Appeal from a judgment of the United States District Court for the Eastern District of New York (Raggi, J. and Amon, J.).
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 4th day of May, two thousand eleven.
PRESENT: ROBERT D. SACK, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that the judgment of the district court is AFFIRMED.
Defendant-Appellant Eugene Holmes appeals from a judgment of conviction entered on April 23, 2010 following a jury trial in the Eastern District of New York convicting him of one count of unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). On appeal, Holmes contends that (1) the evidence was insufficient to prove that he had possession of the firearm, (2) the district court erred in admitting tape recordings purporting to show Holmes was involved in drug trafficking, (3) the government's characterization of defense counsel as a pickpocket's accomplice during its rebuttal summation rendered the trial fundamentally unfair, (4) the district court improperly relied on acquitted conduct to enhance his sentence, and (5) his sentence of 96 months' imprisonment was substantively unreasonable. We assume the parties' familiarity with the underlying facts and procedural history of the case.
A. Sufficiency of the Evidence
"A defendant challenging the sufficiency of the evidence underlying a criminal conviction bears a heavy burden, because this Court must review the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor." United States v. Mercado, 573 F.3d 138, 140 (2d Cir. 2009) (internal quotation marks omitted). We must uphold the conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). The jury's verdict may be based on circumstantial evidence and the government "is not required to preclude every reasonable hypothesis which is consistent with innocence." United States v. Ogando, 547 F.3d 102, 107 (2d Cir. 2008) (internal quotation marks omitted).
To establish a violation of 18 U.S.C. § 922(g)(1), the government must prove the following elements beyond a reasonable doubt: (1) that the defendant was previously convicted of a felony, (2) that the defendant knowingly possessed the firearm, and (3) the defendant possessed the firearm in or affecting interstate commerce. See, e.g., United States v. White, 552 F.3d 240, 245 n.2 (2d Cir. 2009). Holmes does not contest elements one and three and there is no dispute that Holmes was not in actual possession of the gun at the time of his arrest. Rather, the government sought to prove at trial that he had constructive possession of the gun.
"Constructive possession exists when a person 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. Paulino, 445 F.3d 211, 222 (2d Cir. 2006) (internal quotation marks and alterations omitted). In determining whether the defendant had constructive possession of a firearm, courts consider "whether the defendant exercised dominion and control over the premises in which the firearms are located." United States v. Dhinsa, 243 F.3d 635, 676 (2d Cir. 2001) (internal quotation marks omitted). "It is of no moment that other individuals also may have exercised control over the weapons" and the government may prove constructive possession through either direct or circumstantial evidence. Id. at 677. "Mere proximity or presence" standing alone, however, is "insufficient to support a finding of constructive possession." United States v. Rodriguez, 392 F.3d 539, 548 (2d Cir. 2004). Holmes contends that the government failed to prove beyond a reasonable doubt that he knowingly possessed the handgun found in the van at the time of his arrest. Holmes points to the lack of affirmative evidence that the gun belonged to him, noting the lack of witness testimony or fingerprints directly connecting him to the gun. Holmes further argues that, where there was evidence showing that the DEA agents lost sight of cooperating witness Pedro Pena for several minutes before he entered the van and that, as a cooperator wearing a wire, Pena would have had a powerful motive to carry a gun for protection, the government failed to eliminate reasonable doubt that it was Pena's gun, not Holmes'.
Holmes' argument is not persuasive. The government set forth sufficient evidence from which a jury could find beyond a reasonable doubt that Holmes constructively possessed the firearm located in the van. Although it is true that the firearm was found between Holmes and Pena, the government presented evidence showing that Holmes owned the van where the firearm was located, that Pena had been thoroughly searched prior to his meeting with Holmes and no weapon was found, and that the van's other passenger denied knowledge or ownership of the gun, all of which pointed to Holmes as the most plausible source of the gun's presence in the van. Furthermore, the jury was entitled to accept the government's theory that Holmes had the weapon with him the entire time and to disregard the defense's speculative theory that Pena had acquired the gun somewhere in the parking lot in the matter of minutes he was out of view of the DEA agents. Although Pena, as a cooperating witness, may have had a motive to carry a weapon, so did Holmes who was traveling with over $95,000 in cash. The ...