FILED
United States Court of Appeals
Tenth Circuit
January 9, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 08-7021
and 08-7026
MARCUS DURELL HOOKS and
ROBERT CHAVELLE FERRELL,
Defendant-Appellants.
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. Nos. 6:07-CR-00032-RAW-1 & 2)
08-7026, US v. Ferrell, Submitted on Oral Argument and 08-7021, US v. Hooks,
Submitted on the Briefs:
Robert Ridenour, Assistant Federal Public Defender (Julia L. O’Connell, Federal
Public Defender, and Barry L. Derryberry, Research and Writing Specialist, with
him on the briefs), Office of the Federal Public Defender, Northern and Eastern
Districts of Oklahoma, Tulsa, Oklahoma, for Defendant-Appellant Ferrell.
Roger Hilfiger, Muskogee, Oklahoma, on the briefs for Defendant-Appellant
Hooks.
Rob Wallace, Assistant United States Attorney (Sheldon J. Sperling, United
States Attorney, with him on the briefs), Muskogee, Oklahoma, for Plainitff-
Appellee.
Before, TACHA, HOLLOWAY, and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
On August 23, 2007, a jury convicted both Marcus Durrell Hooks and
Robert Chavelle Ferrell of possessing a firearm after former felony conviction in
violation of 18 U.S.C. § 922(g)(1) and (2). Mr. Hooks and Mr. Ferrell appeal
their convictions. Defendants challenge the sufficiency of the evidence
supporting their convictions as well as the adequacy of the jury instructions, the
factual basis for the application of an enhancement statute, and the district court’s
failure to compel the testimony of a witness during sentencing. We affirm Mr.
Hooks’ conviction but reverse the conviction of Mr. Ferrell.
I.
Background
Around dusk on the evening of October 24, 2006, local law enforcement set
up a safety checkpoint at the intersection of State Highway 9 and State Highway
52 in McIntosh County, in the Eastern District of Oklahoma. Soon thereafter a
Dodge pickup truck with dark tinted windows slowly approached the checkpoint
lane manned by Officer Burkley Cash. The pickup stopped after Officer Cash
knocked on the driver’s side window and asked the driver to roll down his
window. Officer Cash peered into the vehicle and saw a driver, later determined
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to be defendant Hooks, and a front seat passenger, later determined to be
defendant Ferrell. Mr. Ferrell was turned towards the driver’s side window, back
against the passenger side door and “square with” Officer Cash. 1 Officer Cash
scanned the interior of the pickup and saw what appeared to be a revolver with a
wooden handle and black cylinder and hammer lodged in the seat next to the
driver’s right leg. In response, he reached for his weapon and yelled “gun.”
Rec., vol. IV at 38. The pickup rapidly sped away. Officer Cash pursued the
vehicle in his patrol car, initiating his emergency lights, dash camcorder, and
sirens. Two other patrol cars followed. Officer Cash testified that he did not see
anything thrown from the pickup during the pursuit. However, another officer in
one of the following patrol cars, Timothy Turner, testified that he saw a dark
colored shirt floating in the air in front of his unit’s hood on the passenger side.
The pursuit of the pickup lasted only about a mile. Once the vehicle
stopped, the officers performed a felony stop. Mr. Hooks and Mr. Ferrell exited
the driver’s side of the vehicle; shortly thereafter, the officers discovered two
1
The government asserted during oral argument that Officer Cash testified
“Ferrell was turned with his back against the passenger door and there was a
jacket laying in his lap . . . .” Audio Recording, Oral Argument at 14:54 (Nov.
20, 2008) (on file with Tenth Circuit) (emphasis added). The implication was that
Mr. Ferrell could have been hiding a gun on his lap. To the contrary, Officer
Cash did not testify about a jacket lying in Mr. Ferrell’s lap. He made only one
reference to a jacket. When asked whether Mr. Ferrell claimed ownership of any
items in the pickup, Officer Cash testified “[h]e had a coat.” Rec., vol. IV at 108.
We admonish the government for making material factual assertions to the court
not supported by the record.
