___________
No. 96-1161
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Ivory Mosby, also known as *
Rafiq Zareef Muhaymin, *
*
Appellant. *
___________
Submitted: October 24, 1996
Filed: December 6, 1996
___________
Before MAGILL, ROSS, and MURPHY, Circuit Judges.
___________
MAGILL, Circuit Judge.
Ivory Mosby1 was convicted in the district court2 for being a
felon in possession of ammunition, a violation of 18 U.S.C.
§ 922(g)(1). Mosby now appeals his conviction, arguing that (1)
the seizure of evidence exceeded the scope of a search warrant; (2)
Mosby's Sixth Amendment rights were violated when federal officers
interviewed him without his attorney present; (3) there was
1
Ivory Mosby is also known as Rafiq Zareef Muhaymin. In
United States v. Mosby, 60 F.3d 454 (8th Cir. 1995) (Mosby I)
(reversing grant of motion for judgment of acquittal), cert.
denied, 116 S. Ct. 938 (1996), we referred to the defendant as
Mosby. See, e.g., id. at 455. Although the parties in the instant
matter refer to the defendant as Rafiq Zareef Muhaymin, for the
sake of consistency we shall continue to refer to him as Mosby.
2
The Honorable Michael J. Davis, United States District Judge
for the District of Minnesota.
insufficient evidence to convict Mosby of being a felon in
possession of ammunition; (4) evidence that Mosby possessed a
crossbow and a starter pistol was improperly admitted at trial; and
(5) evidence that Mosby had been convicted of criminal sexual
conduct was improperly admitted.3 We affirm.
I.
Several handguns, including a .38 caliber revolver and a .22
caliber pistol, were stolen during a June 1994 burglary of T.C.
Select Homes, a business in Brooklyn Park, Minnesota.
Investigating the burglary, Brooklyn Park police received
information that Mosby had purchased the stolen .38 caliber and .22
caliber handguns. Police obtained a search warrant for Mosby's
person and for the upper unit of 800 Queen Avenue North,
Minneapolis, Minnesota, where Mosby was staying.4 The warrant
described the following property which could be seized:
Firearms to include but not limited to a Smith and Wesson
.38 cal revolver and a 6x9 .22 cal pistol, Checks or
money orders stolen from [the burglary.]
3
Mosby also argues that Congress does not have the authority
under the Interstate Commerce Clause, U.S. Const. art. I, § 8,
cl. 3, to criminalize the possession of ammunition manufactured and
possessed solely within the State of Minnesota. We considered and
rejected this argument in Mosby I, where we reversed the district
court's grant of motion for judgment of acquittal. See Mosby I, 60
F.3d at 457. The Mosby I decision is binding in this case both as
stare decisis and as law of the case. See Duncan Energy Co. v.
Three Affiliated Tribes, 27 F.3d 1294, 1297 (8th Cir. 1994) (panel
of this Court has no authority to overrule earlier decision), cert.
denied, 115 S. Ct. 779 (1995); United States v. Bartsh, 69 F.3d
864, 866 (8th Cir. 1995) ("The law of the case doctrine prevents
the relitigation of a settled issue in a case and requires courts
to adhere to decisions made in earlier proceedings in order to
ensure uniformity of decisions, protect the expectations of the
parties, and promote judicial economy.").
4
The apartment where Mosby was staying was being rented by
Audrey Clark, the sister of Orlando Clark. Orlando Clark was a
suspect in the T.C. Select Homes burglary.
-2-
Items or documents that would show constructive proof of
ownership of the above items.
Application & Warrant at 4, reprinted in Appellant's Add. at E-5.
The police executed the search warrant at Mosby's residence on
July 29, 1994. Mosby was not present when the warrant was
executed. The police did not find the specified handguns, but did
discover eighty-nine rounds of .44 magnum caliber ammunition in the
apartment. Twenty-two of the rounds were in a briefcase, while the
rest were in two boxes in a bedroom closet. An identification card
and a traffic citation issued to Mosby were found near the
briefcase containing the ammunition.
On August 2, 1994, Mosby contacted the Brooklyn Park Police
Department regarding the search, and spoke with Detective Jeffrey
Jindra. At trial, Detective Jindra testified that, during this
conversation, Mosby told him that the briefcase and the .44 caliber
rounds belonged to Mosby. See Trial Tr. at 54. Mosby denied that
he made these statements to Detective Jindra. See id. at 160.
During an August 4, 1994 conversation with Susan Keith, Mosby's
probation officer, Mosby allegedly stated both that the ammunition
found at his residence belonged to him, and that he was keeping it
for a friend. See id. at 34 (testimony of Susan Keith).
