US v. Jason Saunders, No. 15-4651 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4651 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JASON MARVIN SAUNDERS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:15-cr-00002-RAJ-DEM-1) Submitted: July 22, 2016 Decided: August 24, 2016 Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Geremy C. Kamens, Federal Public Defender, Rodolfo Cejas, II, Assistant Federal Public Defender, Patrick L. Bryant, Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia, Andrew Bosse, Joseph E. DePadilla, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jason Saunders was indicted on eleven counts of various drug and firearm offenses. the eleven counts and A jury convicted Saunders on ten of the 480 months’ imprisonment. district court sentenced him to Saunders raises two issues on appeal. First, Saunders challenges two of his convictions: (1) one count of possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and (2) one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argues that the government presented insufficient evidence to prove the possession element of those offenses. Second, he contends that the district court erred by providing an incomplete jury instruction regarding coconspirator liability, otherwise known as Pinkerton liability. For the reasons that follow, we conclude that the jury had sufficient evidence to convict Saunders on the relevant charges, and that the district court did not err by giving an incomplete jury instruction. We therefore affirm. I. A. On February 6, 2014, police executed a search warrant at an apartment Saunders manufacturing and and his brother distribution. 2 used as Saunders, a his base for brother, drug his associates, several drug customers, and the man who owned the apartment were present before and during the raid. Detective Ken Adams led a group of officers through the back entrance of the house. Before Adams and his team could secure the back door, Saunders’s brother and two other occupants had run out of it. Adams and his team of officers apprehended Saunders’s brother, but were unable to catch the other escapees. Adams then entered the house through the back door, which opened into the kitchen. Police had already secured the house when Adams entered the kitchen, where he found Saunders and another man lying face-down in handcuffs on the floor. seven by twelve feet. The kitchen was small, approximately Adams saw a black handgun next to Saunders’s left foot, and a plastic bag containing individual capsules of heroin to the right of his feet. In addition to the handgun, police found multiple bags of cocaine and an assortment of other distribute drugs, drugs, along with including tools a used cutting to manufacture agent, and Pyrex-type glassware, strainers, a digital scale topped with rocks of crack cocaine, and sandwich bags. Police discovered another handgun under a couch cushion in the living room, along with various drugs and a digital scale. Saunders was arrested after the raid, but was later released on 3 bond. He resumed selling drugs shortly thereafter and was arrested again on August 23, 2014. B. On January 7, 2015, a federal grand jury indicted Saunders on eleven counts of various drug and firearm offenses. Saunders moved for a judgment of acquittal on two counts under 18 U.S.C. §§ 924(c)(1)(A) and 922(g)(1), contending that the government failed to prove that he possessed a firearm during the police raid conducted on February 6, 2014. The district court denied the motion, finding that the jury could determine the question of possession based upon evidence presented by the government at trial. That evidence included testimony that: (1) Saunders, his brother, and his associates participated in multiple drug transactions where they possessed and revealed firearms to their buyers, J.A. 113-18; (2) Saunders typically manufactured and sold drugs while in possession of a firearm, J.A. 269, 274-75; (3) Saunders sold drugs to approximately four people in the hour preceding the police raid, and that he conducted his business from the kitchen, where he and the firearm were discovered. J.A. 271; and (4) the firearm Saunders carried resembled the one found at the scene, J.A. 157. The jury convicted Saunders on the charges in question and the district court sentenced him to 480 months’ imprisonment. This appeal timely followed. 4 II. This court reviews de novo a district court’s denial of a Rule 29 motion for judgment of acquittal. Smith, 451 challenges whether F.3d to “any 209, the 216 (4th sufficiency rational trier Cir. of of the United States v. 2006). When evidence, fact could reviewing we have determine found the essential elements of the charged offenses beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). A jury’s verdict must be upheld if there is substantial evidence, viewed in the light most favorable to the government, to support it. Burks v. United States, 437 U.S. 1, 17 (1979). consider circumstantial and direct evidence, and We must “allow government the benefit of all reasonable inferences.” States v. Tresvant, (citations omitted). 677 F.2d 1018, 1021 (4th the United Cir. 1982) We have held that uncorroborated testimony of a single witness may be sufficient evidence, even if that witness is an accomplice or an informant. See United States v. Wilson, 115 F.3d 1185, 1189-90 (4th Cir. 1997). In light of these considerations, “[a] defendant challenging the sufficiency of the evidence to support his conviction bears a heavy burden.” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). This instruction court reviews failed to de novo correctly the state claim the that a jury applicable law. United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012). 