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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14405
Non-Argument Calendar
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D.C. Docket No. 4:15-cr-00019-CDL-MSH-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DYRELL LESHAUN DAVIS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(March 14, 2018)
Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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The petition for rehearing is granted in part and denied in part. We withdraw
our previous opinion, dated October 27, 2017, and issue this opinion in its place.
A jury acquitted Dyrell Davis of possession of a firearm in furtherance of a
drug trafficking crime, and of possession of marijuana with intent to distribute. It
found him guilty of the lesser included offense of possession of marijuana, as well
as of being a convicted felon in possession of a firearm. Mr. Davis appeals his
felon-in-possession conviction, arguing that the government committed
prosecutorial misconduct by making improper remarks in its rebuttal closing
argument before the jury, and that the remarks constituted improper character
evidence. He also challenges the sufficiency of the evidence connecting him to the
firearm. Finally, he appeals his sentence, challenging the use of two prior Georgia
convictions for aggravated assault to enhance his sentence as a career criminal.
After review, we affirm.
I
On the morning of April 25, 2014, several police officers executed a search
warrant at an apartment in Columbus, Georgia. Mr. Davis’s mother, sister, and
brother lived at the apartment. But although Mr. Davis occasionally slept overnight
at the apartment, he did not live there.
As they approached the apartment from the rear, the officers observed two
men (later identified as Mr. Davis and his friend, Isiah Gordon) outside of the
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apartment. Upon seeing the police, Mr. Davis fled inside the apartment. The
officers followed Mr. Davis into the apartment and through the kitchen (the room
immediately inside the back door), and apprehended him in the living room. The
officers then searched the apartment. They found digital scales in the kitchen, a
9mm handgun buried beneath some trash in the kitchen trashcan, and a baggie of
marijuana weighing 48.2 grams in a light fixture in a bedroom. On top of a dresser
in that same bedroom, they found numerous photographs of Mr. Davis, including
one showing him kissing a wad of cash. The officers also found various other items
in the bedroom bearing Mr. Davis’ name.
Mr. Davis was arrested, taken to the police department, and interviewed. He
gave a statement admitting that the marijuana and the handgun belonged to him,
even specifying that he owned a “nine.”1
The government indicted Mr. Davis for possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i);
possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(D); and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1).
At trial, Mr. Davis denied that the handgun was his, or that he had ever
possessed it. He testified that the gun belonged to his sister. He admitted to
1
A “nine” is slang for 9mm. Mr. Davis made the statement that he “owned a nine” prior to being
told what type of weapon had been found in the apartment.
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possessing the marijuana, and to running into the apartment to hide the marijuana
in the light fixture, but denied having anything to do with the gun, claiming that he
had initially admitted that the gun was his in order to protect his family. He
testified that he feared his family would lose their Section 8 housing, or that his
brother’s probation would be violated, if his sister was connected to the firearm.
Mr. Davis’s sister also testified at trial that the gun belonged to her.
Mr. Gordon testified that he had not seen a gun on Mr. Davis. No police
officer had seen Mr. Davis possess a gun, either. Mr. Davis argued that he could
not have had a gun on him on the day of the arrest because he was wearing baggy
shorts, and any gun would have visibly pulled down his shorts. Nonetheless, the
jury found Mr. Davis guilty of possessing a firearm as a convicted felon, as well as
the lesser included drug offense of possession of marijuana. It acquitted him of the
other charges. The district court sentenced Mr. Davis to 120 months’
imprisonment.
II
A
During the presentation of its case-in-chief, the government sought to
introduce the photograph of Mr. Davis kissing the wad of cash. When defense
counsel objected that the photograph was unduly prejudicial under Federal Rule of
Evidence 403, the government responded that it only intended to use the
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photograph to link Mr. Davis to the bedroom (“to show that he occupied the
particular room where the marijuana was found”), not as substantive evidence of
distribution of marijuana. The district court overruled Mr. Davis’s objection,
admitted the photograph for the limited purpose of showing ownership of that
particular bedroom, and gave a limiting instruction to that effect.2
During its closing argument, the government asked the jury to consider the
digital scales and the amount of the marijuana for purposes of the trafficking and
distribution charges. In response, defense counsel stressed, among other things, the
lack of any evidence that Mr. Davis possessed large amounts of cash typically
found on drug dealers. The government, in rebuttal, pointed to the picture of Mr.
Davis kissing a wad of cash as such evidence: “Mr. Simpkins told you that if we
had pictures of the defendant with fives, tens, and twenties, that would be pretty
good evidence of distribution. I wonder if he means like this.” Defense counsel
objected (asserting that “the sole purpose that was admitted into [sic] was to show
proof of ownership of the room”), but the district court overruled the objection.
The government then continued: “This is the defendant. This is a photograph of
him that was hanging on the dresser in the bedroom where the marijuana was
found. He appears to be smooching a large wad of money. Good evidence of
2
The government presented this evidence prior to Mr. Davis taking the stand and admitting that
he possessed the marijuana. As the government stated in its closing remarks, it did not know
ahead of time that Mr. Davis would admit possession, and so it “had to assume that we would
need to show you other evidence establishing his connection to that room.”
