United States v. Brannon, Sean , 218 F. App'x 533 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 27, 2007
Decided March 7, 2007
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-3117
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v.
No. 2:04-CR-220-LA-ALL
SEAN BRANNON,
Defendant-Appellant. Lynn Adelman,
Judge.
ORDER
Based on stipulated facts, Sean Brannon was convicted at a court trial of
being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). The
district court sentenced him to three months imprisonment followed by two years of
supervised release. On appeal, Brannon argues that his conviction should be
reversed because the “evidence” as found in the stipulation was insufficient.
All the material facts are set forth in a five-page stipulation of the parties
that was adopted by the court prior to a bench trial. In June 2001, law enforcement
officers searched Brannon’s residence pursuant to a warrant obtained as part of a
forgery investigation. At the time, Brannon lived in the home with his wife, their
two children, and Brannon’s uncle.
No. 05-3117 Page 2
During the search, the officers found and seized ammunition and other
firearm-related equipment from three locations in Brannon’s home: (1) a dresser
drawer in Brannon’s master bedroom; (2) the top shelf of a closet on the main floor;
and (3) above a ceiling tile in the basement where Brannon’s uncle slept. The
contents of the dresser drawer also included a utility contract bearing Brannon’s
name and two expired driver’s licenses and a credit card bearing his wife’s name.
Brannon told the officers that “the holster, the loaded magazine, and the
ammunition found in the residence had belonged to him but he had forgotten that
he had those items.” Brannon’s wife stated that the ammunition did not belong to
her. No fingerprints belonging to Brannon or anyone else were recovered from the
ammunition, magazine, or other firearm-related items seized from the home.
Based solely on the stipulation, the district court found that (1) Brannon
had knowingly possessed ammunition, (2) the ammunition had traveled in
interstate commerce prior to his possessing it, and (3) he had previously been
convicted of a crime punishable by imprisonment of more than one year. (The
latter two conclusions are not challenged on appeal.) Based on those findings,
the court found Brannon guilty of being a felon in possession of ammunition.
On appeal, the sole issue is whether the government proved beyond a
reasonable doubt that Brannon had constructive possession of the ammunition
found in his home. Brannon argues that the stipulation of facts is insufficient
to establish that he knowingly possessed the ammunition. We disagree.
Possession of ammunition in violation of 18 U.S.C. § 922(g)(1) may be actual
or constructive. Constructive possession “exists when a person does not have actual
possession but instead knowingly has the power and the intention at a given time to
exercise dominion and control over an object.” United States v. Gilbert, 391 F.3d
882, 886 (7th Cir. 2004) (quoting United States v. Garrett, 903 F.2d 1105, 1110 (7th
Cir. 1990)). Constructive possession may, of course, be proved by either direct or
circumstantial evidence. Gilbert, 391 F.3d at 886.
The traditional standard of review of the district court’s finding of possession
is extremely deferential. Brannon must show that “after viewing the evidence in
the light most favorable to the prosecution, [no] rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Stevens, 453 F.3d 963, 965 (7th Cir. 2006) (citations omitted).
As a preliminary matter, Brannon argues that because he was convicted at
a bench trial based solely on undisputed, stipulated facts, which raise no issue of
witness credibility, we should review the district court’s finding of the ultimate fact
of possession de novo. But in the cases he cites for this proposition there was no
fact in dispute, so only questions of law were involved. Here, there was a fact
No. 05-3117 Page 3
dispute over whether Brannon possessed ammunition, and no legal dispute over the
meaning of possession. Moreover, Brannon’s premise—that the absence of
credibility issues obviates the need for traditional review—is wrong. As the
Supreme Court has advised (albeit in the context of civil cases):
The rationale for deference to the original finder of fact is
not limited to the superiority of the trial judge’s position
to make determinations of credibility. The trial judge’s
major role is the determination of fact, and with
experience in fulfilling that role comes expertise.
Duplication of the trial judge’s efforts in the court of
appeals would very likely contribute only negligibly to the
accuracy of fact determination at a huge cost in diversion
of judicial resources.
Anderson v. City of Bessemer City, 470 U.S. 564, 574–75 (1985).