5 Saunders did not raise his objection to the district court’s instruction before the jury began its deliberation; therefore, this court’s review is for plain error. See United States v. Olano, 507 U.S. 725, 732 (1993); see also Fed. R. Crim. P. 30(d), 52(b). This court has discretion to correct a forfeited error if it is “plain” and “affects substantial rights.” We first challenge address to 922(g)(1). his We Saunders’s sufficiency convictions then address under of the Id. evidence §§ 924(c)(1)(A) Saunders’s challenge to and the completeness of the district court’s jury instruction. A. Saunders appeals his convictions §§ 924(c)(1)(A) and 922(g)(1). under 18 U.S.C. For the reasons stated below, we find that the evidence presented to the jury was sufficient to find constructive possession of the firearm. Both offenses have an element of possession that must be proved beyond a reasonable doubt sufficient. See United States v. Branch, 537 F.3d 328, 342-43 actual possession; The constructive government therefore, set the forth issue to be for 2008). necessary can conviction possession; not defendant Actual Cir. is a convicted. (4th possession before sustain possession no is a is evidence for whether the government presented sufficient evidence such that any rational 6 trier of fact could find beyond a reasonable doubt that Saunders constructively possessed the firearm. Constructive possession exists when the defendant exercises, or has the power to exercise, dominion and control over the item. See United States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001). Constructive possession may be proved by either or circumstantial direct evidence. United Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980). States v. Furthermore, a jury “[may] consider proximity as part of [its] analysis of a defendant’s constructive Schrader, 675 F.3d proximity alone possession.” 300, 308-09 (4th not enough to is dominion or control over an item. Rather, “where sufficiently other probative, United Cir. States 2012). determine a v. However, defendant’s Laughman, 618 F.2d at 1077. circumstantial proximity to evidence contraband . . coupled . is with inferred knowledge of its presence will support a finding of guilt.” Id. (quoting United States v. Whitmire, 595 F.2d 1303, 1316 (5th Cir. 1979)). Here, the government points to Saunders’s close proximity to the evidence firearm, to as prove well as other possession. direct At and trial, circumstantial the government introduced four cooperating witnesses who described the way that Saunders conducted drug-related activities. Testimony by a regular buyer placed Saunders and his associates at multiple 7 drug transactions Saunders’s where associates they possessed testified that firearms. Saunders One would of typically manufacture and sell drugs while in possession of a firearm. The associate also revealed that Saunders was in the kitchen selling drugs on the night of February 6, and that he had sold to approximately raid. four individuals in the hour preceding the Finally, another regular buyer testified that the firearm found at the scene resembled one Saunders typically carried. Despite this evidence, Saunders takes issue with the government’s heavy reliance on his proximity to the firearm. He contends of that, because the government presented a “lack evidence concerning just how [he] came to be on the ground . . . the probative value of [his] proximity to the gun is minimal at best.” Appellant’s Supp. Br. at 4. Saunders also takes issue with the number of individuals found at the scene during the raid, contending that “the gun could have been dropped by any number of people present or fleeing the apartment.” Supp. Br. at circumstances, 6. the Saunders jury would argues have to that, rely on Appellant’s under these impermissible speculation to conclude that he knew about the firearm in the kitchen and had dominion and control over it. Saunders’s evidence nexus arguments presented between at ignore Saunders’s habit 8 importance Trial trial. the testimony of gun of the other established possession and a his involvement in drug-related activities. It follows, therefore, that the jury could reasonably conclude that as Saunders was selling drugs on February 6, while surrounded by tools used to manufacture drugs and associates who helped him sell drugs, that he was aware of the firearm’s presence in the apartment. It is true that the government relied heavily on Saunders’s proximity to the firearm to prove its case, despite describing how that proximity was created. limited evidence However, as noted above, proximity to a firearm coupled with inferred knowledge of its presence can support a finding of guilt. at 1077. Laughman, 618 F.2d The jury’s determination of guilt need not be reversed because of the government’s heavy reliance on proximity, as the jury could constructively have reasonably possessed the concluded firearm in that light of Saunders testimony brought by the government at trial. In sum, the district court correctly denied Saunders’s motion for judgment of acquittal on the two counts, because the government presented sufficient evidence allowing the jury to conclude beyond a reasonable doubt that Saunders constructively possessed the firearm found at the apartment on February 6, 2014. B. Next, we address Saunders’s claim that the district court erred in giving an incomplete 9 instruction on Pinkerton liability. Here, we must determine if the jury instruction contained a plain error, and if so, how to correct it. For the reasons stated below, we find no error. “[T]o reverse for plain error the reviewing court must (1) identify an error, (2) which is plain, (3) which affects substantial rights, fairness, and integrity proceedings.” (4) or which public seriously affects reputation of the judicial United States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir. 1993). This court rarely finds plain error, reserving such analysis for those circumstances “in which a miscarriage of justice would otherwise result.” United States v. Young, 470 U.S. 1, 15 (1985); accord United States v. Jarvis, 7 F.3d 404, 410 (4th Cir. proceedings, 1993). taken as “[O]nly a if in the whole, the error context . . . of the seriously affected the fairness, integrity or public reputation of the judicial proceedings should we exercise our discretion . . . to notice it.” United States v. Cedelle, 89 F.3d 181, 184-85 (4th Cir. 1996). Here, we have already held that the government presented sufficient evidence for the jury to liability based on constructive possession. challenge the instruction because the district regarding jury could court’s reasonably Saunders’s Saunders does not administration constructive 10 consider of possession. conclude that the jury Therefore, Saunders constructively consider possessed Pinkerton the firearm, liability. Even if there the is no jury need to instruction demonstrates a plain error, we decline to notice it because it did not affect “the fairness, integrity or public reputation of the judicial proceedings” in the district court. Cedelle, 89 F.3d at 184-85. III. For the foregoing reasons, we affirm the district court’s decision and find that it did not err by giving an incomplete jury instruction. facts are We dispense with oral argument because the adequately presented in the materials before the court, and argument would not aid the decisional process. AFFIRMED 11

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