United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
before the court is the defendant's motion for judgment
of acquittal. (ECF No. 67). The government has responded to
the motion. (ECF No. 70). For the reasons expressed below,
that motion is DENIED.
jury trial, Michael Matthew Phillips (“Phillips”
or “defendant”) was convicted of being a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Phillips moved for a
judgment of acquittal at the close of all the evidence and,
after the verdict, filed the instant written motion. In his
motion, Phillips argues that the evidence presented at trial
was insufficient to sustain his conviction. Specifically,
Phillips contends that the government's evidence fell
short of establishing his constructive possession of the
firearm at issue in this case.
Standard of Review
evaluating a defendant's motion for judgment of acquittal
under Federal Rule of Criminal Procedure 29(c), the court
must view the evidence in the light most favorable to the
government to determine if any rational trier of fact could
have found the defendant guilty of the essential elements of
the crime beyond a reasonable doubt. See United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Accordingly,
defendant's conviction must be sustained if, viewed in
the light most favorable to the United States, there is
substantial evidence to support it. See Glasser v. United
States, 315 U.S. 60, 80 (1942). In reviewing the
sufficiency of the evidence, a court does not weigh the
evidence or assess the credibility of witnesses. United
States v. Arrington, 719 F.2d 701, 704 (4th Cir. 1983).
The court “must assume that the jury resolved all
contradictions in testimony in favor of the
Government.” United States v. United Med. &
Surgical Supply Corp., 989 F.2d 1390, 1402 (4th Cir.
evidence,' in the context of a criminal action, [is] that
evidence which ‘a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of
a defendant's guilt beyond a reasonable
doubt.'” United States v. Newsome, 322
F.3d 328, 333 (4th Cir. 2003) (quoting United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996)). “The
jury, not the reviewing court, weighs the credibility of the
evidence and resolves any conflicts in the evidence
presented.” United States v. Murphy, 35 F.3d
143, 148 (4th Cir. 1994); see also United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (“[T]his
court is bound by the credibility choices of the
jury.”) (internal citations and quotations omitted).
Furthermore, “if the evidence supports different,
reasonable interpretations, the jury decides which
interpretation to believe.” Murphy, 35 F.3d at
148. Therefore, a defendant challenging the sufficiency of
the evidence “`must overcome a heavy
burden.'” United States v.
Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015)
(quoting United States v. Hoyte, 51 F.3d 1239, 1245
(4th Cir. 1995)).
The Court “may not overturn a substantially supported
verdict merely because it finds the verdict unpalatable or
determines that another, reasonable verdict would be
preferable, ” United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996); instead reversal for insufficiency
must “be confined to cases where the prosecution's
failure is clear, ” Burks v. United States,
437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).
as here, a defendant argues that a jury's verdict was
based on insufficient evidence, “[t]he verdict of a
jury must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support
it.” Glasser v. United States, 315
U.S. 60, 80 (1942). The indictment in this case charges that,
on or about January 24, 2017, defendant did knowingly possess
a firearm, a HI-Point, Model C9, 9mm pistol, after having
been convicted of a crime punishable by a term of
imprisonment exceeding one year. “To show a §
922(g)(1) violation, the government must prove three
elements: (i) that the defendant was a convicted felon at the
time of the offense; (ii) that he voluntarily and
intentionally possessed a firearm; and (iii) that the firearm
traveled in interstate commerce at some point.”
United States v. Adams, 814 F.3d 178, 183 (4th Cir.
2016) (quoting United States v. Gallimore, 247 F.3d
134, 136 (4th Cir. 2001)). Phillips stipulated that he was a
convicted felon and that the firearm at issue was
manufactured in Ohio. See Government's Exhibit 1
(ECF No. 60-1). Therefore, the only disputed element was
whether Phillips possessed the firearm at issue in this case.
government's burden in proving possession, the United
States Court of Appeals for the Fourth Circuit has explained:
Under our possession jurisprudence, possession can be actual
or constructive. United States v. Rusher, 966 F.2d
868, 878 (4th Cir. 1992). “Actual possession” is
defined as “[p]hysical . . . control over
property.” Black's Law Dictionary 1201 (8th ed.
