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03/04/83 United States of America v. Tidell Lewis

March 4, 1983

UNITED STATES OF AMERICA

v.

TIDELL LEWIS, APPELLANT 1983.CDC.53 DATE DECIDED: MARCH 4, 1983



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia

APPELLATE PANEL:

Bork and Scalia, Circuit Judges and Bazelon, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BORK.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BORK

On December 23, 1981, a jury acquitted appellant Tidell Lewis of possession of a prohibited weapon (a blackjack), D.C. Code Ann. 22-3214(a) (1981), but convicted him of possession of an unregistered firearm (a sawed-off shotgun), 26 U.S.C. ยงยง 5861(d), 5871 (1976). Lewis appeals his conviction on two grounds. He contends that the district court erred in finding the government's evidence sufficient to withstand his motion for judgment of acquittal made at the close of the government's case. Lewis also contends that the district court erred in admitting evidence that he was arrested on an outstanding arrest warrant for assault. Because the assault charge was wholly unrelated to the charges on which he was tried and convicted, Lewis argues, the evidence had no probative value, was highly prejudicial, and concerned only the circumstances of his arrest, a subject he had not put in issue. Upon review of the proceedings below, we reject both of Lewis's arguments and therefore affirm his conviction.

To withstand a motion for judgment of acquittal on the charge of constructive possession of an illegal firearm, the government must offer sufficient evidence that the defendant was in a position or had the right to exercise dominion or control over the firearm. United States v. Davis, 183 U.S. App. D.C. 162, 562 F.2d 681, 684 (D.C. Cir. 1977); United States v. Reese, 183 U.S. App. D.C. 1, 561 F.2d 894, 898 (D.C. Cir. 1977). It must also offer evidence sufficient to show that the possession was "knowing." United States v. Pardo, 204 U.S. App. D.C. 263, 636 F.2d 535, 548 (D.C. Cir.1980); United States v. Whitfield, 203 U.S. App. D.C. 102, 629 F.2d 136 (D.C. Cir. 1980), cert. denied, 449 U.S. 1086, 66 L. Ed. 2d 812, 101 S. Ct. 875 (1981). Only the government's evidence, and not the defendant's, may be considered in determining the sufficiency of the evidence when the motion for judgment of acquittal is made, as it was here, at the close of the government's case. United States v. Watkins, 171 U.S. App. D.C. 158, 519 F.2d 294 (D.C. Cir. 1975). That evidence, however, must be viewed "in the light most favorable to the Government giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact." United States v. Reese, 561 F.2d at 898.

The government's evidence in this case, though hardly overwhelming, was sufficient to withstand Lewis's motion for judgment of acquittal. The testimony showed that Lewis was driving an automobile one morning when he was stopped by two police officers who noticed that no inspection sticker was displayed on the windshield of his car. (Lewis later testified that the officers told him that they had seen him ignore a caution light.) Lewis was alone in the car. Upon request, Lewis retrieved the registration papers from the glove compartment. The papers showed that the car was registered in the name of Dino Allen, who, according to the government's testimony, resided at the same address as Lewis. The police officers, after speaking by radio with the police dispatcher, placed Lewis under arrest. (The officers learned from the dispatcher that there was an outstanding arrest warrant against Lewis, but the court did not permit them to reveal this fact.) Shortly thereafter they noticed the sawed-off shotgun protruding onto the back floorboard from under the front seat. The gun was visible from a position outside the car next to the driver's door.

In these circumstances, a reasonable jury could find that Lewis, though not the actual owner of the car, knew of and had dominion and control over the shotgun. A jury could reasonably believe, absent credible evidence to the contrary, that it is highly unlikely that the operator and sole occupant of a car registered to a member of his household would be unaware that so incriminating an item as a sawed-off shotgun was in the car when the shotgun was visible from outside the driver's seat. The government's evidence, we conclude, was sufficient to support the conviction. See, e.g., United States v. Whitfield, 203 U.S. App. D.C. 102, 629 F.2d 136; United States v. Reese, 183 U.S. App. D.C. 1, 561 F.2d 894.

The second ground for reversal urged by Lewis concerns the admission into evidence of certain testimony given by Lewis himself when he took the stand in his own defense. Lewis argues that it was error for the trial judge to allow the government to elicit from him on cross-examination the fact that the police arrested him pursuant to an outstanding arrest warrant for assault. We agree with Lewis that this testimony was prejudicial and that it was irrelevant to the question of constructive possession. The record shows, however, that the testimony was allowed in because Lewis insisted that, upon being pulled to the side of the road, he showed the police a valid inspection sticker. He thus created the impression, even if unintentionally, that his arrest was unjustified, an impression the prosecutor was entitled to negate.

The court did not permit the government to show in its case that Lewis had been arrested pursuant to a warrant. But when Lewis took the stand, his counsel posed a general question asking that Lewis tell the court and jury what happened at his arrest. In response, Lewis testified that the two police officers had stopped him and told him he had gone through a caution light. He continued:

and then [one of them] asked me -- he told me something about my inspection sticker, right, and then asked me for my driving license and my registration.

I gave them that and then they went back to the [police] car and then asked me to come out to the car.

Dec. 22, 1981 Tr. 16 [hereinafter Tr.]. Counsel asked no more about the reasons for the arrest but brought out that Lewis was handcuffed in the police car and that the officers ...


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