15-2526
United States v. Shakir Michael

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
26th day of October, two thousand sixteen.

Present:
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.
                  Circuit Judges,
            CAROL BAGLEY AMON,
                  District Judge.*
_____________________________________

UNITED STATES OF AMERICA,

                          Appellee,

                 v.                                                  15-2526

SHAKIR MICHAEL,

                  Defendant-Appellant.
_____________________________________

For Defendant-Appellant:                   THERESA SUOZZI, Saratoga Springs, New York

For Appellee:                              SANGITA K. RAO, Appellate Section, Criminal
                                           Division, U.S. Department of Justice, Washington, DC
                                           (Richard S. Hartunian, United States Attorney for the

*
   Judge Carol Bagley Amon, of the United States District Court for the Eastern District of New York,
sitting by designation.


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                                           Northern District of New York, Leslie R. Caldwell,
                                           Assistant Attorney General, Sung-Hee Suh, Deputy
                                           Assistant Attorney General, Robert A. Sharpe,
                                           Assistant United States Attorney, on the brief)

       Appeal from a judgment of the United States District Court for the Northern District of

New York (D’Agostino, J.)

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED in part, and REMANDED for

further proceedings consistent with this order.

       Defendant-Appellant Shakir Michael appeals from a judgment of conviction entered on

August 4, 2015 in the United States District Court for the Northern District of New York

(D’Agostino, J.), sentencing him principally to 77 months’ imprisonment.                Michael was

convicted after a jury trial of unlawful possession of a firearm and ammunition following a

felony conviction, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). We assume the parties’

familiarity with the facts, procedural history of the case, and the issues on appeal.

       A. Sufficiency of the Evidence

       Michael was tried before a jury on two charges: Count One, unlawful possession of a

firearm and ammunition following a felony conviction, in violation of 18 U.S.C. §§ 922(g) and

924(a)(2); and Count Two, possession of a firearm in furtherance of narcotics trafficking, in

violation of 18 U.S.C. § 924(c)(1)(A).    The jury found Michael guilty as to Count One and not

guilty as to Count Two.    Michael contends that the evidence at trial was insufficient to convict

him of unlawful possession of a firearm and ammunition.            For the following reasons, we

disagree.

       Our analysis on sufficiency review is highly deferential. “Specifically, we must view

the evidence in the light most favorable to the Government, crediting every inference that could


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have been drawn in the Government's favor, and deferring to the jury's assessment of witness

credibility and its assessment of the weight of the evidence. Although sufficiency review is de

novo, we will uphold the judgments of conviction if any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v. Brock, 789

F.3d 60, 63 (2d Cir. 2015).    Moreover, we have long held that “review of the legal sufficiency

of the evidence with respect to one count should be independent of the jury’s determination that

the evidence on another count was insufficient to meet the government’s burden.” United

States v. Acosta, 17 F.3d 538, 545 (2d Cir. 1994).   Applying this standard, we consider, given

the entire body of evidence before the jury, whether “any rational trier of fact” could have found

the elements of the crime for which Michael was convicted beyond a reasonable doubt.

       To establish that the defendant possessed a firearm, the Government can show either

“actual possession,” that the defendant “physically possessed the firearm,” or constructive

possession, which “exists when a person has the power and intention to exercise dominion and

control over an object.”      United States v. Gaines, 295 F.3d 293, 300 (2d Cir. 2002).        A

defendant’s physical handling of the firearm is sufficient to allow a jury to find actual

possession, “however briefly it occurred.” Id.

       The basic underpinnings of the Government’s case on unlawful possession of a firearm

were that, on the night of January 12, 2014 and early morning of January 13, 2014, the

cooperating witness, who had used narcotics several times already over the course of that

evening, contacted the defendant and asked to purchase narcotics.    After meeting in person and

learning that the cooperating witness was short on cash, the defendant refused to provide

narcotics on credit.   The cooperating witness then asked whether the defendant would exchange

narcotics for a firearm; when the defendant responded in the affirmative, the cooperating witness


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broke into his employer’s store and stole a firearm.         When the cooperating witness returned

with the firearm, the defendant “took off his white tee-shirt and grabbed it, asked me if it was

loaded . . . and he gave me two bags of crack cocaine for it.”     Trial Tr. 297-98.

