United States v. Williams

United States Court of Appeals
For the First Circuit

No. 12-1590

UNITED STATES OF AMERICA,

Appellee,

v.

KAREEM WILLIAMS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Torruella, Selya and Lipez,
Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, with whom
Rheba Rutkowski, Assistant Federal Public Defender, was on brief,
for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.

May 17, 2013
 SELYA, Circuit Judge. In a run-up to this case, a

thrice-convicted felon and his confederates attended a backyard

barbecue at which firearms were openly displayed. They

subsequently reconvened at the scene of a planned robbery.

Although the robbery was never consummated, the police arrested the

convicted felon, defendant-appellant Kareem Williams, on firearms

charges. During his ensuing trial, the district court admitted

evidence of his statements to the police about events occurring at

the cookout. The jury convicted, and the defendant now challenges

both the sufficiency of the government's proof and the

admissibility of the statements. We affirm.

We start with the travel of the case. A federal grand

jury indicted the defendant on charges of possessing a firearm as

a convicted felon (count 1) and possessing a firearm with an

obliterated serial number (count 2). See 18 U.S.C. § 922(g)(1),

(k). At the close of all the evidence, the defendant moved

unsuccessfully for judgment of acquittal. See Fed. R. Crim. P. 29.

The jury found the defendant guilty, and the court sentenced him,

as an armed career criminal, to a 15-year prison term. See 18

U.S.C. § 924(e)(1). This timely appeal ensued.

The defendant's principal claim of error is that the

district court should have granted his motion for judgment of

acquittal because the evidence did not allow a rational jury to

find beyond a reasonable doubt that he knowingly possessed the guns

-2-
charged in the indictment. In determining whether the evidence

suffices to sustain a conviction, we draw the facts and all

reasonable inferences therefrom in the light most agreeable to the

jury verdict. See United States v. Walker, 665 F.3d 212, 224 (1st

Cir. 2011); United States v. Troy, 618 F.3d 27, 29 (1st Cir. 2010).

"To uphold a conviction, the court need not believe that no verdict

other than a guilty verdict could sensibly be reached, but must

only satisfy itself that the guilty verdict finds support in 'a

plausible rendition of the record.'" United States v. Echeverri,

982 F.2d 675, 677 (1st Cir. 1993) (quoting United States v. Ortiz,

966 F.2d 707, 711 (1st Cir. 1992)). This is the same indulgent

standard that the district court was duty bound to employ in

passing upon the defendant's Rule 29 motion, and we review the

district court's denial of that motion de novo. See United States

v. Dwinells, 508 F.3d 63, 72 (1st Cir. 2007).

The evidence, scrutinized favorably to the verdict,

reveals the following. At 12:39 a.m. on June 20, 2011, a police

officer, Daniel Dempsey, responded to a dispatch call about

suspicious activity on Paine Avenue, Cranston, Rhode Island. When

Dempsey arrived at the scene, he saw two stopped vehicles: an Acura

in front and a Nissan Maxima behind. Dempsey drove toward the

Acura until he was nose-to-nose with it. Using the spotlight on

his cruiser, Dempsey saw four men inside the Acura. He stepped

into the street and ordered the driver of the Acura to shut off the

-3-
engine. Instead of heeding this command, the driver began

traveling in reverse. So did the driver of the Maxima.

The Acura spun around and sped away, and the Maxima

continued traveling backwards. Dempsey returned to his vehicle,

pursued the Maxima, and ultimately collided with it.

Dempsey stepped out into the street and drew his weapon,

ordering the occupants of the Maxima to raise their hands. The

driver (Indya Rivers) and the front-seat passenger (Helluva Brown)

complied immediately. The defendant, who was sitting in the back

seat, did not comply; Dempsey observed him "moving around

. . . towards the center area of the seat." Dempsey could see the

back of the defendant's right shoulder but could not see what he

was doing with his hands. It was only after Dempsey reiterated his

command several times that the defendant finally raised his hands.

Once back-up arrived, Dempsey ordered Rivers, Brown, and

the defendant out of the Maxima. The defendant initially failed to

comply and exited the vehicle only after Dempsey repeated his

command.

Officer James McQuinn searched the Maxima. He noticed

that the armrest in the center of the back seat was "ajar [and] was

sticking out. It wasn't flush with the back seat." McQuinn pulled

the armrest all the way down, exposing a pass-through (that is, an

opening that led to the trunk of the car). Inside the trunk — a

few inches away from the pass-through — were two fully loaded guns:

-4-
a .38 revolver with black tape wrapped around the handle and a .45

caliber semi-automatic pistol with an obliterated serial number.

