United States v. Mack, 10th Cir. (1996)

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr.

Clerk
Elisabeth A. Shumaker
Chief Deputy Clerk
July 9, 1996
TO: ALL RECIPIENTS OF THE CAPTIONED ORDER AND JUDGMENT
RE: 95-3288 USA v. Mack
June 19, 1996 by The Honorable John C. Porfilio
Please be advised of the following correction to the captioned decision:
The order and judgment is amended to read the judgment of the district court is
affirmed in part and reversed in part and remanded for resentencing.
Enclosed is a copy of the amended order and judgment.
Very truly yours,
Patrick Fisher, Clerk
Beth Morris
Deputy Clerk
encl.
Filed 6/19/96
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 95-3288
(D.C. No. 94-CR-10124)
(District of Kansas)
TRACY E. MACK,
Defendant-Appellant.
ORDER AND JUDGMENT*

Before PORFILIO, HOLLOWAY, and MURPHY, Circuit Judges.
Tracy E. Mack appeals his convictions for possession of crack cocaine, 21 U.S.C.
844; felon in possession of a firearm, 18 U.S.C. 922(g)(1); and use of a firearm in
relation to a drug trafficking crime,18 U.S.C. 924(c). Mr. Mack claims the evidence
presented at trial was insufficient to convict him of any of the charges for which he was
found guilty. He also argues the court erred in instructing the jury regarding the 924(c)
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and 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.
*
count. In light of Bailey v. United States, 116 S.Ct. 501 (1995), the government concedes
Mr. Macks 924(c) conviction should be vacated. Concluding the evidence was
sufficient for a reasonable jury to find Mr. Mack guilty of crack cocaine possession and of
possession of a firearm as a convicted felon, we affirm the remaining convictions.
This case involves two separate transactions, the first occurring on June 16, 1994,
and the second on November 30, 1994. The first was the product of information that Mr.
Mack was selling drugs out of a residence in Wichita, Kansas. That information led to
execution of a search warrant on June 16. As officers approached the house, they saw
Mr. Mack outside on the front porch. Mack spotted the police and began to run. He was
chased for several blocks and arrested. In the house, police discovered another suspect,
Alan Hall, hiding in a closet adjoining two bedrooms. They also found two crack pipes
and a plastic bag with cocaine residue. A .38 caliber revolver loaded with six rounds of
ammunition was found placed between two mattresses and the box springs of a bed in one
bedroom. Also between the mattresses and box springs was a note that read: Baby, I left
your stuff up under the second box spring and your $40, love Cynthia. Gone to bingo.
Cynthia was later determined to be Cynthia Jackson, Mr. Macks girlfriend and an
occupant of the house. Although the house was leased to Ms. Jackson, at the time of the
search she was not present.
Also found between the mattresses were two photographs of an infant and a
woman. The first photo was inscribed: To my daddy Big Mack from son Little Mack,
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with love, Tracy E. Mack, Jr., five days old. The second photo was inscribed Tracy E.
Mack, Jr., five days old, with love.
In the bedroom, officers discovered two photo I.D.s belonging to Mr. Mack; a
utility bill for the residence addressed to Mr. Mack and dated June 14, 1994; and a letter
to Mr. Mack from Cynthia Jackson, postmarked June 13, 1994. The letter, mailed three
days earlier, asks Mr. Mack: Hows business been going for you?... I dont care who you
get it from but I want a $50 sack when I come home and have it there by the time I get
there.
The second arrest involved a separate incident occurring on November 30, 1994.
On that evening, patrol officers were making routine rounds when they spotted two men
running up the street. One of the men appeared to be chasing the other man with what
looked like a shotgun.
After realizing the police were chasing him, the man, later identified as Mr. Mack,
slowed to a walk, dropped the shotgun, and threw something to the ground. Later,
searching for the discarded items, the officers discovered a plastic bag containing a white
substance. The substance field tested positive for cocaine, and Mr. Mack was arrested.
Officers also found the shotgun and discovered it was only a stick.
The officers trial testimony concerning the plastic bag was inconsistent. Officer
Barnes testified he observed Mr. Mack drop something white in color, or what appeared
to be a plastic baggy, from his left side.... It looked shiny in color or what would be
-3-
plastic. He stated when the item fell to the ground it hit like a rock, rather than
floating down as if the bag were empty. The officer stated:
Q:
And youre absolutely sure that you saw a baggy drop from his hands?
A:
What appeared to be a baggy or something light in color.
Q:
But youre sure?
A:
Im sure.
He also testified he stated to Officer Darling that Mr. Mack dropped what appeared to be
a plastic baggy back up the side walk between these two trees and instructed the officer
to retrieve the plastic bag.
Officer Darling, however, did not recall being told to look specifically for the bag.
He testified Officer Barnes told him to look for the weapon. When Darling returned with
the plastic bag, he remembers Barnes mentioning Mr. Mack dropped it along with the
weapon. A third policeman, Officer Noblitt, also testified that Barnes began discussing
the bag after Darling went off to look for the weapon, rather than before.
The jury returned a verdict of guilty to Count 1, for the lesser included offense of
simple possession, and guilty to Counts 3 and 4, but could not reach a verdict on Count 2.
The court declared a mistrial on that count, and the government ultimately dismissed the
charge. The government now concedes there was insufficient evidence to have convicted
Mr. Mack of Count 4 and recommends vacating that conviction.1 Thus, Mr. Macks
The government originally argued we should remand for consideration of whether the
defendants possession of the gun could enhance his other sentences. Apparently recognizing the
1
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remaining convictions are for simple possession of crack cocaine stemming from his
November 30, 1994 arrest and for possession of a firearm by a convicted felon arising out
of his constructive possession of a .38 revolver on June 16, 1994.
