United States of America v. Brandon Dante Brooks-Davis
No. 19-2876
United States Court of Appeals for the Eighth Circuit
January 7, 2021
Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
Submitted: October 23, 2020
A jury convicted Brandon Brooks-Davis of two counts of aiding and abetting a felon-in-possession of a firearm in violation of
I. Sufficiency of the Evidence
In 2018, police investigating Donta Adams for drug dealing executed a warrant to search an apartment in Edina, Minnesota. Brooks-Davis emerged naked from a bedroom where he was with an adult woman. In the bedroom, officers found shorts containing a wallet with Brooks-Davis‘s driver‘s licence approximately two-feet from an Air Jordan bag containing marijuana, a digital scale, and a Glock .40 pistol. They also found a short-barrel rifle in the closet of the second bedroom and a large amount of cash and three additional firearms in a safe in the laundry room. During the search, Adams appeared at the apartment, fled, and was apprehended in an adjunct parking garage where another gun was later found.
Adams and Brooks-Davis were indicted as co-defendants. Count 1 charged both defendants with unlawful possession of “the firearms found in the safe: a Beretta . . . a Smith & Wesson . . . and a Ruger.” Count 2 charged both with unlawful possession of the Glock pistol found in the Air Jordan bag. Adams pleaded guilty and testified for the government at Brooks-Davis‘s trial.
At trial, the government introduced the drug and firearm evidence found during the warrant search together with law enforcement officer testimony describing where the evidence was found and the actions of Brooks-Davis and Adams during and after the search. Adams then testified that he and Brooks-Davis sold drugs together and split the profits. They shared the apartment, owned the drugs found in the apartment, and both carried firearms. Adams testified Brooks-Davis stayed in the bedroom where he was found; the Air Jordan bag and Glock firearm found in the bedroom belonged to Brooks-Davis. He testified they jointly owned the safe in the laundry room and used it to store their guns and cash. The Beretta found in the safe belonged to Brooks-Davis; the Ruger, a stolen gun, belonged to Adams; and the Smith & Wesson was being held for a friend. When asked why only his fingerprints and DNA were found on the firearms, Adams testified that Books-Davis was “careful” and wore gloves or wiped the guns down. Adams was extensively cross examined by defense counsel. At the close of the government‘s evidence, Brooks-Davis waived his right to testify and the defense presented no evidence. The district court denied his motion for judgment of acquittal. The jury convicted him of Counts 1 and 2.
On appeal, Brooks-Davis argues the evidence was insufficient to prove he possessed the Glock pistol charged in Count 2 or any of the three firearms charged in Count 1. Alternatively, he argues the evidence was insufficient to prove he possessed the Smith & Wesson found in the safe and therefore he could not be convicted of Count 1 because the jury was instructed it must find he possessed all three guns in the safe. Our standard of review for “a claim of insufficient evidence is strict, and a jury‘s verdict should not be lightly overturned.” United States v. Tate, 633 F.3d 624, 628 (8th Cir. 2011). We will affirm if, viewing all facts in the light most favorable to the verdict, we conclude a reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Bates, 77 F.3d 1101, 1104-05 (8th Cir.), cert. denied, 519 U.S. 884 (1996).
Brooks-Davis argues there was some evidence he did not live in the Edina apartment and therefore the fact that his shorts containing his driver‘s licence were found near the Air Jordan bag was a coincidence. That of course was an issue for the jury to resolve. The crux of his argument is that the government‘s case depended on the self-serving testimony of Donta Adams, an unreliable witness. According to Brooks-Davis, cross examination established that Adams lied to the police when he first spoke to them; lied in telling the prosecutor he committed a robbery with Brooks-Davis in Oregon when it was impossible for Brooks-Davis to be in Oregon; Adams was the only one who resisted arrest; and only Adams‘s fingerprints and DNA were found on the firearms. Regarding the Smith & Wesson found in the safe, Brooks-Davis argues that Adams did not testify when he took possession of the gun, when it entered the safe, whether Brooks-Davis knew it was there, or that it was tied to their joint drug dealings. Despite thorough cross-examination on these issues, the jury found Adams‘s trial testimony regarding the guns credible. “It is the function of the jury, not an appellate court, to resolve conflicts in testimony or judge the credibility of witnesses.” United States v. Hernandez, 569 F.3d 893, 897 (8th Cir. 2009), cert. denied, 559 U.S. 915 (2010). Its determinations are “virtually unreviewable on appeal.” Id.
