United States v. Marquez ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS OCT 26 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 01-1111
v. (D.C. No. 00-CR-32-S)
(Colorado)
DANIEL JOSE MARQUEZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
Daniel Jose Marquez was charged with possessing a firearm after a felony
conviction in violation of 18 U.S.C. § 922(g)(1). He was convicted by a jury and
now appeals, contending that the evidence was insufficient to establish that he
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
possessed the firearm. We affirm.
On appeal of the sufficiency of the evidence to support a jury verdict, we
“review the record de novo and ask only whether, taking the evidence–both direct
and circumstantial, together with reasonable inferences to be drawn therefrom–in
the light most favorable to the government, a reasonable jury could find the
defendant guilty beyond a reasonable doubt.” United States v. Voss, 82 F.3d
1521, 1524-25 (10th Cir. 1996) (internal quotation marks omitted). “We do not
question the jury’s credibility determinations or its conclusions about the weight
of the evidence.” United States v. Springfield, 196 F.3d 1180, 1184 (10th Cir.
1999) (internal quotation marks omitted).
To establish a violation of section 922(g)(1), the government was required
to prove that Mr. Marquez previously was convicted of a crime punishable by
imprisonment exceeding one year, that he thereafter knowingly possessed a
firearm, and that the possession was in or affecting interstate or foreign
commerce. See United States v. Adkins, 196 F.3d 1112, 1117 (10th Cir. 1999). In
this case the parties stipulated that Mr. Marquez had the requisite prior conviction
and that the interstate commerce element was satisfied. Thus the only issue for
the jury to decide, and the only issue raised on appeal, is whether the
government’s evidence established that Mr. Marquez knowingly possessed the
firearm. The government may satisfy this element by showing either actual or
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constructive possession. See id. at 1118. Here the government contended Mr.
Marquez was in actual possession of the weapon, which required proof that he
knowingly had physical control over it. See United States v. Munoz, 150 F.3d
401, 416 (5th Cir. 1998), cert. denied, 525 U.S. 1112 (1999).
The government and the defense presented sharply conflicting versions of
the events underlying the charge against Mr. Marquez. The government’s
evidence showed that on the evening in question, Mr. Marquez’ brothers, Angel
and Pete Marquez, had been stopped by police for a traffic violation and had
again encountered the police during a fight at a bar, where they were told by an
officer to leave and not return. Although the officer was later called to the bar to
respond to another fight involving the brothers, they had left by the time the
officer arrived. Officer Mark Matthews was told by the responding officer to go
to the home of the brothers. He did so and parked his patrol car across the street
and down the block from the house. He testified that from his vantage point
behind a van parked on the street, he had an unobstructed view of the front of the
house, which was well-lighted by floodlights over the front door. He stated that
he saw three men come out of the front door and begin walking three abreast, and
that the man in the middle was carrying a shotgun. Officer Matthews shouted that
he was a police officer and ordered the men to get to the ground. The man in the
middle threw the gun to his side. Officer Matthews and another officer
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handcuffed the men. Officer Matthews testified that at the time of the arrests he
had identified the man carrying the gun as Daniel Marquez, and he identified
defendant in the courtroom as that man.
The government also presented testimony from Officer Brian Dahl of the
Yakima, Washington, police department about an incident approximately six
months later. Officer Dahl testified that after he stopped Mr. Marquez for a
traffic violation, he discovered Mr. Marquez was wanted on a federal firearms
violation and took him into custody. Officer Dahl testified that Mr. Marquez was
having trouble understanding why he was wanted for the violation and Officer
Dahl suggested that Mr. Marquez’ prints could have been found on a gun.
According to Officer Dahl, Mr. Marquez then said his prints could be on a gun,
relating an incident in which his brother had gotten him a gun for a present. The
gun was not working properly and the brothers were going to get parts for it, but
because there were children in the house they were going to take it outside and
put it in the trunk of a car. He told the officer that when they came out of the
house with the gun, Denver police officers happened by, arrested them, and took
the gun.
The defense presented a different scenario of the night in question, offering
evidence that Mr. Marquez’ brother Angel had picked up the gun in the house and
carried it outside, accompanied only by defendant. Angel testified that when he
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heard the police shout, he threw the gun under a tree and hit the ground. Pete
Marquez testified that he remained in the house until the police knocked on the
door and dragged him outside.
The jury’s verdict thus rested on its assessment of witness credibility, a
matter uniquely within its province. Our review on appeal is not an opportunity
“to second-guess the jury’s credibility determinations, . . . [or] reassess the jury’s
conclusions about the weight of the evidence presented.” United States v. Beers,
189 F.3d 1297, 1301 (10th Cir. 1999) (internal quotation marks omitted). The
evidence presented by the government, although contradicted by that of
defendant, was nonetheless sufficient to allow the jury to find Mr. Marquez guilty
beyond a reasonable doubt of possessing a firearm.
We AFFIRM the conviction.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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