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additional passengers hiding in the backseat. Officer Cash placed Mr. Hooks and
Mr. Ferrell in his patrol unit, which had interior and exterior audio recording
devices. The officers then searched the pickup. The pickup had two doors, two
front side windows, and two rear side windows. The record is unclear as to
whether the rear passenger windows could be opened from the inside. 2 Officer
Cash testified that he discovered a “large hole” in the passenger side rear window
of the pickup. The officers also discovered marijuana crumbs in the vehicle.
During the officers’ search, the audio recorder on Officer Cash’s patrol unit dash
cam recorded conversation between Mr. Hooks and Mr. Ferrell. The dash cam
did not record defendants’ facial expressions or lip movement, however, because
the dash cam was pointed toward the front windshield.
The officers failed to locate any firearms in the pickup. Accordingly, as he
transported Mr. Hooks and Mr. Ferrell to the local jail, Officer Cash retraced a
portion of the route he had taken in pursuit of the truck. Officer Cash found a
black t-shirt he had not see before in the eastbound lane on the south side (or
2
Upon being asked whether there were “any other windows that could be
opened in th[e] pickup other than the side windows,” Officer Cash responded that
“[t]here was a hole on the passenger side rear window, on the window – the back
window of the vehicle, there was a large hole actually coming out of it.” Rec.,
vol. IV at 83. Officer Cash did not testify “to th[e] effect,” as the government
contends, that the back window could not be opened from the inside. Audio
Recording, Oral Argument at 17:15. Further, no one testified that “[t]he hole was
in the back window of the truck [on the passenger’s side] . . . behind the back seat
passengers,” as the government asserted at oral argument. Id. at 22:21 (emphasis
added).
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“passenger side”) of the road. The black t-shirt lay approximately three-quarters
to half of a mile back from where the officers had first stopped the pickup.
Officer Cash also found several brass nine millimeter bullets and a nine
millimeter Uzi M-11 in a nearby adjacent ditch located ten to fifteen feet from the
edge of the road. The Uzi did not match the weapon Officer Cash believed he
saw in the pickup. Officer Turner asked Mr. Hooks about the whereabouts of the
gun that Officer Cash had seen in the pickup. He testified that Mr. Hooks said he
had no gun but only wooden handles (or grips) for a gun, which he had thrown
out of the pickup during the chase.
Late the next day, Officer Cash and Officer Turner again searched the area
along the route of the pursuit. Officer Cash found a .38 ROHM revolver with a
plastic, wooden-looking grip that matched the pistol he believed he had seen in
the pickup the day before. The .38 revolver lay fifteen to twenty feet off the road
from where they had found the black t-shirt and approximately ten feet from
where the Uzi was found. The government subsequently charged Mr. Hooks with
possession of the .38 revolver, and Mr. Ferrell with possession of the Uzi-type,
SWD Cobray M-11.
Before trial, the government sought to admit excerpts of the video from
Officer Cash’s dash cam with transcribed captions of the audio on the bottom of
the screen. The audio included conversation that occurred between Mr. Hooks
and Mr. Ferrell while seated in the patrol car. Both defendants filed motions to
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exclude the video, with Mr. Hooks seeking to exclude any transcript of the audio
recording as well as the video. Mr. Hooks claimed that the audio was not
sufficiently audible, that the audio itself – not interpretations in transcripts – was
the “best evidence” of the dialogue, and that the video would confuse or mislead
the jury under Fed. R. Evid. 403. The district court denied defendants’ motions.
The court instructed counsel to attempt to stipulate to the contents of the
transcripts to be admitted at trial. Counsel for the parties met and agreed on what
the video clips said and transcripts were prepared in accordance with the parties’
informal agreement. 3
At trial, defendants renewed their objections to the admission of the
transcripts, arguing that parts of the audio were inaudible and that the transcripts
would be emphasized over that portion of the audio the jurors could actually hear
and understand. They contended that “reasonable minds c[ould] differ about
what[] [was] being said on the tape.” Rec., vol. IV at 155. The district court
overruled their objections. The court allowed the transcription of the audio to be
displayed as captions on the video, but did not permit written transcripts to be
3
During the pretrial hearing, defense counsel acknowledged,
[Counsel for defendants] went over a week or two ago and spoke
with [the prosecutor] and we went over the tape and we listened to it
and we – though we object to the admission of the transcript and to
the contents of it, we agreed that it sounded as if that’s what it said
on there. And no objection to that.
