FABER, Senior District Judge:
Appellant Eugene Shaner Penniegraft was convicted of possession with intent to distribute cocaine base and aiding and abetting, in violation of 18 U.S.C. §§ 841(a) and 2; possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1). He appeals his convictions on three grounds.
Viewed in the light most favorable to the government, the evidence at trial established
Thereafter, on December 29, 2007, authorities obtained and executed a search warrant for the residence at 916 Willow Road. At the time of the search, Penniegraft, Juwana Bates, Jeffrey Hampton, and Vermont Carmack were present at the residence. Upon seeing authorities approaching, Hampton fled into the bathroom carrying a firearm that he placed in the sink.
During a search of the den/living room area, law enforcement found several caches of plastic baggies, marijuana, a bag containing crack cocaine, a box of ammunition, a digital scale with white residue, two crack pipes in the living room, and a black airsoft pistol. They also discovered a black, unlocked box containing crack cocaine, currency, and marijuana under the couch in that room. Digital scales with white residue and a bag of ammunition were recovered from the laundry room. Also discovered in a bedroom closet were a bag of cocaine, digital scales, and a loaded rifle. In that same bedroom, officers discovered a loaded 9mm handgun behind a dresser, empty baggies, a bag of marijuana in the nightstand, two pieces of glass with white residue, digital scales, and $135.00. Finally, officers recovered the .357 Smith & Wesson handgun that Hampton had placed in the bathroom sink.
The occupants of the house were arrested and, upon searching Penniegraft, authorities discovered $1200 and a key to the house on his person.
On June 30, 2008, a federal grand jury in the Middle District of North Carolina returned a six-count indictment charging Penniegraft, Bates, and Hampton with various drugs and weapons offenses. Penniegraft was named in Counts Two, Three, and Five of the indictment, charging him with (1) possession with intent to distribute cocaine base ("crack") and aiding and abetting, in violation of 18 U.S.C. §§ 841(a) and 2; (2) possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (3) being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1).
Prior to trial, Penniegraft moved to exclude evidence of a prior arrest that the government intended to introduce pursuant to Federal Rule of Evidence 404(b). Over Penniegraft's objection, the court found the evidence admissible. At trial, Officer Mark Ingram testified that, on August 11, 2007, defendant was arrested in possession of 3.2 grams (gross weight) of a substance containing cocaine base or "crack". At that time, Penniegraft told Ingram that he lived at 916 Willow Road, the residence he shared with Bates.
At the close of the evidence, defendant unsuccessfully moved for a judgment of acquittal. The jury then returned a verdict of guilty on all counts. At defendant's request, the court polled the jury. During the polling, the clerk had the following exchange with one of the jurors:
JA 629-30. Without objection from either party, the clerk completed the polling and the remaining jurors indicated their assent to the verdict.
The court then held a bench conference whereupon Penniegraft objected to allowing the jury to continue deliberations and requested a mistrial. The court took a brief recess to give the attorneys an opportunity to research the issue and make suggestions about how to proceed. After the recess, Penniegraft argued that the court should (1) declare a mistrial; (2) inquire whether Juror No. 5 would feel comfortable deliberating further; or (3) give the jury a modified Allen charge. The court denied the request for a mistrial but questioned whether the court's continued polling of the jury after one juror expressed hesitation about the verdict in open court was coercive. The court also denied defendant's request to question Juror No. 5 further, finding that it would be coercive to do so. The court then gave a modified Allen charge, to which defendant consented, instructing the jury to further deliberate.
The jury again returned a verdict of guilty on all counts. After the court denied defendant's motion for a judgment notwithstanding the verdict based on sufficiency of the evidence, the court reiterated its concern regarding the propriety of the continued polling of the jury after Juror No. 5 had expressed reservations. After another hearing, the court concluded that it was without jurisdiction to entertain a motion for a new trial on the polling issue but that the issue was preserved for appeal.
Penniegraft was sentenced to 327 months on Count Two, 60 months on Count Five to run consecutive to Count Two, and 120 months of imprisonment on Count Three to run concurrent to Count Two, for a total of 387 months of imprisonment. Defendant filed a timely notice of appeal.
