United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3920
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Mark Adams, * Eastern District of Missouri.
*
Appellant. *
___________
Submitted: December 16, 2009
Filed: May 11, 2010
___________
Before RILEY, Chief Judge,1 WOLLMAN, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
A jury found Mark Adams guilty of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). The district court2 sentenced Adams to 115
months' imprisonment. Adams appeals his conviction, arguing the district court
abused its discretion in admitting certain evidence and clearly erred in rejecting his
challenge under Batson v. Kentucky, 476 U.S. 79 (1986), to the government's
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
2
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
peremptory strikes of African American venire persons. For the following reasons,
we affirm.
I. Background
A grand jury returned a one-count indictment charging Adams with being a
felon in possession of a firearm "on or about March 14, 2008." At trial, Adams
stipulated to his felon status. The government's main witnesses were St. Louis police
officer Daniel Fox and one of Adams's roommates, Lamario Thomas.
Fox testified that he began investigating Adams in March 2008 based on
information that Adams was distributing drugs out of the house he shared with
Thomas and several other individuals. Fox also had information that Adams
possessed firearms on the premises and determined Adams had a prior felony
conviction. On three occasions between March 7 and March 10, 2008, Fox conducted
surveillance of the residence and witnessed Adams engage in what he believed, based
on his experience, to be a total of seven "hand-to-hand" drug transactions with
different individuals. On March 12, Fox obtained a warrant for the house to search
for drugs and firearms. The following day, Fox was patrolling in the vicinity of the
house and observed Adams walking nearby. Fox approached Adams, explained he
had a search warrant, detained Adams on an outstanding traffic warrant, searched him,
and transported him back to the house.
Fox and other officers then executed the search warrant. In a second-floor
bedroom, Fox discovered a loaded semiautomatic rifle lying on the floor next to the
bed. On top of a speaker next to the bed, Fox found state identification paperwork,
bearing Adam's name and photograph, but a different address. From a shoebox on top
of a dresser, Fox recovered an AutoZone receipt with "M. Adams" on it and two bags
of ammunition, one of which contained rounds consistent with the rifle. Officers did
not recover drugs during the search. Adams was arrested on the additional charge of
being a felon in possession of a firearm.
-2-
Thomas confirmed Adams lived with him and testified that he observed Adams
possess the firearm at the house on four occasions prior to Adams's arrest. According
to Thomas, Adams primarily used two rooms in the house: he slept and kept his
belongings in the second-floor bedroom where the gun, papers, and ammunition were
found and used another second-floor room, painted blue, for entertainment. In fall
2007, Thomas walked into the kitchen and observed the rifle on the kitchen table
within arm's reach of Adams. Adams yelled at Thomas to leave, and Thomas ran out
of the room. Later in 2007, Thomas entered the "blue room" without knocking and
saw Adams with the rifle close to him. Adams again yelled at Thomas to leave and
Thomas complied. In early 2008, Thomas heard rapid gunfire close to the back of the
house. Thomas went to the kitchen and saw Adams emerge from the basement with
the rifle. Adams apologized for scaring Thomas and promised to tell Thomas next
time he decided to fire the gun. Finally, around February 2008, Thomas again heard
a gun discharge in the backyard. Thomas met Adams when Adams returned to the
house. Concerned that the shots had attracted the attention of police patrolling the
area, Thomas exited the house and informed the police about what had occurred,
though he did not indicate whether the police investigated the incident that night.
Thomas testified that Adams was the only person he had seen possess or discharge the
rifle at the residence.
II. Discussion
A. Prior possession testimony
Adams challenges the district court's rulings concerning his prior possession
and discharge of the rifle. Before trial, the district court ruled the government could
introduce the testimony pursuant to Rule 404(b) as evidence of knowledge or intent
to possess the firearm. Citing our decision in United States v. Rock, 282 F.3d 548
(8th Cir. 2002), the district court determined at trial that the evidence of prior
possession was intrinsic to the charged offense. Although Adams does not concede
-3-
the evidence could be properly admitted under Rule 404(b), he primarily argues on
appeal that the district court erred in relying on Rock to treat the evidence as intrinsic
to the crime charged and to admit it without a limiting instruction. Reviewing for
abuse of discretion, United States v. Nadeau, 598 F.3d 966, 968 (8th Cir. 2010), we
find no error in the admission of this evidence.
