United States v. White

COHN, District Judge.

This is a criminal case. Defendant-Appellant Kenneth Earl White (White) appeals from his jury conviction on two counts of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), for which he was sentenced to 160 months imprisonment. White presents four issues on appeal: (1) whether his statement to police should have been suppressed because he was not given proper Miranda warnings; (2) whether the evidence is sufficient to support his conviction; (3) whether a judgment of acquittal should have been granted; and (4) whether the district court gave confusing and contradictory jury instructions. For the reasons that follow, we affirm Wfiiite’s conviction.

I. BACKGROUND

On January 11, 2001, a group of Ohio police officers began surveilling a known stolen car, a 1994 Chevy Blazer, located in an apartment parking lot. When officers approached the Blazer, they discovered it was unlocked. At that point, Officer James Amendolar, a Deputy Sheriff with the Stark County Sheriffs Department en*537tered the Blazer to hit the hood latch and open the hood. Amendolar then disconnected some wires to disable the Blazer. Officers did not observe any activity regarding the Blazer that day. The next day, January 12, 2001, an officer saw White enter the Blazer and attempt to start it, which of course was unsuccessful. When an officer ordered him out of the car, White again attempted to start the car and was again unsuccessful. White eventually exited the car and was arrested following a foot chase. Upon his arrest, Amendolar found two car keys and a remote in White’s right pocket. One of the keys fit the Blazer. The other key belonged to a 1998 Lincoln Townear, which was also stolen and located in the same parking lot. In addition, officers found a loaded .38 caliber Smith & Wesson in the glove box of the Lincoln, and a loaded .357 Ruger and .22 Harrington Richardson in the center console of the Blazer.

White pled guilty in Ohio state court to attempted theft of the Blazer. He was later charged in federal court in a 2 count indictment for being a felon in possession of a firearm. Count 1 related to the two guns in the Blazer and Count 2 related to the gun in the Lincoln.

White’s theory at trial was that he only attempted to steal the Blazer and the evidence failed to show that he had actual possession of the guns sufficient for conviction. At trial, the government introduced two statements White made to Amendolar while in custody. The first statement was made on January 12, 2001, the day of White’s arrest and after White was given his Miranda rights. White told Amendolar that he “went there to steal a car.” Amendolar reminded White of the charges against him, at which point White said he wanted to “think about it” before he would talk any further. This statement was admitted at trial without objection.

Amendolar returned to speak with White three days later, on January 15, 2001. When White was placed in the interview room, Amendolar asked him if he had time to think about what they had talked about on the 12th. Amendolar then reminded White that he (Amendolar) had previously read him his Miranda rights, but did not re-Mirandize him at that time. White then told Amendolar that “when I checked inside of the Blazer, I should have found the keys and the guns in the console.”

At trial, White’s counsel objected to the admission of White’s second statement. At side bar, the district court asked the government to clarify whether or not Amendolar had re-Mirandized White. Amendolar then testified before the jury that “he had a discussion” with White about his Miranda rights, reminding White that Amendolar had previously read him his rights on January 12th. Amendolar further testified that in response, White “just sat there and looked at me like he understood what I was saying.” White’s counsel again objected, which the district court overruled. Amendolar then testified as to White’s second statement that the keys and the guns should have been in the console of the Blazer. After recounting White’s statement, Amendolar testified that he then told White that the keys were in the ignition to the Blazer when White was arrested and were not in the Blazer prior to that time. At that point, White told Amendolar that he wanted to speak with an attorney and Amendolar ended the interview.

II. ANALYSIS

A. Miranda violation

We review a district court’s factual findings for clear error and its legal conclusions de novo. See United States v. Crowder, 62 F.3d 782, 785 (6th Cir.1995). “The *538courts have generally rejected a per se rule as to when a suspect must be read-vised of his rights after the passage of time or a change in questioners.” United States v. Andaverde, 64 F.3d 1305, 1312 (9th Cir.1995). This Circuit has applied a totality of the circumstances approach when addressing the issue of a delay between reading Miranda rights and a custodial interview, considering the following factors articulated in United States v. Weekley, 130 F.3d 747, 750 (6th Cir.1997) (citations omitted):

(1) the time elapsing between arrest and arraignment of the defendant[;] (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession[;] (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him[;] (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

Primarily at issue here is whether the Miranda rights given by Amendolar to White following his arrest were still in effect when White was interviewed by Amendolar three days later. Applying the above factors to the circumstances surrounding the White’s second statement to Amendolar, we find that the district court properly denied White’s request to suppress the statement. White was clearly aware of his rights on January 12th and understood those rights. He was questioned both times by the same police officer, who reminded him of his rights on the 15th. Although there was a three day delay between the questioning, the delay was largely due in response to White’s request to have time to think about it. There is no evidence that anything affected White’s understanding of his rights between the 12th and the 15th. Indeed, the fact that White asserted his right to stop the questioning and to speak with an attorney on the 15th demonstrates awareness of his rights. There is also no evidence of coercion or promises of leniency. In fact, Amendolar testified that White asked Amendolar whether speaking to him would help him, Amendolar replied that he could make a recommendation to the prosecutor but did not promise White anything. We also note that when White asserted his right to stop the questioning and speak to an attorney, Amendolar properly stopped the interview. In short, we conclude that White’s second statement was voluntary and not obtained in violation of Miranda.1

B. Sufficiency of the Evidence and Motion for Acquittal2

1.

