United States v. Jesse Wright, Jr.United States v. Jesse Wright, Jr.
(December 8, 2004)
Before EDMONDSON, Chief Judge, PRYOR and FAY, Circuit Judges.
FAY, Circuit Judge:
I. Facts
On March 24, 2002, Officer Kenneth Knox, of the Mulberry, Florida, police department stopped Jesse Wright for speeding and weaving through traffic lanes. Officer Knox approached Wright’s vehicle and asked to see Wright’s license and registration. Wright complied with the officer’s request, and during the exchange, the
Officer Knox then proceeded to place Wright under arrest, and instructed Wright to put his hands behind his back. When Wright refused, a struggle ensued. Henry Floyd, a sheriff’s office employee who arrived on the scene during the sobriety tests, attempted to assist Officer Knox, but the struggle continued and the three men fell to the ground. As Wright still resisted Officer Knox radioed for assistance, and Corporal Cantrell responded to the scene. With Cantrell’s aid, the officers got Wright under control.
With Wright in custody, the officers conducted an inventory search of Wright’s vehicle. Under the front seat, they found a nine-millimeter Smith and Wesson firearm wrapped in a bandana, alongside a cold open bottle of beer. The trunk of the vehicle contained a cooler packed with ice and more of the same beer. The officers then transported Wright to the jail. After his arrest, although the precise timing is unclear from the record, Wright commented that the officers were lucky he had not made it back to his car because “it would have been lights out,” and Wright proceeded to make a gesture with his hand in the shape of a pistol.
Before trial, Wright agreed to his status as a convicted felon who had not had his right to possess a firearm or ammunition restored. In addition, Wright filed a
During the trial, Officer Knox testified for the United States. On redirect examination, the district court informed the parties at a sidebar conference that Knox had yet to identify Wright. Wright’s counsel objected to the court’s comment and moved for a mistrial on grounds that the district judge “had gone beyond being neutral magistrate ...in pointing out a lack of the Government’s case.” The district court denied the motion and allowed the Government to ask Knox to identify Wright. Wright renewed his motion for a mistrial, which the district court denied.
Corporal Cantrell then took the stand for the Government and described both Wright’s comment after arrest about it being “lights out” had he been able to get to his vehicle and Wright’s accompanying hand gesture. As Cantrell testified, the district court itself questioned him about Wright’s gesture. At sidebar, Wright
The defense case consisted primarily of testimony by Wright’s father. According to the father, the firearm belonged to him, and was left in the vehicle when he borrowed his son’s car the day of the arrest. Wright’s mother also testified, stating that she had dropped her husband off at her son’s house on March 24, 2002, the day of the arrest. At the conclusion of evidence Wright renewed his motion for a judgment of acquittal, which the district court denied.
After the close of evidence, Wright objected to an instruction on resisting arrest because it involved a charge which the government had dropped. Wright further objected to the instruction because it was not part of pattern jury instructions. The government replied that this Court upheld a similar instruction in which the jury could consider intentional flight as indication of guilt. The prosecution explained that the jury needed the opportunity to make reasonable inferences because the government premised much of its case on circumstantial evidence. The district court approved a modified version of the requested charge, and allowed the jury to infer
After instructing the jury, the district court excused all parties until further notice. Once the jury began its deliberations, it asked to be permitted to view the firearm. Additionally, the jury sought either the firearm’s dimensions or a ruler to measure the gun. The district court allowed the jury to view the firearm and provided it with a ruler. The district court did not inform the parties of its communication with the jury until the next morning. Wright objected to the district court’s actions, arguing that the ruler had not been admitted into evidence, and that the jury should have been instructed to use its own abilities. The district court overruled the objection, and the jury subsequently convicted the defendant. Wright was sentenced to 120 months imprisonment.
II. Sufficiency of the Evidence
Under
In the instant case, a reasonable jury could believe beyond a reasonable doubt that Wright was in knowing possession of the firearm. United States v. Billue, 994 F.2d 1562, 1565 (11th Cir. 1993). Possession can be shown by circumstantial as well as direct evidence. United States v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir. 1984); United States v. Smith, 591 F.2d 1105, 1107 (5th Cir. 1979).2 Possession can be either actual or constructive. Smith, 591 F.2d at 1107. “In order to establish constructive possession, the government must produce evidence showing ownership, dominion, or control over the contraband itself ... or the vehicle in which contraband is concealed.” Smith 591 F.2d at 1107.