In Rock, we held evidence that the defendant burgled a storage unit, carried
firearms to the residence he shared with his girlfriend, and displayed them to various
people on a date prior to his arrest "was not merely evidence of other wrongs" but
"directly supported" the government's charge that the defendant possessed the
firearms. Id. at 550–51. The defendant in Rock argued that while the display of the
weapons at other times was evidence of possession, the government did not need the
burglary evidence to prove its case. Id. at 551. We concluded that 404(b) did not bar
presentation of the entire episode because it "completes the story of the crime or
explains the relationship of the parties or the circumstances surrounding a particular
event." Id. Adams's argument that the prior possession testimony neither completes
the story nor gives a "total picture" of his possession of the rifle on March 14, 2008
misses the mark. This testimony is evidence of possession that "directly supports" the
charge.
Even if we were to find Rock inapplicable, we affirm nonetheless. See United
States v. Gettel, 474 F.3d 1081, 1087 (8th Cir. 2007) (court of appeals may affirm the
admission of evidence on any basis supported by the record). The government could
prove that Adams knowingly possessed the gun by showing he actually or
constructively possessed it. United States v. Byas, 581 F.3d 723, 726 (8th Cir. 2009).
Constructive possession may be established by evidence demonstrating ownership,
dominion, or control over a gun. Id. (quotation omitted). Here, the testimony indicates
that the same individual was in sole, knowing possession of the same rifle in the same
house on four successive occasions leading up to the charged date. Such testimony
therefore helps to establish his ownership or control of the gun. As the evidence
-4-
"tends logically to prove [an] element of the crime charged," it is not subject to Rule
404(b). Moore v. United States, 178 F.3d 994, 1000 (8th Cir. 1999). Such evidence
is still subject to Rule 403. Id. We have little trouble in concluding that Rule 403
would not bar the testimony here. How the defendant used and controlled the weapon
under similar circumstances is directly relevant to the charged offense. See Rock, 282
F.3d 548.
Adams next asserts that the prior possession testimony constructively amended
the indictment because it altered the date of the offense. The government counters
Adams is really arguing a variance arose instead. The difference between the two is
well established, though at times difficult to apply: "a constructive amendment
changes the charge, while the evidence remains the same; a variance changes the
evidence, while the charge remains the same." United States v. Stuckey, 220 F.3d
976, 981 (8th Cir. 2000). A constructive amendment primarily affects the defendant's
Fifth Amendment right to indictment by a grand jury and constitutes reversible error
per se, while a variance implicates the defendant's Sixth Amendment right to notice
of the nature of the charge and is subject to harmless error analysis. Id. Upon de
novo review, see id. at 979, we conclude neither constructive amendment nor a
variance occurred.
Because Adams argues the testimony changed the date of the offense, not the
offense charged, no constructive amendment occurred. See United States v. Howe,
538 F.3d 842, 850 (8th Cir. 2008), abrogated on other grounds by United States v.
Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009). We conclude no variance occurred
either, particularly because the government never wavered in its theory of the case at
trial: the location where the gun was found established Adams possessed the firearm
"on or about" the charged date and Thomas's testimony simply provided confirmation
of possession. See Howe, 538 F.3d at 851 (no variance where government's theory
did not change and allegedly problematic closing argument merely summarized that
theory); cf. United States v. Johnson, 934 F.2d 936, 941–42 (8th Cir. 1991) (no
-5-
constructive amendment for same reason). In sum, we reject Adams's arguments that
there was either a constructive amendment to or a variance in the indictment.
B. Surveillance and drug transaction testimony
Adams also argues that the district court should have limited Officer Fox's
testimony to the execution of the search warrant. According to Adams, the testimony
concerning the surveillance was irrelevant and unfairly prejudicial, and the testimony
of hand-to-hand transactions amounted to propensity evidence in violation of Rule
404(b). The district court had excluded baggies and a digital scale found in the same
room as the firearm out of a concern that the trial would become a narcotics case.
Adams reasons the same should have applied to other evidence of drug dealing as
well.
Assuming, without deciding, that the district court abused its discretion in
admitting this evidence, any error was harmless. United State v. LaDue, 561 F.3d 855,
859 (8th Cir. 2009) (improper evidentiary rulings are subject to harmless error
analysis and will be disregarded if there is no substantial influence on the verdict).