Rec., vol. IV at 153-54.
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given to the jury. The district court reasoned that because the government’s case
rested almost entirely on the video clips, which admittedly were of poor quality,
the jurors should deliberate based on what they actually heard – not on someone
else’s interpretation.
The jury watched four video clips displaying the captions. The following
excerpted conversations occurred during and immediately after the officers
searched the pickup while defendants were sitting in the patrol car:
Hooks: Well he just pulled up, they must have found it
Ferrell: Huh they found it
....
Hooks: They must have found them straps [(i.e., guns) 4] and shit we
fixin to be gone
Ferrell: Hell no I ain’t gone
Hooks: I am gonna get hit with all that shit they find
Ferrell: Hmm
Hooks: They gonna hit me with all that shit that they find
Ferrell: They still tryin to scrape up these [marijuana] crumbs [5] cuz.
You see them scraping up those crumbs?
Hooks: uh huh
Gov’t Ex. 1, Tr. of Video Clip 1; see also Rec., vol. IV at 174-75.
Ferrell: We took a fat loss Cuz.
....
Hooks: A fat ass loss and the man coming with more money.
Ferrell: And we fixin to lose more.
Hooks: I pray to god they ain’t gonna find that shit[.]
4
An ATF agent testified that, based on his training and experience, the
term “strap” means a pistol or firearm in street slang. The agent admitted,
however, that the term could have other meanings in other contexts.
5
The officers found marijuana crumbs in the passenger compartment of the
pickup.
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Gov’t Ex. 2, Tr. of Video Clip 2. The government also introduced excerpts of
conversation that occurred after the discovery of the Uzi M-11 and during Officer
Cash’s inspection of the firearm.
Ferrell: Whose Uzi?
Officer Cash: Huh?
Ferrell: Did you say you found an Uzi?
Officer Cash: Yeah, I found an Uzi. Probably ain’t you all’s, is it?
Ferrell: Huh? Hell, no.
Officer Cash: No, you all just carry marijuana and gun stocks, right?
[(vehicle door closes)]
Ferrell: As long as they don’t find that revolver, cuz, you cool, cause
he stated he thought it was a revolver (inaudible). We can beat that
shit in court.
Ferrell: Your fingerprints on all that?
Hooks: I think I touched that home [sic].
Ferrell: As long as he don’t find that revolver.
Gov’t Ex. 3, Tr. of Video Clip 3.
Hooks: See if there’s one in the chamber.
Ferrell: He don’t even know how rack it [(i.e., the Uzi)], dumb
bastard.
Ferrell: One in the chamber.
Hooks: They wasn’t none in the chamber.
Ferrell: Wasn’t in the chamber?
Hooks: huh uh
Ferrell: They gonna have to clean it to get a fingerprint off of that
cuz.
Gov’t Ex. 4, Tr. of Video Clip 4.
Before closing arguments, the district court instructed the jury. The
instructions did not include a limiting instruction regarding the jury’s possible
reliance on the transcribed captions over the actual audio. Neither the
government nor defendants requested such a limiting instruction. The jury
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returned guilty verdicts against both defendants.
A probation officer prepared presentence reports (“PSR”) for defendants
prior to their respective sentencing. Neither Mr. Hooks nor Mr. Ferrell initially
filed objections to their PSRs. The Government objected to both PSRs, however,
claiming that the reports should have included enhancements for firearm
possession in connection with another felony offense, i.e., possession of
controlled substances with intent to distribute, in accordance with U.S.S.G. §
2K2.1(b)(6). Both PSRs described “The Offense Conduct” as including “a yellow
envelope containing a plastic bag that had numerous blue pills believed to be
ecstasy,” which was found near the Uzi M-11. Rec., vol. VI at 2; accord Rec.,
vol. VII at 2. The PSR noted that “104 of the tablets were found to be [a
combination of] Methamphetamine and 3,4 Methylenedioxymethamphetamine
(ecstacy).” Rec., vol. VI at 2; accord, Rec., vol. VII at 2. According to the
government, it did not disclose or admit the contents of the envelope at trial
because of this evidence’s highly prejudicial nature and lack of relevancy to the
crimes charged.
Defendants filed objections in response to the government’s objections.