There is no dispute that there was a weapon in the vehicle. Officers found the firearm under Wright’s seat, next to an open bottle of cold beer. Wright owned the
III. District Court Bias
While we are mindful that a defendant is entitled to an impartial judge because of the weight juries are likely to place with the court’s opinion, it is also “well settled that a federal district judge is not relegated to complete silence and inaction during the course of criminal jury trial.” United States v. Cox, 664 F.2d 257, 259 (11th Cir. 1981) (quoting Bursten v. United States, 395 F.2d 976, 982 (5th Cir. 1968)). Additionally, the district court has discretion to question witnesses. See
Indeed, the district court abuses its authority when it “abandons [its] proper role and assumes that of an advocate.” See
It is axiomatic ... that “[t]he trial judge has a duty to conduct the trial carefully, patiently, and impartially. He must be above even the appearance of being partial to the prosecution.” On the other hand, a federal judge is not a mere moderator of proceedings. He is a common law judge having that authority historically exercised by judges in the common law process. He may comment on the evidence, may question witnesses and elicit facts not yet adduced or clarify those presented, and may maintain the pace of the trial by interrupting or cutting off counsel as a matter of discretion[.]
598 F.2d 439, 442 (5th Cir. 1979) (citations omitted). In this case, the record does not establish that the district court abandoned its impartiality. Here, it was “entirely proper for the court to make inquiries of a witness in order to clarify the evidence presented.” Hanson v. Waller, 888 F.2d 806, 813 (11th Cir. 1989). See also United States v. Bertram, 805 F.2d 1524, 1529 (11th Cir. 1986); Kyle v. United States, 402 F.2d 443, 444 (5th Cir. 1968)).
In connection with Corporal Cantrell’s testimony, Wright again argues that the district court discarded its neutral role by directing the prosecutor to ask the witness to describe Wright’s hand gesture. The district court’s request for detail did not underscore evidence that would otherwise have gone unnoticed by the jury. Rather, the judge sought to develop and perfect the record so that this Court could understand and comprehend an important piece of evidence from the trial. Without the district court’s guidance, this Court could only guess at what Wright’s hand gesture might have been. Wright’s argument on the issue is misplaced, as it pertains to judicial intervention far beyond what is complained of here. See Blumberg v. United States, 222 F.2d 496, 501 (5th Cir. 1955) (trial judge interrupted too many times and asked too many questions); United States v. Grunberger, 431 F.2d 1062, 1067 (2d Cir. 1970) (repeated questioning of witness); Hunter v. United States, 62 F.2d 217, 220 (5th Cir. 1932) (trial judge’s vigorous cross-examination of defendant himself). Particularly, United States v. Green suggests that when “more than one or two questions are involved, the proper procedure is “to call both counsel to the bench, or in chambers and suggest what [the judge] wants done.“” 429 F.2d 754, 760 (D.C. Cir. 1970). Indeed, by addressing the issues at sidebar during both Officer Knox’s and Corporal Cantrell’s testimony, the district court followed this procedure.
We have reviewed the district court’s comments in the framework of the trial as a whole, and conclude that the district court did not become an advocate for the government in this case. Harriston 329 F.3d at 791 n.6. Wright’s contentions of error, viewed both separately and in the context of the entire record, expose no such confusion of the roles of judge, jury, and prosecutor. The actions of the district court challenged here amount to “no more than attempts by the presiding judge to expedite the proceedings and to prevent any misunderstanding of a witness‘s testimony.” Hill, 496 F.2d 201, 202 (5th Cir. 1974).
IV. Resisting Arrest Evidence and Jury Instruction
Wright next complains that the admission of his resistance to arrest and accompanying battery on a law enforcement officer unduly prejudiced his case and had no probative value to the charge of possession of a firearm. Wright further
Although
[e]vidence of criminal activity other than the charged offense is not extrinsic under Rule 404(b) if it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense.
