MARTIN REIDINGER, District Judge.
On April 1, 2014, the Defendant was named in a Bill of Indictment and charged with two identical offenses. Each count charged the Defendant with possessing one round of ammunition on July 30, 2013 (a separate bullet for each charge), after having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). [Doc. 1]. On April 4, 2014, the Defendant made his initial appearance and submitted a financial affidavit requesting the appointment of counsel. [Doc. 3 (sealed)]. The Magistrate Judge appointed counsel to represent the Defendant. [Doc. 5 (sealed)]. The Defendant was arraigned on April 9, 2014, and appeared for a jury trial on June 23, 2014. [Docket Sheet]. The jury convicted the Defendant on both counts the following day. [Doc. 26].
On July 3, 2014, the Defendant filed a motion to extend the time within which he could file a post-verdict Rule 29 motion. [Doc. 28]. The Court granted such motion extending Defendant's Rule 29 motion deadline to July 22, 2014. [Doc. 29]. On July 9, 2014, Defendant filed his Motion for New Trial. [Doc. 30]. On July 22, 2014, Defendant filed his Motion for Rule 29 Acquittal. [Doc. 32]. The Government responded [Docs. 31 and 33] to the Defendant's motions and the Defendant's motions, therefore, are ripe for the Court's consideration.
When confronted with a post-verdict motion for judgment of acquittal, the Court must assess whether, taking the evidence in the light most favorable to the Government, a rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt.
A defendant's motion for new trial is a discretionary matter for the Court to resolve. A district court may order a new trial if the evidence weighs so heavily against the verdict that to deny a new trial would be contrary to the "interest of justice." Fed.R.Crim.P. 33(a). The Court's review is much more expansive when considering a new trial motion as opposed to an acquittal motion. "In deciding a motion for a new trial, the district court is not constrained by the requirement that it view the evidence in the light most favorable to the government. Thus, it may evaluate the credibility of the witnesses."
In the light most favorable to the Government, the evidence considered by the jury was as follows. Henderson County, North Carolina, deputy sheriff Josh Hopper was on duty July 30, 2013, when he noticed a gold-colored car in an area known for criminal activity. [T. 119]. Hopper radioed in the license plate number of the car to the sheriff's communications center and learned that a "plate pickup order" had been issued for the tag. Hopper testified that a "plate pickup order" meant the vehicle displaying such tag was presently uninsured and any law enforcement officer could seize the license plate. [T.120]. Armed with this knowledge, Hopper initiated a traffic stop of the gold-colored car. The Defendant was driving the car at the time. [T. 120]. Also in the car as passengers were Rebecca Heath and Joseph Duncan. Hopper learned that the Defendant's driver's license was suspended and issued him a ticket for driving while his license was revoked. [T. 122]. Then, according to his testimony, Hopper asked both the Defendant and Heath
In the trunk of the vehicle, Hopper located a black briefcase and then proceeded to ask the three occupants who owned the briefcase. [T. 124]. The Defendant claimed ownership of the briefcase. [T. 124]. Hopper opened the briefcase and found, among other things, a black mask, several gloves, several knives, and a silver-colored metal cylinder approximately 8 inches long. [T. 125]. Hopper testified that he had no idea what purpose the metal cylinder served. [T. 125]. Detective Westphal, who was assisting Hopper with the car search, opened the metal cylinder and discovered a.22 caliber bullet inside. [T. 126]. In the center of the butt-end of the bullet's shell casing was an indentation. Hopper noticed this indentation which enabled him to identify this particular bullet at trial. [T. 133]. The officers then arrested the Defendant on the scene and transported him to the Sheriff's Department.
