USA v. Greer, No. 09-4362 (2d Cir. 2011)

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09-4362-cr USA v. Greer 1 2 UNITED STATES COURT OF APPEALS 3 FOR THE SECOND CIRCUIT 4 5 6 August Term 2010 (Argued: November 2, 2010 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Decided: February 4, 2011) Docket No. 09-4362-cr -----------------------------------------------------x UNITED STATES OF AMERICA, Appellee, -- v. -MICHAEL GREER, Defendant-Appellant. -----------------------------------------------------x B e f o r e : 23 WALKER and CABRANES, Circuit Judges, and KOELTL,* District Judge. Appeal from a judgment of conviction for possessing a 24 firearm and ammunition as a convicted felon, following a jury 25 trial in the Western District of New York (David G. Larimer, 26 Judge). 27 government violated his right against self-incrimination by using 28 the name tattooed on his arm to link him to the car in which 1 2 3 Defendant-Appellant Michael Greer argues that the * The Honorable John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation. 1 1 ammunition was found. 2 government s reliance on the content of Greer s tattoo made it 3 testimonial, but we conclude that no constitutional violation 4 occurred because the tattoo was not the product of government 5 compulsion. 6 merit. 7 8 9 10 11 12 13 14 15 16 17 18 19 We hold that the nature of the We reject Greer s remaining arguments as without AFFIRMED. ARZA FELDMAN, Feldman and Feldman, Uniondale, New York, for DefendantAppellant. STEPHAN J. BACZYNSKI, Assistant United States Attorney (William J. Hochul, Jr., United States Attorney for the Western District of New York, on the brief), Buffalo, New York, for Appellee. JOHN M. WALKER, JR., Circuit Judge: 20 Defendant-Appellant Michael Greer appeals from a judgment of 21 conviction for possessing a firearm and ammunition as a convicted 22 felon, following a jury trial in the Western District of New York 23 (David G. Larimer, Judge). 24 violated his right against self-incrimination by using the name 25 tattooed on his arm to link him to the car in which ammunition 26 was found. 27 reliance on the content of Greer s tattoo made it testimonial, 28 the Fifth Amendment was not offended because his tattoo was not 29 the product of government compulsion. 30 arguments that the evidence was insufficient to support the Greer argues that the government We hold that, although the nature of the government s 2 We also reject Greer s 1 conviction and that the district court improperly permitted the 2 jury to hear evidence of an uncharged crime. 3 4 BACKGROUND 5 Greer s arrest was precipitated by a tip from a confidential 6 informant, Aaron Stubbs, who had agreed in an unrelated plea 7 bargain to assist in police investigations. 8 been convicted of a felony, and federal law prohibits convicted 9 felons from possessing a firearm or ammunition. Greer had previously 18 U.S.C. 10 § 922(g)(1). 11 August 17, 2007, as a ruse to turn him into police for gun 12 possession, Stubbs proposed that they rob a house. 13 Greer that they would need a gun, and Greer replied that he could 14 get one. 15 Stubbs had once seen Greer with a gun, and on The pair drove to Greer s house. Stubbs told As Greer went inside, 16 Stubbs remained in the car and called Rochester, New York 17 Detective Tom Janus, who drove to the location in an unmarked 18 car. 19 a light blue Hyundai Sonata, and then watched Greer leave his 20 house and get into the driver s seat of the same car. 21 vehicle drove past him, Detective Janus contacted other officers 22 to continue surveillance as he remained in place. 23 24 Detective Janus saw Stubbs sitting in the passenger seat of When the Two other officers observed the car at different times later that day. Officer Kevin Koehn watched the Sonata approach, made 3 1 eye contact with Greer as he drove past, and communicated Greer s 2 position over the radio. 3 Sonata over, but it sped away before she could see the driver. 4 Police next found the Sonata, now unoccupied, in a parking lot on 5 a residential street in Rochester, where it had struck an 6 adjacent car. 7 saw a man come through the front door of her apartment, run 8 through the apartment, and, as she testified, leave by the back 9 door. 10 door. 11 Sergeant Beth Laird later pulled the Around the same time, nearby resident Ebony Gibson She and her sister immediately fled through the front Witnesses in the parking lot directed police officers to 12 Gibson s apartment. 