The defendant was taken to Cranston police headquarters

and, later that same day, two detectives interrogated him. The

defendant waived his Miranda rights, see Miranda v. Arizona, 384

U.S. 436 (1966), and agreed to speak with them.

During this recorded interview, the defendant disclosed

that he and the other occupants of the two cars had been planning

to rob a marijuana trafficker.1 He knew that guns would be

involved in the heist and stated that they had been placed in the

Maxima before he entered the car. He later changed his tune and

said that he thought that the guns were in the Acura.

The defendant further explained that he and his

confederates had attended a family cookout shortly before

sojourning to Paine Avenue. The cookout took place on the evening

of June 19, and Dempsey encountered the Maxima and the Acura

shortly after midnight on June 20.

The defendant stated that the semi-automatic pistol

belonged to Alexander Collins (one of the occupants of the Acura)

and that he had seen it tucked into Collins's waistband at the

1
The defendant disputes that the jury could have found that
he admitted intending to participate in the planned robbery. This
position elevates hope over fact. We have carefully examined both
the video and audio of the recorded interview, and we find
virtually inescapable the conclusion that the defendant admitted to
being part and parcel of the planned robbery.

-5-
cookout. The defendant accurately described the revolver as the

one with "tape on it," even though the police had made no mention

of the presence of tape. He claimed that this firearm, too,

belonged to an occupant of the Acura.

The defendant went on to say that, at the cookout, he

noticed Collins passing the revolver to a family member who just

"got out [of prison] on a gun charge." The defendant says that he

took the revolver from this person and hid it behind a "little

rock."

Against this evidentiary backdrop, we turn to the

defendant's principal plaint. To support a conviction under 18

U.S.C. § 922(g)(1), the offense charged in count 1, the government

had to prove beyond a reasonable doubt that the defendant was a

convicted felon who knowingly possessed a firearm in circumstances

that implicated interstate commerce. See United States v. Staula,

80 F.3d 596, 604 (1st Cir. 1996). To support a conviction under 18

U.S.C. § 922(k), the offense charged in count 2, the government had

to prove beyond a reasonable doubt that the defendant knowingly

possessed a firearm that had traveled in interstate commerce and

"had the importer's or manufacturer's serial number removed,

obliterated, or altered." See United States v. Betancourt, 116

F.3d 74, 75 & n.3 (3d Cir. 1997).

The defendant concedes that he has at least one prior

felony conviction, that both the revolver and the semi-automatic

-6-
pistol traveled in interstate commerce, and that the latter had an

obliterated serial number. As to both counts, then, his

sufficiency challenge focuses with laser-like intensity on whether

the government's proof was sufficient to establish the common

element of knowing possession.

Knowing possession of a firearm may be proved through

either actual or constructive possession. See United States v.

Liranzo, 385 F.3d 66, 69 n.2 (1st Cir. 2004). Actual possession is

"the state of immediate, hands-on physical possession." United

States v. Zavala Maldonado, 23 F.3d 4, 6 (1st Cir. 1994).

Constructive possession occurs "when a person knowingly has the

power and intention at a given time to exercise dominion and

control over an object, either directly or through others." United

States v. Ocampo-Guarin, 968 F.2d 1406, 1409 (1st Cir. 1992)

(internal quotation marks omitted).

Where, as here, the evidence is largely circumstantial,

the relevant inquiry asks whether the evidence as a whole, along

with plausible inferences favorable to the government, warrants a

rational jury in concluding that the government has proved the

elements of the offense beyond a reasonable doubt. See United

States v. Tierney, 760 F.2d 382, 384 (1st Cir. 1985); Dirring v.

United States, 328 F.2d 512, 515 (1st Cir. 1964). In conducting

this inquiry, we are not required to examine each sliver of

evidence in splendid isolation. Rather, we must appraise the

-7-
totality of the evidence, mindful that "individual pieces of

evidence, insufficient in themselves to prove a point, may in

cumulation prove it." Bourjaily v. United States, 483 U.S. 171,

179-80 (1987). This approach recognizes the verity that "[t]he sum

of an evidentiary presentation may well be greater than its

constituent parts." Id. at 180; Ortiz, 966 F.2d at 711.