Mr. Hooks pointed out that “there was no testimony at trial concerning the
envelope and its contents.” Rec., vol. VI at 11. According to Mr. Hooks, “any
evidence of proximity to firearms was only as to the envelope being near the
[Uzi] which was charged to Ferrell and not Hooks, and the Hooks firearm was
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found at a later time and 15 feet or more from the envelope.” Id. He further
asserted “the government had an opportunity to charge this in an indictment . . .
and the enhancement requested should not be allowed without the evidentiary
standards afforded a defendant at trial.” Id. The government did not proffer any
additional evidence.
At the sentencing hearing, Mr. Ferrell sought to present testimony from one
of the pickup’s backseat passengers. He wanted to question this individual about
his possession of the ecstacy found near the firearms, to which he had pled guilty
in state court. Mr. Ferrell’s counsel stated that he intended to ask the witness
whether Mr. Ferrell could “have reached up there and grabbed that dope and took
off with it, which evidences possession.” Rec., vol. V at 18. Before Mr. Ferrell’s
counsel could make such an inquiry, the witness asserted his Fifth Amendment
privilege against self-incrimination. Mr. Ferrell’s counsel requested that the court
compel the witness to testify, but the court declined, concluding that it would not
compel testimony about a matter that could lead to federal prosecution of the
witness.
Based on the record, the district court applied the § 2K2.1(b)(6)
enhancement to Mr. Hooks and Mr. Ferrell. The court reasoned that
[t]he availability of [Mr. Ferrell]’s gun in such close proximity to the
drugs in this case is sufficient evidence of a connection between the
firearm and the drugs to invoke the application of the four level
enhancement. . . . [T]he Court finds by a preponderance of the
evidence that [Mr. Hooks] should be held accountable for also
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possessing his firearm in connection with the possession of [ecstacy]
with intent to distribute since all these items were thrown from the
same vehicle during the police pursuit.
Id. at 21-22; see also id. at 31. The district court adopted the PSRs, with
modified base offense levels, as the factual basis for defendants’ sentences.
Defendants objected to the court’s sentencing determinations.
Defendants assert several grounds for appeal. They seek reversal of their
convictions or, alternatively, remand for resentencing. Mr. Hooks argues that the
district court erred in allowing the jury to view the video clips without giving a
limiting instruction regarding the weight to be given to the transcribed captions.
He contends the evidence is insufficient to support his conviction for felonious
possession of the .38 revolver. He also asserts that the district court erred in
applying the four-point enhancement to his sentence without factual support in the
record.
Mr. Ferrell asserts two grounds for appeal. He argues that the evidence is
insufficient to support his conviction for possessing the Uzi under the principles
of constructive possession and joint occupancy. He also contends the district
court abused its discretion by allowing a prospective sentencing witness to assert
his Fifth Amendment privilege against self-incrimination, thereby denying Mr.
Ferrell the opportunity to present evidence relevant to sentencing.
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II.
Sufficiency of the Evidence
We review de novo challenges to the sufficiency of the evidence. United
States v. Higgins, 282 F.3d 1261, 1274 (10th Cir. 2002). In ascertaining
sufficiency, we view all of the evidence in the light most favorable to the
government and ask whether a reasonable jury could have found the defendant
guilty beyond a reasonable doubt. United States v. Hamilton, 413 F.3d 1138,
1143 (10th Cir. 2005). We reverse a conviction only if no reasonable jury could
have reached the challenged verdict. See United States v. Wilson, 107 F.3d 774,
778 (10th Cir. 1997).
To prove constructive possession under 18 U.S.C. § 922(g)(1), the
government must show, inter alia, that the defendant “knowingly [held]
ownership, dominion, or control over the object and the premises where it is
found.” United States v. Hishaw, 235 F.3d 565, 571 (10th Cir. 2000) (alteration
in original). Stated another way, the government must show that the defendant
had knowledge of and access to the firearm. Id. In the case of joint occupancy of
a structure or vehicle, as here, “evidence of knowledge and access may be proved
by direct evidence, or inferred from circumstantial evidence, so long as the
circumstantial evidence includes something other than mere proximity . . . .”
