UNITED STATES of America, Plaintiff-Appellee, v. Jerome Hassan MACKEY, Defendant-Appellant.
No. 05-4255.
United States Court of Appeals, Sixth Circuit.
Oct. 2, 2007.
249 Fed. Appx. 420
ALICE M. BATCHELDER, Circuit Judge.
Defendant Jerome Hassan Mackey (“Mackey“) appeals his conviction for being a felon in possession of a firearm, in violation of
I.
On May 25, 2004, a group of officers from the City of Dayton Police Department executed a search warrant on an apartment located on West Grand Avenue in Dayton, Ohio. The surveillance team arrived at 8:30 p.m. and monitored the
The officers progressed through the living room and into the kitchen, where they found Michael Murray standing next to a plastic table and Mackey standing approximately ten feet away from Murray, with his back to the officers and his hands outstretched over the sink. The officers found a loaded gun—with certain distinctive characteristics—in the sink, just inches beneath Mackey‘s hands, and loose marijuana, packaged marijuana, plastic baggies, and digital scales on the counter next to him, well within an arm‘s reach. The officers patted down Mackey and discovered a silver cell phone in the pocket of his pants. The officers handcuffed Mackey, laid him on the floor, and set the cell phone on the ground next to his head.1 During the next forty-five minutes, while the officers searched the apartment and collected evidence, the cell phone rang approximately five to seven times. Each time the phone rang, the screen displayed a picture of a handgun on top of a pile of money and marijuana. The officers testified at trial that the gun pictured on the
At trial, one officer testified that, in his expert opinion, the apartment was set up for the sole purpose of selling illegal narcotics. The apartment had barricades on the front and back doors; it was sparsely furnished, without a stove, refrigerator, or toiletries; a doorman stood at the entrance and collected money from individuals as they entered; and the apartment complex maintenance man testified that every time he entered the apartment, he saw guns and narcotics everywhere.
In June 2004, the grand jury returned a two-count indictment against Mackey, charging him with (1) being a felon in possession of a firearm, in violation of
gun that was found in the sink, and that the marijuana bags displayed in the picture were similarly packaged to the bags found on the kitchen counter.
The jury trial began in May 2005. At the conclusion of the government‘s case-in-chief, Mackey moved for judgment of acquittal under
II.
Mackey argues that the government presented insufficient evidence to support his conviction under either count of the indictment. “A defendant claiming insufficiency of the evidence bears a very heavy burden.” United States v. Wright, 16 F.3d 1429, 1439 (6th Cir.1994) (quotations omitted). We must deny a defendant‘s sufficiency-of-the-evidence claim if we conclude that, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). As part of this review, we neither weigh the evidence nor judge the credibility of the witnesses. United States v. Talley, 164 F.3d 989, 996 (6th Cir.1999).
We first address whether the government presented sufficient evidence to convict Mackey of being a felon in possession of a firearm, in violation of
Possession under
We find that the government presented sufficient circumstantial evidence from which the jury reasonably could have con-
Mackey argues that mere presence near a firearm is insufficient to show constructive possession, see Birmley, 529 F.2d at 107-08, and that this case is controlled by our decision in United States v. Beverly, 750 F.2d 34. We disagree and find that the government has presented sufficient evidence to establish constructive possession. The facts in Beverly are readily distinguishable from the facts before us. In Beverly, a police officer was searching Mr. Hatfield‘s residence when he discovered two handguns in a waste basket between Mr. Beverly‘s and Mr. Austin‘s feet. Even though one of the guns contained Mr. Beverly‘s fingerprint, the court found this evidence insufficient to establish constructive possession of the gun. Id. at 37. Here, unlike in Beverly, the gun was within the reach of only the defendant (rather than within the immediate vicinity of two individuals); the officers found the gun inches from the defendant‘s hands (rather than buried in a basket near the defendant‘s feet); and the officers found the gun in an apartment that appeared to be used solely for drug trafficking (rather than in the residence of a third party). We thus find Beverly to be entirely distinguishable and not controlling here.
Our recent case law has acknowledged that “[a]lthough ‘mere proximity’ to a gun is insufficient to establish constructive possession, evidence of some other factor—including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise—coupled with proximity may suffice.” United States v. Newsom, 452 F.3d 593, 610 (6th Cir.2006). Here, in addition to mere proximity, the government has presented evidence of Mackey‘s “connection” with the gun, namely, that a picture stored in the cell phone found in his pocket depicted the very same gun (or at least what appeared to be the very same gun) found just inches from his hands. The government has also demonstrated that Mackey made “a gesture implying control” over the gun, namely, his hands were outstretched just a few inches from it. We accordingly reject Mackey‘s arguments and conclude that the jury could have found that Mackey constructively possessed the gun.
Here, contrary to Mackey‘s protestations, the government has presented “other incriminating evidence” in addition to his close proximity to the marijuana. The officers found Mackey in an extremely active “drug house,” where, during the thirty minutes prior to the officer‘s entry, the surveillance team saw four to six individuals pay money to the doorman, stay briefly, and exit swiftly. Mackey, however, was unlike those individuals who stopped by the apartment to purchase drugs. The government introduced evidence from which a juror might rationally have concluded that Mackey was an active participant in the drug-trafficking activities occurring at that location: many of the people in the apartment knew him; he had been at the apartment for at least thirty minutes prior to the officer‘s entry; and during this thirty-minute period, many individuals stopped by the apartment to purchase marijuana.
