NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0654n.06
Case No. 14-1412
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Sep 25, 2015
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
JAVON FRANKLIN ELLIS, ) MICHIGAN
)
Defendant-Appellant. )
BEFORE: SILER, COOK, and WHITE, Circuit Judges.
COOK, Circuit Judge. A jury convicted Javon Franklin Ellis of firearm and drug-
trafficking charges, and the district court sentenced him to 240 months’ imprisonment.
On appeal, Ellis challenges 1) the district court’s denial of his motion to suppress, 2) several
evidentiary rulings, 3) the sufficiency of the evidence supporting his conviction, 4) the court’s
career-offender findings, and 5) an alleged defect in the evidence presented to the grand jury.
Finding no merit in his arguments, we AFFIRM.
I.
Ellis purchased a Volvo from Fadil Issa, his employer’s brother, in January 2012. He
regretted his purchase and returned to Issa’s lot for repairs several times over the next few
weeks. During one visit, Ellis “flashed” a gun that was equipped with a laser sight. Eventually,
Case No. 14-1412
United States v. Ellis
Issa agreed to let Ellis trade the Volvo for a Buick. Issa thoroughly searched the Buick over
multiple days before Ellis took possession and testified that he did not find a gun in the vehicle.
When Ellis arrived to make the trade, Issa observed a gun on the floor of the Volvo. He did not
see Ellis move the gun to the Buick but he testified that he did not find a gun in the Volvo after
Ellis turned it over.
A few hours after Ellis acquired the Buick, Eastern Michigan University Police
Department Officer Joseph Hogan stopped the car in Ypsilanti, Michigan after a random records
search revealed that the Buick’s plates were registered to the Volvo. Ellis was alone in the Buick
at the time, and he produced paperwork showing that he had transferred the plates from the
Volvo. Hogan claims that he smelled “fresh” marijuana, i.e., marijuana that had not been burned
or smoked, when he approached the vehicle. He pressed Ellis about the smell, and Ellis
eventually reached into the center console and turned over a glass jar containing 19.72 grams of
marijuana.
After arresting Ellis, Hogan searched the Buick for drugs. He did not discover additional
marijuana or any drug paraphernalia, but he did find a loaded semi-automatic handgun in the
pocket behind the front passenger’s seat. The gun had been reported stolen. A forensic
examiner with the Michigan State Police found a single latent print that did not match Ellis’s on
the weapon’s magazine but no discernible prints on the firearm itself. Police officers also
recovered a mobile phone from Ellis’s pocket.
A grand jury issued a three-count indictment charging Ellis with being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), possessing marijuana
with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), and possessing a firearm in
furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c).
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The court denied Ellis’s motion to suppress the evidence seized during Officer Hogan’s
search of the Buick, and the case proceeded to trial. The jury heard that Ellis used his mobile
phone to discuss prices and amounts and set up drug transactions, including a proposed exchange
on the day of his arrest.
The jury found Ellis guilty on all three counts following a two-day trial. The district
court imposed consecutive mandatory-minimum five- and fifteen-year sentences as required by
18 U.S.C. § 924(c) and (e). In total, the court sentenced Ellis to 180 months’ imprisonment for
being a felon in possession of a firearm; a concurrent sentence of 90 months’ imprisonment for
possessing marijuana with intent to distribute; and a consecutive sentence of 60 months’
imprisonment for possessing a firearm in furtherance of drug trafficking. Ellis timely appealed.
II.
Ellis first challenges the district court’s denial of his motion to suppress the evidence
seized during the traffic stop.
During an evidentiary hearing on the motion, Officer Hogan testified that he smelled
“fresh marijuana” when he approached Ellis’s car. He said he was standing approximately three
feet away from the central console when he noticed the smell. Officer Hogan admitted that the
jar of marijuana Ellis produced had its lid screwed on. Ellis’s attorney produced two sealed
Mason jars, one containing ammonia and the other bleach. He stood approximately three feet
away from the witness stand and asked Officer Hogan if he could smell their contents. Officer
Hogan could not. Ellis’s attorney later posited that Officer Hogan’s inability to smell either
substance cast doubt on the credibility of his testimony.
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The district court accepted Officer Hogan’s account and denied Ellis’s motion.
It specifically addressed Ellis’s argument that Officer Hogan could not smell marijuana through
a closed Mason jar:
At the hearing, Ellis attempted to challenge Hogan’s ability to detect the smell of
marijuana through a closed mason jar. To support his argument, Ellis provided
two unmarked mason jars as demonstrative exhibits for Hogan to smell. Defense
counsel claimed that one mason jar contained bleach and the other ammonia.