Penniegraft argues that there was insufficient evidence to support the guilty verdicts on all counts of conviction. Specifically, Penniegraft argues that the evidence failed to establish he possessed either the drugs or firearms as charged in the indictment. Furthermore, according to Penniegraft, even if the government could meet its burden of showing he was in possession of the firearms, the evidence did not show that his possession was in furtherance of a drug trafficking offense.
This court reviews the denial of a Rule 29 motion de novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir.2005), cert. denied, 547 U.S. 1113, 126 S.Ct. 1925, 164 L.Ed.2d 667 (2006). In reviewing the sufficiency of the evidence following a conviction, the court is to construe the evidence in the light most favorable to the government, assuming its credibility, and drawing all favorable inferences from it, and will sustain the jury's verdict if any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson v.
In order to establish the offense proscribed by 21 U.S.C. § 841(a)(1), possession with intent to distribute cocaine base, the Government had to prove beyond a reasonable doubt that Penniegraft possessed cocaine base, that he did so knowingly, and with an intent to distribute. United States v. Burgos, 94 F.3d 849, 873 (4th Cir.1996) (en banc).
The law recognizes two kinds of possession: actual possession and constructive possession. See id. "`Actual possession' is defined as `[p]hysical . . . control over property.'" United States v. Scott, 424 F.3d 431, 435 (4th Cir.2005) (quoting Black's Law Dictionary 1201 (8th ed.2004)). The government may prove constructive possession by demonstrating that a defendant exercised, or had the power to exercise dominion and control over an item. Id.; see also Burgos, 94 F.3d at 873. "A person has constructive possession over contraband when he has ownership, dominion, or control over the contraband itself or over the premises or vehicle in which it was concealed." United States v. Armstrong, 187 F.3d 392, 396 (4th Cir.1999).
"In addition, [p]ossession need not be exclusive, but may be shared with others, and is susceptible of proof by circumstantial as well as direct evidence." United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980) (internal citations and quotations omitted).
In arguing that there was insufficient evidence to show he possessed the 13.6 grams of crack cocaine discovered in the black box, Penniegraft relies upon Bates' statements that he had run out of drugs to sell that day, as well as her testimony that he sold his drugs and she sold hers.
At trial, codefendant Juwana Bates testified that Penniegraft did not have legitimate employment from 2002 until the time of his arrest. Bates also testified that she and Penniegraft rented the residence at 916 Willow Road to sell drugs. According to Bates, both she and Penniegraft sold crack cocaine and marijuana and, on occasion, powder cocaine.
Bates also testified that, in general, Penniegraft would sell his drugs and she would sell hers. She further testified that both she and defendant regularly stored drugs in the black box located under the couch and that defendant also stored the.357 revolver in that box when it was not on his person. According to Bates, sometimes she and defendant would purchase drugs together because it was cheaper to purchase the drugs in larger quantities and break them up for resale. Finally, Bates testified that Penniegraft had run out of drugs to sell the morning of the
Jeffrey Hampton testified that he would visit the residence regularly to buy drugs from Penniegraft and had been purchasing drugs from him for one to two years, often in exchange for doing chores for him. Hampton stated that on the day of the search, he was at the residence with Bates, Carmack, and defendant and that defendant had promised to sell him crack in exchange for cleaning the dog cage.
In this case, the government presented substantial evidence that defendant had the power to exercise dominion and control over the crack cocaine. This is not a case where Penniegraft's guilt rested solely on his proximity to drugs in a residence. Bates testified that she and defendant rented the house together for the purpose of selling drugs. She also testified that the two would sometimes purchase drugs together. Furthermore, she testified that both she and defendant would often keep their drugs in the black box along with defendant's firearm. Also recovered during the search were drug paraphernalia, currency, and several firearms—all "tools of the trade" for a drug dealer. Furthermore, the jury was instructed that Penniegraft could be found guilty for aiding and abetting another person's possession with intent to distribute cocaine base.
Based on the foregoing, we find there was substantial evidence to support Penniegraft's conviction on Count Two.
