United States v. Bowens

938 F.3d 790

UNITED STATES of America, Plaintiff-Appellee,

v.Jamal BOWENS (18-5636); Lee Hope (18-5637), Defendants-Appellants.

Nos. 18-5636/5637

United States Court of Appeals, Sixth Circuit.

Argued: June 27, 2019

Decided and Filed: September 12, 2019

ARGUED: Tyrone J. Paylor, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant in 18-5636. Alexander C. Wharton, THE WHARTON LAW FIRM, Memphis, Tennessee, for Appellant in 18-5637. Marques T. Young, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Tyrone J. Paylor, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant in 18-5636. Alexander C. Wharton, THE WHARTON LAW FIRM, Memphis, Tennessee, for Appellant in 18-5637. Marques T. Young, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.

Before: ROGERS, GRIFFIN, and NALBANDIAN.

ROGERS, Circuit Judge.

A jury convicted Jamal Bowens and Lee Hope of possessing firearms while being unlawful users of marijuana, a controlled substance, after they were arrested with guns and marijuana in May 2017. See 18 U.S.C. § 922(g)(3). There was sufficient evidence of the defendants’ regular and repeated use of marijuana to sustain the conviction, notwithstanding defendants’ arguments regarding the credibility of some of the evidence from their Facebook accounts. There was also ample evidence showing that the defendants knew they used marijuana, such that it was not plain error that the jury was never asked if the defendants were "knowingly" unlawful users of a controlled substance, notwithstanding the Supreme Court’s recent decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). There was not, however, enough of a connection between Bowens’ possession of a firearm in January 2017 to justify the district court’s determination that the earlier possession was "relevant conduct" that could count against him at sentencing. In all, the defendants’ convictions stand but Bowens’ case will be remanded for resentencing.

I.

On May 27, 2017, Memphis police officers found Bowens and Hope in the backseat of a vehicle with a marijuana blunt between them, as well as two firearms—one at Bowens’ feet and the other on Hope’s person. The Government charged both men with violating 18 U.S.C. § 922(g)(3), which prohibits unlawful users of controlled substances from possessing firearms. Under our caselaw, the Government needed to prove that the defendants were regular and repeated users of marijuana to get a conviction. See United States v. Burchard , 580 F.3d 341, 350 (6th Cir. 2009).

To do this, the Government presented the jury with evidence from Facebook. A video uploaded to Bowens’ Facebook account the day of the arrest showed the defendants in the parking lot of a McDonald’s brandishing the firearms they were later arrested with and smoking what appeared to be a marijuana blunt. There were various comments and posts on both defendants’ accounts in which they appeared to describe using marijuana; statements such as "Getting high and drunk da whole day," or "Too high last night. Just woke up." There were also some pictures on their Facebook accounts that appeared to show the men smoking marijuana, some with captions like "Smoking dope wit da demons" or "Smoking gas to my face." These photos and comments were uploaded or posted over the course of seven months leading up to the date of the defendants’ arrests. The jury was convinced, and convicted both men. The district court sustained the convictions, denying motions for judgment of acquittal and for a new trial.

At Bowens’ sentencing, the Government sought a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) for an offense involving three to seven firearms. Only two firearms were recovered from the arrest, but the Government got to three by counting a firearm Bowens allegedly possessed in January 2017. This firearm had been recovered in Bowens’ room at his mother’s house as part of an unrelated investigation into a shooting that had occurred that month. Bowens was never charged with unlawful possession of this firearm. Over Bowens’ objection, the district court found that this firearm possession constituted "relevant conduct" and applied the two-level enhancement to Bowens’ sentence. Bowens asked that his sentence run concurrently with his anticipated state sentence for the January shooting, but the district court rejected this request. The court did, however, orally agree to credit Bowens’ time served in federal custody since his indictment, but the judgment sheet did not include language to that effect.

II.

