The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Following a jury trial, Defendant JASON GLADDEN was convicted of the sole count of the Indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant now moves for a judgment of acquittal or a new trial pursuant to Rules 29(c) and 33 of the Federal Rules of Criminal Procedure. The Government opposes the motion.
The Indictment charged that, on or about October 6, 2010, in the City of Buffalo, New York, Defendant, having been previously convicted of a felony, "unlawfully did knowingly possess, in and affecting interstate or foreign commerce, a firearm, namely, a Winchester, Model 1300, 12 gauge shotgun, bearing serial number L2779361." At trial, the Government offered testimony from Shirell Hughes, Buffalo Police Department Detective Brendan Kiefer, and forensic chemist Jodi Leudemann. Detective Kiefer testified that on October 6, 2010, he, along with several Deputy United States Marshals and New York State Parole Officers, went to 102 Freund Street, Buffalo, New York to locate and arrest Defendant on a parole violation.*fn1 Detective Kiefer located Defendant at this location, arrested him, and placed him in the backseat of Detective Kiefer's police cruiser. See 3/20/13 Tr. p. 37. The police cruiser was located outside of 102 Freund Street. Ms. Hughes, the owner of 102 Freund Street, consented to a search of the residence. In furtherance of that search, an officer led a police canine into 102 Freund Street. According to Detective Kiefer, when the officer and canine were in view, Defendant stated, in substance, that there were no drugs in the residence. Id. Detective Kiefer replied that the canine was present to search the residence for firearms, not narcotics. Id. pp. 37-38. Defendant then purportedly stated that there was a shotgun in the house, that it was for protection, and that it was "legal." Id. p. 38.
A Winchester, Model 1300, 12 gauge shotgun, bearing serial number L2779361, was recovered from a second floor bedroom closet at 102 Freund Street. The parties stipulated that this firearm was submitted to the Erie County Central Police Services Forensic Laboratory for analysis where it was swabbed for deoxyribonucleic acid ("DNA"). Ms. Leudemann, a forensic chemist from the Forensic Laboratory, testified that she developed DNA profiles from the firearm swab and a known buccal swab submitted by Defendant.*fn2 Ms. Leudemann then compared the DNA profiles and concluded that Defendant's DNA was on the firearm and that the chance of randomly selecting an unrelated individual with the same DNA was 1 out of 9.5 billion. See 3/20/13 Tr. p. 82-83. Ms. Leudemann also testified that, based upon the DNA data, there were at least three individuals who touched the shotgun, and possibly up to eighteen. Id. pp. 84-89.
Ms. Hughes testified that she owned and resided at 102 Freund Street.
When asked if anyone else was living at 102 Freund Street, she
testified that her estranged husband's "stuff was still there," see
3/20/13 Tr. pp. 15-16;*fn3 id. p, 23;*fn4
that her brother "occasionally stayed there," id. p. 15; and
that her 14-15 year old daughter lived there. Id. Ms. Hughes also
testified that Defendant, who was friends with her brother,*fn5
stayed at 102 Freund Street on occasion, including being
there and "hanging out" with Ms. Hughes on October 6, 2010 when the
police arrived. See id. p. 17. According to Ms. Hughes, her estranged
husband, her daughter, and her brother had keys to the residence but
Defendant did not. Ms. Hughes acknowledged, however, that Defendant
had access to the residence and, at times, was inside the residence
while she was at work. Id. p. 18.
Ms. Hughes denied ever seeing the firearm that was found in an upstairs closet located in her bedroom. Ms. Hughes further testified that the closet where the gun was found was used by her estranged husband, and that, although she did not go into the closet, she knew that her estranged husband's belongings were stored in the closet at the time the police found the firearm. On cross-examination, Ms. Hughes acknowledged that, at times, her daughter brought friends to the house while Ms. Hughes was not home. Ms. Hughes also stated that her estranged husband was a hunter, and although she never saw him with the shotgun, she found a box of shotgun shells in the garage when she was cleaning it out with Defendant after Defendant was released from a term of incarceration.
The Government also offered the parties' stipulations that (a) the shotgun recovered in this matter was operable and considered a firearm under federal law; (b) the shotgun was manufactured outside the State of New York and therefore traveled in and affected interstate commerce prior to its recovery in this case; (c) Defendant had, prior to October 6, 2010, been convicted of a felony; and (d) no federal or state authority had granted Defendant a relief from civil disabilities such to make possession of the firearm by him lawful. After the Government rested, the Court denied Defendant's Fed. R. Crim. P. 29 motion.
On the defense case, Defendant took the stand to testify on his own behalf. He testified that, approximately two (2) weeks before October 6, 2010, he went into Ms. Hughes' estranged husband's bedroom closet looking for hair cutting clippers. While in the closet he observed a shotgun which he presumed belonged to Ms. Hughes' estranged husband. Upon discovering the firearm, and out of concern for the safety of the children who were frequently in the residence, Defendant picked up the shotgun to make sure it was not loaded. He then stood the shotgun in the back of the closet in a manner so it would not be easily knocked over. Defendant stated that he never told anyone about the firearm in spite of his safety concerns because he did not have permission to be in the closet and did not want Ms. Hughes to think poorly of him for going in the closet. Defendant conceded that, on occasion, he stayed at 102 Freund, and that he had access to the bedroom where the firearm was located.
The jury was given instructions on the law applicable to this case, including the elements of the offense that the Government were required to prove beyond a reasonable doubt. As to the issue of possession, the Court instructed the jury:
Possession includes both actual and constructive possession. A person who has direct physical control of something on or around his person is then in actual possession of it. A person who is not in actual possession, but who has both the power and the intention to exercise control over something is in constructive possession of it. Whenever I use the term "possession" in these instructions, I mean actual as well as constructive.
If you find that the defendant either had actual possession of a firearm or that he had the power and intention to exercise control over a firearm, even though it was not in his physical possession, you may find that the government has proven possession.
The law also recognizes that possession may be sole or joint. If one person alone possesses a firearm, that is sole possession. However, it is possible that more than one person may have the power and intention to exercise control over a firearm. This is called joint possession. If you find that the defendant had such power and intention, then he possessed a firearm under this element even if he possessed it jointly with another. Proof of ownership of a firearm is not required.
To satisfy this element, you must also find that the defendant knowingly possessed a firearm. This means that he possessed a firearm purposely and voluntarily, and not by accident or mistake. It also means that he knew that the weapon was a firearm, as we commonly use the word. However, the government is not required to prove that the defendant knew that he was breaking the law.
After deliberating, the jury found Defendant guilty of the lone count in the Indictment.