As to the firearms, there was ample evidence that they belonged to defendant. Both Bates and Joanne Bryant, Penniegraft's girlfriend, testified that they had seen Penniegraft with firearms like those charged in the indictment. Bates testified that she did not own firearms but defendant did. According to Hampton, he saw Penniegraft with guns on "numerous" occasions. JA 253-54. Hampton went with Penniegraft to his mother's house so that he could change clothes and defendant gave Hampton the .357 handgun to transport back to the residence. When Hampton returned to the residence at 916 Willow Road, he placed the gun on the table and retrieved it when the police arrived and put it in the bathroom sink.
Moreover, because "a jury's finding of guilty may be supported by consciousness of guilt," United States v. Obi, 239 F.3d 662, 665 (4th Cir.2001), the fact that defendant attempted to have Hampton claim ownership of the guns was evidence of his guilt. After his arrest, Penniegraft asked Hampton to take responsibility for the guns in the home and, in exchange, Penniegraft would "take care of" Hampton. JA 243-44. In addition, defendant contacted Bryant from jail and asked her to convince Hampton to write a statement taking responsibility for the firearms. In response, Bryant wrote several letters to Hampton in jail requesting that he write a statement saying the firearms were his and assuring him that he would be taken care of. Bryant signed the letters in the name of Penniegraft's mother and enclosed money in some of the envelopes.
As well, at defendant's request, Bates drafted a notarized statement falsely attributing ownership of the firearms to Hampton. Both Bates and Bryant, however, testified that the firearms in the residence belonged to defendant and that they had seen him with firearms on many prior occasions. Bates also testified that, other than the day of the search, she had never seen Hampton with a gun and, to her knowledge, Hampton did not own any firearms.
We also reject Penniegraft's claim that the evidence was insufficient to
The evidence at trial established that Penniegraft both sold drugs and possessed firearms. During execution of the search warrant, loaded firearms and ammunition were found in different parts of the house at 916 Willow Road, a location obtained for the purpose of selling drugs. Penniegraft had a key to the residence. Drugs and drug paraphernalia were also found at various locations in the house. When he was arrested, Penniegraft was in possession of $1200.00. Furthermore, Bates testified that Penniegraft often stored a firearm in the same black box where the two of them would store drugs. According to Jeffrey Hampton, "[w]henever [Penniegraft] had a gun in his hand, he had dope in his pocket." JA 254. Based on the foregoing, there was ample evidence to support the jury's guilty verdict on Count Three.
Penniegraft contends that the court erred in admitting evidence of the August 11, 2007, arrest because it was not similar to the offenses charged in this case. Specifically, he contends that (1) he possessed a much smaller quantity of drugs during the first arrest; (2) the first arrest did not occur at 916 Willow Road; and (3) the first arrest took place four months prior to the second arrest.
A district court's determination of the admissibility of evidence under Fed. R.Evid. 404(b) is reviewed for an abuse of discretion. United States v. Queen, 132 F.3d 991, 995 (4th Cir.1997). An abuse of discretion occurs only when "the [district] court acted arbitrarily or irrationally in admitting evidence." United States v. Williams, 445 F.3d 724, 732 (4th Cir.2006) (internal quotation marks and citation omitted).
Rule 404(b) prohibits the admission of "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). However, such evidence is "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Rule 404(b) is an inclusionary rule, allowing evidence of other crimes or acts to be admitted, except that which tends to prove only criminal disposition. See United States v. Sanchez, 118 F.3d 192, 195 (4th Cir.1997).
For such evidence to be admissible, it must be "(1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an element of the charged offense; and (3) reliable." United States v. Hodge, 354 F.3d 305, 312 (4th Cir.2004) (citing Queen, 132 F.3d at 997). Additionally, the probative value of the evidence must not be substantially outweighed by its prejudicial effect. Id.