Brannon’s primary argument is that his occupancy of the home alone is
insufficient to establish constructive possession. But the case law refutes this
contention. United States v. Kitchen, 57 F.3d 516, 521 (7th Cir. 1995)
(“Constructive possession can be established by showing that the firearm was seized
at the defendant’s residence.”) (citation omitted); United States v. Alanis, 265 F.3d
576, 592 (7th Cir. 2001) (same). In Kitchen, a gun was found in the bedroom of a
house that the defendant identified as his address and where he frequently stayed
overnight, received phone calls, and kept many belongings. Kitchen, 57 F.3d at520–21. The court found that the jury was entitled to conclude that Kitchen resided
in the home, and that this alone was sufficient to establish his constructive
possession of the handguns found there. Similarly, in Alanis, the court ruled that
the presence of a pistol in the defendant’s bedroom was sufficient evidence upon
which a jury could infer constructive possession, even where the defendant
disclaimed knowing about the gun. Alanis, 265 F.3d at 591–92. Here, the
stipulated facts establish that Brannon resided in the home where the ammunition
was found. Thus, his argument is unavailing.
Brannon makes a related argument that none of the places where the
officers found the ammunition is specifically connected to him, and two of the
three locations are linked to his wife and uncle who also lived in the home. This
is incorrect. The stipulation does specifically link Brannon to the dresser drawer,
where the officers found the utility contract with his name on it. In any event,
constructive possession need not be exclusive. Kitchen, 57 F.3d at 521 (citing
Garrett, 903 F.2d at 1110). For example, in Alanis, the court concluded that
Alanis’s wife’s ownership of the gun did not preclude his possession of it because
there was sufficient evidence that Alanis shared the bedroom with his wife and
No. 05-3117 Page 4
that the gun was found in a nightstand next to their bed. Alanis, 265 F.3d at 592.
Similarly, in this case the stipulated facts establish that ammunition was seized
from a dresser drawer in the master bedroom, which contained both Brannon’s
utility contract and his wife’s credit card and expired driver’s licenses. Brannon
does not contend that the bedroom or dresser were not his; rather, he argues that
some of the items in the drawer link the ammunition to his wife. But under the
theory of joint possession this does not preclude his constructive possession of the
ammunition: “When a gun is found in a defendant’s bedroom, as here, it would not
be improper for the jury to ‘infer that [the defendant] had both knowledge of the
firearm and an intent to exercise dominion and control over it merely from its
presence in the bedroom that [he]...shared with [his wife].’” Alanis, 265 F.3d at
592 (quoting United States v. Walls, 225 F.3d 858, 864 (7th Cir. 2000)).
It may be true that Brannon’s connection to the ammunition found above a
ceiling tile in the basement is more attenuated than his connection to that found in
his bedroom. But Brannon does not contend that he had to constructively possess
the ammunition found in the basement for the conviction to stand. Furthermore, as
we said, a trier of fact could infer constructive possession of the ammunition found
in the basement based solely on the fact that Brannon lived in the house. Kitchen,
57 F.3d at 521 (the fact that others had access to the firearm does not negate the
inference that the defendant had access as well). Brannon does not even attempt to
argue that he has no connection to the ammunition found in the third location—a
closet on the main floor of the home.
Moreover, the cases Brannon cites in support of his position are factually
distinguishable. For example, he cites several drug and firearms possession cases,
but all of them involved seizures from a home in which the defendant did not reside.
See United States v. Harris, 230 F.3d 1054, 1057 (7th Cir. 2000); United States v.
Windom, 19 F.3d 1190, 1200–01 (7th Cir. 1994); United States v. Herrera, 757 F.2d
144, 150 (7th Cir. 1985). Brannon also relies heavily on two drug possession cases
from 1975 and 1958: United States v. DiNovo, 523 F.2d 197 (7th Cir. 1975), and
United States v. Landry, 257 F.2d 425 (7th Cir. 1958). But neither is a § 922(g)
case, and, as discussed above, it is well-established that a defendant’s residency
in the home where the firearms or ammunition are found constitutes sufficient
evidence of constructive possession in the § 922(g) context. Brannon does not
attempt to distinguish or limit these cases.
Finally, Brannon contends that the district court was required to credit his
statement that he had forgotten about the ammunition. But the presence of the
ammunition in three locations in his residence, including his bedroom dresser
drawer, provided the district court with a rational basis to disbelieve Brannon’s
claimed forgetfulness. See Stevens, 453 F.3d at 965.
No. 05-3117 Page 5
For these reasons, the judgment of the district court is AFFIRMED.