivery of heroin. Ellis also testified about his time at Clancey’s apartment and the events on October 10, generally denying all knowledge of the drugs and firearm and suggesting instead that either Clancey or Johnson had placed the contraband in his vehicle. As recounted earlier, the jury found Ellis guilty of possessing a firearm as a felon, of possessing heroin with intent to distribute, and of carrying a firearm during and in relation to a drug-trafficking crime. It found him not guilty on the possession-of-ammunition charge. The district court sentenced Ellis to 262 months’ imprisonment.
Ellis first argues that the evidence was insufficient to convict him of possessing a firearm as a felon. To find Ellis guilty of this offense, the government was required to prove that Ellis was a felon, that he knowingly possessed a firearm, and that the firearm had traveled in or affected interstate commerce. See 18 U.S.C. § 922(g); Maloney,
Ellis does not dispute that the vehicle from which the firearm was recovered belonged to him. He argues, however, that there was insufficient evidence to prove that he had dominion and control over the vehicle because he had given the vehicle’s keys to Johnson when he asked Johnson to change the flat tire. Thus, argues Ellis, the evidence established that it was Johnson who had dominion and control over the vehicle and constructively possessed the firearm recovered therefrom. We disagree. Clancey testified that Ellis did not give her or Johnson the keys to the vehicle while they were attempting to change the tire. Although Johnson said nothing about the keys, he denied driving Ellis’s vehicle, denied putting the heroin or the firearm inside Ellis’s vehicle, and testified that he “never went in the vehicle or anything like that.” Johnson also testified that although he had used “20 gauges and 12 gauges for clay pigeon[s],” he had “never held a handgun or owned one in [his] life.” Clancey confirmed that she had never seen John
The crux of Ellis’s argument is that the jury made an erroneous credibility determination by rejecting his testimony in favor of Clancey’s and Johnson’s. But weighing the evidence and assessing the credibility of witnesses are “exclusively for the jury.” Kirk,
Ellis also points to the fact that neither his DNA nor his fingerprints were recovered from the firearm. But the government’s experts explained why DNA and fingerprint evidence may be difficult to recover from a firearm, and the jury was entitled to consider, these explanations in reaching its conclusion that Ellis possessed the firearm despite the absence of DNA and fingerprint evidence.
Applying our highly deferential standard of review, we conclude that the evidence, viewed in the light most favorable to the verdict, was sufficient for a reasonable jury to conclude that Ellis maintained dominion and control over his ■ vehicle and thus knowingly possessed the firearm recovered therefrom.
Ellis next-argues that the evidence was insufficient to convict him of possessing heroin with intent to distribute. To convict Ellis of this offense, the government was required to prove that Ellis knowingly possessed the heroin recovered from his vehicle and that he intended to distribute it. See United States v. Timlick,
With respect to Ellis’s intent to distribute that heroin, Clancey testified that she knew Ellis as “Medicine Man” and that he had supplied her, Guinn, and Johnson with heroin. The officers found heroin paraphernalia in Guinn’s purse on the day in question. The heroin recovered from Ellis’s vehicle was packaged in several smaller quantities, which government witnesses testified was a common practice among drug dealers. Clancey also testified that Ellis kept a “stack of -cash” in the apartment, and McShane testified that Ellis had a “quantity of cash” in his pocket “bundled into a few separate packages or packets,” which, in his experience, was typical “of individuals who sell controlled
Ellis was charged under § 924(c)(1)(A) with using and carrying a firearm during and in relation to the underlying heroin-distribution offense. This offense encompasses two alternative types of conduct with a firearm, “using” or “carrying,” “either one of which provides a basis for prosecution under the statute.” United States v. White,
The government argues that Ellis carried the firearm in his vehicle. We need not determine whether the government must prove that Ellis actually drove the vehicle while the firearm was located within it, because the evidence was sufficient for a jury to conclude that Ellis had carried the firearm on his person. Specifically, there was sufficient evidence for a reasonable jury to find that Ellis “carried” the firearm for purposes of § 924(c)(1)(A) by retrieving it from' the basement of the duplex, transporting it to his vehicle, and concealing it in his vehicle near his heroin stash. Clancey testified that Ellis told her that he had a-firearm and that she later discovered a firearm in her basement. She further testified that on the morning in question, she told Ellis that the police were on the way to the apartment, giving Ellis ample time to remove the firearm from the basement and conceal it in his vehicle. When police arrived at the du
Moreover, the evidence was sufficient for the jury to conclude that Ellis carried the firearm from the apartment to his vehicle “during and in relation” to his heroin-distribution activity. The government presented evidence that firearms are essential tools used by drug traffickers. to protect themselves, their drugs, and their drug proceeds, and' “[w]e have long recognized the role of firearms in protecting drugs or drug proceeds.” • United States v. Espinosa,
.“If evidence consistent with guilt exists, we will not reverse simply because the facts and circumstances may also be consistent with some innocent explanation.” Griffith,
Finally, Ellis argues that the district court abused its discretion by admitting evidence of his 1996 state felony conviction for possessing heroin with intent to deliver. We review for abuse of discretion a district court’s decision to admit evidence of a prior conviction under Federal Rule of Evidence 404(b). See United States v. Cowling,
Ellis.denied possessing or distributing heroin and denied any knowledge of the heroin recovered from his vehicle, which-placed his. state of mind at issue-and rendered his prior heroin-delivery conviction probative of his knowledge and intent to commit the charged heroin-distribution offense. See United States v. Thomas,
Ellis also argues that his prior conviction was too remote in time to be admissible under Rule 404(b), noting that his 1996 conviction was nineteen years old at the time of the instant offense. Although proximity in time is a factor a court must consider in deciding whether to admit Rule 404(b) evidence, we have held that “there is no fixed period within which the prior acts must have occurred.” United States v. Baker,
Because the prior-crimes evidence was relevant, probative, and not too remote in time to the instant offense, and because any potentially unfair prejudicial impact was mitigated by the district court’s limiting instruction, the district court did not abuse its discretion under Rule 404(b) by admitting the evidence of Ellis’s 1996 state felony conviction.
