NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0803n.06
FILED
No. 09-6120
Dec 02, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
GRAY M. DOTSON, ) WESTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
Before: BATCHELDER, Chief Judge; COLE and COOK, Circuit Judges.
COOK, Circuit Judge. Gray Dotson appeals his conviction for possession of an unregistered
firearm, challenging the reasonableness of the police search under the Fourth Amendment, various
evidentiary rulings made by the district court, and the overall sufficiency of the evidence. The panel
unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a). We affirm the district
court’s judgment.
I.
We review the relevant facts submitted during the suppression hearing and trial. On April
29, 2004, a federal grand jury sitting in the Middle District of Louisiana returned a drug-trafficking
indictment against defendant Gray Dotson and a district court issued an arrest warrant. The
No. 09-6120
United States v. Dotson
indictment culminated a two-year ATF investigation conducted by Special Agents Christian Ladner
and Jeff Powell. The agents received information that Dotson was working as a disc jockey at P.T.’s
Showclub, a strip club located in Memphis, Tennessee. Shortly before midnight on May 3, 2004,
they met with local ATF Special Agents Joey Hall and Joseph Bradley and several officers of the
Memphis Police Department (MPD) in front of P.T.’s Showclub. After confirming Dotson’s
presence inside, MPD officers entered the club, escorted Dotson outside, and turned him over to the
custody of Agents Ladner and Powell.
Dotson waived his Miranda rights. According to the agents’ testimony, Hall then asked
Dotson whether he had a vehicle in the club parking lot, to which Dotson replied by pointing at a
blue Chevrolet pick-up truck with Louisiana plates. Dotson consented to a search of the truck and
consented again after Hall advised him that he could refuse consent to the search. At this point, Hall
asked Dotson if the vehicle contained narcotics or firearms, and Dotson replied that they would find
a “12 gauge” behind the seat. That said, Hall entered the vehicle and retrieved a sawed-off New
England Firearms 12-gauge shotgun. Dotson explained that he kept the gun to protect his wife and
son, referring to it as “Junior.”
When asked about the truck, Dotson told Hall that he was in the process of purchasing the
vehicle from an individual named Jeff. Courtesy of state registration records, the agents linked the
vehicle to Jeff Anders. The agents recovered the following items from the vehicle: (1) $4,190 in
cash; (2) a Louisiana medical card bearing the name of Dotson’s son; (3) a medicine bottle bearing
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the same name; (4) a pawn receipt bearing the name of a witness from the Louisiana investigation;
and (5) a box with the caption “in loving memory” that appeared to contain human ashes.
Agents Ladner and Powell continued their interview of Dotson at the Shelby County
Detention Facility. Dotson reiterated how he came into possession of the gun. He further disclosed
that he had previously used the gun to beat an individual named Chico after Chico had threatened
Dotson’s family. Dotson also provided two explanations for the $4,190 found in the truck, first
claiming that he intended to use it to pay for a surgery for his son, but later admitting that he planned
to use the money the following day to purchase methamphetamine. Dotson ended the interview after
the agents informed him that they would have to contact the U.S. Attorney’s Office before offering
a plea deal.
On August 17, 2004, a federal grand jury in the Western District of Tennessee returned a
new, one-count indictment charging Dotson with the knowing possession of an unregistered firearm.
Dotson moved to suppress the evidence obtained from the vehicle search, denying that he consented
to it. The district court accepted the government’s evidence to the contrary and denied the motion.
During a two-day jury trial, Agents Ladner, Hall, and Powell testified to the above events.
Jeff Anders, the truck’s registered owner, also testified that Dotson borrowed the truck in
early May 2004 to move his family to Memphis. Anders further testified that he removed all items
from the truck before loaning it to Dotson, denied owning the sawed-off shotgun, and denied placing
the gun in his vehicle.
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On May 13, 2009, the jury returned a verdict of guilty. The district court sentenced Dotson
to a term of 55 months’ imprisonment, to run concurrently with his undischarged 45-year sentence
that arose from his federal convictions in the Middle District of Louisiana. Dotson timely appealed.
II.
Dotson presents four arguments on appeal. First, Dotson argues that the district court should
have granted his motion to suppress because the warrantless police search of the truck violated his
Fourth Amendment rights. He also complains of error in admitting certain Rule 403 evidence and
excluding certain impeachment evidence. Finally, he challenges the sufficiency of the trial evidence.
None of these arguments has merit.
A.
Dotson’s Fourth Amendment argument fails because the suppression hearing evidence
supports the district court’s conclusion that Dotson knowingly and voluntarily consented to the
search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (recognizing voluntary consent
as a “well settled” exception to the Fourth Amendment’s requirements); United States v. Salvo, 133
F.3d 943, 953 (6th Cir. 1998). The government met its burden by putting forth “‘clear and positive’
testimony that the [defendant’s] consent was ‘unequivocal, specific, intelligently given and not
influenced by any duress or coercion.’” See id. at 953 (quoting United States v. Taylor, 956 F.2d
572, 588 (6th Cir. 1992) (en banc)). Specifically, Agent Ladner testified during the suppression
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hearing that Dotson twice consented to the vehicle search after waiving his Miranda rights, the
second time after explicit notice that he could deny permission. The district court credited this
testimony and denied the suppression motion, noting that the defense had not “impeached [Agent
Ladner’s testimony] in any way,” and that Dotson conceded that he never told the agents not to
search the vehicle. The record amply supports the district court’s consent conclusion, and Dotson
presents no argument contesting it.
