Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2007

USA v. Mitchell
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4214




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"USA v. Mitchell" (2007). 2007 Decisions. Paper 825.
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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 05-4214


                              UNITED STATES OF AMERICA

                                               v.

                   JOSEPH MITCHELL, also known as, JOSEPH WADDY

                                                      Appellant




                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              District Court No. 04-cr-00603
                        District Judge: Hon. Bruce W. Kauffman


                        Submitted under Third Circuit LAR 34.1(a)
                                   on February 1, 2007


                        Before: BARRY and ROTH, Circuit Judges
                                 IRENAS*, District Judge

                                    (Filed: July 2, 2007)


                                         OPINION




*The Honorable Joseph E. Irenas, United States District Judge for the District of New Jersey,
sitting by designation.
ROTH, Circuit Judge:

       Joseph Mitchell was indicted on and convicted of a single charge of possessing a

firearm with the serial number defaced, in violation of 18 U.S.C. § 922(k). Mitchell

challenges his conviction on a variety of grounds. For the reasons set forth below, we will

affirm the judgment of the District Court.

I. Background

       On August 24, 2004, at approximately 6:25 in the morning, a team of federal agents

and Philadelphia police officers executed a search warrant, issued by a state court, at a

Philadelphia row house. They knocked on the door and announced their authority and

purpose. When they received no response, they forced entry. The agents reported that inside,

in a darkened living room, they found Joseph Mitchell sitting on a couch, dressed but with

his shoes off, and with foodstuff strewn about. Also, Mitchell was holding a large gun.

       According to the agents, they ordered Mitchell to drop his weapon, which they later

identified as a loaded MAC-11 semiautomatic pistol. Mitchell initially complied, but then

engaged in a struggle with them. He was eventually taken into custody, but required medical

attention for injuries sustained in the struggle. A second man, a juvenile, was found lying

on the floor in the same room; he was also taken into custody. A third man was found lying

in an upstairs bedroom.

       With the house secure, the agents conducted a search. In addition to the MAC-11 that

Mitchell was holding, the agents found a Glock pistol on the floor next to the couch on which



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Mitchell had been sitting. An agent examined the couch and discovered that the cushions

were sewn permanently to the base, but that there was a large tear in the stitching. Inspecting

the tear, the agent found a secret weapons cache inside the couch. The tear was large enough

for a person sitting on the couch to reach in and pull out a weapon, including one the size of

the MAC-11. Three additional handguns were retrieved from this cache, bringing the total

to five handguns found in the vicinity of the couch. All five were loaded. One of the guns

from inside the couch, a Ruger .45 caliber pistol, was missing its serial number. Where the

serial number should have been, there was visible discoloration due to the gouging or

grinding necessary to remove the number. The other four handguns all had their serial

numbers intact. The Ruger did not bear Mitchell’s fingerprints.

       In addition to the handguns, agents also found a bulletproof vest, which was on a

dining room table. Mitchell’s state-issued identification card, which listed his address as that

of the row house, was found near the bulletproof vest on the same table. The agents also

found a small quantity of marijuana, as well as other documents belonging to Mitchell and

listing the address of the row house, including his voter registration card, social security card,

and current bills.1 The agents found no evidence that the other two people found in the house

resided there.

       Through interviews, police were able to obtain additional information. When

detectives interviewed Mitchell, he stated that he lived with his girlfriend on Spruce Street,

   1
   According to Mitchell, some of the items bearing his name belonged to his uncle, whose
name is also Joseph Mitchell and who formerly resided at that same address.

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some distance away from the house where he was arrested. Mitchell also supplied the

detectives with a false name, identifying himself as “Joseph Waddy.”2              During the

defendant’s case, testimony was introduced that the row house belonged to members of

Mitchell’s family and that Mitchell had lived there in the past. Mitchell’s girlfriend testified

that Mitchell had been living with her for several years in her home, approximately three

blocks away from the house where he was found (and not located at the Spruce Street address

supplied by Mitchell). She stated that in the early morning of August 24, 2004, between

midnight and two-thirty, she and Mitchell had an argument which caused Mitchell to leave

her home. He was wearing only a t-shirt, jeans, and shoes. His girlfriend testified that she

never saw Mitchell with any of the guns found, never knew him to go by the name “Joseph

Waddy,” and did not know of any other girlfriend who lived at the Spruce Street address.

          On September 14, 2004, a grand jury in the Eastern District of Pennsylvania returned

an indictment of Mitchell, charging him with possession of a firearm with an altered and

obliterated serial number, in violation of 18 U.S.C. § 922(k).3 A knowing violation of §



    2
    Mitchell also identified himself as “Joseph Waddy” at the hospital where he was taken
for medical attention after being arrested. At the hospital, however, Mitchell listed his home
address as the house where he was arrested and the weapons were cached.
    3
        18 U.S.C. § 922(k) provides:

It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or
foreign commerce, any firearm which has had the importer's or manufacturer's serial number
removed, obliterated, or altered or to possess or receive any firearm which has had the
importer's or manufacturer's serial number removed, obliterated, or altered and has, at any
time, been shipped or transported in interstate or foreign commerce.