The judgment is affirmed.
Notes
. The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota.
Concurrence Opinion
concurring in part and dissenting in part.
This is a close case marked by the lack of direct evidence of appellant-defendant Albert Ellis’s (Ellis) guilt. Instead, the government relies, primarily, on circumstantial evidence to sustain Ellis’s convictions. Based upon the evidence submitted at trial, while on somewhat different grounds, I concur in the majority’s conclusion that the circumstantial evidence is sufficient to sustain Ellis’s convictions for possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e), and possessing heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). I further agree with the majority that the district court
“We review the denial of a motion for acquittal by viewing the evidence in the light most favorable to the verdict, giving the government the benefit of all reasonable inferences to be drawn from the evidence.” United States v. Davis,
Under the statute, to sustain Ellis’s conviction, the government must prove Ellis “carrie[d]” a firearm “during and in relation to ... [a] drug trafficking crime.” 18 U.S.C. § 924(e)(1)(A). The Supreme Court held that the word “carr[y]” in section 924(c)(1) means the government must prove the firearm was either on the defendant or accompanying the defendant. Muscarello v. United States,
The Supreme Court further defined the phrase “in relation to” under section 924(c)(1) to mean “the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.” Smith v. United States,
' Beginning with the “carrying” prong of section 924(c)(1), the record shows no evidence, direct or circumstantial, that Ellis carried the firearm from the basement of the duplex to the vehicle. Instead, the evidence presented at trial included: (1) Jacqueline Clancey’s (Clancey) testimony that, (a) Ellis told Clancey he had a firearm, (b) Clancey never saw Ellis with a firearm, (c) Clancey found a firearm in the basement' of the duplex, (d) Clancey believed the firearm belonged to Ellis, (e) Clancey moved the firearm -to a secret location — unknown to Ellis, and (f) Clan-cey did not move the firearm in Ellis’s inoperable vehicle; and (2) Mathew Johnson’s testimony that he did not place the firearm in Ellis’s inoperable vehicle. None of this evidence proves Ellis “carried” the firearm.
Even assuming Ellis carried the firearm from the basement to the vehicle,, there is no evidence, direct or circumstantial, showing Ellis carried the firearm “during and in relation to” Ellis’s drug trafficking activities. We have consistently held, in keeping with Supreme Court precedent, that “ ‘simultaneous possession of drugs and ... firearm[s] is not alone sufficient to support a conviction under’ section 924(c).” United States v. Spencer, 439, F.3d 905, 914 (8th Cir.2006) (alteration-in original) (quoting United States v. Hamilton,
Here, the majority posits a jury could infer “that Ellis, knowing police were on the way to the apartment,, retrieved the firearm ... and concealed it in his vehicle, along with his heroin stash, in an effort to protect this contraband from discovery by police.” (Maj. Op. 579 (emphasis added)). The majority concludes that from- this inference the jury could again infer that “Ellis carried the firearm with the purpose of facilitating his heroin-distribution activity.” (Id.) While one could speculate that the drugs and the firearm were connected because they were both located in the vehicle, “speculation is different from a reasonable legal inference based on specific evidence.” United States v. Turner,
For these reasons, I vigorously dissent. For this non-violent offense, Ellis has been sentenced quite harshly. Ellis’s conviction under section 924(c)(1)(A) should be vacated on the merits and Ellis’s sentence should, theréby, be reduced by 60 months.