Moreover, Mackey‘s position at the time of arrest is further incriminating evidence against him. Unlike the cases upon which Mackey relies, see United States v. Brown, 3 F.3d 673 (3d Cir.1993) (involving a defendant who was arrested while entering a house that contained large quantities of narcotics); United States v. Jenkins, 90 F.3d 814 (3d Cir.1996) (involving a defendant who was arrested while sitting with another individual on a couch near a coffee table filled with cocaine and guns), Mackey was not merely within close proximity to the drugs; he was actually hovering, with arms outstretched, over a gun, marijuana, scales, and baggies, all of which were within an arm‘s reach. Some of the marijuana had already been packaged and some of it was loose on the counter. The position of Mackey‘s outstretched hands near the marijuana, scales, and baggies suggests that he was handling and packaging the marijuana just prior to the officers’ entry; indeed, it would not be irrational for a juror to draw that inference. See Arnold, 486 F.3d at 181. And finally, the government introduced additional evidence from which a rational juror could “connect” Mackey to the marijuana on the counter. See Newsom, 452 F.3d at 610. The picture on the cell phone recovered from his pocket displayed several baggies of marijuana that were packaged in a manner similar to those found on the kitchen counter. While this is by no means conclusive evidence of Mackey‘s constructive possession of the particular baggies on the kitchen counter, it provides one piece of circumstantial evidence suggesting that he exercised dominion and control over those particular items. In sum, the government produced sufficient evidence for the jury to conclude that Mackey had constructive possession of the marijuana on the kitchen counter.
III.
Mackey next contends that the district court erred by admitting pictures and data from the cell phone found in his pocket at the time of his arrest, arguing, first, that the evidence was not relevant and, second, that the evidence was unfairly prejudicial. A district court may not admit evidence that is not relevant to the proceeding.
Mackey argues that the present case is similar to United States v. Hendrix, No. 94-1404, 1995 WL 218472 (6th Cir. April 12, 1995), but we disagree with his reading of that case. In Hendrix, the defendant appealed his conviction for a drug offense, contending that the district court abused its discretion by allowing the government to introduce a photo portraying four men, including the defendant, one of whom was holding cash and one of whom was displaying a gang symbol. We concluded that the photo was irrelevant because there was no connection between the depictions in the photo and the defendant‘s involvement in drug activity. Id. at *2. In contrast, here the connection between the picture and Mackey‘s firearm-possession charge is readily apparent: the picture was stored in a phone recovered from Mackey‘s pocket; there was evidence that the picture was taken during the time period Mackey possessed the phone; and the gun displayed in the picture appeared to be the same gun found within inches of Mackey‘s hands. We therefore conclude that Mackey‘s reliance on Hendrix is misplaced.
Mackey also half-heartedly argues that the data from the phone was irrelevant and thus inadmissible. At trial, Mackey attempted to distance himself from the picture on the cell phone by questioning the chain of custody for the phone and arguing that the phone actually belonged to his sister, not to him. The government, in turn, introduced data from the phone—including names from the phone book, incoming and outgoing calls
Having found all this evidence to be relevant, we turn to Mackey‘s unfair prejudice argument. “[E]vidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]”
Mackey does not argue exactly what sort of unfair prejudice he suffered by the admission of the picture or other data recovered from the cell phone; he merely argues that the present case is similar to the Seventh Circuit‘s decision in United States v. Thomas, 321 F.3d 627 (7th Cir. 2003). That case, however, is utterly inapposite here. The defendant in Thomas was charged with being a felon in possession of a firearm, and the appeals court held that the district court violated
IV.
Mackey‘s final argument on appeal is that three separate evidentiary errors unfairly prejudiced his case, thus necessitating a new trial. “Errors that might not be so prejudicial as to amount to a depriva-
Mackey first contends that the district court erred in admitting a picture of the arrest scene that depicted him in handcuffs. Early in the trial, the district court prohibited the government from introducing that picture. Later in the trial, however, the government learned that two of the testifying officers had incorrectly testified concerning the location of the cell phone once it was removed from Mackey‘s pocket. Defense counsel attempted to capitalize on this erroneous testimony, contending that the government could not establish a proper chain of custody for the phone. In response, the government again asked to introduce this picture, this time for the purpose of aiding its witnesses in establishing the location of the cell phone at the scene of the arrest. The district court allowed the government to use the picture for this particular purpose and gave a limiting instruction to the jury, in which the court stated: “[T]he purpose of [the] photograph was to show objects and their relationship to one another[.] I want you to remember that the fact that the defendant . . . [was] arrested has already been testified to and that an arrest is not evidence of guilt to be considered by you.” We do not find any error in the admission of this picture, see United States v. Padin, 787 F.2d 1071, 1079 (6th Cir.1986) (acknowledging that “the prosecutor is entitled to show [the defendant‘s] appearance when arrested“), especially in light of the district court‘s limiting instruction and the need to clarify the chain of custody issue.
Mackey next argues that the district court erred in allowing the government to recall, during its case-in-chief, the two officers who had testified incorrectly regarding the placement of the cell phone at the scene of the arrest. Mackey offers no legal support for this argument, and we have found none. The trial court “shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence.”
Mackey lastly argues that the district court erred in allowing the government to treat Mackey‘s sister, Jo Karen Nelons, as a hostile witness. At trial, Nelons‘s testimony contradicted her prior statement to the authorities. For example, in her prior statement, she said that
Finding no error in any of these three evidentiary decisions separately, we certainly do not find a denial of due process cumulatively, see Parker, 997 F.2d at 221.
V.
For the foregoing reasons, we AFFIRM Mackey‘s conviction.
ALICE M. BATCHELDER
UNITED STATES CIRCUIT JUDGE