United States v. Jameson, 478 F.3d 1204, 1209-10 (10th Cir. 2007) (emphasis
added); see also United States v. Hanrahan, 508 F.3d 962, 969 (10th Cir. 2007)
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(“When two or more people occupy the space where the firearm is found, []
proximity to the firearm alone is insufficient to establish knowledge of and access
to that firearm.”). The government must demonstrate “some connection or nexus
between the defendant and the firearm,” Hishaw, 235 F.3d at 571, which leads to
“at least a plausible inference that the defendant had knowledge of and access to
the weapon or contraband[,]” United States v. Michel, 446 F.3d 1122, 1129 (10th
Cir. 2006). In sum, a conviction may not rest upon the “piling of inference[]
upon inference[]”; guilt must flow from “logical and probabilistic reasoning.” Id.
at 1128-29.
A. Mr. Hooks’ Conviction
Mr. Hooks contends a reasonable juror would have had a reasonable doubt
as to whether the item seen by Officer Cash in the pickup was, in fact, the .38
revolver later discovered by Officer Cash. He notes that Officer Cash only
momentarily saw what he claimed to be a revolver, at dusk in an unlighted pickup
with dark tinted windows. Mr. Hooks points out that Officer Cash discovered the
.38 revolver over eighteen hours later in an area the officers had extensively
searched the night before and left unsecured in the interim. He further notes that
no physical evidence, such as a fingerprint, links the revolver to him. According
to Mr. Hooks, his conviction should therefore be reversed for insufficient
evidence.
We disagree. A reasonable jury could have found Mr. Hooks guilty beyond
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a reasonable doubt of possessing the .38 revolver. Several pieces of evidence
lead us to this conclusion. First, Officer Cash testified that the .38 revolver was
the firearm he saw wedged in the seat next to Mr. Hooks’ right leg. Second, Mr.
Hooks exhibited furtive behavior by fleeing the checkpoint and leading officers
on a high-speed chase. Third, the discovery of the .38 revolver in the same area
as the discarded t-shirt, when coupled with Mr. Hooks’ post-arrest admission that
he threw gun handles out of the pickup during the chase, is compelling evidence
against Mr. Hooks. Fourth, Mr. Hooks’ recorded statements to Mr. Ferrell
affirmatively indicate his knowledge of the revolver. He remarked: (1) the
officers “must have found them straps and shit we fixin to be gone,” and (2) “I
pray to god they ain’t gonna find that shit.” Mr. Hooks also made clear that he
believed he, as the driver, would face criminal charges when he stated, “I am
gonna get hit with all that shit they find.” While we recognize that Officer Cash
did not recover the .38 revolver until the day after the chase, Mr. Hooks’
statements provide “some connection or nexus” between him and the firearm. See
Hishaw, 235 F.3d at 571. The evidence logically and probabilistically shows that
Mr. Hooks had knowledge of and access to the .38 revolver. See Michel, 446
F.3d at 1129. We therefore conclude that there is evidence sufficient to support
Mr. Hooks’ conviction.
B. Mr. Ferrell’s Conviction
Mr. Ferrell also contends the evidence is insufficient to support his
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conviction, asserting that the government failed to establish a nexus between him
and the Uzi. According to Mr. Ferrell, the evidence in this case “contra-indicates
guilt” and “amounts to mere presence in a car where a firearm was located.”
Aplt. Br. at 11, 14.
Having thoroughly reviewed the record, and mindful that there were two
additional passengers in the back seat of the pickup, we agree that the record does
not support Mr. Ferrell’s conviction. The government’s evidence consists of no
more than Mr. Ferrell’s presence inside the pickup occupied by four persons, his
recorded statements to Mr. Hooks, and the location where the Uzi was found by
the side of the road. Viewing the evidence in the light most favorable to the
government, we hold that no reasonable jury could have found Mr. Ferrell guilty
beyond a reasonable doubt. Even if we assume that Mr. Ferrell’s mere presence
in the pickup establishes proximity, see Jameson, 478 F.3d at 1209-10, the
government still has failed to show that Mr. Ferrell had knowledge of or
dominion or control over the Uzi, as opposed to the two passengers in the back of
the pickup.
