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United States v. Phillips

United States District Court, S.D. West Virginia, Charleston

February 28, 2019

UNITED STATES OF AMERICA
v.
MICHAEL MATTHEW PHILLIPS

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge

         Pending 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.

         I. Background

         After a 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.

         II. Standard of Review

         In 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. 1993).

         “‘[S]ubstantial 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).

Id.

         III. Analysis

         Where, 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.

         Of the 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)).

         The 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.

         To that 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.

         Hyer 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 “K”:

Hyer: She had to go to bank I'm tryin to hurry her ass up lol
K: Ok I'm back here
Hyer: Fast as I can bro I'm comin tho for sure
K: K
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

         Defendant's Exhibits 1 and 2.

         After 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.

         After 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.

         Of his 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 ...

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