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distribution.” The government then proceeded to discuss the charge of distribution
generally.
Mr. Davis challenges these closing remarks, arguing that they constitute
prosecutorial misconduct. He also contests his felon-in-possession conviction
based upon these comments, arguing that they improperly insinuated that he had
the propensity to deal drugs, and that because of the close association between
drugs and guns, that insinuation infected the jury’s proper consideration of the
evidence regarding possession of the handgun.
B
We review a claim of prosecutorial misconduct de novo. See United States v.
Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). To establish prosecutorial
misconduct, “(1) the remarks must be improper, and (2) the remarks must
prejudicially affect the substantial rights of the defendant.” Id. “A defendant’s
substantial rights are prejudicially affected when a reasonable probability arises
that, but for the remarks, the outcome of the trial would have been different.”
United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998).
The remarks to which Mr. Davis objects were improper. The district court
admitted the photograph solely for the purpose of establishing a connection
between Mr. Davis and the bedroom. The district court specifically relied on the
government’s assurance that the photograph was not being introduced as
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substantive evidence of marijuana distribution, and it gave a limiting instruction to
that effect. See D.E. 70 at 74. As a result, there was no basis for using the
photograph as substantive evidence of distribution.
Mr. Davis, however, was acquitted on the charge of possession with the
intent to distribute. The improper use of the photograph (to suggest that Mr. Davis
made lots of money by selling drugs) would seemingly only matter if the jury had
convicted Mr. Davis of distribution. Because it did not, we cannot say that Mr.
Davis’s substantial rights were prejudiced at all. 3
But Mr. Davis also argues a more indirect, and more complicated,
prejudice to his substantial rights. He essentially asserts that, because there is a
significant connection between drugs and guns, a jury might consider evidence that
a defendant made money by selling drugs as evidence that the defendant possessed
a gun. Here, according to Mr. Davis, where the jury had conflicting evidence
concerning the gun possession charge, the improper remarks concerning drug
distribution may have wrongly led the jury to convict on the former charge.
It is true that courts must be cautious when assessing the impact of
improperly introduced evidence of crimes, because there can be a risk “that a jury
3
We also reject the assertion that the remarks constituted inadmissible character evidence. See
Fed. R. Evid. 404. The government made the remarks for the specific (albeit improper) purpose
of demonstrating that Mr. Davis made money through the distribution of drugs. It did not make
the remarks, as Mr. Davis claims, to show that Mr. Davis had the general proclivity to deal
drugs, or that he had “bad character,” or that the evidence of distribution made it more likely that
he committed a different crime in question.
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will convict for crimes other than those charged – or that, uncertain of guilt, it will
convict anyway because a bad person deserves punishment.” Old Chief v. United
States, 519 U.S. 172, 181 (1997). And courts have often noted the close nexus
between guns and drugs. See, e.g., United States v. Thomas, 242 F.3d 1028, 1032
(11th Cir. 2001) (“the evidence of his drug trafficking was . . . relevant to proving
that he knowingly possessed the weapons”).
In this case, though, we are not persuaded that Mr. Davis has established that
his substantial rights were prejudiced or that there is a reasonable probability that
the outcome of the case would have been different. First, as in Thomas, the usual
challenge is to the use of the evidence of both the distribution and the possession
of drugs in inferring the knowing possession of a firearm. See id. Courts normally
discuss “distribution” and “possession” of drugs in the same manner when
connecting them to weapons. But here, Mr. Davis can only challenge the evidence
of the distribution of drugs, not that of the possession of drugs, because he
admitted to possessing the drugs. In other words, in order to succeed in this
argument, Mr. Davis must necessarily rely on the “nexus” between guns and drugs.
But, because he admitted possession, the jury could have reasonably inferred that
because Mr. Davis possessed drugs, he also possessed the handgun. Assuming that
it would be improper for the jury to rely on evidence of drug distribution to infer
that Mr. Davis possessed the handgun, we would still have to determine that the
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jury did not rely on evidence of possession in inferring that Mr. Davis possessed
the handgun. And because we are required to construe all inferences in favor of the
jury verdict, that seems to us to be a bridge too far.
In addition, there was at least some evidence (for example, the digital scales)
of drug distribution. Although the jury was free to reject that evidence, or to
conclude that it failed to establish guilt of distribution beyond a reasonable doubt,
we cannot conclude, even assuming that the jury relied on evidence of drug
distribution to infer possession of the handgun, that it relied on the government’s
closing remarks, rather than the permissible distribution evidence properly
admitted at trial.
III
Mr. Davis also argues that there was insufficient evidence to support his
felon-in-possession conviction. He argues that, although he initially admitted to
possessing the handgun found in the apartment, he cannot be convicted on the
basis of that post-arrest admission alone. And he maintains that there is insufficient
evidence aside from that initial admission to sustain the conviction.