There was no error in admitting the evidence. The evidence was relevant to prove Penniegraft's knowledge and lack of mistake and necessary to prove the element of intent. "A not-guilty plea puts one's intent at issue and thereby makes relevant evidence of similar prior crimes when that evidence proves criminal intent." Sanchez, 118 F.3d at 196 (concluding that evidence was admissible to prove defendant's criminal intent). Here, defendant was arrested with crack cocaine only a few months prior to the search. His prior possession of crack cocaine, therefore, demonstrated his knowledge of the presence of crack cocaine in the residence at 916 Willow Road. As well, the fact that he identified 916 Willow Road as his address to the arresting officer back in August undermines his attempt to disassociate himself with that residence in the current case. Furthermore, the 404(b) evidence was reliable as the arresting officer testified at trial. For all these reasons, Penniegraft's argument is without merit.
Penniegraft argues that the district court's continued polling of the jury after it became clear that the verdict was not unanimous was reversible error.
As defendant did not object to the court's continued polling of the jury, this issue is reviewed for plain error. United States v. Farrior, 535 F.3d 210, 222 (4th Cir.2008) (citing United States v. Olano, 507 U.S. 725, 733-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Under the plain error standard of review, to establish the authority to notice an error not preserved by a timely objection, a defendant must demonstrate (1) that an error occurred, (2) that the error was plain, and (3) that it affected his substantial rights. See United States v. Promise, 255 F.3d 150, 154 (4th Cir.2001) (en banc). If the defendant satisfies these threshold requirements, correction of the error is within the appellate court's discretion, which is "appropriately exercised only when failure to do so would result in a miscarriage of justice, such as when the defendant is actually innocent or the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at 161 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted)).
Unquestionably, it is plain error for a trial judge to inquire as to the numerical division of a jury. The United States Supreme Court so held in Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345 (1926). In that case, the defendants were convicted of conspiracy to possess and transport intoxicating liquors in violation of the National Prohibition Act. After some hours of deliberation the jury had not agreed on a verdict. The judge called in the jury and inquired as to their division. The jury foreman informed the court that the jury stood nine to three without indicating whether the majority favored conviction or acquittal. The Court, in an opinion by Justice Stone, held the practice to be per se reversible error, declaring:
Brasfield, 272 U.S. at 450, 47 S.Ct. 135.
But Brasfield, however strong the language of the Court and inflexible the rule established, does not answer the present inquiry. In Brasfield, there was clearly no verdict and the trial judge asked about the division sua sponte. Here, the situation is quite different—the trial judge, upon being informed that there was a verdict, proceeded to poll the jury at the request of the defendant. Jury polls are governed by Rule 31(d) of the Federal Rules of Criminal Procedure which is designed to insure that the verdict is indeed unanimous and to uncover coercion, if any exists. United States v. Edwards, 469 F.2d 1362, 1366-67 (5th Cir.1972). The rule reads as follows:
Fed.R.Crim.P. 31(d).
Accordingly, when Penniegraft asked for a poll the trial court was under a mandate to comply—it had no choice in the matter. Defendant contends that, when the court continued the poll after Juror No. 5 said she was "still kind of iffy" about the defendant's guilt, it brought the case within the inflexible rule of Brasfield, with the result that reversal is required. We disagree.
The United States Court of Appeals for the Sixth Circuit was confronted with this issue in Lyell v. Renico, 470 F.3d 1177 (6th Cir.2006). There, the defendant was convicted in state court of assault with intent to commit murder and brought a claim for habeas corpus relief in federal court. In that case, the judge, having been informed that there was a unanimous guilty verdict, polled the jury at defendant's request. During the poll, the first eleven of fourteen jurors concurred in the guilty verdict, but Juror No. 12 responded, "No. I am sorry, Judge." Id. at 1181. The court continued the poll and both of the remaining jurors concurred in the guilty verdict. The defendant did not object to the continued polling, but moved for a mistrial after the court gave the jury a truncated Allen charge and sent them out to continue deliberations. An hour later, the jury came back with a unanimous verdict; Juror No. 12 had joined the majority.
The Court of Appeals for the Sixth Circuit concluded that the trial court did not commit reversible error in continuing to poll the jury after learning the verdict was not unanimous. Acknowledging Brasfield, the court explained why that decision did not control the inquiry in the case before it:
Id. at 1183. The Lyell court continued:
Id.
