Filed: Oct. 02, 2020
Latest Update: Oct. 03, 2020
Summary: Case: 19-10639 Document: 00515588332 Page: 1 Date Filed: 10/02/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 2, 2020 No. 19-10639 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Darius Fields, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 3:17-CR-388-1 Before Smith, Clement, and Oldham, Circuit Judges. Jerry E. Smith, Circuit Judge: Dariu
Summary: Case: 19-10639 Document: 00515588332 Page: 1 Date Filed: 10/02/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 2, 2020 No. 19-10639 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Darius Fields, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 3:17-CR-388-1 Before Smith, Clement, and Oldham, Circuit Judges. Jerry E. Smith, Circuit Judge: Darius..
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Case: 19-10639 Document: 00515588332 Page: 1 Date Filed: 10/02/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 2, 2020
No. 19-10639
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Darius Fields,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-388-1
Before Smith, Clement, and Oldham, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Darius Fields was tried and convicted of three firearms offenses. On
appeal, Fields raises three issues. First, he contends that the evidence was
insufficient to support his conviction under an aiding-and-abetting theory of
making false statements in connection with the acquisition of a firearm, as
well as making false statements with respect to information that a licensed
firearms dealer is required to keep in its records. Second, Fields asserts that
the evidence was insufficient to support his conviction of possession of a fire-
arm and ammunition by a convicted felon. Third, Fields posits that the dis-
trict court abused its discretion by including, in the written judgment, a
Case: 19-10639 Document: 00515588332 Page: 2 Date Filed: 10/02/2020
No. 19-10639
special condition of supervised release that it omitted from the oral pro-
nouncement of sentence. We affirm the conviction but vacate the sentence
in part and remand for amendment of the written judgment by removing the
unpronounced special condition.
I.
Fields was convicted of acquiring a firearm from a licensed dealer by
false or fictitious statement, in violation of 18 U.S.C. §§ 922(a)(6), 924(a)(2),
and 2 (Count One) and for making a false statement with respect to informa-
tion required to be kept in the records of a federally licensed firearms dealer,
in violation of 18 U.S.C. §§ 924(a)(1)(A) and 2 (Count Two). The jury also
found Fields guilty of possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Three).
Counts One and Two arise from the purchase of a pistol. In May 2017,
Fields drove LaPorshya Polley, his then-girlfriend and subsequent co-
defendant, to DFW Gun Range, a federally licensed firearms dealer located
in the Dallas-Fort Worth area. There, Polley purchased an FN 5.7 millimeter
pistol. As part of the transaction, she completed a Bureau of Alcohol,
Tobacco, Firearms and Explosives Firearms Transaction Record (“Form
4473”), in which she certified that she was purchasing the firearm for herself
and not for someone else.
Fields entered the store several minutes after Polley, proceeded to
examine the contents of various display cases, and briefly stood near Polley
and the attending salesman. Despite their close proximity, Fields did not
acknowledge or otherwise indicate that he knew Polley. He left the store
alone; Polley remained there for approximately thirty minutes, completing
the requisite forms, successfully clearing a background check, and finalizing
the purchase. During that time, Fields and Polley exchanged several texts, in
one of which Polley wrote, “They only make the kind you told me not to
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get.” After completing the purchase, Polley left the store carrying a bag. She
rejoined Fields in the car, and they departed together.
Events during the following month gave rise to Count Three. In June
2017, the police sought Fields in connection with the kidnapping of a teenage
girl. The officers located Fields with Polley in a hotel room, where they found
a box of ammunition on a desk alongside various items, including Fields’s
belongings. Police found a loaded pistol—the same FN 5.7 pistol that Polley
had purchased at the DFW Firing Range—in a nearby bag under some
clothes.
The police also discovered a firearm in the car that Fields and Polley
drove to the hotel and had parked outside. After initially denying that he had
traveled in the car, Fields admitted it belonged to a friend and that he rode in
it to the hotel. He gave officers the car key and permission to search the
vehicle. Before searching, police looked through the window and saw an
AK-47 style pistol that was partially covered in clothes. They later discov-
ered that, like the FN 5.7 pistol, the second firearm had also been purchased
by Polley.