At the Sheriff's Department, Hopper read the Defendant his
Hopper told the jury that when he and Westphal were finished questioning the Defendant, one of them asked him to write a statement summarizing their discussion and he agreed to do so. [T. 138]. After the Defendant finished writing his statement, Hopper compared it with what the Defendant told him and Westphal. Hopper testified that the Defendant's written statement did not coincide with what he had stated previously. [T. 140]. In particular, Hopper testified that the Defendant referred to the metal cylinder as a zip gun during their discussion and told the officers he knew it was contained in the briefcase. According to the Defendant's written statement, however, Hopper testified that the Defendant described the device merely as a "mechanism" (never mentioning the phrase "zip gun"), and that the Defendant further wrote that Kelly Brown put the mechanism in the briefcase in the trunk of the car and that he (Defendant) did not know anything about it until Hopper seized it during the traffic stop. [T. 140-46]. Upon the Defendant's completion of his written statement, Hopper walked him over to the detention center. [T. 163].
Hopper testified that he handed the Defendant over to Detention Officer Brian Helton at the detention center. Helton testified that upon meeting the Defendant and Hopper, his first duty was to conduct a thorough search of the Defendant before taking him into the detention center. [T. 164]. Helton stated that when he checked the Defendant's front right pants pocket, he retrieved a small number of coins and a .22 caliber long rifle cartridge. [T. 165]. He said the bullet appeared to him to be a live round and that he immediately handed the bullet to Hopper so that Hopper could maintain custody of it. [T. 168].
Approximately eight months later,
According to Gage's testimony, following the Defendant's arrest, he read the Defendant his rights and the Defendant consented to speak with him in the hotel room away from Hoffman. [T. 184]. Gage took the Defendant into the hotel room followed by Hopper and Westphal who had recently arrived at the hotel. [T. 185]. The Defendant began by telling the officers that he did not raise both of his hands, as directed by Hawkins, because Hawkins was in an unmarked car and the Defendant knew of instances when people in the drug business were robbed by others posing as the police. [T. 185]. The Defendant then said he was the "muscle" for several drug dealers meaning he collected their debts. [T. 185-86]. When asked about the metal cylinder he had been arrested for the previous year, the Defendant said he received it from Kelly Brown. [T. 186]. The Defendant said Brown gave him the zip gun together with one or two bullets, one of which was found in his pocket at the detention center. [T. 186]. Gage then took the Defendant to the Buncombe County Detention Center. [T. 187].
The following day, April 4, 2014, Gage and Hopper brought the Defendant from the detention center to the federal courthouse in order for the Defendant to make his initial appearance. [T. 187]. Gage testified that while the three men waited 15 to 20 minutes for the U.S. Marshal to allow them to enter the courthouse, the Defendant spoke further with the officers. The Defendant said that he knew he could not possess a firearm due to his criminal record. He also said that, because of his job as a drug debt collector, if he anticipated that a particular collection effort might require a firearm, he would bring someone else along with him to carry the firearm. [T. 190]. The Defendant was then taken inside the courthouse to make his initial appearance shortly thereafter.
As one of its last witnesses at Defendant's trial, the Government called ATF Agent George Rogers. [T. 212]. Without objection, Rogers testified as an expert "in the subject matter of the examination of firearms and ammunition and the interstate nexus research as well." [T. 216]. Rogers testified that, based upon his knowledge and research, and the unique headstamp letter "F" on the shell casings, the two .22 caliber bullets seized from the Defendant were not manufactured in the State of North Carolina but were made by the Federal ammunition company in Anoka, Minnesota. [T. 226]. Rogers also testified that the bullet taken from metal cylinder had an indentation in the center of the butt-end of the shell casing previously described by Hopper. Rogers testified that civilian .22 caliber ammunition is rim-fire, meaning that the primer is contained in the rim of the shell casing and not in an individual module pressed into the center of the butt-end of a casing. [T. 225-28]. Rogers, therefore, opined to the jury that the metal cylinder did not function properly because the firing pin was striking close to the center of the butt-end of the .22 shell casing, and not its rim, thus failing to activate the primer. [T. 225-28].
