United States v. Keenan Davis ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-2814
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEENAN DAVIS,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:16-cr-00055-TLS-SLC-1 — Theresa L. Springmann, Chief Judge.
ARGUED MAY 15, 2018 — DECIDED JULY 24, 2018
Before BAUER, KANNE, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Keenan Davis was charged with and
convicted of two counts of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1), arising from two
unrelated incidents. Davis appeals three evidentiary rulings as
to testimony from three witnesses, and argues that the govern-
ment failed to provide sufficient evidence to prove Count Two.
2 No. 17-2814
Count One arose from an incident that occurred on July 20,
2016. Davis drove with his girlfriend, Heather Gaff
(“Heather”), to the home of Anthony Wamue and Jacqueline
Gaff (“Jackie”), Davis’s ex-girlfriend and Heather’s sister. The
visit quickly resulted in a fight, starting inside the house and
then moving to the backyard; the fight involved Davis, Jackie,
and Wamue. Police were called and arrived shortly after and
found a firearm lying on the curb outside the house.
Davis’s theory at trial was that the gun was Jackie’s or
Wamue’s, both convicted felons, who set up Davis knowing
they would face the same charges if the gun was found to
be theirs. The government presented evidence to prove that
Davis brought the gun to the house. On appeal from the
conviction on Count One, Davis objects to testimony from
Officer Matthew Cline, one of the responding police officers,
as to prior consistent statements made by Jackie and Wamue
on the day of the incident, and testimony from Davis’s
six-year-old daughter.
After the police arrived, Jackie and Wamue recounted the
altercation to Officer Cline. At trial, the government called
Jackie to testify, but during cross-examination, she could not
recall many of the details of the incident. Later in the trial, the
government called Officer Cline to testify about incriminating
statements made by Jackie and Wamue against Davis on the
day of the incident. No objection was made to this testimony.
The government also called C.D., Davis’s six-year-old
daughter, to testify at trial. Prior to trial, Davis filed a motion
under 18 U.S.C. § 3509(c) requesting that the district court hold
a child competency hearing before allowing C.D. to testify. The
No. 17-2814 3
court agreed and questioned C.D. outside the presence of the
jury regarding her ability to distinguish truth and falsehood.
After this questioning, defense counsel agreed that C.D. was
competent and did not object to her testifying.
C.D. testified that she was in a bedroom towards the back
of the apartment when Davis arrived and came out when she
heard loud noises in the front of the apartment where Davis,
Jackie, and Wamue were fighting. She also testified that she
never saw the gun during the incident, but knew there was a
gun because Jackie, her mother, told her Davis had a gun.
Count Two arose from an incident that occurred on
August 30, 2016, when police executed a warrant for Davis’s
arrest. During a pat down of Davis, an officer found a Crown
Royal bag tied to his boxer shorts. While executing the arrest,
officers also saw a revolver barrel sticking out of a Crown
Royal bag in the mudroom of the house. The officers then
obtained and executed a search warrant for the home. During
this search, they discovered the firearm was a disassembled,
stolen revolver. Additionally, the officers found a third Crown
Royal bag in a basement crawl space inside a partially un-
screwed and open air duct, lying next to a gun lock.
At the time of his arrest, Davis lived with six other individ-
uals in his home: Heather; Heather’s mother, Michelle; Davis’s
23-year-old son Keenan Davis, Jr. (J.R.); Molly Cobb; James
“Jim Bob” Sullivan; and a man named Reggie.
Davis and Heather were running a transportation company
out of their home, providing safe rides home for intoxicated
people; Davis kept the home running and paid the bills to keep
the gas and electricity on in the home. After Davis’s arrest, the
4 No. 17-2814
six individuals had to move first to a motel, then a small
apartment.
At trial, the government’s theory was that the revolver
belonged to Davis. The government called several witnesses
and introduced into evidence calls Davis received from jail.
The testimony and evidence was conflicting as to the owner of
the revolver. On appeal, Davis contests the government calling
J.R. to testify, and argues that the government failed to provide
sufficient evidence to prove the gun belonged to him.
Before calling J.R. to the stand, the district court held a
bench conference with counsel where the government re-
quested permission to treat J.R. as a hostile witness. The
government told the court that they had attempted to contact
J.R. to meet with them before trial, but he failed to respond.