We review the record for sufficiency of the evidence de novo. Evidence is
sufficient to support a conviction if a reasonable jury could find the defendant guilty
beyond a reasonable doubt, given the direct and circumstantial evidence, along with
reasonable inferences therefrom, taken in a light most favorable to the government.
United States v. Mains, 33 F.3d 1222, 1227 (10th Cir. 1994). In reviewing the evidence,
we are not permitted to weigh conflicting evidence or consider witness credibility as that
duty is exclusively delegated to the jury. United States v. Davis, 965 F.2d 804, 811
(10th Cir. 1992), cert. denied, 507 U.S. 910 (1993). Thus, any conflicts in evidence must
be resolved in favor of the government. United States v. Williamson 53 F.3d 1500, 1516
(10th Cir.), cert. denied, 116 S.Ct. 218 (1995).
Mr. Mack argues the conflicting evidence of whether Officer Barnes actually saw
him discard the cocaine left the jury with insufficient evidence with which to convict.
Nonetheless, it is indisputable the government presented evidence to the jury that Mr.
Mack was seen on November 30, 1994, abandoning a plastic bag of white powder that
tested positive for crack cocaine.
futility of that contention, the government abandoned it at oral argument.
-5-
Although the testimony given by Officers Darling and Noblitt conflicts in a minor
detail with that of Officer Barnes, the discrepancy gives rise only to a test of credibility
that is solely within the province of the jury. We may not evaluate either the credibility of
witnesses or the weight of the evidence they provided. To the contrary, under
Williamson, we are bound to resolve any evidentiary conflicts in favor of the government
and assume the jury found Officer Barnes testimony credible.
To prove Mr. Mack was guilty of Count 3, the government had to establish three
essential elements: (1) The defendant previously had been convicted of a felony; (2)
Thereafter, the defendant knowingly possessed a firearm, and (3) the possession of the
firearm was in or affecting commerce. Mains, 33 F.3d at 1228. In this appeal, Mr. Mack
claims the government failed to prove the second element of the offense.
Although possession is an element of the offense, the government is not required
to prove actual possession. [P]ossession in fact is not a prerequisite of [] conviction
[under 922(g)], constructive possession being sufficient. United States v. Cardenas,
864 F.2d 1528, 1533 (10th Cir.), cert. denied, 491 U.S. 909 (1989). In this case, the
government carried its burden of proof by showing Mr. Mack knowingly held ownership,
dominion, or control over the gun and the premises where it was found. United States v.
Mills, 29 F.3d 545, 549 (10th Cir. 1994).
In cases where the defendant has exclusive possession of the premises, dominion,
control, and knowledge may be inferred. Id. However, this case involves joint
-6-
occupancy by Mr. Mack and Ms. Jackson. Therefore, to prove the defendants
constructive possession, the government was required to show some connection or nexus
between Mr. Mack and the firearm. Thus, the conviction depends on whether there [is]
some evidence supporting at least a plausible inference that the defendant had knowledge
of and access to the weapon.... Mills, 29 F.3d at 550 (quoting United States v.
Mergerson, 4 F.3d 337, 349 (5th Cir. 1993), cert. denied, 114 S.Ct. 1310 (1994)). After
reviewing the record, we conclude the government provided sufficient evidence to the
jury to support a plausible inference that Mr. Mack constructively possessed the .38
revolver.
The gun was found hidden in a room that also contained personal items belonging
to Mr. Mack and inscribed photographs of Mr. Macks child. The note apparently written
to Mr Mack by Ms. Jackson stating: Baby, I left your stuff up under the second box
springs .... implies the act of storing items under the mattress was a common practice
known to Mr. Mack.
Mr. Mack argues it is significant that the bed consisted uniquely of two sets of
mattresses and two box springs. The note was under the second mattress, while the gun
and photos of Tracy Mack, Jr. were found under the first mattress. This, according to Mr.
Mack, is an exculpatory fact, as if the bed were some sort of filing system and the gun
was not in Mr. Macks assigned place because the note was under a different mattress.
-7-
The jury apparently saw little significance in the notes placement, and neither do
we. It is plausible the jury simply determined the bed, albeit uniquely configured, was
one bed and the items hidden within it belonged to Mr. Mack.
Relying on Mills, Mr. Mack argues because he shared the residence in joint
occupancy with Ms. Jackson and because another individual, Allan Hall, was found in the
closet of the house, the evidence was insufficient to establish he possessed the revolver.
However, in Mills, the evidence was insufficient to support a finding of possession
because the gun was found in the drawer of a dining room table owned by someone other
than the defendant. The table was in a common area, and testimony was offered
suggesting someone else placed the gun in the table drawer without the defendants
knowledge.
Here, in contrast, the gun was found in a private bedroom used by Mr. Mack. It
was hidden under the mattress in that room along with items clearly belonging to only
Mr. Mack. Those items are of a personal nature suggesting his exclusive possession of
the contents of the room at the time the gun was found. Moreover, not only does that
evidence establish Mr. Macks possession, it also excludes the possession of either Ms.
Jackson or Mr. Hall. When viewed in its entirety and in the light most favorable to
-8-
the government, the evidence demonstrates a nexus between the gun and Mr. Mack and
supports his conviction.
The judgment of the district court is AFFIRMED IN PART and REVERSED

IN PART and REMANDED FOR RESENTENCING.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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UNITED STATES COURT OF APPEALS

Patrick J. Fisher, Jr.

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT*

What appeared to be a baggy or something light in color.

But youre sure?

futility of that contention, the government abandoned it at oral argument.

The judgment of the district court is AFFIRMED IN PART and REVERSED

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