United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (citing United States v. Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995)). Moreover, “[e]vidence, not part of the crime charged but pertaining to the chain of events explaining the context...is properly admitted if linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime...to complete the story of the crime for the jury.” McLean, 138 F.3d at 1403 (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)). Here, evidence of Wright’s actions prior to the discovery of the firearm gives the jury the body of the story, not just the ending. Such evidence was “inextricably intertwined” with the charged offense.
Here, the possession of a firearm charge did not encompass the resisting arrest or battery counts, nor did it involve the charge of driving under the influence. Nonetheless, evidence of those events contributed to the understanding of the situation as whole. The erratic driving led Officer Knox to stop Wright. Knox’s assessment of Wright’s intoxication gave him to cause to arrest Wright. The series of
Wright also complains about the court’s charge on his resistance to the officers. We review a district court’s jury instructions for an abuse of discretion. United States v. Guerra, 293 F.3d 1279, 1290 (11th Cir. 2002), cert. denied, 537 U.S. 1141 (2003). Error in jury instructions does not constitute grounds for reversal unless there is a reasonable likelihood that it affected the defendant‘s substantial rights. See Montgomery v. Noga, 168 F.3d 1282, 1294 (11th Cir. 1999);
The complete text of the challenged jury instruction is as follows:
The conduct of a person at the time of his arrest is not, of course, sufficient in
itself to establish the guilt of that person, but is a fact which, if proved, may be considered by the jury in light of all the other evidence in the case in determining the guilt or innocence of that person. You should consider that there may be reasons for the conduct by the Defendant that are fully consistent with innocence.
A feeling of guilt does not necessarily reflect actual guilt of a crime. If you determine that the conduct of the Defendant showed a consciousness of guilt on the Defendant’s part, the weight, if any, to be attached to that evidence is also a matter exclusively for you as a jury to determine.
In formulating the instruction, the district court relied on the language and framework of a jury instruction related to flight - an instruction we upheld in United States v. Borders, 693 F.2d 1318, 1327-28 (11th Cir. 1982). In Borders, we agreed with other circuits that “universally” accepted a defendant’s flight, escape, resistance to arrest, concealment, assumption of a false name, and related conduct as admissible evidence of “consciousness of guilt, and thus of guilt itself.” Id. at 1324-25 (listing cases allowing evidence of flight) (emphasis added). In the instant case, the district court decided that the jury could draw a similar inference from Wright’s resistance to arrest. We are not ignorant to the fact that evidence of flight and resistance to arrest do not amount to identical conduct; however, we have implied that the two are analogous. Borders, 693 F.2d at 1324.
The analysis of the district court’s instruction, however, does not end there. In United States v. Myers, the former Fifth Circuit set out four inferences that must be
The probative value of flight evidence depends upon the degree of confidence with which four inferences can be drawn:(1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt;(3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.
550 F.2d 1036, 1049 (5th Cir. 1977). The Fifth Circuit further stated that, to admit flight evidence, the government must make certain that each link in the chain of inferences that concludes with a consciousness of guilt of the crime charged is sturdily supported. Id. Ultimately, the Myers court found the flight instruction to be erroneous because the record did not support the allegations of flight. Specifically, an FBI agent testified that at the time of the defendant’s arrest he believed the suspects were beginning to flee at the time of his arrival. Id. 1048-49. The FBI agent’s testimony could not support the flight charge because the agent had previously testified that he was not aware that anyone had attempted to flee. Id. Additionally, the crime in question, a robbery, had occurred two months prior to the defendant’s arrest and alleged flight attempt. Id. Finally, the appellate court did not accept that another potential instance of flight, which occurred three weeks after the robbery, supported the jury instruction because the evidence did not “demonstrate
As Myers points out, “flight is an admission by conduct.” Id. at 1049. The same might be said of resisting arrest in Wright’s case. In this case, the chain of inferences must move: (1) from Wright’s behavior to the resistance; (2) from the resistance to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the firearm possession; and (4) from consciousness of guilt concerning the firearm possession to actual guilt for that crime. The inference drawn at step three, however, presents a quandary for the government. Myers recognized that evidence of flight or related conduct, such as resisting arrest, is “only marginally probative as to the ultimate issue of guilt or innocence.” Myers, 550 F.2d at 1049.