The district court then asked both counsel if either of them
would like a voir dire, but neither accepted. The district court
asked the government how long it anticipated the questioning
would take to determine whether the court should give the
jury a short break. The government responded, “I only have to
get one thing out of him. I anticipate he’s going to deny
making that statement, which will then trigger another
witness.” Defense counsel did not object, and the district court
allowed the government to proceed.
During the search of Davis’s home, Special Agent Wayne
Lessner had questioned J.R. about the guns the agents found.
At trial, J.R. denied telling Agent Lessner that the gun was
Davis’s; instead, he testified that he had told the agent the gun
belonged to him but later testified that he told the agent he
had never seen the gun before. The government then called
No. 17-2814 5
Agent Lessner to testify about his conversation with J.R. on the
day of the search. Agent Lessner testified that he asked J.R. if
any firearms were in the home, and that J.R. responded that his
father had a “smaller” black revolver. He then showed J.R. the
barrel of the revolver in the Crown Royal bag and asked if that
was the firearm he was referring to. After a few seconds of
hesitation, J.R. replied, “yes.”
At the conclusion of its case-in-chief, the government
played 18 recorded jail calls between Davis and either Heather
or J.R. Some of the recorded conversations tend to suggest that
Davis tried to influence J.R. in assisting his way out of the
charges.
At the close of the government’s case, defense counsel
moved for acquittal on both counts. The court took the motion
under advisement, defense counsel renewed the motion at the
close of all evidence, and the court ultimately denied it. The
jury found Davis guilty on both counts, and the district court
sentenced Davis to 100 months’ imprisonment and two years
of supervised release.
I. ANALYSIS
A. Evidentiary Issues
Davis argues the district court made three evidentiary
errors, each in regard to testimony from witnesses at trial.
Davis concedes he did not object at trial, thus we review for
plain error. United States v. Quiroz, 874 F.3d 562, 569 (7th Cir.
2017). We will exercise our discretion and reverse only if the
error “seriously affect[s] the fairness, integrity, or public
reputation of the judicial proceedings.” Id. (quoting United
6 No. 17-2814
States v. Kibler, 279 F.3d 511, 514 (7th Cir. 2002)). This standard
of review “is an exceedingly deferential standard, and one
under which we will reverse in only the most exceptional
circumstances.” Quiroz, 874 F.3d at 569.
i. Prior Consistent Statement
Davis first argues the district court erred by admitting prior
consistent statements from Jackie and Wamue through Officer
Cline to prove Count One. Federal Rule of Evidence
801(d)(1)(B) states:
(d) A statement that meets the following conditions
is not hearsay:
(1) The declarant testifies and is subject to
cross-examination about a prior statement, and
the statement:
…
(B) is consistent with the declarant’s testi-
mony and is offered:
(i) to rebut an express or implied
charge that the declarant recently
fabricated it or acted from a recent
improper influence or motive in so
testifying; or
(ii) to rehabilitate the declarant’s credi-
bility as a witness when attacked on
another ground.
Davis argues this rule requires that a prior statement must
have been made before the declarant had a motive to fabricate,
No. 17-2814 7
pointing us to the Advisory Committee’s note for the 2014
Amendments. This note upholds the finding in Tome v. United
States, 513 U.S. 150 (1995) and states, “under Rule 801(d)(1)(B),
a consistent statement offered to rebut a charge of recent
fabrication or improper influence or motive must have been
made before the alleged fabrication or improper influence or
motive arose.” Id. at cmt. 2014 Amendment. Davis argues
Jackie and Wamue, as prior felons, had reason to fabricate their
stories to Officer Cline at the scene of the incident on July 20,
2016, thus he says these statements should not have been
allowed. However, since Tome, the language found in Rule
801(d)(1)(B)(ii) has been added, and the language analyzed in
Tome is now found under Rule 801(d)(1)(B)(i). There has been
no interpretation of 801(d)(1)(B)(ii) since its addition, thus
making it unclear whether the rule from Tome applies to Rule
801(d)(1)(B)(ii) as it unequivocally does to Rule 801(d)(1)(B)(i).