B.
Dotson next contends that the district court erred by admitting certain evidence related to the
Louisiana indictment. It appears from his brief’s background section, as well as the government’s
response brief, that he contests the district court’s admission of evidence regarding certain statements
he made on the night of his arrest: (1) conflicting statements about why he had $4,190 in the truck,
and (2) his concession about previously using the gun in a fight. We review all evidentiary rulings
under the abuse-of-discretion standard. United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003)
(citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)). Accordingly, we will reverse only 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.’” United States v.
Trujillo, 376 F.3d 593, 605 (6th Cir. 2004) (quoting United States v. Copeland, 321 F.3d 582, 596
(6th Cir. 2003)). We find no such error here.
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Federal Rule of Evidence 403 permits the district court to exclude evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice.” In assessing
Rule 403 challenges, we “must view the evidence in the light most favorable to its proponent,
giving the evidence its maximum reasonable probative force and its minimum reasonable prejudicial
value.” United States v. Moore, 917 F.2d 215, 233 (6th Cir. 1990) (internal quotation marks and
citation omitted); see also United States v. Fifer, 206 F. App’x 502, 509 (6th Cir. 2006). Without
challenging specific evidence, Dotson asserts that “any proof of any matter which is not charged in
the instant case, and which makes it more likely than not that he will be convicted in the instant case
on evidence which is outside of the instant case, is substantially prejudicial and intended to tilt the
jury toward a guilty verdict regardless of proof on the elements required for conviction in the instant
case.” Yet we have repeatedly recognized that unfair prejudice “does not mean the damage to a
defendant’s case that results from the legitimate probative force of the evidence; rather, it refers to
evidence which tends to suggest decision on an improper basis.” United States v. Schrock, 855 F.2d
327, 335 (6th Cir. 1988) (internal quotation marks and citation omitted); see also United States v.
Bonds, 12 F.3d 540, 567 (6th Cir. 1993). “[W]here one party has ‘opened the door’ on an issue, the
opponent, in the trial court’s discretion, may introduce evidence on the same issue to rebut any false
impression that may have been created by the earlier admission of evidence.” United States v.
Chance, 306 F.3d 356, 385 (6th Cir. 2002); see also Spikes, 158 F.3d at 913 (finding that defense
counsel’s misleading cross-examination opened the door for the limited use of inculpatory
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statements that the parties had agreed not to present). Here, we find no abuse of discretion because
the defense opened the door for the evidence Dotson now challenges.
With regard to the $4,190 found in the truck, the government did not introduce the challenged
evidence—Dotson’s statement on the night of his arrest that he intended to use the money for a drug
deal—until after defense counsel cross-examined Agent Ladner about whether Dotson had stated that
he needed the money for his son’s surgery. We find no unfair prejudice because defense counsel
opened the door by presenting only one of the two justifications given by defendant. The
government had the right to give the jury the omitted response, both for the sake of completeness and
for purposes of impugning Dotson’s credibility.
We further find that the district court did not abuse its discretion when it included Dotson’s
statement about having used the gun to administer a beating. The district court initially excluded the
government’s evidence of this statement, but noted that it might revisit the decision if Dotson
contested possession during the trial. Dotson then denied owning and possessing the gun and denied
admitting possession of the weapon to the agents on the night of his arrest. After this testimony, the
district court permitted the government, over defense counsel’s objection, to cross-examine Dotson
with his statement about prior use of the gun, and Dotson then denied having made the statement.
We agree with the district court that the evidence of Dotson’s prior-use statement became relevant
when he took the stand and denied possession of the seized weapon, and we find no unfair prejudice.
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C.
Dotson next argues that, pursuant to Federal Rule of Evidence 609, the district court should
have allowed defense counsel to impeach Jeff Anders with his misdemeanor criminal history. As
an initial matter, it is possible that Dotson forfeited this argument by failing to attempt to introduce
the actual impeachment evidence during the trial. See, e.g., United States v. Street, 614 F.3d 228,
235 (6th Cir. 2010) (concluding that defendant forfeited objection to district court’s juror-
substitution procedure by failing to bring his concerns to the district court’s attention); Mapes v.
Coyle, 171 F.3d 408, 421–22 (6th Cir. 1999) (finding that habeas petitioner forfeited claim of trial
court bias by failing to adduce evidence at initial post-conviction proceeding). Without providing
specific examples of excluded misdemeanor evidence, Dotson obliquely argues that “[g]eneral
prohibitions of use of misdemeanor convictions against a witness should not have been used to
prevent impeachment of Jeff Anders’ testimony. From our review of the record, it appears that the
district court did not exclude the purported misdemeanor evidence, because the defense never
proffered specific examples of the misdemeanor evidence. After hearing argument, the district court
cited Rule 609 and ruled that the defense could use Anders’s prior misdemeanor convictions if they
involved dishonesty or false statements. Given this opportunity, Dotson forfeited this right by then
failing to introduce any of Anders’s prior misdemeanor convictions during the remainder of the trial.