When a defendant fails to move for judgment of acquittal at the close of
evidence, as is the case here, we review the sufficiency of the evidence for a
manifest injustice, which requires a finding that the evidence on a key element of
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the offense is so tenuous that a conviction would be shocking. See United States v.
Tapia, 761 F.2d 1488, 1491-92 (11th Cir. 1985).
We acknowledge that Mr. Davis’ confession that he owned the handgun,
standing alone, is insufficient to convict him. See United States v. Green, 873 F.3d
846, 853 (11th Cir. 2017) (“a confession must be corroborated in order to sustain a
conviction; a defendant cannot be convicted solely on the basis of his own
admission”). But “extrinsic evidence of a corroborative nature can be used to
establish the admission’s credibility.” Id. And we must view the evidence in the
light most favorable to the government, and draw all reasonable inferences and
credibility determinations in favor of the jury’s guilty verdict. See United States v.
Holt, 777 F.3d 1234, 1259 (11th Cir. 2015). Here, under this standard of review,
we conclude there was sufficient corroborating extrinsic evidence.
The evidence introduced by the government established that Mr. Davis fled
inside the apartment when he saw the police. The officers pursued him inside,
through the kitchen, and into the living room, where they arrested him. They found
the handgun in a trashcan located in the kitchen. Although Mr. Davis did not live at
the apartment, he was the only person in the apartment when the police entered it.
Thus, the government’s theory that Mr. Davis deposited the handgun in the kitchen
trashcan when he passed through the kitchen has some support. Additionally, the
government argued that Mr. Davis’s story lacked credibility. Although Mr. Davis
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claimed to run into the house to hide marijuana, not the handgun, it is at least
questionable whether he had enough time to enter the bedroom, hide the marijuana
in the light fixture, and then return to the living room, in the limited amount of
time it took the officers to reach the living room. 4
Mr. Davis points out that nobody witnessed him possess the firearm. His
friend, Mr. Gordon, testified that he did not see Mr. Davis carrying any gun, and
that he would have noticed one because Mr. Davis was wearing baggy basketball
shorts, which would have been pulled down by the weight of a gun. Nor did any
police officer see Mr. Davis carrying a gun. Mr. Davis’s fingerprints were not
found on the gun, Mr. Davis did not live at the apartment where the gun was
discovered, and the gun was not registered to Mr. Davis.
Mr. Davis testified at trial that his initial admission to the police that the
handgun belonged to him was untrue, stating “I just took the gun charge because I
didn’t want my mother and my sister to get into trouble. It was my sister’s gun.”
Mr. Davis’ sister also took the stand and testified that the gun belonged to her, and
not to Mr. Davis. She testified that she purchased the handgun for protection
because of her neighborhood’s high crime rate.
4
Mr. Davis argued, in similar but reverse fashion, that he did not have enough time, while
running through the kitchen, to not just deposit the handgun into the trash can, which was behind
the kitchen door, but to bury it beneath enough trash to make it not visible.
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The jury was free, however, to reject both Mr. Davis’ and his sister’s
testimony. See United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004)
(stating “[a]ssessing the credibility of [a] witness is within the jury’s exclusive
province,” and noting that the jury was free to disregard defendant’s father’s
testimony that the gun found in the defendant’s car belonged to him). As in Wright,
“[b]ased on the jury’s verdict, it is evident that it did not give much credence to the
testimony of [Mr. Davis’s sister].” Id. It is not an appellate court’s role to displace
a jury’s credibility determinations with its own, and “all reasonable inferences and
credibility choices must be in favor of the jury verdict.” Id. As long as there was
extrinsic evidence enough to establish the credibility of Mr. Davis’s initial
admission, the jury could accept that admission and reject contrary testimony.
Thus, Mr. Davis has failed to show any manifest injustice in his conviction.
IV
Finally, Mr. Davis argues, for the first time on appeal, that the district court
improperly increased his base offense level at sentencing when it considered two
prior Georgia aggravated assault convictions that he maintains do not constitute
crimes of violence under the Sentencing Guidelines. When a defendant makes no
objection to his sentence before the district court, but instead raises the objection
for the first time on appeal, we review the sentence for plain error. See United
States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014). “To prevail under
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the plain error standard, an appellant must show: (1) an error occurred; (2) the error
was plain; (3) it affected his substantial rights; and (4) it seriously affected the
fairness of the judicial proceedings.” Id. at 822.
Here there is no error, plain or otherwise. This Court very recently held that
the elements of Georgia aggravated assault are the same as the elements of generic
aggravated assault, and thus Georgia aggravated assault qualifies as a crime of
violence under the enumerated clause of the career offender definition of the
Sentencing Guidelines. See United States v. Morales-Alonso, 878 F.3d 1311, 1320
(11th Cir. 2018).
V
For these reasons, we affirm Mr. Davis’ convictions and sentence.
AFFIRMED.
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United States v. Dyrell Leshaun Davis
Combined Opinion