Davis provides no reason why we should hold the district
court accountable for failing to sua sponte bar Officer Cline
from introducing statements under such a debatable require-
ment. The district court did not plainly err in admitting this
testimony.
ii. Testimony from Davis’s Daughter
Davis next argues the district court plainly erred in allow-
ing C.D. to testify due to the testimony’s lack of probative
value and unduly prejudicial nature. “A forfeited Rule 403
argument rarely results in reversal because the defendant must
show that the evidence was so obviously and egregiously
prejudicial that the trial court should have excluded it even
without any request from the defense.” United States v. Klemis,
8 No. 17-2814
859 F.3d 436, 445 (7th Cir. 2017) (quoting United States v.
Collins, 604 F.3d 481, 487 (7th Cir. 2010)) (internal quotations
omitted). This case is no exception to this rule.
In support of this contention, Davis argues that C.D.’s
testimony was contradictory and thus, unreliable. He also
argues her presence, as the six-year-old daughter of the
defendant, was unnecessarily inflammatory. We do not to find
C.D.’s testimony so obviously and egregiously prejudicial that
the district court should have excluded it sua sponte.
iii. Impeachment of Davis’s Son
Davis’s final evidentiary argument is that the district court
plainly erred in allowing J.R. to testify solely for the purpose
of allowing backdoor impeachment testimony through
Agent Lessner. Generally, “[a]ny party, including the party
that called the witness, may attack the witness’s credibility.”
Fed. R. Evid. 607. However, in a criminal case, the government
cannot call a witness, knowing the witness is not going to give
useful testimony, solely for the purpose of introducing hearsay
evidence against the defendant. United States v. Burt, 495 F.3d
733, 737 (7th Cir. 2007). This exception is a narrow one where
we must determine whether the government called the witness
in bad faith. United States v. Michael Davis, 845 F.3d 282, 290
(7th Cir. 2016).
“[A]n attorney is entitled to assume that a witness will
testify truthfully.” United States v. Patterson, 23 F.3d 1239, 1245
(7th Cir. 1994) (quoting United States v. Carter, 973, F.2d 1509,
1513 (10th Cir. 1992)). It is not an abuse of Rule 607 for the
government to call a witness whose anticipated testimony is
unclear when the government was not afforded the opportu-
No. 17-2814 9
nity to meet with the witness before the witness took the stand.
See Michael Davis, 845 F.3d at 290 (“Since the government did
not know in advance the particular aspects of the [report] that
[the witness] would disclaim, we find no evidence that the
government acted in bad faith by calling [the] witness.”).
Davis specifically takes issue with the government’s
statement, “I only have to get one thing out of him. I anticipate
he’s going to deny making that statement, which will then
trigger another witness.” He argues this statement implies the
government’s intention of solely using J.R. for impeachment
purposes. We disagree.
Before calling J.R. to the stand, the district court held a
bench conference where the government admitted that it
anticipated he would be a hostile witness. The government
made clear that it had tried to meet with J.R. before trial, but
J.R. failed to respond to this request. The court then offered to
hold a voir dire, but neither counsel accepted this offer.
With an expectation that J.R. would lie to the jury, yet no
opportunity to question the witness beforehand and a failure
of Davis’s counsel to accept the district court’s offer to hold a
voir dire, we find the government did not abuse Rule 607, and
the district court did not plainly err in allowing the govern-
ment to call J.R. as a witness.
B. Motion for Judgment of Acquittal
Finally, Davis argues the district court should have granted
his motion for acquittal as to Count Two because the govern-
ment failed to provide sufficient evidence for a rational jury to
find that he knowingly possessed the revolver found in the
10 No. 17-2814
Crown Royal bag. “We review de novo a district court’s denial
of a motion for acquittal.” United States v. Willbourn, 799 F.3d
900, 910 (7th Cir. 2015). “Defendants challenging the quantum
of evidence supporting a jury verdict face a daunting task.”
United States v. Luster, 480 F.3d 551, 555 (7th Cir. 2007). We
review a sufficiency of the evidence challenge “in a light most
favorable to the prosecution and will reverse only if no juror
could have found guilt beyond a reasonable doubt.” Id.To convict Davis under 18 U.S.C. § 922(g)(1), the govern-
ment must prove that (1) he has a previous felony conviction;
(2) he possessed the firearm or ammunition; and (3) the firearm
or ammunition had traveled in or affected interstate or foreign
commerce. United States v. Griffin, 684 F.3d 691, 695 (7th Cir.
2012). Davis only disputes the second element, whether there
was sufficient evidence to find that he knowingly possessed
the revolver. The government does not argue actual posses-
sion, thus we will focus on whether the government provided
sufficient evidence to prove constructive possession.