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922(k) is grounds for imposition of a fine, imprisonment for a term of not more than five

years, or both. 18 U.S.C. § 924(a)(1)(B). Prior to trial, Mitchell filed a motion to suppress

physical evidence on the grounds that the warrant was unsupported by probable cause, was

overly broad, and improperly executed. Mitchell also filed a motion in limine to bar certain

evidence as violating Federal Rule of Evidence 404(b). The District Court denied both

motions.

       On April 13, 2005, following a three-day trial, the jury found Mitchell guilty of

violating § 922(k). Mitchell filed a motion to vacate the verdict, which the District Court

denied. On September 9, 2005, the District Court imposed a sentence of 23 months’

imprisonment, a term of supervised release of three years, and a special assessment of $100.

Mitchell timely appeals.

II. Jurisdiction

       The District Court had subject matter jurisdiction over this case pursuant to 18 U.S.C.

§ 3231 because Mitchell was charged with a violation of federal criminal law. We exercise

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

III. Discussion

       Mitchell argues that his conviction should be overturned on appeal because the jury’s

verdict of guilty was unsupported by sufficient evidence. “We review the sufficiency of the

evidence in the light most favorable to the government, and will sustain the verdict if any

rational trier of fact could have found the essential elements of the crime beyond a reasonable



                                              5
doubt.” United States v. Pritchard, 

, 470 n.1 (3d Cir. 2003) (internal quotation

marks omitted). Our review is deferential, as it is not our place to weigh evidence or

determine credibility, and a defendant must bear a heavy burden to establish that the evidence

was insufficient. United States v. Dent, 

, 187 (3d Cir. 1998). Moreover, we

may sustain a conviction even when the government’s case rests entirely upon circumstantial

evidence. United States v. Bobb, 

, 494 (3d Cir. 2006).

       Mitchell contends that the government presented insufficient evidence to establish that

he knowingly possessed the Ruger pistol on which his conviction is based. Under § 922(k),

the government had to establish either actual or constructive possession of the Ruger. “A

person who, although not in actual possession, knowingly has both the power and the

intention at a given time to exercise dominion or control over a thing, either directly or

through another person or persons, is then in constructive possession of it.” United States

v. Garth, 

, 112 (3d Cir. 1999) (emphasis and citations omitted). A defendant’s

dominion and control over an item need not be exclusive, though dominion and control

cannot be established by the defendant’s mere physical proximity to the item in question. 

113.

       Based on the evidence presented to the jury, a rational juror could have concluded that

Mitchell knowingly possessed the Ruger. Mitchell tries to analogize his case to United States

v. Brown, 

(3d Cir. 1993), and United States v. Jenkins, 

(3d Cir.

1996), but these cases are inapt. Brown involved a defendant who resided in a home owned



                                              6
by her co-defendant and who could not be linked to the drugs underlying her conviction

because none of the drugs were found in her room of the house. We held that the evidence

was insufficient to find that Brown exercised dominion and control over the drugs because

none could be linked to 

. Similarly, Jenkins involved a defendant who

was found seated at a coffee table with the tenant of the apartment. Inside the coffee table

were drugs, paraphernalia, and firearms. We held that because nothing beyond mere physical

proximity linked Jenkins to the contents of the coffee table, dominion and control could not

be 

. By contrast, Mitchell was found sitting directly on top of the

hidden weapons cache in a house in which he contemporaneously received mail, with access

to the weapons through a tear in the stitching and with a MAC-11 in hand and a Glock on the

floor nearby. A rational juror easily could have inferred a link to the Ruger of the sort that

was lacking in Brown and Jenkins.

       In addition to finding that Mitchell knowingly possessed the Ruger, the jury also had

to find beyond a reasonable doubt that Mitchell knew the Ruger was defaced. United States

v. Haywood, 

, 206 (3d Cir. 2004). A rational juror could have so found. The

Ruger was alone among the weapons in missing a serial number, and its defacement left the

weapon with visible discoloration. All five weapons were loaded, meaning that someone had

to handle them. Having found that Mitchell possessed the Ruger, a rational juror could have

inferred that Mitchell loaded it and noticed the visible discoloration.

       We have also reviewed Mitchell’s claims that evidence of the four guns with serial



                                              7
numbers intact, the bulletproof vest, and his struggle with the arresting agents was not

admissible; that the search warrant was defective and improperly executed; and that the jury

instructions were erroneous. We find all these contentions to be without merit.

IV. Conclusion

       For the reasons set forth above, we will AFFIRM the judgment of the District Court.




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