We emphasize dominion or control, as opposed to “access to,” because of
our decision in United States v. Norman, 388 F.3d 1337 (10th Cir. 2004). In
Norman, we noted that a firearm does not need to be “readily accessible,” i.e.,
“visible and retrievable,” to a defendant at the time of his arrest for the defendant
to constructively possess it. Id. at 1341-42. The firearm may be locked in a
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glove compartment or even stored in the trunk of a car, assuming the defendant
had knowledge and control of it. See id. at 1342. In other words, a defendant’s
“access to” a firearm is not determined by his proximity to the firearm. Rather,
the “access to” element necessarily subsumes a subelement of “ownership,
dominion, or control.” Cf. United States v. Behanna, 814 F.2d 1318, 1320 (9th
Cir. 1987) (“When the government charges an individual with possession of a
weapon in a vehicle, we have squarely held that the government must do more
than show that the defendant was present as a passenger in the vehicle and within
reach of the weapon.”); United States v. Whitfield, 629 F.2d 136, 143 (D.C. Cir.
1980) (concluding that evidence of mere accessibility, without evidence of
dominion and control, is insufficient to support a finding of constructive
possession).
Regarding Mr. Ferrell’s recorded statements, we conclude his comments to
Mr. Hooks do not evince knowledge of the Uzi’s presence in the vehicle. Mr.
Ferrell denied ownership of the Uzi upon inquiry by Officer Cash. He also asked
Mr. Hooks whether Mr. Hooks’ fingerprints were “on all that,” referring to the
Uzi the officer was holding outside the patrol car. Gov’t Ex. 3, Tr. of Video Clip
3. Mr. Hooks replied “I think I touched that home [sic].” Id. Mr. Hooks – not
Mr. Ferrell – commented that he thought the Uzi had no bullets in the chamber.
See Gov’t Ex. 4, Tr. of Video Clip 4. Mr. Ferrell’s observation that the officer
did not know how to rack the Uzi is not evidence of knowledge of the weapon
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while it was in the vehicle. While the remark may indicate general knowledge of
how to operate a semiautomatic firearm, it does not establish that Mr. Ferrell
knew that the Uzi was in the pickup.
Similarly, the area in which the Uzi was found does not show Mr. Ferrell’s
dominion or control over the firearm. Officer Cash discovered the Uzi in a ditch
on what was the passenger’s side of the highway, three-quarters to half of a mile
back from where the pickup had been stopped. The Uzi had no fingerprints on it,
and the record contains no officer testimony, physics analysis, or other evidence
identifying the window from which the firearm was thrown. The record merely
reveals that at least the front windows could be opened from the inside, and that
the passenger window in the rear where two other passengers were located had a
large hole in it. The officers admit, moreover, that they did not observe the Uzi
in the pickup or being thrown from the vehicle.
At bottom, we can readily distinguish the dearth of circumstantial evidence
in this case from the relative abundance of such evidence in our prior decisions
upholding possession convictions. See, e.g., Jameson, 478 F.3d at 1210
(upholding possession conviction where government’s evidence included
defendant’s “furtive movements, his inferred physical contact with the pistol (his
foot was on top of it), and the pistol’s being in plain view and easily retrievable
to a passenger in [the defendant]’s seat”) (internal citation omitted); Michel, 446
F.3d at 1128-29 (upholding possession conviction where defendant, the front-seat
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passenger in the car in which the gun was found, made repeated movements
toward the back seat area where the gun was located); Norman, 388 F.3d at 1341
(finding sufficient evidence of knowing possession where defendant, the owner
and driver of the vehicle, exhibited anxious and bizarre behavior throughout his
encounter with the police, had a key to the locked glove compartment in which
the gun was found, may have had exclusive possession of the vehicle the evening
before his arrest, and transported a passenger whose behavior and statements
indicated no knowledge of the firearm); United States v. Gorman, 312 F.3d 1159,
1164 (10th Cir. 2002) (holding the evidence established sufficient nexus between
defendant and the firearm where defendant owned and worked on the vehicle in
which the firearm was found, and the firearm was partially hidden on defendant’s
side of the vehicle and retrievable from defendant’s driver-side seat); United
States v. Springfield, 196 F.3d 1180, 1184 (10th Cir. 1999) (upholding possession
conviction where defendant (i) engaged in furtive movements while being
followed by the police, (ii) had been seated in the rear of the van where the gun
was found, and (iii) carried on his person bullets linking him to the gun). Here,
the government’s only real link to Mr. Ferrell is his “prese[nce] inside a car with
three others where a [different] gun was [arguably thrown out].” Jameson, 478
F.3d at 1210. The evidence here, without more, does not support a finding of
guilt beyond a reasonable doubt.
