     13-379-cr
     United States v. Barner

                               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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   31st day of March, two thousand fourteen.
 4
 5   PRESENT:         ROBERT D. SACK,
 6                    DEBRA ANN LIVINGSTON,
 7                    RAYMOND J. LOHIER, JR.,
 8                                       Circuit Judges.
 9
10
11   UNITED STATES OF AMERICA,
12
13                                        Appellee,
14
15           -v-                                                                No. 13-379-cr
16
17   JIMMY LEE BARNER,
18
19                                        Defendant-Appellant.
20
21
22                                                TIMOTHY P. MURPHY (Herbert L. Greenman, on the
23                                                brief), Lipsitz Green Scime Cambria, LLP, Buffalo,
24                                                NY, for Defendant-Appellant.
25
26                                                JOSEPH J. KARASZEWSKI, Assistant United States
27                                                Attorney, for William J. Hochul, Jr., United States
28                                                Attorney for the Western District of New York,
29                                                Buffalo, NY, for Appellee.


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

 2   DECREED that the judgment of the district court is AFFIRMED.

 3          Defendant-Appellant Jimmy Lee Barner appeals from a judgment of the United States

 4   District Court for the Western District of New York (Judge Billy Roy Wilson, of the Eastern District

 5   of Arkansas, sitting by designation), entered January 22, 2013. Barner was convicted of a single

 6   count of unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1)

 7   and 924(a)(2), for which he is currently serving a sentence of 100 months in prison. Barner

 8   challenges the jury instructions and an Allen charge1 delivered by the district court, argues that the

 9   evidence was insufficient to support his conviction, and further contends that his trial was subject

10   to several other procedural errors that undermine his conviction. We assume the parties’ familiarity

11   with the underlying facts, the procedural history of the case, and the issues presented on appeal.

12          I. Jury Instructions

13          The first set of arguments that Barner advances concern jury instructions that his counsel

14   proposed but that were not included in the district court’s charge to the jury. “We review a jury

15   instruction challenge de novo, but we will reverse only where the charge, viewed as a whole,

16   demonstrates prejudicial error.” United States v. Coppola, 671 F.3d 220, 247 (2d Cir. 2012); see

17   also United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010) (“A defendant challenging a jury

18   instruction as erroneous must show both error and ensuing prejudice.” (internal quotation marks

19   omitted)). We “do not review a jury charge on the basis of excerpts taken out of context, but in its

20   entirety, to determine whether considered as a whole, the instructions adequately communicated the

21   essential ideas to the jury.” Sabhnani, 599 F.3d at 237 (citation and internal quotation marks


            1
 1              See Allen v. United States, 164 U.S. 492, 501-02 (1896).

                                                       2
 1   omitted). “A conviction will not be overturned for refusal to give a requested charge . . . unless that

 2   [requested] instruction is legally correct, represents a theory of defense with basis in the record that

 3   would lead to acquittal, and the theory is not effectively presented elsewhere in the charge.” United

 4   States v. Stewart, 433 F.3d 273, 310 (2d Cir. 2006) (alteration and omission in original) (internal

 5   quotation marks omitted).

 6          A. Mere Presence or Association

 7          Barner’s first challenge concerns the district court’s decision not to specifically instruct the

 8   jury that neither Barner’s presence near the storage room where the firearms were discovered nor

 9   his association with persons who owned or controlled the weapons provides a legally sufficient basis

10   on which the jury could convict him. Barner’s proposed instruction, however, was unnecessary in

11   context here: the district court made clear in its instruction regarding possession that, even for

12   purposes of constructive possession, a person must have “both the power and intention at a given

13   time to exercise dominion or control over a thing, either directly or through another person or

14   persons.” This instruction properly precluded the jury from finding possession simply by virtue of

15   Barner’s proximity to the weapons or association with others who controlled them. Therefore, we

16   conclude that the addition of Barner’s proposed language to the charge was not necessary and would

17   not have “le[d] to acquittal.” Stewart, 433 F.3d at 310. Accordingly, we reject Barner’s challenge

18   on this ground.

19          B. Other Instructions

20          Barner next challenges the charges regarding possession and intent delivered by the district

21   court, but his argument is meritless. He has identified no error in the district court’s instructions.

22   The charges that the district judge gave on these points included the same elements as Barner’s


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 1   requested charge, often using very similar language. For instance, the district court’s possession

 2   charge – much like Barner’s requested charge – included definitions of sole and joint possession and

 3   stated that a defendant must have the “power and intention” to exercise control over an object in

 4   order to possess it.