In any event, the district court did not err by requiring that Dotson show that Anders’s
misdemeanor convictions involved dishonesty or false statements. Rule 609 prohibits impeachment
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of a non-party witness with prior convictions except in two circumstances: (1) if the prior conviction
was a felony; or (2) if it is a conviction that includes as an element of the offense “proof or admission
of an act of dishonesty or false statement.” Fed. R. Evid. 609(a); see also United States v. Hines, 398
F.3d 713, 716 (6th Cir. 2005). Here, Anders had not been convicted of any felonies and there is no
evidence on the record that any of his prior misdemeanors involved acts of dishonesty or deceit as
an element of the offense. And Dotson does not city to any authority, and we know of none, that
would allow Rule 609 impeachment based on the facts of this case. At most, Dotson has shown that
the district court properly summarized the applicable evidentiary rule, the antithesis of an abuse of
discretion. We find no error.
D.
We review de novo the district court’s denial of a motion for judgment of acquittal. United
States v. Kuehne, 547 F.3d 667, 677 (6th Cir. 2008) (citing United States v. Zidell, 323 F.3d 412,
420–21 (6th Cir. 2003)). We review sufficiency-of-the-evidence claims to determine whether “any
rational trier of fact could find the elements of the crime beyond a reasonable doubt,” and, in doing
so, view “the evidence in the light most favorable to the prosecution, . . . giving the government the
benefit of all inferences that could reasonably be drawn from the testimony.” United States v. M/G
Transp. Servs., Inc., 173 F.3d 584, 589 (6th Cir. 1999) (emphasis omitted) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Defendants asserting such claims “bear[] a very heavy burden,”
United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986) (internal quotation marks and citation
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omitted), and an appellate court will only set aside the judgment if, after viewing the record as a
whole, it determines that “the judgment is not supported by substantial and competent evidence.”
United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991).
An unregistered firearm conviction requires proof that the defendant “receive[d] or
possess[ed] a firearm which is not registered to him in the National Firearms Registration and
Transfer Record.” 26 U.S.C. § 5861(d); United States v. Daniel, 134 F.3d 1259, 1263 (6th Cir.
1998). Dotson challenges only the government’s proof of possession, citing cases holding that a
defendant’s mere proximity to a weapon as a passenger in a car does not establish possession. E.g.,
United States v. Soto, 779 F.2d 558, 560 (9th Cir. 1986); cf. United States v. Birmley, 529 F.2d 103,
107–08 (6th Cir. 1976) (“Presence alone cannot show the requisite knowledge, power, or intention
to exercise control over the unregistered firearms.”). An appellate court will, however, sustain an
unregistered firearms conviction where the government presents sufficient evidence of constructive
possession. Daniel, 134 F.3d at 1263.
“Constructive possession exists when a person does not have actual possession but instead
knowingly has the power and the intention at a given time to exercise dominion and control over an
object, either directly or through others.” United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.
1973), abrogated on other grounds by Scarborough v. United States, 431 U.S. 563 (1977). “Proof
that ‘the person has dominion over the premises where the firearm is located’ is sufficient to
establish constructive possession.” United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)
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(quoting United States v. Clemis, 11 F.3d 597, 601 (6th Cir. 1993)). At a minimum, “‘the
government must present evidence to show some connection or nexus between the defendant and
the firearm,’ which can be established by a showing that the defendant had ‘knowledge and access
. . . [to the] firearm.’” United States v. Bailey, 553 F.3d 940, 945 (6th Cir. 2009) (quoting United
States v. Jameson, 478 F.3d 1204, 1209 (10th Cir. 2007)) (emphases omitted).
The evidence adduced at trial demonstrated that Dotson had knowledge of and access to the
firearm such that a rational trier of fact could find that he possessed the unregistered shotgun.
Agents Ladner, Hall, and Powell each testified that Dotson claimed possession of the blue Chevrolet
pick-up truck in the parking lot of P.T.’s Showclub. After twice consenting to Hall’s search of the
vehicle, Dotson told Hall that he would find a “12 gauge” behind the vehicle’s seat. After recovery
of the gun, Dotson explained that he kept the gun as protection for his wife and son. He further
added that he once used the gun to administer a beating.
Dotson argues that, because the government did not show that he owned or possessed the
truck, the government has not met its burden. But we only consider whether the government
presented sufficient evidence that he possessed the gun, not the truck. Considering the evidence in
the light most favorable to the government and drawing all reasonable inferences in the
government’s favor, we conclude that a rational factfinder could find beyond a reasonable doubt that
Dotson possessed the unregistered firearm.
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III.
We AFFIRM the district court’s judgment.
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