A warrant was issued for Mosby's arrest on August 6, 1994, for
a parole violation. On August 8, 1994, Detective Jindra went to
Mosby's residence, and observed Mosby, who had a briefcase, get
into a car. Detective Jindra followed Mosby in an unmarked police
car which had a "fireball," or detachable flashing red light, and
signalled Mosby to stop by activating the fireball. Mosby pointed
a loaded hand-held crossbow at Detective Jindra's vehicle, and took
evasive action by driving through a stoplight. Detective Jindra
lost Mosby, who was subsequently apprehended several miles away by
other officers. In addition to the crossbow, when arrested Mosby
-3-
had a .22 caliber starter pistol with him in his briefcase.
Following his arrest, Mosby was detained in the Hennepin
County Jail, pending charges for state law violations. During this
period, the .22 caliber starter pistol was sent to the Bureau of
Alcohol, Tobacco, and Firearms (BATF) to determine if it could be
modified to fire live ammunition.5 While detained, Mosby contacted
the BATF to talk about the starter pistol. BATF agents agreed to
talk with Mosby at the Hennepin County Jail. On September 30,
1994, BATF agents interviewed Mosby for approximately thirty
minutes at the Hennepin County Jail. Mosby was given Miranda
warnings prior to the interview, and Mosby waived his right to have
his attorney present during the interview. Mosby told the BATF
agents that the starter pistol was a toy, and that he had been
keeping the .44 caliber ammunition for a friend.
On November 23, 1994, Mosby was indicted on the federal charge
of being a felon in possession of ammunition, and his case
proceeded to trial. Prior to trial, Mosby moved to suppress a
variety of evidence, including the .44 caliber ammunition found in
his apartment and the statements that he made to the BATF agents
during the interview at the Hennepin County Jail. The district
court, adopting in part the magistrate judge's6 report and
recommendation, refused to suppress evidence of the .44 caliber
5
Under 18 U.S.C. § 921(a)(3)(A), a firearm means "any weapon
(including a starter gun) which will or is designed to or may
readily be converted to expel a projectile by the action of an
explosive." (emphasis added). It is unclear if the starter pistol
possessed by Mosby would have met this definition; the pistol was
designed to shoot blanks, and the BATF succeeded in boring-out the
starter pistol's barrel and chamber. During testing, however, the
BATF apparently cracked the pistol's frame and melted a hole in the
barrel. See Trial Tr. at 79. Mosby was not charged with being a
felon in possession of a firearm based on his possession of the
starter pistol.
6
The Honorable Ann D. Montgomery, United States Magistrate
Judge for the District of Minnesota.
-4-
ammunition and Mosby's statements to the BATF agents, although it
did suppress a variety of other evidence seized from Mosby's
residence on the ground that the seizures exceeded the scope of the
search warrant.
Over Mosby's objection, the district court admitted into
evidence at trial the crossbow and starter pistol recovered from
Mosby upon his arrest, and allowed evidence that Mosby had been
convicted of the felony of criminal sexual conduct.
Following a jury trial, Mosby was convicted of being a felon
in possession of ammunition. Mosby moved for a judgment of
acquittal based on a constitutional challenge to Congress's
authority to criminalize his possession of ammunition which had
been both manufactured and possessed within Minnesota. The
district court granted this motion, and we reversed. See United
States v. Mosby, 60 F.3d 454, 457 (8th Cir. 1995), cert. denied,
116 S. Ct. 938 (1996). Upon remand, the district court departed
downward from the sentencing guidelines and sentenced Mosby to 180
months imprisonment and a five-year period of supervised release.
This appeal followed.
II.
Mosby first argues that the eighty-nine rounds of .44 caliber
ammunition seized from his apartment should have been suppressed as
outside the scope of the warrant. "We must affirm the district
court's denial of the motion to suppress unless it is not supported
by substantial evidence on the record; it reflects an erroneous
view of the applicable law; or, upon review of the entire record,
we are left with the definite and firm conviction that a mistake
has been made." United States v. Lowe, 50 F.3d 604, 607 (8th Cir.)
(quotations, alteration, and citation omitted), cert. denied, 116
S. Ct. 260 (1995).
-5-
A search warrant's language "must describe the items to be
seized with sufficient particularity: 'the language must be
sufficiently definite to enable the searcher to reasonably
ascertain and identify the things authorized to be seized.'" Id.
(quoting United States v. Saunders, 957 F.2d 1488, 1491 (8th Cir.),
cert. denied, 506 U.S. 889 (1992)). "The purpose of the
particularity requirement is to prevent a general exploratory
rummaging through a person's belongings." United States v.
