UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4651
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JASON MARVIN SAUNDERS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:15-cr-00002-RAJ-DEM-1)
Submitted: July 22, 2016 Decided: August 24, 2016
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Rodolfo Cejas, II,
Assistant Federal Public Defender, Patrick L. Bryant, Appellate
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Alexandria, Virginia, Andrew Bosse, Joseph E.
DePadilla, Assistant United States Attorneys, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Saunders was indicted on eleven counts of various
drug and firearm offenses. A jury convicted Saunders on ten of
the eleven counts and the district court sentenced him to
480 months’ imprisonment. Saunders raises two issues on appeal.
First, Saunders challenges two of his convictions: (1) one count
of possession of a firearm in furtherance of a drug-trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A), and (2) one
count of being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). He argues that the government
presented insufficient evidence to prove the possession element
of those offenses. Second, he contends that the district court
erred by providing an incomplete jury instruction regarding co-
conspirator liability, otherwise known as Pinkerton liability.
For the reasons that follow, we conclude that the jury had
sufficient evidence to convict Saunders on the relevant charges,
and that the district court did not err by giving an incomplete
jury instruction. We therefore affirm.
I.
A.
On February 6, 2014, police executed a search warrant at an
apartment Saunders and his brother used as a base for drug
manufacturing and distribution. Saunders, his brother, his
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associates, several drug customers, and the man who owned the
apartment were present before and during the raid. Detective
Ken Adams led a group of officers through the back entrance of
the house. Before Adams and his team could secure the back
door, Saunders’s brother and two other occupants had run out of
it. Adams and his team of officers apprehended Saunders’s
brother, but were unable to catch the other escapees. Adams
then entered the house through the back door, which opened into
the kitchen.
Police had already secured the house when Adams entered the
kitchen, where he found Saunders and another man lying face-down
in handcuffs on the floor. The kitchen was small, approximately
seven by twelve feet. Adams saw a black handgun next to
Saunders’s left foot, and a plastic bag containing individual
capsules of heroin to the right of his feet. In addition to the
handgun, police found multiple bags of cocaine and an assortment
of other drugs, along with tools used to manufacture and
distribute drugs, including a cutting agent, Pyrex-type
glassware, strainers, a digital scale topped with rocks of crack
cocaine, and sandwich bags.
Police discovered another handgun under a couch cushion in
the living room, along with various drugs and a digital scale.
Saunders was arrested after the raid, but was later released on
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bond. He resumed selling drugs shortly thereafter and was
arrested again on August 23, 2014.
B.
On January 7, 2015, a federal grand jury indicted Saunders
on eleven counts of various drug and firearm offenses. Saunders
moved for a judgment of acquittal on two counts under 18 U.S.C.
§§ 924(c)(1)(A) and 922(g)(1), contending that the government
failed to prove that he possessed a firearm during the police
raid conducted on February 6, 2014.
The district court denied the motion, finding that the jury
could determine the question of possession based upon evidence
presented by the government at trial. That evidence included
testimony that: (1) Saunders, his brother, and his associates
participated in multiple drug transactions where they possessed
and revealed firearms to their buyers, J.A. 113-18; (2) Saunders
typically manufactured and sold drugs while in possession of a
firearm, J.A. 269, 274-75; (3) Saunders sold drugs to
approximately four people in the hour preceding the police raid,
and that he conducted his business from the kitchen, where he
and the firearm were discovered. J.A. 271; and (4) the firearm
Saunders carried resembled the one found at the scene, J.A. 157.
The jury convicted Saunders on the charges in question and
the district court sentenced him to 480 months’ imprisonment.
This appeal timely followed.
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II.
This court reviews de novo a district court’s denial of a
Rule 29 motion for judgment of acquittal. United States v.
Smith, 451 F.3d 209, 216 (4th Cir. 2006). When reviewing
challenges to the sufficiency of the evidence, we determine
whether “any rational trier of fact could have found the
essential elements of the charged offenses beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). A
jury’s verdict must be upheld if there is substantial evidence,
viewed in the light most favorable to the government, to support
it. Burks v. United States, 437 U.S. 1, 17 (1979). We must
consider circumstantial and direct evidence, and “allow the
government the benefit of all reasonable inferences.” United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982)
(citations omitted). We have held that uncorroborated testimony
of a single witness may be sufficient evidence, even if that
witness is an accomplice or an informant. See United States v.
Wilson, 115 F.3d 1185, 1189-90 (4th Cir. 1997). In light of
these considerations, “[a] defendant challenging the sufficiency
of the evidence to support his conviction bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).
This court reviews de novo the claim that a jury
instruction failed to correctly state the applicable law.
United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012).
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Saunders did not raise his objection to the district court’s
instruction before the jury began its deliberation; therefore,
this court’s review is for plain error. See United States v.
Olano, 507 U.S. 725, 732 (1993); see also Fed. R. Crim. P.
30(d), 52(b). This court has discretion to correct a forfeited
error if it is “plain” and “affects substantial rights.” Id.
We first address Saunders’s sufficiency of the evidence
challenge to his convictions under §§ 924(c)(1)(A) and
922(g)(1). We then address Saunders’s challenge to the
completeness of the district court’s jury instruction.
A.
Saunders appeals his convictions under 18 U.S.C.
§§ 924(c)(1)(A) and 922(g)(1). For the reasons stated below, we
find that the evidence presented to the jury was sufficient to
find constructive possession of the firearm.