       There was substantial evidence before the jury supporting the cooperating witness’s

account.   The cooperating witness testified at trial that he had frequently purchased crack

cocaine from the defendant, and regularly contacted Michael at a phone number Michael had

given him.    After being arrested for the break-in, the cooperating witness directed police

officers to the specific house in which Michael lived, identified Michael in a photo array, and

identified correctly the make of Michael’s car, all of which corroborated his testimony that he

knew and was familiar with Michael.      The basic facts of the cooperating witness’s larger story

were confirmed by a surveillance video shown at trial, and the several calls from phone records

subpoenaed by the Government between the cooperating witness’s phone and the number

Michael had allegedly given him corresponded precisely with the cooperating witness’s account.

As the cooperating witness’s story suggested it would be, the loaded weapon was recovered from

the building where Michael lived. Finally, the jury could have found that the cooperating

witness’s credibility was buttressed by the fact that his story was consistent throughout: the

substance of his testimony at trial was nearly identical to the video and written statements he

gave to the police on the evening of January 13.       It was therefore well within the province of the

jury to find the cooperating witness credible on the key element of the unlawful possession

charge: that the cooperating witness had handed the firearm to Michael and that Michael

personally held – had actual possession of – the firearm and ammunition.

       The jury could also have found Michael guilty by imputing constructive possession of the

firearm.   “Constructive possession exists when a person has the power and intention to exercise


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dominion and control over an object, [which] may be shown by direct or circumstantial

evidence.” United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998). The Government need

not prove that the weapon was not subject to the dominion and control of others. Id. Here, the

cooperating witness’s testimony, when linked with the circumstantial evidence of the discovery

of the weapon in an unlocked closet in a common hallway on the second floor of Michael’s

two-story building, is more than enough to suggest that Michael had the power and intent to

exercise control over the weapon.   The fact that the defendant’s cousin lived on the second floor

is immaterial.   Even if the location of the weapon meant that the defendant’s cousin could also

theoretically have exerted control over the weapon, the jury could still conclude that the

collective evidence demonstrated Michael’s possession beyond a reasonable doubt.

       B. Coordinated Universal Time Instruction: Judicial Notice

       Because the cooperating witness’s testimony was corroborated by his phone records, the

Government devoted significant time at trial to the phone records, and it introduced the records

themselves as evidence.    Each page of those records included a heading noting that the phone

company’s records were “stored and provided in UTC.”         Gov’t App’x 61.     In response to a

jury note inquiring “what UTC time is and if there is a difference between Eastern Daylight

Savings Time and UTC time,” Gov’t App’x 15, the district court, over the objections of both the

Government and the defendant, decided to define Coordinated Universal Time (“UTC”) for the

jury by supplemental instruction. The district court told the jury the following: “Coordinated

Universal Time, abbreviated as UTC, is the primary time standard by which the world regulates

clocks and time.   Local time on the east coast of the United States is five hours behind UTC

during winter but four hours behind while daylight savings is observed.”     Trial Tr. 582.   The

district court did not instruct the jury about the meaning of the heading at the top of each phone


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record page. On appeal, Michael renews his challenge to the district court’s determination that

it was appropriate to instruct the jury on this point.

         “We review the District Court’s determination of whether to take judicial notice of facts

for abuse of discretion.” Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 424 (2d Cir.

2008).    We also review a district court’s decision to offer supplemental instructions for abuse of

discretion, Garnett v. Undercover Officer C0039, -- F.3d --, 2016 WL 5496761, at *12 (2d Cir.

Sept. 30, 2016), keeping in mind that, under Rule 30 of the Federal Rules of Criminal Procedure,

this discretion is not without limits, Uzoukwu v. City of New York, 805 F.3d 409, 414 (2d Cir.

2015).

         Here, the district judge’s decision to take judicial notice of the relationship between UTC

and Eastern Time, and to so instruct the jury, was not an abuse of discretion.     Rule 201 of the

Federal Rules of Evidence permits a court to take judicial notice of a fact that is not subject to

reasonable dispute at any point in the proceedings. Fed. R. Evid. 201(b), (d).     The relationship

between UTC and Eastern Time is not subject to reasonable dispute – Michael himself makes no

effort to dispute it – and so, by the terms of the rule, both the timing and content of the district

court’s instruction to the jury were legitimate. Moreover, the district judge carefully crafted the

supplemental instruction to define only the term at issue and to sidestep the substance of the text

in the cooperating witness’s phone records.      Given the evident confusion exhibited by the jury,

it was not an abuse of the district judge’s discretion to take judicial notice and offer an

instruction resolving this definitional confusion.