Hogan was not required to smell the jars although one was opened near him. . . .
Ellis’ science experiment did not bolster his argument. There is no evidence that
the mason jar containing marijuana had been opened or the contents smoked prior
to the investigatory stop, allowing the smell to linger in the air, or that it was
closed for a long period of time. Also, as an officer, Hogan testified that he had
experience with detecting the smell of marijuana. There was no testimony
regarding his recognition of the smell of bleach or ammonia.
(R. 42, Order Denying Mot. Suppress at 4 n.2.)
According to Ellis, the district court’s failure to address Officer Hogan’s ability to smell
marijuana through a “hermetically sealed” Mason jar permits this court to “make a de novo
finding that [O]fficer Hogan’s testimony was incredible.” (Appellant’s Br. at 14.) But the
district court specifically addressed Ellis’s challenge to Officer Hogan’s account, and we review
its credibility finding for clear error. See United States v. Hinojosa, 606 F.3d 875, 880 (6th Cir.
2010); United States v. McCauley, 548 F.3d 440, 447 (6th Cir. 2008).
Applying that standard, we are not “left with the definite and firm conviction that a
mistake has been committed.” United States v. Wheaton, 517 F.3d 350, 367 (6th Cir. 2008)
(quoting United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003)). Although Officer Hogan
admitted that the lid of the Mason jar was screwed on when Ellis produced the jar, Ellis
presented no evidence to support his counsel’s assertion that the jar was “hermetically sealed.”
Further, even if the jar’s lid prevented odors from escaping, Ellis could have opened the jar at
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some point before being pulled over and the smell could have lingered in the air. In sum, the
district court did not clearly err in finding Officer Hogan’s testimony credible.
III.
Next, Ellis challenges several evidentiary rulings made before and during trial. He
disputes the admissibility of text messages discovered on his mobile phone and argues that the
court abused its discretion in excluding an exculpatory statement he made during his arrest.
We review the district court’s evidentiary rulings for abuse of discretion. See United States v. Yu
Qin, 688 F.3d 257, 261 (6th Cir. 2012). “We will find that a district court has abused its
discretion when we are ‘left with the definite and firm conviction that the district court
committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant
factors.’” Id. (quoting United States v. Jenkins, 345 F.3d 928, 936 (6th Cir. 2003)).
A. Admission of Text Messages
The government used Ellis’s outgoing messages to prove his intent to distribute the
marijuana found in his possession. Ellis maintains that the phone’s outgoing messages constitute
hearsay statements, inadmissible as admissions of a party-opponent under Federal Rule of
Evidence 801(d)(2) because the government failed to “show[] that [Ellis] is in-fact the
declarant.” (Appellant’s Br. at 24.) But Ellis cannot point to any clear error in the district
court’s preliminary finding that it was more likely than not that he made the statements in
question. See Fed. R. Evid. 104. As the court noted, several pieces of evidence supported that
finding: the phone was in his possession, contained photographs of Ellis and text messages
addressed to “J” and “Javon,” and listed his brother and girlfriend as contacts
Ellis also challenges the admission of incoming messages stored on the phone, arguing
that they fail to qualify as nonhearsay co-conspirator statements. See Fed. R. Evid. 801(d)(2)(E).
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The district court, however, held that none of the incoming text messages constituted hearsay
because they were used to prove that individuals repeatedly contacted Ellis for narcotics
purchases, not for their truth. See, e.g., United States v. Rodriguez-Lopez, 565 F.3d 312, 315 (6th
Cir. 2009) (“Even if the statements were assertions, the government offers them, not for their
truth, but as evidence of the fact that they were made. The fact that Rodriguez received ten
successive solicitations for heroin is probative circumstantial evidence of his involvement in a
conspiracy to distribute heroin.”). Because the court admitted all of the incoming text messages
on an alternative basis that Ellis fails to address on appeal, he cannot show prejudicial error. See
United States v. Williams, 544 F.3d 683, 690 (6th Cir. 2008).
Along with his hearsay arguments, Ellis maintains that the text messages “unfairly
characterize” him as a drug dealer and should therefore have been excluded under the Rule 403
balancing test. See Fed. R. Evid. 403. But we see nothing unfair about any prejudice resulting
from relevant circumstantial evidence of Ellis’s intent to distribute marijuana.