A jury determined that Fields aided and abetted Polley in making a
straw purchase, thus finding him guilty of Counts One and Two. The jury
also found that as a convicted felon, Fields had possessed firearms and
ammunition, convicting him of Count Three. The district court sentenced
Fields to 216 months in prison and pronounced several special conditions
of supervised release. In its written judgment, the court included an addi-
tional special condition not mentioned in the oral pronouncement—that
Fields must submit to mental health treatment as directed by his probation
officer.
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II.
Fields contends that the evidence was insufficient to convict him on
any of the three counts. He timely moved for a judgment of acquittal, prop-
erly preserving his challenge, so we review de novo. United States v. Hunts-
berry, 956 F.3d 270, 279 (5th Cir. 2020). “In reviewing the sufficiency of the
evidence, we view the evidence and the inferences drawn therefrom in the
light most favorable to the verdict, and we determine whether a rational jury
could have found the defendant guilty beyond a reasonable doubt.” United
States v. Mitchell,
484 F.3d 762, 768 (5th Cir. 2007). Moreover, “[w]e do not
reevaluate the weight of the evidence or . . . the credibility of the witnesses.”
United States v. Bowens,
907 F.3d 347, 350 (5th Cir. 2018) (internal quotation
marks omitted) (ellipsis in original). Furthermore, “[t]he standard of review
is the same . . . whether the evidence is direct or circumstantial.” United
States v. Burton,
126 F.3d 666, 670 (5th Cir. 1997). Finally, “[i]t is not neces-
sary that the evidence exclude every reasonable hypothesis of innocence; the
jury is free to choose among reasonable constructions of the evidence.”
United States v. Pennington,
20 F.3d 593, 597 (5th Cir. 1994) (citations
omitted).
III.
On Count One, a violation of 18 U.S.C. § 922(a)(6), “the government
must show that the defendant[] knowingly made false statements and that
such statements were intended to deceive or likely to deceive a federally
licensed firearms dealer with respect to any fact material to the lawfulness of
the sale.” United States v. Ortiz-Loya, 777 F.2d 973, 979 (5th Cir. 1985).
Regarding Count Two, a violation of 18 U.S.C. 924(a)(1)(A), the government
must prove that “(1) the dealer was a federally licensed firearms dealer at the
time the events occurred; (2) the defendant made a false statement or repre-
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sentation in a record that the licensed firearms dealer was required by federal
law to maintain; and (3) the defendant made the false statement with knowl-
edge of its falsity.” United States v. Pena, 541 F. App’x 453, 455 (5th Cir.
2013) (quoting United States v. Abramski, 706 F.3d 307, 316–17 (4th Cir.
2013), aff’d,
573 U.S. 169 (2014)). Relatedly, a conviction under 18 U.S.C.
§ 2 for aiding and abetting “requires the government to establish that the
defendant willfully associated himself in some way with the criminal venture
and willfully participated in it as he would in something he wished to bring
about.”
Ortiz-Loya, 777 F.2d at 980. Furthermore, under § 2, a person “who
‘aids’ and ‘abets’ an offense against the United States is liable as a princi-
pal.”
Bowens, 907 F.3d at 351. Because the same evidence pertains directly
to the first two counts, we discuss them together.
If Fields assisted Polley in making a straw purchase, that assistance
would satisfy the elements of both counts. Indeed, an untruthful answer on
a Form 4473 violates both relevant statutes.
First, intentionally providing a false answer regarding the actual pur-
chaser violates § 922(a)(6) as a materially false statement intended to deceive
the dealer. See United States v. Ortiz, 318 F.3d 1030, 1038–39 (11th Cir. 2003)
(per curiam). Second, giving such an answer violates § 924(a)(1)(A) because
it constitutes a false statement with respect to information that a firearms
dealer must retain in his records. See Pena, 541 F. App’x at 455. Third, to
effect a straw purchase, it is unnecessary that a defendant expressly know
that a straw purchaser must falsify specific portions of a Form 4473. United
States v. Soto,
539 F.3d 191, 195 (3d Cir. 2008). Indeed, to find that a
defendant aided and abetted a violation of § 924(a)(1)(A), it is “enough that
[the defendant] encouraged [the straw purchaser] to represent herself as the
‘actual buyer’ and that, in order to do so, she was required to lie” on the
Form 4473. United States v. Shorty,
741 F.3d 961, 970 (9th Cir. 2013). Thus,
the only questions are whether Polley bought the firearm for herself, and, if
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not, whether Fields aided and abetted the unlawful transaction.