The properly admitted evidence established both Adams's dominion and control over
the location where the firearm was found out in the open as well as his dominion and
control over the weapon itself. We therefore reject Adams's arguments based on the
admission of this evidence.
C. Batson challenge
Adams also challenges the government's use of peremptory strikes against three
African American venire persons, jurors 1, 23, and 27. Batson applies to the federal
government through the Due Process Clause of the Fifth Amendment. United States
v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007). The Batson inquiry involves the
following three-step analysis:
-6-
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race. Second, if that
showing has been made, the prosecution must offer a race-neutral basis
for striking the juror in question. Third, in light of the parties'
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
United States v. Morrison, 594 F.3d 626, 632 (8th Cir. 2010) (quoting Miller-El v.
Cockrell, 537 U.S. 322, 328–29 (2003)). We review the district court's resolution
of a Batson challenge for clear error. United States v. Granados, 596 F.3d 970, 975
(8th Cir. 2010).
The district court determined that Adams established a prima facie case because
three of the six venire persons the government struck were African American and one
of those struck, juror 1, had not spoken during voir dire except to state where he lived
in response to the court's question. In response, the government, relying on the jurors'
answers to a questionnaire, explained that it exercised peremptory strikes against all
jurors who rented their homes out of a concern that they would have an insufficient
stake in the community. These challenges included jurors 1 and 27 as well as two
white jurors. The district court had randomly excused the remaining renter on the
venire panel. Additionally, the government stated that it struck juror 23 along with
another juror because they expressed dissatisfaction with law enforcement's response
to crimes committed against them.
The district court determined these explanations were race neutral, a finding
that we conclude was not clearly erroneous. An individual's status as a renter may
indicate he or she does not have substantial ties to the community. See United States
v. Carr, 67 F.3d 171, 175–76 (8th Cir. 1995). We have found a lack of attachment to
the community to be a valid reason to exercise a peremptory strike. United States v.
Gibson, 105 F.3d 1229, 1232 (8th Cir. 1997) (collecting cases). Furthermore, we have
stated that "[a] juror's expression of past dissatisfaction with law enforcement officers,
which could indicate potential bias against the prosecution, is a legitimate race neutral
-7-
reason for striking potential jurors." United States v. Booker, 576 F.3d 506, 511 (8th
Cir. 2009); see also United States v. Brown, 560 F.3d 754, 763 (8th Cir. 2009); Gibson,
105 F.3d at 1232.
After the government articulated race-neutral reasons for striking African-
Americans, the burden returned to Adams to show pretext. Gibson, 105 F.3d at 1232.
Adams argued that the proffered reasons were pretextual because the government had
failed to ask follow-up questions that would probe the jurors' responses, particularly
regarding the renters' ties to the community. The district court acknowledged for the
record that, in St. Louis, African Americans were among those individuals more likely
to rent than to own their homes. Notwithstanding Adams's argument and despite
acknowledging a correlation between race and a lack of property ownership, the district
court held Adams had failed to show purposeful discrimination in the government's
exercise of peremptory strikes. Its rejection of the Batson challenge was not clearly
erroneous. See United States v. Davis, 154 F.3d 772, 782 (8th Cir. 1998) (no Batson
violation when the government failed to solicit certain information through voir dire
that nonetheless became known); United States v. Hart, 544 F.3d 911, 915 (8th Cir.
2008) (no Batson violation where all venire panel members similarly situated to
African Americans were struck).3
3
The district court was troubled by the fact that the government used a facially
race-neutral rationale, renter status, to strike African American jurors, when, as the
district court noted, African Americans in St. Louis were more likely to rent than to
own their homes. This opinion should not be read to mean that a defendant can never
sustain a Batson challenge when the government advances a potential juror's renter
status and/or insufficient stake in the community as a race-neutral reason for a
peremptory strike. Instead, this case is an example of our limited scope of review. In
rejecting the challenge, the district court noted its belief that the prosecutors were
credible. Because a trial court's findings on a Batson challenge largely turn on an
evaluation of the prosecutor's credibility, the court of appeals gives great deference
to its conclusions. United States v. Roebke, 333 F.3d 911, 913 (8th Cir. 2003).
-8-
III. Conclusion
For the foregoing reasons, we affirm.
______________________________
-9-