Viewed through this prism, the defendant's argument

withers. Drawing plausible inferences, a rational jury could find

— as this jury did — that the government proved beyond a reasonable

doubt that the defendant knowingly possessed both firearms. The

jurors heard testimony that the guns were stored in the trunk of

the Maxima near the opening of a pass-through that connected the

trunk with the center of the back seat. This was in close

proximity to the defendant and within easy reach of where he had

been "moving around." The defendant ignored Dempsey's repeated

orders to come out of the car, instead moving toward the armrest.

He initially refused to raise his hands, keeping them out of

Dempsey's line of vision. This was especially significant because

the police later discovered that the armrest, which normally

covered the pass-through, was ajar. Moreover, the defendant had

planned to take part in a robbery and knew that guns would be

involved (indeed, he had handled the revolver only hours before his

apprehension). Last — but far from least — the defendant admitted

-8-
to the police that he knew the guns were in the Maxima.2 The

totality of this evidence easily supports an inference that the

defendant was in constructive possession of the guns.

To say more about this claim of error would be

supererogatory. Jurors have the right — indeed, the obligation —

to use their common sense in evaluating and drawing inferences from

circumstantial evidence. Viewing the record as a whole and using

their common sense, the jurors in this case rationally could have

inferred that when Dempsey stopped the Maxima the defendant had

knowing and intentional dominion and control over the firearms and,

thus, constructively possessed them. See, e.g., United States v.

Robinson, 473 F.3d 387, 399-400 (1st Cir. 2007) (finding evidence

of constructive possession sufficient where defendant had access

and opportunity to store guns in engine compartment); Liranzo, 385

F.3d at 69-70 (holding evidence sufficient to establish

constructive possession of gun by front-seat passenger where gun

was found beneath seat); see also United States v. Chapdelaine, 989

F.2d 28, 33-34 (1st Cir. 1993). It follows inexorably that the

district court did not err in denying the defendant's Rule 29

motion for judgment of acquittal.

2
The fact that the defendant later contradicted this
admission did not drain it of probative value. When there are two
conflicting versions of a single event, it is for the jury to
decide which version, if either, should be given credence. See
United States v. Nascimento, 491 F.3d 25, 46-47 (1st Cir. 2007);
United States v. Gobbi, 471 F.3d 302, 311 (1st Cir. 2006).

-9-
 The defendant's remaining claims of error relate to the

admission of evidence. When objections have been preserved, we

review a district court's evidentiary rulings for abuse of

discretion. Walker, 665 F.3d at 228; United States v. Rodríguez-

Vélez, 597 F.3d 32, 40 (1st Cir. 2010).

The defendant insists that the district court abused its

discretion in admitting evidence of his statements about the

robbery scheme and his handling of the revolver at the cookout. In

the defendant's view, this evidence was both irrelevant and

unfairly prejudicial. We deal sequentially with these preserved

objections.

"Evidence is relevant if: (a) it has any tendency to make

a fact more or less probable than it would be without the evidence;

and (b) the fact is of consequence in determining the action."

Fed. R. Evid. 401. Trial courts are afforded wide latitude in

determining whether evidence crosses this low threshold, and we

will not disturb an exercise of that discretion unless an abuse

looms. United States v. Saccoccia, 58 F.3d 754, 780 (1st Cir.

1995).

In the case at hand, the district court did not abuse its

discretion in deeming the defendant's statements relevant to the

issue of whether he knowingly possessed the guns found in the

Maxima. These statements had a discernable tendency to make clear

the chain of events and to shed light upon the defendant's

-10-
knowledge of the guns and his motive and opportunity to possess

them.3 Because the case turned on the issue of knowing possession,

their relevance is apparent. See, e.g., United States v. González,

110 F.3d 936, 942 (2d Cir. 1997); United States v. Ladd, 885 F.2d

954, 959 (1st Cir. 1989).

The defendant's second objection implicates Federal Rule

of Evidence 403. Rule 403 provides that: "[t]he court may exclude

relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence." Fed.

R. Evid. 403. The delicate balance between probative value and

prejudicial effect is fact-specific and, within broad limits, is

best struck by the trial court. Walker, 665 F.3d at 229. "Only

rarely — and in extraordinarily compelling circumstances — will we,

from the vista of a cold appellate record, reverse a district

court's on-the-spot judgment concerning the relative weighing of

probative value and unfair effect." United States v. Pires, 642

F.3d 1, 12 (1st Cir. 2011) (quoting Freeman v. Package Mach. Co.,

865 F.2d 1331, 1340 (1st Cir. 1988)).

3
Although the required showing is merely a showing of knowing
possession, evidence of motive and opportunity can serve as
circumstantial evidence that helps to show constructive possession.
See United States v. Meadows, 571 F.3d 131, 145 (1st Cir. 2009).