In order to convict the Defendant for possessing ammunition in violation of 18 U.S.C. § 922(g)(1), the Government was required to prove beyond a reasonable doubt that: (1) the Defendant was a convicted felon; (2) he knowingly possessed ammunition; and (3) the ammunition he possessed had traveled in interstate commerce.
With regard to the "knowing possession" element, the Defendant raises separate arguments for each bullet. Beginning with the bullet seized following the traffic stop of the gold-colored car, the Defendant asserts that the Government did not prove beyond a reasonable doubt he knowingly possessed the bullet found in the metal cylinder located in the trunk. The Defendant claims the evidence at trial showed that the vehicle he was driving was not owned by him and that no evidence tied him to the black briefcase found in the trunk of that car in which the metal cylinder and bullet were contained. [Doc. 32 at 3].
The Defendant, however, overlooks the uncontested testimony of Hopper who testified that the Defendant told him that he owned the briefcase. Further, the Defendant told Hopper that a person named Kelly Brown gave him the zip gun seized from the briefcase along with the ammunition and that he (the Defendant) tried to fire the zip gun but it did not fire. The bullet retrieved from the zip gun had an indentation consistent with a firing pin strike in the center of the butt-end of the casing, consistent with Defendant's statement. This evidence, taken in the light most favorable to the Government, shows that the Defendant admitted he knew there was a bullet in the zip gun — the bullet that was not expelled when he attempted to fire it. The Defendant admitted to knowing he had the zip gun in the briefcase, and he admitted the briefcase was his. It was found in the trunk of the car he was driving. This is sufficient for the jury to reasonably infer that the Defendant was in constructive possession of both the briefcase and its contents, including the zip gun and the bullet.
Turning to the second bullet, the round seized from the Defendant's pants pocket, the Defendant argues that since Hopper failed to notice this bullet when he frisked Defendant following the traffic stop, it was equally likely that the Defendant himself did not know he possessed this bullet. [Doc. 32 at 4]. Considering the competent evidence admitted, the jury could draw the reasonable inference that one knows what one has in one's pockets. Hopper's failure to find this bullet when he searched the Defendant following the traffic stop is understandable from the standpoint that a
In addition, the testimony of Agent Gage supports the inference that the Defendant knowingly possessed the second bullet. Gage testified that the Defendant told him that when he (the Defendant) received the zip gun from Brown, Brown also gave the Defendant one or two bullets to go with it, one such bullet being the round found by Helton at the detention center. The Defendant never challenged Gage's testimony on this point. Based on this testimony, it was reasonable for the jury to infer that the Defendant possessed the bullet from the time Brown gave it to him until the time it was seized from his pocket at the detention center. The Court is bound by the jury's credibility determination in this regard. For these reasons, a rational trier of fact could easily have found beyond a reasonable doubt that the Defendant knowingly possessed both .22 caliber bullets.
The Defendant's second argument for acquittal stems from his claim the Government failed to prove the third element of the offense — that the ammunition traveled in or affected interstate commerce. [Doc. 32 at 4]. The Government's proof in this regard came from the Government's ammunition expert witness, Rogers, who testified that each of the two bullets had a unique headstamp letter "F" on the shell casings. He further testified that ammunition bearing this unique headstamp is not manufactured in the State of North Carolina but is made by the Federal ammunition company in Anoka, Minnesota. The jury was therefore permitted to draw the reasonable conclusion that the two bullets at issue in this case must have traveled in or affected interstate commerce since they were made in Minnesota and ultimately possessed in North Carolina by the Defendant. For this reason, a rational trier of fact could easily have found beyond a reasonable doubt that this third element was fulfilled. Based upon the foregoing, the Defendant's Rule 29 Motion for Acquittal is denied.
Before discussing the substance of the Defendant's new trial motion, the Court pauses to address an issue about this motion unmentioned by the Government: the timeliness of Defendant's new trial motion. Rule 33(a) states, in pertinent part, that upon "the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). The time period within which to file a new trial motion is governed by the basis therefor. "Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty."