“Constructive possession is a legal fiction whereby an
individual is deemed to ‘possess’ contraband items even when
he does not actually have immediate, physical control of the
objects.” United States v. Morris, 576 F.3d 661, 666 (7th Cir.
2009). “Constructive possession may be established by demon-
strating that the defendant knowingly had both the power and
the intention to exercise dominion and control over the object,
either directly or through others.” Griffin, 684 F.3d at 695. “This
required ‘nexus’ must connect the defendant to the contra-
band,” and may be established in one of two ways. Id. The
government can show that Davis had either “exclusive control”
No. 17-2814 11
over the property where the revolver was found, or a “sub-
stantial connection” to the location where the revolver was
found. Id. at 695–96. In the case of a joint residence, the
evidence should show a substantial connection between the
defendant and both the property and the contraband. Id.
at 696–97.
“[M]ere proximity to contraband is not enough to establish
a sufficient nexus.” Id. at 696. “Rather, proximity coupled with
evidence of some other factor—including connection with [an
impermissible item], proof of motive, a gesture implying
control, evasive conduct, or a statement indicating involvement
in an enterprise is enough to sustain a guilty verdict.” Id.
(quoting Morris, 576 F.3d at 668) (internal quotation marks
omitted). “The government may prove constructive possession
through direct as well as circumstantial evidence.” Morris, 576
F.3d at 666.
The government argues three facts, taken together, provide
sufficient circumstantial evidence to connect Davis to the
revolver and support the jury’s conclusion: (1) the govern-
ment’s establishment of Davis as the head of the household;
(2) the discovery of three Crown Royal bags in the apartment,
one holding the revolver and a second tied to Davis’s pants;
and (3) a reasonable inference that J.R. lied in his testimony to
protect his father, as well as the jail calls that allowed a jury to
conclude Davis attempted to influence J.R.’s testimony. All of
this taken together, the government argues, provides sufficient
circumstantial evidence to conclude Davis constructively
possessed the revolver. We agree.
12 No. 17-2814
In Griffin, we found the evidence and reasonable inferences
that could be drawn insufficient to support a finding that the
defendant intended to exercise control over the guns found in
his home. See 684 F.3d at 698–99. There, the defendant, whose
father was an avid hunter, lived with his parents who owned
several guns. Id. at 693. We concluded that the evidence merely
showed access, not possession. Id. at 698. Here, we find
important distinctions in the government’s evidence not found
in Griffin.
First, there was no contradicting testimony as to the owner
of the firearms found in the home in Griffin, unlike the testi-
mony here. Sullivan, a resident of Davis’s home, testified he
had never seen the Crown Royal bag or any firearms in the
home. Heather testified that when she found the Crown Royal
bag, Reggie claimed ownership. However, on a jail call with
Davis, he and Heather discussed the possibility that a man
named Jamon owned the gun. Agent Lessner testified that on
the day of the incident, J.R. told him the revolver was his
father’s. However, on the stand, J.R. denied that he ever told
Agent Lessner the gun was his father’s. Instead, he first
testified that he told the agent it was his, but later testified that
he told the agent he had never seen the gun before.
Second, the defendant in Griffin was living with his parents
and indisputably not the head of the household, unlike the
reasonable conclusion the evidence showed here. Davis paid
the bills, and when he was incarcerated, the others living in the
apartment had to move to a motel and then a small apartment.
In Heather’s testimony, she agreed that Davis was “the one
that really fed and took care of everybody” in the house.
No. 17-2814 13
Finally, there was no circumstantial evidence connecting
the defendant to the firearm in Griffin, unlike here, where a
reasonable jury could conclude that the circumstantial evi-
dence of the Crown Royal bags connected Davis to the
revolver. Three Crown Royal bags were discovered in the
apartment. The first was found tied to the inside of the boxer
shorts Davis was wearing when he was arrested; the second
was found in the laundry room and contained the revolver;
and the third was found in the basement next to a gun lock.
Because one bag was found on Davis’s person and the only
other two found in the apartment were in common areas of the
home, a reasonable jury could conclude that all three belonged
to Davis. We find that all of this evidence, taken together, is
sufficient for a juror to find a nexus between Davis and the
revolver.
II. CONCLUSION
For the foregoing reasons, we AFFIRM.