13 consent, a team of officers entered and searched the premises. 14 Separately, a police dog tracked a scent from the driver s side 15 of the Sonata into the apartment. 16 bed in an upstairs bedroom and took him into custody. 17 found a Glock Model 22 semi-automatic pistol and a set of car 18 keys in a white garbage can near the entrance to the apartment. 19 Sergeant Laird spoke to Gibson and, with her Police discovered Greer on a Police Detective Janus arrived at the scene and peered into the 20 Sonata, where he saw the magazine of a semi-automatic handgun in 21 the cup holder between the front seats. 22 warrant, Detective Janus opened the Sonata s door using the key 23 found in the trash can. 24 which contained nine bullets and fit the Glock 22 from the After obtaining a search He retrieved the ammunition magazine, 4 1 garbage can. 2 vehicle fine, both with Greer s name on them, as well as a car 3 rental agreement in the name of Tangela Hudson. 4 apprehended, Detective Janus observed that a tattoo on his left 5 arm said Tangela. 6 He also found a pay stub and a receipt for a motor Once Greer was On May 28, 2009, a jury found Greer guilty of one count of 7 possessing a firearm and ammunition as a convicted felon. 8 Larimer entered the judgment on October 15, 2009, after 9 Judge sentencing Greer to 120 months in prison on the weapons- 10 possession count and to a concurrent 18-month term for violating 11 his supervised release. This appeal followed. 12 13 14 DISCUSSION On appeal, Greer makes three arguments for reversing his 15 conviction: first, that the government violated his Fifth 16 Amendment right against self-incrimination by relying on his 17 tattoo to connect him to the car in which the ammunition was 18 found; second, that the evidence was insufficient to prove his 19 constructive possession of the gun and ammunition; and, finally, 20 that he was unduly prejudiced by testimony regarding an uncharged 21 crime. 22 reliance on the tattoo s content made it testimonial, the Fifth 23 Amendment was not offended because the tattoo was not the product 24 of compulsion. We hold that, although the nature of the government s We also reject Greer s remaining arguments. 5 1 2 I. Right Against Self-Incrimination At trial, the government asked Detective Janus on direct 3 examination to describe Greer s physical appearance on the date 4 of his arrest. 5 had tattoos, the government inquired whether he remembered 6 what, if anything, any of the tattoos said. 7 responded, I recall a tattoo, I believe it was on his left arm, 8 that said Tangela. 9 finding a rental car agreement in the name of Tangela Hudson in 10 11 the Sonata. When Detective Janus replied that he saw Greer Detective Janus Detective Janus had earlier testified to At trial, Greer did not object to this colloquy. On appeal, Greer argues for the first time that the 12 solicitation of testimony regarding his tattoo violated his right 13 against self-incrimination. 14 the district court is subject to plain error review. 15 States v. Morris, 350 F.3d 32, 36 (2d Cir. 2003). 16 reverse for plain error if there was 1) an error; 2) that was 17 plain; 3) that affected defendant s substantial rights; and 18 4) that seriously affected the fairness, integrity or public 19 reputation of judicial proceedings. 20 alterations omitted). 21 A claim of error not raised before United We will only Id. (quotation marks and The Fifth Amendment provides in part that no person shall 22 be compelled in any criminal case to be a witness against 23 himself. 24 self-incrimination bars only compelled incriminating U.S. Const. amend. V. The right against 6 1 communications . . . that are testimonial in character. 2 United States v. Hubbell, 530 U.S. 27, 34 (2000). 3 words, to qualify for Fifth Amendment protection, a communication 4 must be (1) testimonial, (2) incriminating, and (3) compelled. 5 Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 189 (2004). 6 The government argues that the tattoo in this case was not We disagree. In other 7 testimonial. Whether a communication is 8 testimonial for Fifth Amendment purposes often depends on the 9 facts and circumstances of the particular case. Doe v. United 10 States, 487 U.S. 201, 214-15 (1988). 