B. Exclusion of Ellis’s Statement to Officer Hogan
Ellis also contends that the district court abused its discretion in excluding, as hearsay, a
statement he made following Officer Hogan’s discovery of the firearm: “You found a gun, that’s
bad. I never shouldn’t [sic] have ever bought that car.” (R. 98, Response to Mot. to Exclude at
4.) Ellis argues that his statement qualifies as a present-sense impression because he spoke as
soon as Officer Hogan returned to the squad car carrying the gun. See Fed. R. Evid. 803(1).
Courts may admit hearsay statements that “describ[e] or explain[] an event or condition, made
while or immediately after the declarant perceived it.” Id.
Officer Hogan told the court that Ellis waited ten or fifteen yards away in the squad car
while Hogan searched the Buick, found and unloaded the gun, and returned to the squad car
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carrying it. Based on that evidence, the district court declined to admit the statement as a
present-sense impression, reasoning that Ellis had “a period of time and some motive to contrive
a statement that he should not have bought the car.” (R. 128, Day 1 Trial Tr. at 96.) In so
holding, the court appears to have applied this circuit’s standard for admitting excited utterances
under Federal Rule of Evidence 803(2) rather than the standard for admitting present-sense
impressions under Rule 803(1). See United States v. Penney, 576 F.3d 297, 313 (6th Cir. 2009)
(“We have held [that the excited-utterance] exception requires the moving party to show,
inter alia, that the statement was ‘made before there is time to contrive or misrepresent.’”
(quoting United States v. Arnold, 486 F.3d 177, 184 (6th Cir. 2007) (en banc))).
Nevertheless, it is not clear that the district court erred. The present-sense-impression
and excited-utterance exceptions are both grounded on the notion that a person is more likely to
speak truthfully before he has time to reflect. See Miller v. Stovall, 742 F.3d 642, 650 (6th Cir.
2014) (“Contemporaneousness may indicate that statements were truthful only where the speaker
would not have had time to fabricate a story. Indeed, that is the spirit behind the traditional
‘present sense impression’ and ‘excited utterance’ exceptions to the hearsay rule.”); see also
United States v. Green, 556 F.3d 151, 155–56 (3d Cir. 2009) (“The fundamental premise behind
[the present-sense-impression] hearsay exception ‘is that substantial contemporaneity of event
and statement minimizes unreliability due to the declarant’s defective recollection or conscious
fabrication.’” (quoting United States v. Manfre, 368 F.3d 832, 840 (8th Cir. 2004))). Here, the
court’s finding that Ellis had a “period of time . . . to contrive a statement” suggests that the
district court assessed his statement as lacking the indicia of reliability justifying Rule 803(1)’s
exception for hearsay statements made during or immediately after the events they describe or
explain.
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And in any event, we are confident that any error in excluding the statement failed to
affect the outcome of the trial, given other evidence that Ellis knowingly possessed the gun.
See United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011).
IV.
Ellis also challenges the sufficiency of the government’s proof at trial. In considering his
argument, we “view[] the evidence in the light most favorable to the prosecution” and must
affirm if “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Washington, 715 F.3d 975, 979 (6th Cir. 2013) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The government’s proof easily meets that low
bar.
First, the government presented adequate evidence to convict Ellis of being a felon in
possession of a firearm. Ellis stipulated to his prior felony conviction, and the government
proved that he knowingly possessed the firearm and that it moved in interstate commerce.
See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Markings showing that the gun originated in
Connecticut satisfied the interstate-commerce requirement. As for knowing possession, Officer
Hogan found a gun in Ellis’s Buick matching the description of the firearm Fadil Issa saw Ellis
carrying on an earlier occasion. Further, when Ellis arrived to trade in the Volvo, Issa observed a
gun on the car’s floor that disappeared when Ellis transferred his possessions to the Buick.
Finally, Issa denied seeing a gun when he and his employees searched the Buick thoroughly
before turning it over to Ellis.
Ellis questions the credibility of Issa’s testimony, noting inconsistencies with other
evidence and Issa’s failure to notify the police about Ellis’s possessing a gun on his property.
But challenges to witness credibility attack “the quality of the government’s evidence and not the
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sufficiency of the evidence.” United States v. Henderson, 626 F.3d 326, 341 (6th Cir. 2010)
(quoting United States v. Graham, 622 F.3d 445, 449 (6th Cir. 2010)).
Ellis also challenges the sufficiency of the evidence showing his intent to distribute
marijuana. He suggests that a rational juror could only find that he possessed drugs for personal
use, because the Mason jar contained only a small amount of loose marijuana and Officer Hogan
did not find any packaging materials or other paraphernalia consistent with drug trafficking
during his search of the Buick. But Ellis possessed enough marijuana to satisfy at least two
quarter-ounce orders and he sent a text message earlier that day confirming that he could sell a
“qua[r]ter.” A rational juror could therefore infer his intent to distribute the marijuana in his
possession.