2004). Constructive possession is established if it is shown
“that the defendant exercised, or had the power to
exercise, dominion and control over the item.”
Rusher, 966 F.2d at 878.
United States v. Moye, 454 F.3d 390, 395 (4th Cir.
2006) (en banc). “Notably, dominion and control cannot
be established by mere proximity to [ ] contraband, by mere
presence on the property where the contraband is found, or by
mere association with the person who does control the
contraband.” United States v. Blue,
808 F.3d 226, 232 (4th Cir. 2015); see also United
States v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980)
(“There must be some action, some word, or some conduct
that links the individual to the [contraband] and indicates
that he had some stake in them, some power over them. There
must be something to prove that the individual was not merely
an innocent bystander.”). Furthermore, possession can
be shared with others. United States v. Burgos, 94
F.3d 849, 873 (4th Cir. 1996); see also United States v.
Jones, No. 17-4480, 742 Fed.Appx. 710, 713 (4th Cir.
July 18, 2018) (“Possession can be actual, exclusive,
constructive, or joint.”). “`Possession, whether
actual or constructive, can be extremely brief: a minute of
possession is as much an offense as a year of
possession.'” Jones, 742 Fed.Appx. at 713
(quoting United States v. Torres-Colon, 790 F.3d 26,
32 (1st Cir. 2015)).
relevant facts adduced at trial are as follows. On January
18, 2017, Jeremy Hyer[*] stole the firearm named in the
indictment from his uncle, James Monk. Trial Testimony of
Jeremy Hyer, September 12, 2018, at 4-6 (hereinafter
“Hyer Test. at__ ”) (ECF No. 67-1). Hyer, a
self-described drug addict, testified that he stole the
firearm in order to trade it for heroin. See id. at
5. According to Hyer, he traded the gun and some stolen coins
with “K” for one gram of heroin. See id.
at 35. After being “caught” by the Kanawha County
Sheriff's Department, Hyer admitted to having stolen the
gun and agreed to “[g]et the gun back.” See
id. at 5. On cross-examination, Hyer also conceded that
he thought getting the gun back would help him avoid being
charged with the theft of the gun. See id. at 36.
end, on January 24, 2017, the Kanawha County Sheriff's
Department provided Hyer with money to purchase the gun back
in a controlled buy. See id. at 6. Hyer was also
given money to purchase heroin. See id. According to
Hyer, law enforcement equipped him with a camera in order to
videotape the transaction. See id. at 8-10. Hyer
testified that he contacted “K” to get the gun
back. See id. at 7.
and “K” exchanged text messages and Hyer got a
message from “K” to go to Go Mart. See
id. at 38-40; see also Defendant's Exhibits
1 and 2 (ECF Nos. 60-5 and 60-6). Hyer testified that he
believed that he had talked to “K” prior to
exchange of the text messages. See id. at 39. The
following text messages were exchanged between Hyer and
Hyer: She had to go to bank I'm tryin to hurry her ass up
K: Ok I'm back here
Hyer: Fast as I can bro I'm comin tho for sure
Hyer: Pulling out the bank nigga
K: There's cops every were [sic] go to go-mart
Hyer: I b there in 5ish I got 175 bra
Exhibits 1 and 2.
meeting with law enforcement, Hyer went to the Go Mart in
North Charleston “[t]o try to get - - retrieve the
gun.” Hyer Test. at 9. In doing so, Hyer testified that
“I thought I was meeting one of K's friends.”
Id. Eventually, Hyer encountered defendant at the Go
Mart. See id. at 9, 12.
meeting up at the Go Mart, Hyer and Phillips left the Go Mart
together and went to a house “across the street.”
Id. at 10. Hyer testified that he did not know
“whose house” it was and that he left the money
in the house “to get the weapon back.”
Id. at 10, 20. There was some discussion regarding
money on the recording. A short time later, both Hyer and
Phillips left the house and went to the “end of the
street.” Id. at 18. The videorecording of the
incident shows Phillips pointing in the video. See
id. at 17. Shortly thereafter, Hyer retrieved the gun
from some weeds. See id. at 18, 20.
retrieval of the gun, Hyer testified:
Q: Now, at that point, did you retrieve the gun?
A: I believe so.
Q: Well, you retrieved a gun that afternoon, did ...