[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 29, 2006
No. 04-16706
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 00-00101-CR-T-27MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD THOMAS,
a.k.a. Ed Thomas,
a.k.a. John Dawson,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 29, 2006)
Before BIRCH, CARNES and BRUNETTI*, Circuit Judges.
PER CURIAM:
*
Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
Defendant-appellant, Edward Thomas, appeals his convictions for
possession, by a convicted felon, of ammunition and a firearm that was
unregistered. In light of the evidence presented, the government sufficiently
proved that Thomas constructively possessed the firearm and ammunition in this
case. Moreover, the district court did not abuse its discretion by denying Thomas’s
motion for mistrial based on the government’s comment in its closing rebuttal
argument. Accordingly, we AFFIRM Thomas’s convictions.1
I. BACKGROUND
A federal grand jury indicted Thomas for possession of ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count One);
possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e) (Count Two); and possession of an unregistered firearm by a convicted
felon, in violation of 26 U.S.C. § 5812 (Count Three). Prior to trial, Thomas
stipulated that he was a convicted felon. In its opening statement at trial, the
government explained that, it “need[ed] to prove beyond a reasonable doubt that
[Thomas] was a convicted felon at the time he possessed the firearm [which was
an] unregistered shotgun.” R3 at 2-3. In his opening statement, defense counsel
explained that:
1
This case was originally scheduled for oral argument but was removed from the oral
argument calendar pursuant to 11th Cir. R. 34-3(f).
2
on February 6th of 2000, over four and a half years ago, Mr. Thomas
and some friends had went over to Clearwater. And they had decided
to just hang out, and they ended up at The Club Mercedes in
Clearwater.
...
Now, Mr. Thomas was left at The Club Mercedes, which is not too
far from the Days Inn hotel. Mr. Thomas’s friends indicated that they
would be back shortly to pick him up. Mr. Thomas indicated to his
friends that if they did not return, then they could simply find him at
the Days Inn motel.
As time began to pass, it became late and, in fact, as Mr. Thomas
suspected, his friends never returned to pick him up. Mr. Thomas, in
fact, went to the nearby Days Inn to possibly check in for the night,
because he had no other way home.
While at the Days Inn motel, Mr. Thomas was approached by law
enforcement who began to question his whereabouts.
Id. at 7.
Officer Kenneth Kanoski testified that, on the day of Thomas’s arrest, he
and several other units had responded to the report of a criminal incident involving
two black males in a small red vehicle. He reported conducting a search of a
vehicle matching the description which had been discovered near a motel. Inside
the vehicle, he observed an odor indicating that a shotgun might recently have been
fired. The officer also testified to finding a spent shotgun shell inside the vehicle
which appeared to have resulted from a shot fired through the floorboard of the
vehicle. Officer Kanoski described the recovery, from the area surrounding the
vehicle, of a flower duffle bag that contained “a small paper bag with a receipt, two
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boxes of shells for shotguns, [and] the weapon itself, the shotgun.” R5 at 74-75.
Each box of ammunition was marked with a price of $5.99. Id. at 77-78. The
receipt, which was also admitted into evidence, was from “Big E’s Guns” in
Tampa, Florida, listed the total amount of the purchase as $12.79, and was signed
“Ed Thomas.” Exh. 18h. In a jacket near the other items, Officer Kanoski reported
recovering what appeared to be an employee identification card for “Harborside
Refrigerated Services” listing the name “Ed Thomas” and Thomas’s social security
number. Id. at 88-89; see also Exh. 18f.
The red vehicle, a Dodge Shadow, and the other items were all found
together in Clearwater, Florida. Officer Kanoski admitted, however, that he had
not seen Thomas in or around the vehicle. Id. at 95. Officer Kanoski also
explained that another officer using a dog had been unable to locate any person in
the area associated with the Dodge Shadow. Id. at 101.
Officer Victor Brian Goodrich had also been dispatched to the scene of the
investigation to assist with the search for the two black males. He reported that,
once there, he joined another officer who was speaking with a man, identified as
Thomas, who was “on or near a pay phone at the Days Inn.” Id. at 127. He
testified that the motel and pay phone were located between 75 and 100 yards from
the Dodge Shadow. Id. at 129. Officer Goodrich agreed that he had never seen
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Thomas in or around the vehicle and that Thomas was cooperative with
questioning. He testified that he did not check Thomas for gun powder and did not
recall whether Thomas smelled like gun powder. Id. at 135, 138.
Officer Kimberly Millen, a forensic science specialist, testified that she had
collected approximately 69 pieces of evidence at the scene of the investigation and
had tried to recover fingerprints. Id. at 149. She explained that, for a variety of
reasons, including texture, it is difficult to obtain fingerprints from firearms. She
testified that, although she was unable to recover fingerprints from the receipt or
ammunition, she was able to recover some from one of the boxes of ammunition.