Hibbard, 963 F.2d 1100, 1102 (8th Cir. 1992). Whether a warrant
satisfies the particularity requirement is examined under a
"standard of 'practical accuracy' rather that a hypertechnical
one." United States v. Peters, 92 F.3d 768, 769-70 (8th Cir.
1996).
The warrant in this case allowed the seizure of firearms and
"[i]tems or documents that would show constructive proof of
ownership" of firearms. Application & Warrant at 4, reprinted in
Appellant's Add. at E-5. Because a firearm is necessary to
discharge ammunition, we agree with the district court's reasoning
that the possession of ammunition strongly suggests the
constructive possession of firearms. See Report & Recommendation
at 2. Mosby complains that "[t]he 'constructive proof of
ownership' is not the same as 'constructive possession.'"
Appellant's Br. at 15. While we agree that the warrant might more
correctly have used the phrase "constructive possession," see,
e.g., Lowe, 50 F.3d at 607 (upholding seizure of videotape under
warrant allowing seizure of items showing "constructive possession
of any controlled substances"), we believe that, in the
circumstances of this case, there is only a "hypertechnical"
distinction between constructive possession and constructive
ownership, and that the warrant met the applicable practical
accuracy standard.7
7
Mosby also argues that "constructive ownership" referred only
to the apartment where items were found, a construction
-6-
III.
Mosby next argues that, because he was under indictment on
state criminal charges and his right to counsel had attached,
statements he made to BATF agents without his attorney present
violated his Sixth Amendment right to counsel. We disagree. In
McNeil v. Wisconsin, 501 U.S. 171 (1991), the United States Supreme
Court held that:
The Sixth Amendment right [to counsel] . . . is offense
specific. It cannot be invoked once for all future
prosecutions, for it does not attach until a prosecution
is commenced, that is, at or after the initiation of
adversary judicial criminal proceedings--whether by way
of formal charge, preliminary hearing, indictment,
information, or arraignment.
Id. at 175 (quotations and citations omitted). At the time of the
BATF interview, Mosby had been charged by the state of Minnesota
only with possession of the starter pistol and an aggravated
assault on Detective Jindra. Mosby was not charged with the
federal violation of being a felon in possession of the .44 caliber
ammunition until well after the time of the interview. Because
there had been no initiation of any adversary judicial criminal
proceedings regarding Mosby's possession of the .44 caliber
ammunition, no Sixth Amendment right to counsel had attached, and
Mosby's argument must fail.
IV.
Mosby argues that there was insufficient evidence to convict
him of possessing the .44 caliber ammunition. We review the
contradicted by the warrant's specific language. See Application
& Warrant at 4, reprinted in Appellant's Add. at E-5.
-7-
sufficiency of the evidence to support a jury verdict under a
highly deferential standard; we may reverse a jury's finding only
if, "after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original).
The evidence against Mosby was overwhelming. There was
testimony from BATF agents, a police officer, and Mosby's probation
officer that Mosby repeatedly admitted possessing the ammunition.
Mosby resided in the apartment where the ammunition was found, and
his identification was near the briefcase where the ammunition had
been cached. Clearly, based on this evidence, a reasonable juror
could have believed that Mosby possessed the .44 caliber
ammunition.
V.
Mosby further argues that the district court erred by allowing
into evidence the hand-held crossbow and starter pistol that Mosby
possessed at the time of his arrest. Mosby argues that his
possession of the crossbow and starter pistol were unrelated to his
possession of .44 caliber ammunition, and did not tend to prove
"motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident" under Federal Rule of
Evidence 404(b). We review a district court's evidentiary
decisions for abuse of discretion. See United States v. Galyen,
798 F.2d 331, 332 (8th Cir. 1986).
As Mosby suggests, his possession of a crossbow and a .22
caliber starter pistol were not directly linked to his possession
of .44 caliber ammunition; the crossbow could fire only bolts,
while the unmodified starter gun could fire only .22 caliber
blanks. Under our precedent, however, "the jury in a criminal case
-8-
is entitled to know about the context of a crime and any events
that help explain the context." United States v. DeAngelo, 13 F.3d
1228, 1232 (8th Cir.), cert. denied, 114 S. Ct. 2717 (1994); see
also United States v. Maddix, 96 F.3d 311, 315 (8th Cir. 1996)
(Evidence that a defendant charged with being a felon in possession
of a firearm had solicited a prostitute, smoked crack, and
physically threatened and assaulted someone with a utility knife
"was admissible as an integral part of the immediate context of the
crime charged . . . ." (quotations omitted)). The context of this
case included Mosby's actions following the discovery of the .44
caliber ammunition in his apartment and his conversation with
Detective Jindra in which he admitted possession of the ammunition,
including Mosby's subsequent flight from Detective Jindra and his
alleged assault on the detective with the crossbow. Mosby's
actions could reasonably have been interpreted by a jury as
probative of Mosby's guilty conscience, and his desire to escape
the consequences of his illegal possession of ammunition. We find
no abuse of discretion in the admission of the hand-held crossbow
as evidence.