Wright’s consciousness of guilt at the time of the arrest could stem from either his possession of the firearm or driving under the influence. The evidence could go either way, and here the jury found against Wright. The jury is not obligated to give more credence to defense witnesses. See United States v. Bleckley, 475 F.2d 1225 (5th Cir. 1973). While there is not an abundance of direct evidence supporting the trial court‘s instruction that the conduct of a defendant “at the time of his arrest” may be relevant to guilt, neither is such evidence absent. As we have already discussed, Wright’s conduct supported the admission of resisting arrest as evidence, and we
Reviewing the evidence concerning Wright’s resistance to arrest, we see no defects that would render the instruction erroneous. Viewing the evidence in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (superceded by statute), Wright’s resistance could sufficiently establish his consciousness of guilt as to the possession of the gun. For example, his comment of “lights out” and the accompanying pistol-like gesture support the inference that Wright knew the weapon was in the car and planned to use it. Moreover, unlike the situation in Myers, Wright’s resistance came immediately after Officer Knox asked Wright to place his hands behind his back. These factors permit the instruction on resistance to “let the jury determine its significance and qualitative value, if any.” Borders, 693 F.3d at 1327.
We find that Wright failed to establish plain error in the jury instruction. To meet this stringent standard, Wright needed to prove that the “instruction was an incorrect statement of the law and [that] it was probably responsible for an incorrect
V. Jury Request for a Ruler
Wright next argues that the district court erred by responding to a jury question outside of his presence. At trial, Wright asserted that this was prejudicial error because the court allowed the jury to use evidence not admitted at trial to assess his defense that he did not know the firearm was in the car. On appeal, Wright now contends that the exchange between the district court and the jury violated the constitutional protections of the Fifth and Sixth Amendments because he had a right to be present at all stages of the criminal proceedings. Wright further contends that the district court eclipsed his argument before he completed it, and that his objection implied the constitutional violation resulting from the ex parte communication.
Ordinarily, we review a court’s response to a jury question for an abuse of discretion. United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir. 1991). In his appeal, however, Wright presents different arguments as to why the district court’s action was improper. Wright’s assertion that this issue should be reviewed other than for plain error lacks merit. Although Wright may not have completed his objection
To demonstrate plain error, Wright must show: (1) an error; (2) that is plain; (3) that affects the defendant’s substantial rights. If the defendant satisfies those three prongs, we may then employ our discretion to note that error only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” See United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003) (internal quotation marks and citations omitted). In sum, the “silent defendant,” as Wright is here, must establish a “plain, prejudicial, and disreputable” error. Id. (quoting United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002)).
In Rogers v. United States, the Supreme Court recognized that a defendant has the right to be present and participate during any communications between a judge and the jury. 422 U.S. 35, 38, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975), accord
VI. Constitutionality of 18 USC § 922(g)
Finally, Wright takes issue with
In United States v. Nichols, we rejected the same argument and upheld the constitutionality of
VII. Conclusion
Upon review of the record and consideration of the parties’ briefs, we discern no error in this case because (1) a jury could infer that Wright knowingly possessed the firearm based upon its location under the driver’s seat and Wright’s subsequent comment and gesture regarding the weapon; (2) the district court remained neutral and unbiased during the course of the proceedings, and acted within its role of
AFFIRMED.
Notes
The conduct of a person at the time of his arrest is not, of course, sufficient in itself to establish the guilt of that person, but is a fact which, if proved, may be considered by the jury in light of all the other evidence in the case in determining the guilt or innocence of that person.
You should consider that there may be reasons for the conduct by the Defendant that are fully consistent with innocence. A feeling of guilt does not necessarily reflect actual guilt of a crime.
If you determine that the conduct of the Defendant showed a consciousness of guilt on the Defendant’s part, the weight, if any, to be attached to that evidence is also a matter exclusively for you as a jury to determine.