-11-
 In this instance, the probative force of the challenged

evidence is manifest. To be sure, that evidence was, as the

defendant laments, inimical to his cause. But the defendant has

not shown that any unfair prejudice outweighed its probative value.

Most evidence is prejudicial — that is why one side or the other

seeks to introduce it — and the mere fact that evidence hurts a

party's case does not make its admission problematic. It is only

unfair prejudice that weighs in the Rule 403 balance, see United

States v. Raymond, 697 F.3d 32, 39 (1st Cir. 2012); United States

v. Rodríguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989), and we see

no unfair prejudice here.

We note, moreover, that the district court gave a

limiting instruction specifically designed to minimize any risk of

unfair prejudice:

Now, you've heard evidence that at a
cookout on the evening before the date charged
in the indictment the Defendant previously
possessed the firearm, the .38 caliber with
the tape on it. The indictment does not
charge the Defendant with possessing a firearm
at that cookout, but rather charges him with
possessing at least one firearm at the time of
the automobile stop by the Cranston police.

You may not use this evidence to infer
that because of his character the Defendant
carried out the acts charged in this case.
You may consider this evidence only for
limited purposes, and those are as follows:
The limited purpose of deciding, one, whether
the Defendant had a state of mind or intent
necessary to commit the crime that is charged
in the indictment; or two, whether the
Defendant had a motive or opportunity to

-12-
 commit the acts charged in the indictment; or
three, whether the Defendant acted in
accordance or according to a plan or in
preparation for the commission of a crime; or
four, whether the Defendant committed the acts
that he is on trial for by accident or by
mistake. So remember, these are the only
purposes for which you may consider evidence
of the Defendant's prior similar acts. Even
if you find the Defendant may have committed a
similar act in the past, this is not to be
considered as evidence of character to support
an inference that the Defendant committed the
acts charged in the indictment.

Before us, the defendant suggests that this limiting instruction

was not adequate to address the risk of unfair prejudice.

There is, however, a conspicuously large fly in the

ointment: the defendant neither asked for any limiting instruction

nor objected at trial to the one given by the district court. When

a defendant does not interpose a contemporaneous objection to a

limiting instruction, we will review an afterthought complaint

about the instruction only for plain error. See United States v.

Gómez, 255 F.3d 31, 37 (1st Cir. 2001); United States v. Paniagua-

Ramos, 251 F.3d 242, 245-46 (1st Cir. 2001).

Plain error review is rarely appellant-friendly. To

establish plain error, an appellant must show "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected the defendant's substantial rights, but also (4) seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001). This is a daunting standard and, not surprisingly, "[i]t is

-13-
the rare case in which an improper instruction will justify

reversal of a criminal conviction when no objection has been made

in the trial court." See Henderson v. Kibbe, 431 U.S. 145, 154

(1977).

The defendant in this case does not come close to making

the requisite showing. While the instruction may not have been

ideal, it did make clear that the jury could not use the

defendant's earlier handling of a firearm as a proxy for the

elements of the charged crimes. We discern no plain error.

In an effort to snatch victory from the jaws of defeat,

the defendant notes that the district court's limiting instruction

drew heavily on Federal Rule of Evidence 404(b). He asserts that

"application of the Rule 404(b) criteria employed in the limiting

instruction to the gun statement demonstrates that this statement

has no special relevance independent of its tendency to show

criminal propensity." We do not agree.

The defendant's statements regarding his prior handling

of the revolver were introduced as circumstantial evidence of at

least one of the charged crimes (knowing possession of the

revolver). As we already have explained, this evidence was

relevant to establish the defendant's knowledge of the revolver and

his motive and opportunity to possess it. Under the circumstances,

the district court's use of the Rule 404(b) framework in its

limiting instruction was an appropriate way to focus the jurors on

-14-
the purposes for which the evidence could legitimately be

considered and to guard against any improper use of it. Cf. United

States v. Powell, 50 F.3d 94, 100 (1st Cir. 1995) (upholding

admissibility of evidence under Rule 404(b) where trial court

determined that the evidence had special relevance to whether

defendant had opportunity to obtain firearms and knowledge of the

availability of firearms).

We need go no further. The short of it is that the

district court did not abuse its discretion in admitting the

challenged evidence. Nor did it commit plain error in framing its

limiting instruction.

Affirmed.

-15-