         C. Sentencing: Procedural Challenges

         After arrest, Michael was detained for fifteen months in Albany County Jail on state

charges relating to the instant offense before those charges were dismissed in favor of federal


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prosecution. He was then detained a further three months in Albany County Jail because his

conduct had also violated the terms of his state parole, for a total of eighteen months’ detention

in Albany County Jail, and later spent eight months in federal detention awaiting trial and

sentencing for the instant offense.   Michael argues that the district court should have taken these

twenty-six months in custody into account at sentencing.1

       Much of the time in custody about which Michael complains was, in fact, taken into

account by the district court at sentencing, or will be taken into account by operation of law.

For instance, Michael will get credit for his eight months in federal custody pursuant to 18

U.S.C. § 3585(b).    More pertinent here, the district judge imposed a sentence of 77 months, or

fifteen months less than the 92 months calculated as the low end of Michael’s sentencing range

under the United States Sentencing Guidelines, to reflect the time that Michael had spent in state

custody as a result of the offense for which he was ultimately convicted in federal court.         The

district court specifically noted that it would “adjust the sentence in this offense for the time

previously spent in state custody, which is 15 months.”      Sentencing Tr. 27.

       We conclude, however, that Michael is correct in arguing that the district court erred in

accounting for the time he spent in state custody. The district court calculated Michael’s time

in state custody to be fifteen months, when it appears that he may have been in custody for

eighteen months in connection with the present charges.             The district court then reduced

Michael’s sentence by only those fifteen months, without otherwise articulating why it would

have credited Michael with fifteen, rather than the full eighteen, months.


1
  Michael also challenges the district court’s decision to impose a two point enhancement under U.S.S.G.
§ 2K2.1(b)(4)(A) because even though the gun that Michael possessed was stolen, Michael allegedly did
not know that it was stolen. We rejected this argument in United States v. Thomas, 628 F.3d 64, 68-70
(2d Cir. 2010), and Michael gives us no reason to revisit that precedent now.


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         A court must state openly its reasons for imposing a particular sentence.       18 U.S.C.

§ 3553(c). This requirement helps ensure that the district court has considered the parties’

arguments and that the sentence the district court ultimately imposes is fully reasoned.     United

States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc). The open court requirement is

also necessary to our review of sentences imposed by district courts. Though our review of

such sentences is extremely deferential, “we ordinarily will not be able to determine whether the

district court's exercise of discretion was reasonable without an indication of the reason the

discretion was exercised as it was.” United States v. Christie, 736 F.3d 191, 196 (2d Cir. 2013).

Thus, a district court’s failure to adequately specify its reasoning at sentencing is procedural

error.   United States v. Carter, 489 F.3d 528, 540 (2d Cir. 2007). And “when the district

court’s statement provides an insufficient basis for us to determine why the district court did

what it did, that is an error that affects a defendant’s substantial rights” and cannot withstand

plain error review. United States v. Ware, 577 F.3d 442, 452 (2d Cir. 2009) (internal alterations

omitted).

         Here, our review is constrained because the district court found that Michael’s prior state

custody warranted a reduction in the length of his sentence and concluded that it would “adjust

the sentence in this offense for the time previously spent in state custody, which is 15 months.”

Sentencing Tr. 27. However, the record before us suggests – and the Government does not

contest – that Michael spent eighteen months in state custody. The district court may have

intended to grant Michael credit for the full amount of time spent in state custody and mistakenly

believed that he was in custody for only fifteen months.        Without more, the absence of an

explanation for this disparity prevents us from determining “why the district court did what it

did.”    Ware, 577 F.3d at 452.


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       Accordingly, we remand with instructions for the district court to evaluate whether its

sentence does, and if it does not, whether it should, reflect the entirety of the time Michael spent

in state custody.   The district court is directed to vacate the sentence if it determines that it erred

in calculating Michael’s time in state custody to be fifteen months and, as necessary, to conduct

further proceedings thereafter.

                                           *       *       *

       We have considered Michael’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of conviction, and REMAND for further proceedings

consistent with this order.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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