11 testimonial, an accused s communication must itself, explicitly 12 or implicitly, relate a factual assertion or disclose 13 information. 14 against himself. 15 [I]n order to be Only then is a person compelled to be a witness Id. at 210. The privilege does not protect a criminal suspect from being 16 compelled to exhibit physical characteristics, for example, to 17 put on a shirt, to provide a blood sample or handwriting 18 exemplar, or to make a recording of his voice. 19 U.S. at 35 (footnotes omitted). 20 It is the contents of [the defendant s] own mind . . . that 21 implicate[] the Self-Incrimination Clause. 22 (citations and quotation marks omitted). 23 of physical traits is not a communication by a witness that 24 relates either express or implied assertions of fact or belief, Hubbell, 530 Such acts are not testimonial. 7 Doe, 487 U.S. at 211 Because the exhibition 1 it does not enjoy constitutional protection. Hubbell, 530 U.S. 2 at 35; see also Schmerber v. California, 384 U.S. 757, 764 (1966) 3 ( [C]ompulsion which makes a suspect or accused the source of 4 real or physical evidence does not violate [the Fifth 5 Amendment]. ). 6 offended where a witness relies on a tattoo to identify a 7 defendant. 8 304-05 n.3 (2d Cir. 1972). 9 physical feature, no different from a handwriting or blood For that reason, the Fifth Amendment is not See, e.g., United States v. McCarthy, 473 F.2d 300, In that context the tattoo is a 10 sample, or a scar. A mere handwriting exemplar, in contrast to 11 the content of what is written, like the voice or body itself, is 12 an identifying physical characteristic outside [Fifth Amendment] 13 protection. Gilbert v. California, 388 U.S. 263, 266-67 (1967). 14 Here, the tattoo was used to a very different end. 15 Detective Janus did not describe Greer s tattoo to identify 16 Greer. 17 Tangela, was elicited because Greer s statement of the name on 18 his skin tended to prove that Greer had a relationship with a 19 person of that name. 20 evidence, allowed jurors to infer that Greer had constructive 21 possession of the ammunition found in the Sonata rented by a 22 Tangela Hudson. See United States v. Gaines, 295 F.3d 293, 300 23 (2d Cir. 2002). The government relied on the tattoo not as an 24 identifying physical characteristic but for the content of Rather, the content of Greer s tattoo, the name That fact, in combination with other 8 1 what [was] written. 2 was therefore testimonial and, because it linked Greer to the 3 ammunition, incriminating. 4 (characterizing as incriminating only those disclosures that the 5 witness reasonably believes could be used in a criminal 6 prosecution or could lead to other evidence that might be so 7 used ). 8 9 Gilbert, 388 U.S. at 266-67. The tattoo See Hiibel, 542 U.S. at 190 The tattoo, however, was not compelled by the government. Detective Janus testified that he observed the tattoo on Greer s 10 arm after his arrest. No evidence supports Greer s contention on 11 appeal that officers were able to read the tattoo only by 12 applying physical force during his arrest. 13 were true, it would still not amount to compulsion for Fifth 14 Amendment purposes. 15 IRS compelled production of voluntarily prepared papers via 16 summons, the taxpayer could not avoid compliance by asserting 17 that the item of evidence which he is required to produce 18 contains incriminating writing. 19 U.S. 391, 410 (1976). 20 papers . . . was wholly voluntary, they could not be said to 21 contain compelled testimonial evidence. 22 voluntary tattooing of an incriminating word to Greer s arm was, 23 like the voluntary preparation of documents, not the product of 24 government compulsion. And, even if that The Supreme Court has held that, where the Fisher v. United States, 425 Since the preparation of all of the Id. at 409-10. The In the absence of compulsion, Greer s 9 1 Fifth Amendment claim fails. The admission of the testimony of 2 Detective Janus regarding Greer s tattoo was not error, much less 3 plain error. 4 5 6 II. Sufficiency of the Evidence Greer argues that his conviction for weapon possession 7 should be overturned because the evidence was insufficient to 8 support it. 9 acquittal under Federal Rule of Criminal Procedure 29, a decision The district court denied Greer s motion for 10 that we review de novo. 11 251 (2d Cir. 2008). 