United States v. Justin Bicket , 497 F. App'x 679 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1242
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Justin R. Bicket
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: December 11, 2012
Filed: January 30, 2013
[Unpublished]
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Before WOLLMAN, BYE, and BENTON, Circuit Judges.
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PER CURIAM.
A jury found Justin Bicket guilty of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced Bicket to sixty-five
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The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
months of imprisonment. Bicket appeals his conviction, challenging the sufficiency
of the evidence to support his conviction and arguing the district court abused its
discretion in limiting the scope of his cross examination. We affirm.
Bicket was arrested by two members of the Metro Omaha Fugitive Task Force
who were enforcing a felony warrant for Bicket's arrest. The arrest occurred after
Bicket fled his residence in a white sedan with the officers in pursuit, drove to an
apartment complex, and entered a pickup driven by a friend. The officers stopped the
pickup, searched it, and found a red shoe box on the front passenger floorboard with
two loaded firearms inside. Bicket's DNA was found on both weapons in subsequent
DNA testing of the grip, hammer, trigger and safety of each firearm. A federal grand
jury indicted Bicket with one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). He exercised his right to a jury trial, stipulating
to his status as a felon.
To prove Bicket possessed the two firearms, the government called Bicket's
girlfriend as a witness. On the day of Bicket's arrest, his girlfriend saw Bicket sitting
on his bed with a red shoe box in his lap, wiping down two firearms with his shirt.
Bicket then left his residence and drove away in a white sedan. Bicket's girlfriend
further testified she had seen the two firearms in the red shoe box about a month
before, while she was cleaning the bedroom closet. The government also called the
pickup's driver. He saw Bicket enter the apartment complex parking lot in a white
sedan, retrieve a red shoe box from its trunk, then approach and enter the pickup
while asking to be driven away. In addition, the two arresting officers told the jury
they found the two firearms inside the red shoe box on the passenger side of the
pickup's floorboard, and that Bicket had been seated on the pickup's passenger side
prior to his arrest. Finally, the government introduced the evidence of Bicket's DNA
on the two firearms.
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At trial, Bicket argued his DNA had been transferred onto the firearms from
one of the two officers during the arrest. Bicket called an expert who opined that a
secondary transfer of DNA was possible through the sweat of an arresting officer. On
cross examination, the expert admitted the possibility of a secondary transfer was less
likely because of the snow and cold weather present at the time of the arrest, the
location of the firearms inside a closed shoe box, and the fact that the officer who
secured the firearms (using latex gloves) never came into contact with Bicket during
the arrest. The government also recalled its DNA expert, who testified a secondary
transfer was unlikely primarily because of the intensity of Bicket's DNA on both
firearms in multiple places.
To support his claim, however, Bicket asked questions to show DNA samples
had not been taken from the other people present at the time of the arrest (the two
officers and the pickup driver). Bicket's counsel asked one officer whether a DNA
sample had been collected from him, and he answered no. Trial counsel also asked
the same officer whether he knew if a DNA sample had been taken from the other
officer or the pickup driver, and he answered no. During cross examination of the
pickup driver, Bicket's trial counsel asked the driver whether he had supplied a DNA
sample. The government objected, and the district court sustained the objection.
Similarly, during the cross examination of the government's DNA expert, Bicket's
trial counsel asked him whether he had compared DNA samples from either of the
arresting officers, or from the pickup driver, to the DNA profiles found on the
firearms. The government objected. The district court sustained the objection. After
considering all the evidence, the jury found Bicket guilty. He filed a timely appeal.
We review Bicket's challenge to the sufficiency of the evidence de novo,
viewing the evidence in the light most favorable to the verdict and giving the verdict
the benefit of all reasonable inferences. United States v. Johnson, 688 F.3d 494, 502
(8th Cir. 2012). In support of his claim, Bicket merely contends both his girlfriend
and his friend (the pickup driver) lacked credibility. This argument is unavailing in
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the context of a challenge to the sufficiency of the evidence. The testimony of the
two witnesses, if accepted by the jury, was sufficient to prove Bicket possessed the
two firearms, and it was up to the jury to assess credibility. See id.Bicket also contends the district court abused its discretion by limiting the
scope of his cross examination with respect to whether DNA samples other than his
own had been collected or analyzed. Reviewing this claim for an abuse of discretion,
United States v. Holy Bull, 613 F.3d 871, 873 (8th Cir. 2010), we find none. The
district court correctly determined the question posed to the pickup driver about his
DNA was irrelevant because the presence of the driver's DNA on the firearms would
have only shown the possibility of joint possession, but would not have negated the
government's overwhelming proof of Bicket's own possession. See United States v.
Sianis, 275 F.3d 731, 733 (8th Cir. 2002) (indicating the government need not prove
exclusive possession of a firearm to prove a violation of § 922(g)(1)). In addition, the
question posed to the government's DNA expert about other samples was cumulative,
because Bicket's counsel had already established through one of the arresting officers
that no DNA samples other than Bicket's had been collected or analyzed. Finally, the
evidence the government presented through the girlfriend, the pickup driver, and the
two arresting officers was sufficient to convict Bicket without even considering the
DNA evidence. Thus, any evidentiary errors with respect to the cumulative DNA
evidence would have been harmless in any event. See Fed. R. Crim. P. 52(a).
We affirm the judgment of conviction.
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