Due to the untimeliness of Defendant's Rule 33 motion, the Court cannot proceed to resolve it if the 14 day filing period is "jurisdictional" in the strict sense of the word. The Supreme Court resolved
The Defendant argues that he is entitled to a new trial because the admission of evidence regarding his working as the "muscle" or debt collector for drug dealers constituted reversible error. According to the Defendant, this evidence was inadmissible because it was not intrinsic to or even relevant to the crimes charged and thus the interest of justice demands vacating the jury's verdict tainted by such evidence. Alternatively, the Defendant argues that if such evidence was permissible "intrinsic acts" evidence, it nevertheless failed the Rule 403 balancing test and the resulting substantial prejudice infected the jury deliberations to such an extent that a new trial is warranted. [Doc. 30 at 3-4].
In short, the Defendant's admission that he needed protection because he worked for drug dealers was an admission of his reason for possessing the bullets at issue in the Indictment. As such, it is relevant because, by this admission, the Defendant himself excludes accidental or innocent possession of the ammunition and thus his statement is inculpatory. Addressing the more detailed arguments raised by the Defendant, the Court begins by clarifying that the evidentiary issue regarding the Defendant's collection work for drug dealers does not implicate Federal Rule of Evidence 404(b). Rule 404(b) dictates that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). Rule 404(b), however, applies only to limit the admission of other acts extrinsic to the conduct charged in the indictment.
After Hopper stopped the gold-colored car driven by the Defendant, the Defendant gave Hopper consent to search the car and claimed ownership of the black briefcase containing the zip gun and bullet. The Defendant argues that his later admissions, regarding his drug debt collecting business "are not inextricably intertwined, nor part of a singular criminal episode, nor necessary preliminaries to the possession of two .22 caliber bullets. These statements were made well after he allegedly possessed the bullets." [Doc. 30 at 3]. However, Defendant's statement that he received the zip gun and bullets for his own protection was initially provided without any further context and thus begged the question of why he needed protection. This could lead a jury to infer, consistent with the presumption of innocence, that his possession of them was for a permissible reason. In other words, the jury might conclude that the Defendant did not "knowingly" possess the bullets if it harbored a reasonable doubt that the protection about which he spoke arose from some legal necessity.
With the Court having concluded that the evidence of the Defendant's drug debt collection activity was admissible for a proper purpose, the Defendant next argues that the testimony establishing this evidence should have been excluded because it was far more prejudicial than probative. "Evidence sought to be admitted in a trial must satisfy Rule 403's requirement that the probative value of the evidence must not be "substantially outweighed by the danger of unfair prejudice[.]" Fed.R.Evid. 403. According to the Defendant, this evidence was too prejudicial:
[Doc. 30 at 3-4].
The Court begins by recognizing the proposition that all incriminating evidence is inherently prejudicial.
In the present matter, the Defendant admitted that Brown gave him the zip gun and one or two bullets to go with it. He specifically recalled that one of the bullets given to him by Brown was the one found in his pocket by Helton. As for the other bullet, it was contained in the zip gun that was inside the black briefcase the Defendant claimed was his. Further the bullet in the zip gun possessed an indentation consistent with a firing pin strike. The Defendant himself explained the significance of this indentation by saying he tried to fire the zip gun but it did not function. Clearly, the Defendant would have loaded a live round into the zip gun when he attempted to test fire it. The bullet Westphal removed from the zip gun that possessed the indentation was thus the other bullet Brown had given the Defendant.
Because the totality of unchallenged evidence overwhelmingly proved the Defendant unlawfully possessed ammunition, the Court concludes that if there was any error in admitting evidence concerning the Defendant's debt collecting activities it was harmless. Accordingly, the Defendant has failed to show that the "interest of justice" warrants granting him a new trial and his Rule 33 Motion for New Trial is denied.