The decision on this point in Lyell is weakened somewhat by the fact that defendant's conviction was overturned on other grounds and because one of the three appellate judges filed a concurring opinion that vigorously disagreed with the majority on the polling issue. The concurring judge argued that there is nothing in Brasfield that narrows its holding to deadlocked jury cases where the court inquires, on its own motion, how the jury stands numerically. According to the concurrence, Brasfield extends to any disclosure of numerical division "regardless of whether a jury is deadlocked, at an impasse, or in a different stage of jury deliberations." Id. at 1190 (Clay, J., concurring).
Other circuits, however, have reached the same conclusion on the polling issue as the majority in Lyell, and the weight of authority is of the opinion that Brasfield does not apply where the judge continues to poll the jury after learning there is not a unanimous verdict. In United States v. Gambino, 951 F.2d 498 (2d Cir.1991), numerous defendants were tried on various narcotics offenses. After five days of deliberation, the foreperson of the jury sent a note to the court informing it that the jury had reached a verdict. Counsel for two of the defendants requested a poll. Both Juror No. 2 and Juror No. 7 indicated that they did not agree with the guilty verdict. On each occasion, counsel moved for a mistrial but did not object to continued polling of the jury. The court denied the motions for mistrial and indicated it would instruct the jury to resume deliberations, but insisted nevertheless on completing the poll. The jury deliberated two more hours and returned unanimous verdicts of guilty.
The Second Circuit affirmed the convictions holding that continued polling violates a defendant's rights only when it is coercive. According to the Gambino court:
Id. at 501-02.
Three other circuit courts of appeal have joined the courts in Lyell and Gambino. In United States v. Fiorilla, 850 F.2d 172 (3d Cir.1988), the court continued to poll
Id. at 176-77.
In Amos v. United States, 496 F.2d 1269 (8th Cir.1974), the jury announced it had reached a verdict of guilty as to all counts in a fourteen-count indictment for tax fraud. A poll of the jury, however, revealed that Juror No. 8 had consented to the verdict of guilty only as to count four. The judge continued the poll as to count four only, said it would receive the guilty verdict on count four, and indicated it would send the jury back for further deliberations on the remaining counts. At this point, counsel for defendant Amos asked the judge to repoll the jury on count four only and the court did so. After the repoll and hearing Juror No. 8's response, the judge changed his mind about accepting a partial verdict and instructed the jury to resume deliberations on all counts. After twenty-five minutes the jury found Amos guilty on all fourteen counts. The court repolled the jury again and made further inquiry of Juror No. 8 to make sure he agreed with the guilty verdict on all counts.
In United States v. Brooks, 420 F.2d 1350 (D.C.Cir.1969), the defendant requested that the court continue the poll after one juror disagreed with the verdict of guilty on a certain count. Further polling revealed that a second juror also had reservations regarding the same count. The appellate court found no error in the judge's action indicating that "the trial judge is in a much better position than an appellate tribunal to determine whether a recalcitrant juror's eventual acquiescence in a verdict was in fact freely given." Id. at 1353.
Acknowledging that a majority of the federal appellate courts to have considered the issue have rejected his argument that it is plain error to continue to poll a jury after one juror indicates there is a lack of unanimity, Penniegraft directs the court's attention to United States v. Spitz, 696 F.2d 916 (11th Cir.1983). In Spitz, after one juror dissented from the verdict, the judge continued to poll the jury. Upon completing the poll, the judge directed the dissenting juror to stand and ordered her once again to repeat in open court that she disagreed with the verdict. While the juror was still standing, the judge proceeded to give an Allen charge and then excused the jury to return to its deliberation. The jury returned a half hour later with a unanimous guilty verdict.
The United States Court of Appeals for the Eleventh Circuit found that the trial court's failure to stop polling as soon as the lack of unanimity was revealed was reversible error. We reject the rigid rule of Spitz
In conclusion, we join the majority of circuits to have considered the issue and hold that in conducting a poll of the jury at
For the foregoing reasons, we affirm Penniegraft's convictions.
AFFIRMED