Both offenses have an element of possession that must be
proved beyond a reasonable doubt before a defendant can be
convicted. Actual possession is not necessary to sustain a
conviction for possession; constructive possession is
sufficient. See United States v. Branch, 537 F.3d 328, 342-43
(4th Cir. 2008). The government set forth no evidence for
actual possession; therefore, the issue is whether the
government presented sufficient evidence such that any rational
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trier of fact could find beyond a reasonable doubt that Saunders
constructively possessed the firearm.
Constructive possession exists when the defendant
exercises, or has the power to exercise, dominion and control
over the item. See United States v. Gallimore, 247 F.3d 134,
137 (4th Cir. 2001). Constructive possession may be proved by
either circumstantial or direct evidence. United States v.
Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980). Furthermore, a
jury “[may] consider proximity as part of [its] analysis of a
defendant’s constructive possession.” United States v.
Schrader, 675 F.3d 300, 308-09 (4th Cir. 2012). However,
proximity alone is not enough to determine a defendant’s
dominion or control over an item. Laughman, 618 F.2d at 1077.
Rather, “where other circumstantial evidence . . . is
sufficiently probative, proximity to contraband coupled with
inferred knowledge of its presence will support a finding of
guilt.” Id. (quoting United States v. Whitmire, 595 F.2d 1303,
1316 (5th Cir. 1979)).
Here, the government points to Saunders’s close proximity
to the firearm, as well as other direct and circumstantial
evidence to prove possession. At trial, the government
introduced four cooperating witnesses who described the way that
Saunders conducted drug-related activities. Testimony by a
regular buyer placed Saunders and his associates at multiple
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drug transactions where they possessed firearms. One of
Saunders’s associates testified that Saunders would typically
manufacture and sell drugs while in possession of a firearm.
The associate also revealed that Saunders was in the kitchen
selling drugs on the night of February 6, and that he had sold
to approximately four individuals in the hour preceding the
raid. Finally, another regular buyer testified that the firearm
found at the scene resembled one Saunders typically carried.
Despite this evidence, Saunders takes issue with the
government’s heavy reliance on his proximity to the firearm. He
contends that, because the government presented a “lack of
evidence concerning just how [he] came to be on the ground . . .
the probative value of [his] proximity to the gun is minimal at
best.” Appellant’s Supp. Br. at 4. Saunders also takes issue
with the number of individuals found at the scene during the
raid, contending that “the gun could have been dropped by any
number of people present or fleeing the apartment.” Appellant’s
Supp. Br. at 6. Saunders argues that, under these
circumstances, the jury would have to rely on impermissible
speculation to conclude that he knew about the firearm in the
kitchen and had dominion and control over it.
Saunders’s arguments ignore the importance of the other
evidence presented at trial. Trial testimony established a
nexus between Saunders’s habit of gun possession and his
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involvement in drug-related activities. It follows, therefore,
that the jury could reasonably conclude that as Saunders was
selling drugs on February 6, while surrounded by tools used to
manufacture drugs and associates who helped him sell drugs, that
he was aware of the firearm’s presence in the apartment. It is
true that the government relied heavily on Saunders’s proximity
to the firearm to prove its case, despite limited evidence
describing how that proximity was created. However, as noted
above, proximity to a firearm coupled with inferred knowledge of
its presence can support a finding of guilt. Laughman, 618 F.2d
at 1077. The jury’s determination of guilt need not be reversed
because of the government’s heavy reliance on proximity, as the
jury could have reasonably concluded that Saunders
constructively possessed the firearm in light of testimony
brought by the government at trial.
In sum, the district court correctly denied Saunders’s
motion for judgment of acquittal on the two counts, because the
government presented sufficient evidence allowing the jury to
conclude beyond a reasonable doubt that Saunders constructively
possessed the firearm found at the apartment on February 6,
2014.
B.
Next, we address Saunders’s claim that the district court
erred in giving an incomplete instruction on Pinkerton
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liability. Here, we must determine if the jury instruction
contained a plain error, and if so, how to correct it. For the
reasons stated below, we find no error.
“[T]o reverse for plain error the reviewing court must
(1) identify an error, (2) which is plain, (3) which affects
substantial rights, and (4) which seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” United States v. Brewer, 1 F.3d 1430, 1434-35
(4th Cir. 1993). This court rarely finds plain error, reserving
such analysis for those circumstances “in which a miscarriage of
justice would otherwise result.” United States v. Young, 470
U.S. 1, 15 (1985); accord United States v. Jarvis, 7 F.3d 404,
410 (4th Cir. 1993). “[O]nly if in the context of the
proceedings, taken as a whole, the error . . . seriously
affected the fairness, integrity or public reputation of the
judicial proceedings should we exercise our discretion . . . to
notice it.” United States v. Cedelle, 89 F.3d 181, 184-85 (4th
Cir. 1996).
Here, we have already held that the government presented
sufficient evidence for the jury to consider Saunders’s
liability based on constructive possession. Saunders does not
challenge the district court’s administration of the jury
instruction regarding constructive possession. Therefore,
because the jury could reasonably conclude that Saunders
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constructively possessed the firearm, there is no need to
consider Pinkerton liability. Even if the jury instruction
demonstrates a plain error, we decline to notice it because it
did not affect “the fairness, integrity or public reputation of
the judicial proceedings” in the district court. Cedelle,
89 F.3d at 184-85.
III.
For the foregoing reasons, we affirm the district court’s
decision and find that it did not err by giving an incomplete
jury instruction. We dispense with oral argument because the
facts are adequately presented in the materials before the
court, and argument would not aid the decisional process.
AFFIRMED
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