Fields contends that the evidence is insufficient to support his con-
viction because the government failed to show that he engaged in any affirma-
tive conduct. Fields is correct that aiding and abetting requires “shared . . .
criminal intent” and “some affirmative conduct” by the defendant in sup-
port of the criminal act. United States v. Colwell, 764 F.2d 1070, 1072 (5th
Cir. 1985). Furthermore, “[t]he intent necessary to support a conviction can
be demonstrated by direct or circumstantial evidence that allows an inference
of an unlawful intent, and not every hypothesis of innocence need be ex-
cluded.” United States v. Aggarwal,
17 F.3d 737, 740 (5th Cir. 1994).
Fields contends that the government failed to prove that he engaged
in any affirmative conduct, asserting that the best pieces of evidence the gov-
ernment produced were the text messages between Polley and Fields while
she was in the firearms dealership. Although Fields posits that the text mes-
sages merely demonstrate that he was curious about Polley’s whereabouts,
he fails to address several other pieces of evidence suggesting the transaction
was a straw purchase that Fields aided and abetted. Indeed, such evidence
includes his driving Polley to and from the dealership,1 the pair’s staggered
entrance and exit of the store, Fields’s not indicating that he knew Polley
while in the store,2 the salesman’s testimony that he was surprised by Pol-
ley’s insistence on buying a specific high-powered pistol despite her stated
purposes in purchasing a firearm,3 and the salesman’s testimony that, on
1
See Soto, 539 F.3d at 195 (finding that defendant’s escorting a buyer to a firearms
dealership was evidence of participation in a straw purchase).
2
See id. (noting that defendant’s presence during a firearms sale was evidence of
participation in a straw purchase).
3
See United States v. Howell, 37 F.3d 1197, 1202 (7th Cir. 1994) (concluding that
the purchase of a firearm that was ill-suited for the buyer was evidence of a straw purchase).
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viewing a recording of Fields in the store, the transaction looked like a typical
straw purchase.
Viewed in the light most favorable to the verdict, the evidence is more
than sufficient for a jury to find, beyond a reasonable doubt, that Fields was
guilty of aiding and abetting Polley in a straw purchase and thereby providing
false information on the Form 4473. Therefore, we affirm the conviction as
to Counts One and Two.
IV.
The jury convicted Fields of possession of a firearm by a convicted
felon—the FN 5.7 pistol and its ammunition found in the hotel room and the
AK-47 style pistol found in the car (Count Three). To convict under
18 U.S.C. § 922(g)(1), the government must prove three elements:
“(1) [T]he defendant was previously convicted of a felony, (2) the defendant
knowingly possessed a firearm, and (3) the firearm traveled in or affected
interstate commerce.” Huntsberry, 956 F.3d at 279.
The parties stipulated that Fields was previously convicted of a felony
and that the firearms and ammunition in question traveled in or affected
interstate commerce, leaving only the second element in dispute. Though
Fields was indicted for possessing two firearms and the box of ammunition,
the simultaneous possession of multiple firearms is treated as a single offense
under § 922(g)(1). United States v. Talbert, 501 F.3d 449, 450 (5th Cir. 2007).
Furthermore, when a defendant is accused of simultaneously possessing mul-
tiple firearms under the statute, a jury need not unanimously find that he
possessed a specific firearm but only that he possessed a firearm.
Id. at 451–
52. Therefore, in assessing sufficiency on Count Three, it is necessary to
determine only whether a reasonable jury could have found that he possessed
one of the two firearms or the ammunition.
Possession under § 922(g)(1) “may be actual or constructive” and
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“may be proved by circumstantial evidence.” Huntsberry, 956 F.3d at 279.
Actual possession occurs when a “defendant knowingly has direct physical
control over a thing at a given time.” United States v. Munoz,
150 F.3d 401,
416 (5th Cir. 1998). Constructive possession is “ownership, dominion or
control over a thing, or control over the premises where the thing is found.”
Id.
Fields contends that there was insufficient evidence of possessing the
firearms and ammunition. He asserts that because he and Polley were both
in the hotel room and had ridden together in the car, his case is one of joint
occupancy. Fields correctly states that in joint-occupancy cases, the govern-
ment must prove more than that a defendant had “mere control or dominion
over the place” where contraband is found. United States v. Mergerson,
4 F.3d
337, 349 (5th Cir. 1993). Indeed, “something else (e.g., some circumstantial
indicium of possession) is required besides mere joint occupancy before
constructive possession is established.”