We agree that the relevance of the starter pistol to this case
is somewhat more attenuated. We need not decide if it was error
for the district court to admit this evidence, however, as it is
clear that any error would have been harmless. See, e.g., Peterson
v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) ("Even with
a clear showing of abuse, we will reverse only if the error had a
'substantial influence' on the jury's verdict." (reviewing
evidentiary decision for harmless error) (citations omitted)). We
do not believe that the piece of evidence at issue--a small starter
pistol, which Mosby consistently referred to as a "toy," and which
had a cracked frame and a hole melted in its top--could have had a
substantial influence on the jury's verdict. We find this
particularly true in light of the overwhelming evidence presented
proving Mosby's possession of the .44 caliber ammunition.
-9-
VI.
Finally, Mosby argues that evidence that he had been convicted
of criminal sexual conduct was cumulative and highly prejudicial
and should have been excluded. We conclude that the district court
did not abuse its discretion in admitting this evidence. See
United States v. Lucas, 932 F.2d 1210, 1217 (8th Cir.) ("It is well
settled that the trial court has broad discretion in determining
the relevancy and admissibility of evidence, which will be
disturbed upon appeal only where there is abuse of that
discretion." (quotations, alteration, and citations omitted)),
cert. denied, 502 U.S. 949 (1991).
During its case-in-chief, the government presented unredacted
documentary evidence to prove that Mosby had been convicted of
first degree attempted murder and first degree criminal sexual
conduct. See Trial Tr. at 28-30 (introduction of Gov. Ex. 5, a
certification of conviction dated January 11, 1985, from the
Hennepin County District Court). Neither the prosecuting attorney
nor the government witness testifying about the documentary
evidence commented on the conviction for criminal sexual conduct,
although the jury was allowed to see the unredacted certification
of conviction. Id.8
To convict Mosby of being a felon in possession of ammunition,
8
Evidence of Mosby's prior conviction for criminal sexual
conduct was also presented to impeach Mosby's testimony. On cross-
examination, the government asked Mosby if he had been "found
guilty in January of [1985] for criminal sexual conduct in the
first degree . . . ." Trial Tr. at 202. Mosby responded "yes,"
id., and the cross-examination moved on to other subjects. We do
not believe that the district court abused its discretion in
allowing this brief question. See Jones v. Collier, 762 F.2d 71,
72 n.2 (8th Cir. 1985) ("In cases such as this, where dishonesty is
not an element of prior convictions, but the credibility of the
witnesses is all important, the trial court will not abuse its
discretion by admitting such evidence[ of a prior rape
conviction].").
-10-
the government had the burden of proving that Mosby was a
previously convicted felon. See United States v. Diggs, 82 F.3d
195, 198 (8th Cir. 1996), cert. denied, No. 96-5244, 65 U.S.L.W.
3309 (Oct. 21, 1996). We have consistently held that "'[i]t is not
error to allow the government to introduce more than one conviction
in a case where only a single conviction is necessary to make the
case.'" Id. (quoting United States v. Garner, 32 F.3d 1305, 1311
(8th Cir. 1994), cert. denied, 115 S. Ct. 1366 (1995) (alteration
in original)). While we agree that evidence that a defendant had
once committed a sexual crime may be prejudicial, we do not believe
that it is unfairly prejudicial. See, e.g., United States v.
Delpit, 94 F.3d 1134, 1146 (8th Cir. 1996) (rejecting defendant's
argument that "the Court did not adequately consider the danger his
prior rape conviction posed to his chances for an impartial
verdict"). We can see no abuse of the district court's discretion
in allowing this evidence in the circumstances of this case.9
For the reasons stated above, we affirm the judgment of the
district court.
9
On October 16, 1996, the Supreme Court heard arguments in Old
Chief v. United States, 116 S. Ct. 907 (1996) (granting petition
for writ of certiorari), on the issue of whether the government has
to accept a § 922(g)(1) defendant's stipulation that he had been
convicted of a felony, thus preventing the government from
presenting specific evidence of the prior felony. See 60 Crim. Law
Rep. 3055 (Oct. 23, 1996). In the instant case, Mosby did not
offer to stipulate that he was a felon, and instead forced the
government to carry its burden of proving this element of his
crime. In light of this distinction, we do not believe that it is
necessary or prudent to delay our consideration of Mosby's appeal
pending the decision in Old Chief.
-11-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-12-