We conclude that Mr. Ferrell’s conviction is not supported by the evidence
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and must be reversed. In light of this conclusion, we need not address his other
grounds for reversal of his conviction or sentence.
III.
Jury Instructions
Mr. Hooks argues that he was prejudiced by the district court’s failure to
give a limiting instruction regarding reliance on the video clips’ transcribed
captions. According to Mr. Hooks, the jurors might have relied on the written
statements more than what they individually heard and understood. He contends
the district court’s instructions did not properly guide the jury because the
instructions failed to advise on this crucial aspect of the government’s case.
We review jury instructions de novo, in the context of the entire trial and as
a whole, “to determine if they accurately state the governing law and provide the
jury with an accurate understanding of the relevant legal standards and factual
issues.” United States v. Bedford, 536 F.3d 1148, 1152 (10th Cir. 2008) (internal
quotation marks omitted). We review for abuse of discretion a district court’s
decision to give or to decline a particular requested instruction. Id. We reverse a
conviction “if we have substantial doubt that the jury was fairly guided.” United
States v. LaVallee, 439 F.3d 670, 684 (10th Cir. 2006) (internal quotation marks
omitted). However, “[u]nopposed instructions are reviewed only for plain error.”
United States v. Nacchio, 519 F.3d 1140, 1159 (10th Cir. 2008), reh’g granted,
535 F.3d 1165 (10th Cir. 2008).
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We note at the outset that Mr. Hooks stipulated to the accuracy of the
admitted transcripts before trial and did not seek to proffer his own version of
them. Because Mr. Hooks did not request a “best evidence” limiting instruction
or otherwise object to the instructions, we review the district court’s instructions
for plain error. “Plain error exists only where (1) there was error, (2) that is
plain, (3) that affects substantial rights, and (4) that seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Bedford, 536 F.3d at 1153.
In other words, the defendant “must establish not only the existence of an error
that is clear or obvious under current law, but also that such error affects his
substantial rights and seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Schene, 543 F.3d 627, 638 (10th Cir.
2008).
Mr. Hooks first must show plain error. Tenth Circuit law is well-settled
that a district court has discretion in admitting the transcription of an audio
recording. United States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991); United
States v. Devous, 764 F.2d 1349, 1353 (10th Cir. 1985). In the absence of a
stipulation by the parties, the court should determine the accuracy of transcripts.
See Devous, 764 F.2d at 1355. If transcripts are admitted and discrepancies or
errors exist, the court may give a “cautionary instruction to the jury, telling [it]
that the tapes [a]re the true evidence and that the transcripts [a]re to be used only
for clarification.” Davis, 929 F.2d at 559; see also United States v. Lucero, 601
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F.2d 1147, 1149 (10th Cir.1979) (noting district court gave “vigorous cautionary
instructions” in response to defendant’s challenge to the accuracy of the
transcripts). While limiting instructions are advisable, we have never held that a
district court must give such an instruction in every case in which transcripts of
audio recordings are admitted.
We are not convinced that Mr. Hooks has shown plain error. No prejudicial
danger could possibly arise from the absence of a limiting instruction if Mr.
Hooks agreed that no discrepancies or errors existed between the actual audio and
the transcribed captions. The jury could safely rely on the captions, for the
captions were no more than a typewritten facsimile of the audio itself. Mr. Hooks
cannot claim error simply because the jury could see, as well as hear, his
undisputed statements. Because Mr. Hooks’ stipulation to the accuracy of the
transcripts offset the need for a cautionary instruction, see Devous, 764 F.2d at
1355, his argument necessarily fails.
IV.
Application of the Enhancement Statute
Mr. Hooks argues that the district court erred by applying the U.S.S.G. §
2K2.1(b)(6) sentencing enhancement when nothing in the record showed he
possessed the .38 revolver in connection with another felony offense. Mr. Hooks
points out that the district court based its finding on facts – i.e., the yellow
envelope containing ecstacy pills found near the Uzi – set forth in the PSR but not
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presented at the suppression hearing or at trial. According to Mr. Hooks, the
record does not include unproven facts merely mentioned in a PSR and does not
support an inference that he possessed the .38 revolver in connection with a drug
offense.