Id. In joint-occupancy cases, we
“employ a common sense, fact-specific approach” to determine whether a
defendant had constructive possession. United States v. Wright,
24 F.3d 732,
735 (5th Cir. 1994).
The government produced sufficient evidence that Fields possessed
the firearms and ammunition. In joint-occupancy cases, we have reasoned
that when police discover contraband in plain view within an area that a
defendant controls, there is sufficient evidence for a rational jury to find that
he had constructive possession. See, e.g., United States v. McKnight, 953 F.2d
898, 902 (5th Cir. 1992). The hotel room where police discovered the FN 5.7
pistol and ammunition was registered to Fields; thus, he exercised control
over the room. The box of ammunition was in plain view on a desk, and the
pistol was hidden in a bag inside the room. That evidence is sufficient for a
jury to find that Fields had constructive possession of the ammunition. That
the ammunition was on the desk along with both Fields’s and Polley’s pos-
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sessions is strong evidence that Fields also “knew of and had access to” the
nearby firearm. United States v. Bui, 281 F. App’x 381, 382 (5th Cir. 2008)
(per curiam).
Moreover, the pistol had a round in the chamber with the safety off,
providing evidence that that weapon had quickly been placed into the bag and
covered with clothes for hiding. A rational jury could infer that the pistol had
been in plain view until the police knocked on the door, after which the fire-
arm was quickly hidden. Thus, the evidence was sufficient for a reasonable
jury to find that Fields had constructive possession of the ammunition and
FN 5.7 pistol.
Fields contends that the evidence is insufficient to find that he pos-
sessed the AK-47 style pistol in the car. He points out that the car was not
registered in his name, and the clothes on and near the weapon were pre-
dominantly women’s attire. He also notes that the police did not present
DNA or fingerprint evidence linking him to the firearm, nor was the gun reg-
istered to him.
A reasonable jury, however, could still infer that the car was under
Fields’s control. Fields initially told police that a friend had dropped him off
at the hotel. When officers confronted him about the car key on the desk,
Fields changed his story, admitting the car belonged to a friend and conced-
ing that he and Polley had traveled to the hotel in it. Fields then consented
to a search of the car and advised police that they must manually unlock it, as
the key’s electronic feature did not work.
Both the fact that Fields consented to the search and his knowledge of
the key’s idiosyncratic functionality suggest that he had control over the
vehicle. Inside the car, the firearm was in plain view; though it was partially
covered by clothing, police could see the pistol from outside the car. Because
the firearm was in plain view, as with the ammunition inside the hotel, a
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reasonable jury could find that Fields had constructive possession of it. See
McKnight, 953 F.2d at 902.
A reasonable jury could also find Fields’s shifting story about the car
suspicious and could infer that he knew there was a firearm inside. Indeed,
“[e]vasive and erratic behavior may be evidence of guilty knowledge.”
United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994). Thus, a reasonable
jury could find that Fields possessed both weapons and the ammunition. We
affirm on Count Three.
V.
Fields asserts that in its written judgment, the district court errone-
ously included a special condition of supervised release that was not orally
pronounced at sentencing and, therefore, the special condition regarding
mental health treatment must be removed from the written judgment. The
government agrees. “When a defendant had no opportunity to object to spe-
cial conditions (because they were unmentioned at sentencing), we review
for abuse of discretion, and any ‘unpronounced’ special conditions must,
upon remand, be stricken from the written judgment.” United States v.
Rivas-Estrada, 906 F.3d 346, 348 (5th Cir. 2018). See United States v. Diggles,
957 F.3d 551, 559−60 (5th Cir. 2020) (en banc). Fields had no chance to
object to the special condition of receiving mental health treatment services
at the direction of his probation officer, a condition that includes taking any
medications prescribed. The special condition was not included in the oral
pronouncement and was omitted from the Presentence Report and its Ad-
dendum. It necessarily follows that that special condition must be stricken.
The judgment of conviction is AFFIRMED. The judgment of sen-
tence is VACATED in part and REMANDED for amendment of the writ-
ten judgment by removing the unpronounced special condition.
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