Because Ellis relies on his failed challenges to the first two counts to attack the
sufficiency of proof that he possessed a firearm in furtherance of a drug trafficking crime, we
affirm his conviction on this count as well. Several factors support the conclusion that Ellis
possessed the firearm “in furtherance” of drug trafficking. See United States v. Mackey,
265 F.3d 457, 462 (6th Cir. 2001) (listing relevant factors). Ellis “strategically located” the
weapon in the back pocket of the passenger’s seat, making it “quickly and easily available for
use,” and the gun was loaded at the time of the search and had been reported stolen. See id.
V.
We turn next to Ellis’s argument that the district court improperly imposed mandatory-
minimum sentences under the Armed Career Criminal Act and the career-offender sentencing
guidelines.
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A. Constitutional Challenge Under Alleyne
First, Ellis argues that the court violated his Sixth Amendment rights by sentencing him
to a mandatory-minimum fifteen-year sentence under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), without requiring the government to prove his previous convictions to the jury.
He relies on Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), which held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury
and found beyond a reasonable doubt.” But Alleyne expressly declined to address whether its
holding applied to the fact of prior convictions, leaving intact the “narrow exception” recognized
in Almendarez-Torres v. United States, 523 U.S. 224 (1998). Alleyne, 133 S. Ct. at 2160 n.1.
And our published decisions instruct that Almendarez-Torres’s carve-out remains good law until
expressly overruled by the Supreme Court, foreclosing Ellis’s constitutional challenge. See, e.g.,
United States v. Nagy, 760 F.3d 485, 488–89 (6th Cir. 2014) (affirming mandatory-minimum
§ 924(e) sentence); United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014) (affirming
sentence imposed under the career-offender sentencing guidelines).
B. Challenge to the Application of the Career-Offender Guidelines
Ellis also challenges the district court’s finding that he had previously been convicted of
at least two felony crimes of violence or controlled substance offenses and therefore qualified as
a career offender under the sentencing guidelines. U.S.S.G. § 4B1.1(a). Ellis contends that his
three prior convictions—two for robbery and one for homicide solicitation—should have
counted as a single conviction for purposes of the career-offender enhancement. But Ellis
solicited a murder while in jail after his arrest for the armed robberies. His argument that no
intervening arrest separated the offenses thus fails, as the guidelines define an “intervening
arrest” as one in which “the defendant is arrested for the first offense prior to committing the
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second offense.” U.S.S.G. § 4A1.2(a)(2) (emphasis added). Given the intervening arrest, the
district court correctly tallied Ellis’s convictions. See id. (“Prior sentences always are counted
separately if the sentences were imposed for offenses that were separated by an intervening arrest
. . . .”).
VI.
Finally, Ellis argues for the first time on appeal that the government submitted misleading
evidence to the grand jury. He claims, without record support, that the grand jury received
evidence that Ellis possessed more than the 19.72 grams of marijuana stipulated to at trial
because the government erroneously included the weight of the Mason jar in its drug
calculations. He also contends, again without record support, that the government failed to turn
over grand jury transcripts that would have exposed the alleged misrepresentation. Ellis never
moved in the district court to compel disclosure or to challenge the indictment. See Fed. R.
Crim. P. 6(e)(3)(E)(ii); Fed. R. Crim. P. 12(b)(3)(A). He therefore forfeited any objection to his
indictment on appeal, and we review for plain error. See United States v. Soto, No. 13-2300,
2015 WL 4503261, at *12 (6th Cir. July 24, 2015).
Ellis cannot carry his burden of showing plain error, because any defect in the grand jury
proceedings was ultimately harmless. See United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir.
1996) (citing United States v. Mechanik, 475 U.S. 66, 71–73 (1986)). Regardless of the drug
amount presented to the grand jury, Ellis stipulated to the quantity of marijuana he turned over to
Officer Hogan and the petit jury convicted him of possession. Although Ellis speculates about
the “remote” possibility of the grand jury returning an indictment grounded on his possession of
just 19.72 grams, the petit jury’s verdict demonstrates probable cause to indict him on the
marijuana-possession count. See Mechanik, 475 U.S. at 67 (finding error during grand jury
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proceedings harmless because “the petit jury’s verdict of guilty beyond a reasonable doubt
demonstrates a fortiori that there was probable cause to charge the defendants with the offenses
for which they were convicted”).
In short, we discern no reversible error in the grand jury proceedings.
VII.
For those reasons, we AFFIRM the district court’s judgment.
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