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United States of America v. Michael Greer

February 4, 2011

UNITED STATES OF AMERICA, APPELLEE,
v.
MICHAEL GREER, DEFENDANT-APPELLANT.



Appeal from a judgment of conviction for possessing a firearm and ammunition as a convicted felon, following a jury trial in the Western District of New York (David G. Larimer, Judge).

The opinion of the court was delivered by: John M. Walker, Jr., Circuit Judge:

09-4362-cr

USA v. Greer

Argued: November 2, 2010

Before : WALKER and CABRANES, Circuit Judges, and KOELTL,*fn1 District Judge.

Defendant-Appellant Michael Greer argues that the 27 government violated his right against self-incrimination by using 28 the name tattooed on his arm to link him to the car in which ammunition was found. We hold that the nature of the 2 government's reliance on the content of Greer's tattoo made it 3 testimonial, but we conclude that no constitutional violation 4 occurred because the tattoo was not the product of government 5 compulsion. We reject Greer's remaining arguments as without 6 merit.

AFFIRMED.

20 Defendant-Appellant Michael Greer appeals from a judgment of 21 conviction for possessing a firearm and ammunition as a convicted 22 felon, following a jury trial in the Western District of New York 23 (David G. Larimer, Judge). Greer argues that the government 24 violated his right against self-incrimination by using the name 25 tattooed on his arm to link him to the car in which ammunition 26 was found. We hold that, although the nature of the government's 27 reliance on the content of Greer's tattoo made it testimonial, 28 the Fifth Amendment was not offended because his tattoo was not 29 the product of government compulsion. We also reject Greer's 30 arguments that the evidence was insufficient to support the 1 conviction and that the district court improperly permitted the 2 jury to hear evidence of an uncharged crime.

4 BACKGROUND

5 Greer's arrest was precipitated by a tip from a confidential 6 informant, Aaron Stubbs, who had agreed in an unrelated plea 7 bargain to assist in police investigations. Greer had previously 8 been convicted of a felony, and federal law prohibits convicted 9 felons from possessing a firearm or ammunition. 18 U.S.C. 10 § 922(g)(1). Stubbs had once seen Greer with a gun, and on 11 August 17, 2007, as a ruse to turn him into police for gun 12 possession, Stubbs proposed that they rob a house. Stubbs told 13 Greer that they would need a gun, and Greer replied that he could 14 get one.

15 The pair drove to Greer's house. As Greer went inside, 16 Stubbs remained in the car and called Rochester, New York 17 Detective Tom Janus, who drove to the location in an unmarked 18 car. Detective Janus saw Stubbs sitting in the passenger seat of 19 a light blue Hyundai Sonata, and then watched Greer leave his 20 house and get into the driver's seat of the same car. When the 21 vehicle drove past him, Detective Janus contacted other officers 22 to continue surveillance as he remained in place.

23 Two other officers observed the car at different times later 24 that day. Officer Kevin Koehn watched the Sonata approach, made 1 eye contact with Greer as he drove past, and communicated Greer's 2 position over the radio. Sergeant Beth Laird later pulled the 3 Sonata over, but it sped away before she could see the driver.

4 Police next found the Sonata, now unoccupied, in a parking lot on 5 a residential street in Rochester, where it had struck an 6 adjacent car. Around the same time, nearby resident Ebony Gibson 7 saw a man come through the front door of her apartment, run 8 through the apartment, and, as she testified, leave by the back 9 door. She and her sister immediately fled through the front 10 door.

11 Witnesses in the parking lot directed police officers to 12 Gibson's apartment. Sergeant Laird spoke to Gibson and, with her 13 consent, a team of ...


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