12 viewing the evidence in the light most favorable to the 13 government, any rational trier of fact could have found the 14 essential elements of the crime beyond a reasonable doubt. 15 United States v. Xiao Qin Zhou, 428 F.3d 361, 370 (2d Cir. 2005) 16 (quoting United States v. Bruno, 383 F.3d 65, 82 (2d Cir. 2004)). 17 United States v. Bullock, 550 F.3d 247, We will not disturb the conviction if, Greer contends that the government s case relied on nothing 18 more than a series of hunches insufficient to sustain the 19 jury s verdict. 20 in the government s favor, as we must, we find the evidence more 21 than sufficient to sustain the conviction. 22 was left next to the driver s seat of a Sonata that Greer had 23 been seen driving. 24 contained a pay stub and receipt in Greer s name, and was found We disagree. Drawing the reasonable inferences The ammunition clip The car was rented by Greer s girlfriend, 10 1 outside the apartment into which he fled. In a trash can by the 2 entrance to the same apartment, police recovered keys to the 3 Sonata along with a gun that matched the ammunition clip. 4 Furthermore, Stubbs testified to having seen Greer with the gun, 5 and explained that Greer had armed himself on that day at 6 Stubbs s suggestion. 7 rational jury, beyond a reasonable doubt, that Greer had the 8 power and intention to exercise dominion and control over the 9 gun and the ammunition. This evidence could easily convince a United States v. Gaines, 295 F.3d 293, 10 300 (2d Cir. 2002) (quoting United States v. Payton, 159 F.3d 49, 11 56 (2d Cir. 1998)). 12 13 14 III. Evidence of Uncharged Crime Greer challenges the district court s denial of his motion 15 to exclude testimony regarding the robbery he planned with 16 Stubbs. 17 prove the character of a person in order to show action in 18 conformity therewith, it can be used for other purposes, such 19 as proof of motive, opportunity, intent, preparation, plan, 20 knowledge, identity, or absence of mistake or accident. 21 Evid. 404(b). 22 the admission of such evidence for any purpose other than to 23 show a defendant s criminal propensity, as long as the evidence 24 is relevant and satisfies the probative-prejudice balancing test Although evidence of other crimes is not admissible to Fed. R. The Second Circuit s inclusionary rule allows 11 1 of Rule 403 of the Federal Rules of Evidence. 2 Inserra, 34 F.3d 83, 89 (2d Cir. 1994). 3 acknowledged the possibility of prejudice to Greer but allowed 4 the evidence after concluding that it does show motive, intent, 5 absence of mistake, and some plan. 6 United States v. The district court We review a decision on admission of evidence for abuse of 7 discretion, id., which we will only find if the district court 8 acted arbitrarily and irrationally, United States v. Garcia, 9 291 F.3d 127, 136 (2d Cir. 2002) (quoting United States v. Pitre, 10 960 F.2d 1112, 1119 (2d Cir. 1992)). If the district court 11 abused its discretion, we apply harmless error analysis. 12 States v. Rea, 958 F.2d 1206, 1219-20 (2d Cir. 1992). 13 argues that the district court erred in allowing Stubbs to 14 testify about their intended robbery, asserting that the 15 testimony showed neither motive nor intent and that, if it did, 16 its probative value was outweighed by unfair prejudice. United Greer 17 The district court did not abuse its discretion. Evidence 18 of the proposed robbery was not constrained by Rule 404(b) 19 because it was necessary to complete the story of the crime on 20 trial. 21 2010) (quoting United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 22 2000)). 23 Second Circuit s Rule 404(b) inclusionary rule because it 24 explains why Greer procured the firearm. United States v. Kaiser, 609 F.3d 556, 570 (2d Cir. Moreover, Stubbs s testimony fits easily within the 12 And the district court 1 acted well within its broad discretion in finding that the 2 probative value of the evidence outweighed whatever threat of 3 unfair prejudice Greer may have faced. 4 Birney, 686 F.2d 102, 106 (2d Cir. 1982). See United States v. 5 6 7 8 CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. 13

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