“In deciding whether the evidence is sufficient to withstand a motion for an acquittal, and support a conviction, the court views all evidence in the light most favorable to the prosecution and determines whether there is any evidence from *539which a reasonable jury could find guilt beyond a reasonable doubt.” United States v. Talley, 164 F.3d 989, 996 (6th Cir.1999). “[T]his court neither independently weighs the evidence, nor judges the credibility of witnesses who testified at trial. Id. (citations omitted) A sufficiency of the evidence challenge is reviewed to determined “whether, after viewing the evidence in a 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Allen, 954 F.2d 1160, 1169 (6th Cir.1992).

2.

White argues that as to Count 1 (the two guns in the Blazer), there is no evidence that he possessed the guns. He was seen only entering the Blazer — empty handed— and exiting less than thirty seconds later. None of the officers who were surveilling the Blazer had searched it prior to White’s arrest to know whether any guns were in it. Even his statement to Amendolar about guns being in the Blazer does not show White had possession of the guns sufficient for conviction. As to Count 2 (the gun in the Lincoln), White says the evidence is more tenuous. The only evidence, according to White, which connects him to the Lincoln is that he had the keys to it. White argues that officers also failed to assure that the gun was in fact in the Lincoln when the car was recovered and notes that the gun was found during an impound search.

In order to convict under § 922(g)(1), the Government must prove the following three elements: “(1) that the defendant had a previous felony conviction, (2) that the defendant possessed a firearm, and (3) that the firearm had traveled in or affected interstate commerce.” United States v. Kincaide, 145 F.3d 771, 782 (6th Cir.1998) (citations omitted).

White challenges only the sufficiency of the evidence that he possessed a firearm.3 Evidence of constructive possession suffices to satisfy the requirement under § 922(g)(1) of proof that a defendant possessed a firearm. “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.” Kincaide, 145 F.3d at 782. Proof that “the person has dominion over the premises where the firearm is located” is sufficient to establish constructive possession. United States v. Clemis, 11 F.3d 597, 601 (6th Cir.1993).

We find that the evidence at trial was sufficient to establish that White had constructive possession of the weapons that were discovered in the Blazer and the Lincoln. At trial, the government presented evidence that the Blazer and Lincoln were stolen during two burglaries occurring in November and December 2000. Richard Barry testified that on November 4, 2000, his Lincoln was stolen along with two car keys. Also stolen was his Ruger .357 revolver. Carl Russo testified that his Blazer and car keys were stolen on December 6, 2000. Although White was only seen attempting to drive off in the Blazer, he had keys to both cars on his person. Both Barry and Russo identified the keys found on White as the keys to their respective cars. Moreover, and perhaps the most incriminating evidence against White, is the fact that the .357 *540Ruger found in the Blazer belonged to the owner of the Lincoln.

Although White attempts to make much of the fact that the Lincoln was not searched before White was arrested, the Lincoln was not searched because it was locked. Only after recovering the keys from White were the police able to search the Lincoln at the impound lot. As to the Blazer, although Amendolar entered the car and disabled it, there is no evidence that any of the officers acted inappropriately. To the extent that White argues the officers, or someone else, might have placed the gun in the Blazer, this argument lacks merit in light of White’s statement to Amendolar that the police should have found guns in the Blazer. Drawing all reasonable inferences in favor of the government, we conclude that there was enough evidence for a rational juror to conclude that White had dominion and control over the guns found in the Blazer and the Lincoln.

C. Jury Instructions

In his last assignment of error, White argues that the district court gave a confusing and contradictory instruction on the definition of knowingly. The government argues that the instructions given were standard instructions in these types of cases and notes that there was no objection to the instruction at trial.

On appeal, “[o]ur inquiry into jury instructions is limited to whether, taken as a whole, the instructions adequately inform the jury of the relevant considerations and provide the jury with a sound basis in law with which to reach a conclusion.” United States v. Wells, 211 F.3d 988, 1002 (6th Cir.2000). “This court may reverse a judgment on the basis of improper jury instructions only if the instructions, when viewed as a whole, were confusing, misleading and prejudicial.” Id. In addition, since White did not object to the jury instructions at trial, our review is for plain error. See United States v. Jones, 108 F.3d 668, 670 (6th Cir.1997) (en banc); Fed.R.Crim.P. 52(b). Under a plain-error standard, we ask “(1) whether an error occurred in the district court; (2) if error occurred, whether the error was plain; (3) if the error was plain, whether the plain error affected substantial rights; and (4) ... whether the plain error affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial proceedings.” Jones, 108 F.3d at 670. Only if all four of these questions are answered in the affirmative will we reverse the district court on the basis of erroneous jury instructions.

Here, the district court gave standard instructions on the crime of felon in possession of a firearm. White does not argue that the district court’s instructions were wrong, but rather argues that under the circumstances of the case — where White admitted to trying to steal the Blazer — the instructions were confusing. Having reviewed the instructions for obvious error, we do not find them to be confusing or in any way prejudicial to White’s case.

III. CONCLUSION

For the reasons stated above, we AFFIRM White’s conviction.

. White’s second statement to Amendolar that he should have found keys and guns in the console of the Blazer might be considered a statement against interest but arguably is not really such a statement. The statement that keys and guns were in the console is not necessarily inconsistent with White’s theory of the case — that he only attempted to steal the Blazer and as a consequence did not have possession of the guns inside of it. Although the government did not advance this argument, it is another reason why White’s second statement need not have been suppressed.

. Because White presents the same arguments for both issues, we have addressed them together in this opinion.

. The parties stipulated that White is a convicted felon. The testimony of ATF Agent Hopkins established that the guns traveled in interstate commerce.