The defendants challenge their convictions on three grounds. They first assert that there was insufficient evidence to establish their regular and repeated use of marijuana. Next they argue that even if there was sufficient evidence to sustain their convictions under Federal Rule of Criminal Procedure 29, the district court erred in denying their motions for a new trial under Rule 33 because the court applied the wrong legal standard in reviewing their Rule 33 motions. Finally, based on a recent Supreme Court decision, defendants contend that the district court plainly erred by failing to give an instruction about the defendants’ knowledge. These challenges lack merit.

The evidence was sufficient to support the jury’s verdict that the defendants were unlawful users of a controlled substance while in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3). Under that statute, "the government must prove ... that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm." United States v. Burchard , 580 F.3d 341, 350 (6th Cir. 2009). The Government used evidence obtained from the defendants’ Facebook accounts to prove that the defendants used marijuana regularly and over an extended period of time encompassing their firearm possession. These accounts showed several pictures (and one video) of the defendants smoking marijuana, as well as comments about smoking marijuana, all posted over the course of seven months leading up to the defendants’ arrest.

The defendants challenge the sufficiency of this evidence only on the grounds that the Facebook evidence does not depict marijuana use and that the Government failed to "corroborate" this evidence. They do not argue that even if the Facebook posts depict marijuana use, that use is too infrequent to constitute "regularity" or use "over an extended period of time." The defendants’ arguments fail because they are at bottom jury arguments—that the evidence is circumstantial and open to multiple interpretations.

It is true that much of this evidence is circumstantial, and the illegality of the defendants’ conduct must be inferred. There is no physical proof that the defendants were smoking marijuana or discussing marijuana use in these Facebook posts; in theory they could have been smoking cigars and talking about "getting high" on alcohol. But circumstantial evidence alone can support conviction, United States v. Algee , 599 F.3d 506, 512 (6th Cir. 2010), and on sufficiency review we draw all reasonable inferences in favor of the jury’s verdict, United States v. Vichitvongsa , 819 F.3d 260, 270 (6th Cir. 2016).

There is ample circumstantial evidence to support the jury’s apparent inference that the defendants were smoking marijuana. The men were arrested with a marijuana blunt. There are pictures of defendants smoking what appears to be marijuana, with captions that refer to marijuana use. For example, a picture on Bowens’ page has the caption "Smoking dope wit da demons," and a picture on Hope’s page has the caption "Smoking gas to my face." Several other posts on the defendants’ pages refer to marijuana use, such as "Getting high and drunk da whole day," "I’m so MF high crazy," and "I just been too high lately." Hope referred specifically to "weed" when asking "Where da weedman at?" The jury did not need an eyewitness testifying that Bowens and Hope smoked marijuana, nor an expert to explain why the smoke in these pictures had to be marijuana smoke, or why statements about "kush" and "gas" had to refer to marijuana. This was enough circumstantial evidence for the jury to infer that the defendants were smoking marijuana in the Facebook pictures, and referring to marijuana use in these Facebook posts.

There was also enough to infer that defendants were using marijuana during the relevant timeframe. Again, there is no direct physical evidence that the pictures were taken in the seven-month timeframe leading up to the defendants’ arrest. Facebook strips metadata from pictures, so aside from when a Facebook picture was uploaded, it is hard to say when it was taken. But when a picture was uploaded is at least a reference point. A juror could infer that a picture posted in, say, late October 2016, was in fact taken in late October 2016. In addition, there is circumstantial evidence that supports the jury’s verdict that these pictures were taken on or about the dates they were uploaded to Facebook. The jury could compare the defendants in the courtroom with the men in the pictures to determine if they differed in age, or in entirety for that matter, from the men in the pictures. The captions to the pictures suggest recency—for example, the defendants used the present participle, e.g., "Smoking dope wit da demons," "Smoking gas to my face," and not "smoked ." Also, these pictures were posted around the times that the defendants were posting other comments about smoking marijuana.

Those comments of course could have been posted by other people. Anyone could have used the defendants’ Facebook accounts, just as the pictures could have depicted the men smoking tobacco cigars, and "getting high" could have been a reference to skydiving. But just as there was circumstantial evidence from which the jury could infer that the pictures depicted marijuana use and "getting high" referred to marijuana,...