Carol Perkins Davis, who examined these fingerprints, testified that she found a
“positive identification to the right thumbprint” of Thomas. Id. at 215. Michael
Laroe, a special agent with the Department of Justice Bureau of Alcohol, Tobacco,
Firearms and Explosives, testified that no firearms had been registered in Thomas’s
name, that the shotgun recovered should have been registered, and that, according
to Thomas’s driver’s license, he resided in Tampa, Florida.
At the close of the government’s case, Thomas asked the court to grant a
judgment of acquittal on Counts Two and Three on the ground that no evidence
had been presented showing that Thomas “possessed the shotgun.” R6 at at 270.
Thomas also asked for a judgment of acquittal as to Count One on the ground that
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the receipt failed to show that Thomas either purchased the ammunition or took
possession of it. The court denied Thomas’s motion, and Thomas rested his case.
In its closing argument, the government reiterated that it “must prove this
case beyond a reasonable doubt. And the burden will always be with the
government.” R4 at 2. In its rebuttal argument at closing, the government
observed:
Furthermore, there still has been no explanation, good explanation,
logical explanation as to how this defendant was in Clearwater when it
shows he lives in Tampa and, coincidentally, he’s found a hundred
yards in this exact spot, out of all Pinellas County, his identification is
found next to a bag that has evidence with his fingerprint and his
signature on it.
Id. at 35. Thomas objected to this statement by the government as an improper
comment on Thomas’s right to remain silent and as a shifting of the burden of
proof. The court overruled the objection because:
There [was] no genuine issue in this record as to whether this
defendant was in Clearwater. He was identified and arrested in
Clearwater. The argument, although appropriately objected to, does
not rise to the level, in my view, of shifting the burden of proof to the
defendant, nor commenting on the defendant’s fifth amendment
privilege of not testifying.
Id. at 38. The court also denied Thomas’s request to perfect the record because it
had already ruled on the issue.
After closing arguments, the court instructed the jury that:
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It will be your duty to decide whether the government has proven
beyond a reasonable doubt the specific facts necessary to find the
defendant guilty of the offenses charged in the indictment.
. . . [Y]ou must follow all of my instructions as a whole, as I indicated
earlier. You may not single out or disregard any of the court’s
instructions.
. . . [E]very defendant is presumed by the law to be innocent. The
law does not require a defendant to prove innocence or to produce any
evidence at all.
And if a defendant elects not to testify you cannot consider that in
any way during your deliberations. The government has the burden of
proving a defendant guilty beyond a reasonable doubt; and if it has
failed to do so, you must find the defendant not guilty.
R6 at 362, 363. The jury found Thomas guilty on all three counts.
Thomas submitted a Motion for Judgment of Acquittal or Alternatively New
Trial Due to Prosecutorial Misconduct, in which he restated his previous argument
regarding the government’s comment in its closing rebuttal remarks. The district
court denied the motion, finding that “at worst, the prosecutor’s comment was in
response to [the] offer of proof [from Thomas’s opening statement], which [had
not been] forthcoming, rather than a comment on [Thomas’s] failure to testify.”
R1-64 at 3. Moreover, the district court found that, even though the argument
should not have been made, it was not the prosecutor’s intention to refer to
Thomas’s silence and the comment was not of such a character that the jury would
naturally and necessarily have taken it to have been a comment on Thomas’s
exercise of his Fifth Amendment right.
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On appeal, Thomas argues that (1) the evidence presented at trial was
insufficient to support his convictions because the government completely failed to
prove that he, either actually or constructively, possessed either the unregistered
shotgun or the ammunition and (2) the government’s comment during its rebuttal
argument in closing was improper such that the district court erred in not granting
Thomas’s motion for judgement of acquittal, or alternatively, a new trial.
II. DISCUSSION
A. Sufficiency of the Evidence
We review the sufficiency of the evidence to support a jury’s guilty verdict
de novo, viewing that evidence in the light most favorable to the government,
resolving “all reasonable inferences and credibility evaluations in favor of the
jury’s verdict.” United States v. Clay, 376 F.3d 1296, 1300 (11th Cir. 2004), cert.
denied, __ U.S. __, 125 S.Ct. 1427 (2005). We “must uphold the jury’s verdict
whenever a reasonable factfinder could conclude that the evidence establishes guilt
beyond a reasonable doubt.” Id. (quotation omitted).
To convict a defendant of possession of a firearm by a convicted felon, the
government must prove, inter alia, that the defendant possessed a firearm or
ammunition. 18 U.S.C. § 922(g)(1). This means the government must prove that
the defendant had either actual or constructive possession of the firearm. See
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United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir.) (per curiam), cert. denied,
__ U.S. __, 125 S. Ct. 324 (2004). We explained that “[a] defendant has
constructive possession if he exercises ownership, dominion, or control over the
firearm,” or “has the power and intention to exercise dominion or control.” Id.
