Evidence

United States v. Dustin McLellan (11th Cir. May 2020)

Evidence/Expert Testimony – An officer is not testifying as an expert when he testifies that firearms are often involved in drug activity where such lay opinion testimony is based on his professional experiences.

Evidence/Rule 403 – Evidence of drug distribution and possession is relevant in unlawful possession of firearm cases where the element of knowledge is in dispute.

Firearm Offenses/922(g) – An indictment’s failure to allege the knowledge element of 922(g) does not deprive the district court of its jurisdiction.

Jury Instructions – Failure to instruct the jury on knowledge element of 922(g) was plain error but did not substantially affect defendant’s rights where there was overwhelming evidence of his knowledge of his unlawful status, including a stipulation and the evidence, not introduced at trial but that would be introduced in a retrial, that he had spent years in prison on other crimes.

Dustin McLellan was convicted of being a felon in possession of a firearm under 18 U.S.C. 922(g)(1). He was sentenced to 15 years under the ACCA based on his prior convictions for first-degree burglary under Alabama law.

On appeal, McLellan raised several claims. First, he argued that the trial court improperly allowed an arresting officer to testify as an “expert” regarding the correlation between guns and drug activity and erred in allowing the officer to testify that McLellan was selling drugs based on finding a “sellable amount” of meth. The core of this argument was that the Government’s evidence essentially alleged that McLellan was involved in selling drugs, which he was not charged with.

The Court disagreed, first holding that the officer’s testimony did not require any scientific, technical, or specialized knowledge, but was rather “lay opinion testimony based on his professional experiences.” The Court distinguished this from situations such as testifying officers summarizing phone calls between drug traffickers, which typically involve officers interpreting otherwise unambiguous phone calls in order to “spoon feed” their interpretations to the jury.

The Court also held that it was not error under 403 to allow the officer to testify that the under-a-gram of meth found in the case was a “sellable amount,” essentially alleging that McLellan was a drug dealer. While McLellan was not on trial for drug crimes, the Court noted that, in cases where a defendant denies knowingly possessing a gun, “evidence of possession of illegal drugs is relevant in determining whether a defendant knowingly possessed a weapon found in close proximity to drugs.” In other words, “the connection between drug-dealing and firearm possession is an appropriate one to be drawn during a felon-in-possession case.”

The Court also held that the pre-Rehaif indictment’s failure to allege McLellan’s knowledge of his felon status did not deprive the court of its jurisdiction since defects in an indictment are not generally jurisdictional. The Court also held that the trial court’s failure to instruct the jury on McLellan’s knowledge, while plain error, did not prejudice McLellan since 1) he had stipulated to it, and 2) in a retrial, the government would be able to introduce McLellan’s criminal history, which would make it “inconceivable” that he did not know he was a felon.

Appeal from the Southern District of Alabama

Opinion by Boggs (by designation from the 6th Cir.), joined by Rosenbaum and E. Carnes

Click here to read the opinion.

United States v. Oniel Russell (11th Cir. May 2020)

The Court vacated the defendant's conviction for unlawful possession of a firearm by an unlawful immigrant. The Court held that the district court's pre-Rehaif order excluding the defendant's immigration applications and evidence that he believed he was legally in the U.S. amounted to plain error given the Supreme Court's opinion in Rehaif. The Court further held that the defendant was prejudiced by not being able to introduce this evidence given his consistent arguments in pre-trial and sentencing proceedings that he believed he was legally in the U.S.

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United States v. John Terry Chatman, Jr. (8th Cir. March 2020)

The Court reversed the defendant's conviction for obstruction of justice by attempting to kill a witness where the evidence showed that the defendant shot at an officer "out of frustration and retaliation" and not with the intent of "preventing a communication about the commission of a federal offense" to other other officers.

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United States v. Martin Johnson (4th Cir. December 2019)

The Court held that a district court does not plainly err by failing to give a limiting instruction when admitting 404(b) evidence in the absence of a defendant's request for such an instruction. Additionally, the Court held that robbery possession of a controlled substance with intent to distribute under Maryland law are predicate "violent felonies" under the ACCA.

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United States v. Dane Gillis (11th Cir. September 2019)

The Court affirmed the defendant's convictions for enticing a minor under § 2422(b) but reversed his conviction under § 373 for solicitation to commit a crime of violence, holding that kidnapping under § 1201(a) is not a "crime of violence" under the categorical approach applicable to § 373. The Court also held that the defendant's right to a complete defense was not violated by the trial court's proper rulings on the inadmissibility of the defense experts' testimony.

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