Adams testified that he and Brooks-Davis lived in the apartment, sold drugs together, and jointly owned the gun safe; that the Glock pistol belonged to Brooks-Davis; and that together they possessed the guns and cash found in the safe. The government‘s case was weakest regarding whether Brooks-Davis possessed the Smith & Wesson gun found in the safe, which Adams testified was being held for a friend. However, “[i]f two or more persons share actual or constructive possession of a thing, possession is joint.” United States v. Payne, 377 F.3d 811, 815 (8th Cir. 2004), vacated on other grounds, 543 U.S. 1112 (2005). The district court correctly instructed the jury as to actual, constructive, and joint possession. Viewing the evidence in the light most favorable to the jury‘s verdict, we conclude the evidence was sufficient for a reasonable jury to find that Brooks-Davis constructively
II. The Rehaif Issue
As Rehaif was not decided until Brooks-Davis‘s appeal was pending, the district court did not instruct the jury that it must find that Brooks-Davis knew of his status as a person prohibited from possessing a firearm. The Government concedes this was Rehaif error. However, Brooks-Davis did not object to the jury instruction, so our review is for plain error. Thus, Brooks-Davis must establish: “(1) an error (2) that was obvious and (3) that affected the defendant‘s substantial rights and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings.” United States v. Hollingshed, 940 F.3d 410, 415 (8th Cir. 2019), cert. denied, 140 S. Ct. 2545 (2020), citing United States v. Olano, 507 U.S. 725, 734 (1993). As in Hollingshed and other recent cases, the issue turns on the last two plain error elements, whether Brooks-Davis has shown a reasonable probability the error affected his substantial rights and seriously affected the fairness of the proceedings.
The status that made Brooks-Davis‘s possession of a firearm or ammunition unlawful was that he “has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”
The parties stipulate and agree that prior to August 7, 2018, Brandon Dante Brooks-Davis had been convicted of at least one offense punishable by a term of imprisonment exceeding one year and was thus prohibited from possessing any firearm on August 7, 2018.
The government argues that this stipulation should foreclose Brooks-Davis‘s plain error claim that the instruction error affected his substantial rights. Brooks-Davis argues the stipulation only establishes he was legally prohibited from possessing a firearm, not that he knew of his prohibited status. As in Hollingshed, 940 F.3d at 415, and United States v. Everett, 977 F.3d 679, 687 (8th Cir. 2020), we decline to decide whether the stipulation by itself resolves the issue of plain Rehaif error.
Brooks-Davis argues that Hollingshed and other cases rejecting claims of plain Rehaif error are distinguishable because he never served more than one year in jail for any felony conviction, unlike the defendant in Hollingshed, who served four years in prison for a drug conviction and an additional fifteen months for violating supervised release. 940 F.3d at 416. In our view, this is a distinction that does not make a plain error difference. The relevant status,
As Brooks-Davis cannot show the district court‘s failure to include a Rehaif instruction affected his substantial rights or seriously affected the fairness, integrity, or public reputation of the proceedings, there was no plain Rehaif error.
III. The Sentencing Issue
At sentencing, the district court overruled Brooks-Davis‘s objections to a two-level enhancement for possessing three-to-seven firearms, USSG § 2K2.1(b)(1)(A), and a two-level enhancement for possessing a stolen firearm, USSG § 2K2.1(b)(4)(A). The court determined that the advisory guidelines sentencing range was 168 to 210 months imprisonment but granted a downward variance and imposed a 105-month sentence. On appeal, Brooks-Davis argues the court erred in applying the two-level enhancements. We review the court‘s application of the sentencing guidelines de novo and its factual findings for clear error. United States v. Mathews, 784 F.3d 1232, 1236 (8th Cir.), cert. denied, 577 U.S. 946 (2015).
Brooks-Davis‘s argument against both enhancements is based on his alternative arguments that the evidence was insufficient to find he constructively possessed the guns found in the safe, which included a stolen Ruger. Because we have concluded that the evidence was sufficient to convict Brooks-Davis of constructive joint possession of all three firearms named in Count 1, the district court did not clearly err in applying two-level sentencing enhancements for possessing three-to-seven guns (the Glock pistol charged in Count 2 meant he possessed a total of four guns), and for possessing a stolen gun.
The judgment of the district court is affirmed.