The government, by contrast, contends that the record does support the
district court’s factual finding regarding the four-point enhancement. It asserts
that Mr. Hooks’ recorded statements about accountability for “all that shit they
find” and the impending “fat ass loss” clearly references “the economic loss” Mr.
Hooks faced as a result of the hasty disposal of the “illegal product along the side
of the road.” Aple. Br. at 12. The government also points out that Mr. Hooks did
not object to the accuracy or inclusion of the facts in the PSR, which the district
court adopted as the basis for the enhancement. Thus, according to the
government, the district court did not err in relying on this information.
We review the factual findings underlying a district court’s sentencing
determination for clear error and review the underlying legal conclusions de novo.
United States v. Swanson, 253 F.3d 1220, 1222 (10th Cir. 2001). We give “due
deference to the district court’s application of the [Sentencing] Guidelines to the
facts.” United States v. Sells, 541 F.3d 1227, 1235 (10th Cir. 2008). Factual
findings must be supported by a preponderance of the evidence. United States v.
Munoz-Tello, 531 F.3d 1174, 1181 n.12 (10th Cir. 2008). Clear error exists if a
factual finding “is wholly without factual support in the record, or after reviewing
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the evidence, we are definitively and firmly convinced that a mistake has been
made.” United States v. Ivory, 532 F.3d 1095, 1103 (10th Cir. 2008); see United
States v. Cardenas-Alatorre, 485 F.3d 1111, 1119 (10th Cir. 2007) (“[A] finding
must be more than possibly or even probably wrong; the error must be pellucid to
any objective observer.”).
We are not persuaded by Mr. Hooks’ argument that there was sentencing
error. “With few limitations, a court has almost unlimited discretion in
determining what information it will hear and rely upon in imposing [a] sentence”
under the advisory sentencing guidelines. United States v. Graves, 785 F.2d 870,
872 (10th Cir. 1986); see United States v. Todd, 515 F.3d 1128, 1137 (10th Cir.
2008) (“18 U.S.C. § 3661 specifies that no limitation should be placed on the
information concerning the background, character, and conduct of a defendant
that a district court may consider in sentencing . . . .” (internal quotation marks
omitted)). A district court “may accept any undisputed portion of the presentence
report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). While we have noted
that “[a] district court may not simply adopt the PSR as its findings when the
defendant disputes the report[,]” United States v. Rodriguez-Felix, 450 F.3d 1117,
1131 (10th Cir. 2006), we have never held that a factually undisputed PSR can
not form the basis for factual findings. We see no reason why the record should
not include “the uncontroverted facts in [a] Presentence Report.” United States v.
Melendez-Garcia, 28 F.3d 1046, 1056 (10th Cir. 1994). If a defendant fails to
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specifically object to a fact in the PSR, the fact is deemed admitted by the
defendant and the government need not produce additional evidence in support of
the admitted fact. United States v. White, 447 F.3d 1029, 1032 (8th Cir. 2006).
Here, Mr. Hooks did not object to the accuracy or inclusion of the facts in
the PSR. He never contended the envelope contained something other than
ecstacy, and he never proffered mitigating exculpatory evidence. Mr. Hooks
instead contended that the requested enhancement required proof beyond a
reasonable doubt that he possessed the firearm in connection with controlled
dangerous substances. However, an objection based on the purported failure to
satisfy a specified standard of proof is wholly distinguishable from an objection
based on the alleged factual inaccuracy of a PSR. As long as Mr. Hooks did not
contest the truthfulness of the PSR’s description of the envelope’s contents, the
PSR remained undisputed and thus satisfied the preponderance of the evidence
standard with respect to the existence of the drugs.
The record also support’s the district court’s finding that Mr. Hooks
possessed the .38 revolver in connection with the felony possession of drugs for
sale. Mr. Hooks’ recorded conversation about his potential legal and financial
accountability for the drugs as well as the revolver the officers might find
provides sufficient factual support for the four-point enhancement. We therefore
conclude that the district court did not err.
For the foregoing reasons, we REVERSE Mr. Ferrell’s conviction, and
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AFFIRM Mr. Hooks’ conviction and sentencing.
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