The evidence the government presented to convict Thomas sufficiently
proved that Thomas constructively possessed both the shotgun and the
ammunition. Officer Goodrich testified that Thomas was found outside the Days
Inn in Clearwater, Florida, standing about 75 to 100 feet away from where Officer
Kanoski had recovered a bag that contained a receipt, two boxes of shotgun shells,
and a shotgun. The receipt from “Big E’s Guns” listed the total amount of the
purchase as $12.79, and was signed “Ed Thomas.” The two boxes of ammunition
were each marked with a price of $5.99, which, with the addition of tax, add up to
a little over $12.00. Moreover, the fingerprint examiner testified that she had
matched Thomas’s right thumb print to a print taken by Officer Millen from one of
the boxes of ammunition. In a jacket found near the other items, Officer Kanoski
recovered employee identification that listed the name “Ed Thomas” and Thomas’s
social security number. In light of this evidence, the government sufficiently
established that Thomas had ownership, dominion, or control over the shotgun and
ammunition, or the power and intention to exercise such dominion or control.
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B. Prosecutorial Comment
Thomas next argues that the prosecutor’s statement in closing was an
impermissible comment on his Fifth Amendment right to remain silent, was burden
shifting, and, as such, constituted prosecutorial misconduct. We review a district
court’s denial of a motion for a mistrial for abuse of discretion. United States v.
Ettinger, 344 F.3d 1149, 1161 (11th Cir. 2003). “Prosecutorial misconduct
requires a new trial only if we find the remarks (1) were improper and (2)
prejudiced the defendant’s substantial rights.” United States v. Hernandez, 145
F.3d 1433, 1438 (11th Cir. 1998) (internal quotation omitted). To be substantially
prejudicial, the improper comments must have “so infected the trial with unfairness
as to make the resulting conviction or sentence a denial of due process.” Parker v.
Head, 244 F.3d 831, 838 (11th Cir. 2001) (alteration and citation omitted).
“When a curative instruction has been given to address some improper and
prejudicial evidence, we will reverse only if the evidence ‘is so highly prejudicial
as to be incurable by the trial court’s admonition.’” United States v. Harriston, 329
F.3d 779, 787 n.4 (11th Cir. 2003) (per curiam) (citations omitted). Further, where
the alleged errors represent only an insignificant portion of the trial, and properly
admitted evidence sufficiently establishes a defendant’s guilt, the defendant’s
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substantial rights are not affected. See, e.g., United States v. Adams, 74 F.3d 1093,
1100 (11th Cir. 1996).
As to the specifics of Thomas’ arguments, “[i]t is a basic constitutional
precept that reversible error will exist in a criminal case if the prosecution
comments on the fact that the defendant does not testify.” United States v.
LeQuire, 943 F.2d 1554, 1565 (11th Cir. 1991). A comment is not an
impermissible reference, however, unless (1) it was “intended to comment on the
defendant’s silence or [(2)] was of such a character that a jury would naturally and
necessarily construe it as a comment on the defendant's silence.” Id.
Additionally, “in recognizing the government’s burden and obligation of proving
guilt beyond a reasonable doubt, [we have] recognized that a prosecutor’s
comment may be so prejudicial as to shift the burden of proof.” United States v.
Simon, 964 F.2d 1082, 1086 (11th Cir. 1992). “Nevertheless, [we have] held that
‘a prejudicial remark may be rendered harmless by curative instructions to the
jury.’” Id. at 1087 (citation omitted).
In this case, the district court did not abuse its discretion by denying
Thomas’s motion for mistrial after the government’s comment during closing.
First, the record supports the court’s finding that the government’s comment was
not improper, but rather served as a reply to the explanation by Thomas’s counsel
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in his opening statement for Thomas’s presence in Clearwater on the night of the
offense and was thus not intended to emphasize Thomas’s silence. Second, the
reference was not of such a character that would lead the jury “naturally and
necessarily” to understand it to be a comment on Thomas’s silence. See LeQuire,
943 F.2d at 1565. Finally, even if the government’s comment had been improper
and could be viewed as an attempt to shift the burden of proof, the district court’s
instructions to the jury sufficiently clarified that the government had the burden
and that the jury could not consider Thomas’s silence in deciding if the
government proved its case.
III. CONCLUSION
Thomas appeals his convictions for being a convicted felon in possession of
ammunition and an unregistered shotgun on the grounds that the government failed
(1) to prove that he, either actually or constructively, possessed the shotgun and
ammunition and (2) committed prosecutorial misconduct in the course of its
closing arguments. We find that the government presented sufficient evidence for
a jury to have found possession beyond a reasonable doubt and that, given the
government’s and the judge’s statements and instructions regarding Thomas’s
silence and the burden of proof, the district court did not abuse its discretion in
denying the motion for a mistrial. Accordingly, we AFFIRM.
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