 5           We also reject Barner’s contention that the district court incorrectly refused to deliver other

 6   jury instructions that his counsel proposed. Some of these instructions would simply have been

 7   duplicative of instructions that did appear in the charge: for instance, Barner says that the court

 8   erroneously did not deliver his “indictment is not evidence” charge, but the court explicitly told the

 9   jury that “an indictment is simply an accusation. It is not evidence of anything.” The other

10   proposed charges simply were not necessary, in this case, to “adequately communicate[] the

11   essential ideas to the jury.” Sabhnani, 599 F.3d at 237 (internal quotation mark omitted).

12   Accordingly, we detect no error in the district court’s decision to omit the remaining instructions.

13           II. Allen Charge

14           Barner argues that the district court erred in its delivery of an Allen charge to the jury. He

15   contends that the charge was coercive because it did not contain his proposed language, which he

16   says would ensure that the jurors’ votes reflected their own conscientiously held beliefs, and because

17   the judge delivered the charge sua sponte and in the absence of a note from the jurors stating that

18   they were deadlocked.

19           We review a district court’s decision to give an Allen charge for abuse of discretion. United

20   States v. Vargas-Cordon, 733 F.3d 366, 377 (2d Cir. 2013). Our analysis of whether an Allen charge

21   is proper “hinges on whether it tends to coerce undecided jurors into reaching a verdict – that is,

22   whether the charge encourages jurors to abandon, without any principled reason, doubts that any


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 1   juror conscientiously holds as to a defendant’s guilt.” Id. (quoting United States v. Melendez, 60

 2   F.3d 41, 51 (2d Cir. 1995)) (internal quotation marks omitted). We conduct the analysis of the

 3   “potential coercive effect” of an Allen charge “in its context and under all the circumstances.”

 4   Spears v. Greiner, 459 F.3d 200, 205 (2d Cir. 2006) (quoting Lowenfield v. Phelps, 484 U.S. 231,

 5   237 (1988)) (internal quotation marks omitted). Even a modified Allen charge that omits language

 6   admonishing jurors not to give up their conscientiously held beliefs is permissible, we have held,

 7   where the district court made clear, in context, that the jurors should retain their own opinions and

 8   that they were not required to reach a verdict. See id. at 206.

 9          We conclude that the charge here was not coercive “in its context and under all the

10   circumstances.” Id. The district court’s instruction included the following excerpt, which urged the

11   jurors to retain their own beliefs in deliberating to reach a verdict:

12          [I]t is your duty to consult with one another and to deliberate with a view to reaching
13          agreement if you can do so without violence to your individual judgment. Of course,
14          you must not surrender your honest convictions as to the weight or effect of the
15          evidence solely because of the opinions of the other jurors or for the mere purpose
16          of returning a verdict. Each of you must decide the case for yourself, but you should
17          do so only after consideration of the evidence with your fellow jurors.
18
19   Moreover, beyond instructing jurors not to surrender their convictions, the district court also told

20   them to “take all the time that you feel is necessary” to come to a verdict, and stated that “a hung

21   jury is an acceptable option” if it was not possible to reach an agreement as to the verdict. Thus, we

22   conclude that the additional language that Barner’s counsel requested was unnecessary due to the

23   cautions contained in the district court’s instructions.

24          Furthermore, the jurors continued to deliberate for about two hours after receiving the Allen

25   charge, and during that time, they sent notes asking to review testimony and several pieces of

26   evidence presented during the trial. The continuation of deliberations for some period of time after

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 1   the Allen instruction tends to indicate that the charge was not coercive. See Vargas-Cordon, 733

 2   F.3d at 378; Spears, 459 F.3d at 206-07. Nor is our conclusion altered by the fact that the district

 3   court delivered the Allen charge sua sponte: we have previously held that the sua sponte delivery

 4   of an Allen charge is not coercive on this basis alone. See United States v. Martinez, 446 F.2d 118,

 5   120 (2d Cir. 1971). On the whole, we hold that the district court did not abuse its discretion in

 6   giving the Allen charge, and we reject Barner’s contention that the instruction was coercive.

 7          III. Sufficiency of the Evidence

 8          Barner argues that there was insufficient evidence to convict him of the possession of the

 9   firearms and ammunition beyond a reasonable doubt. We disagree. On a challenge to the

10   sufficiency of the evidence in a criminal case, we “draw all permissible inferences in favor of the

11   government and resolve all issues of credibility in favor of the jury verdict.” United States v.

12   Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). We “must sustain a jury verdict ‘if any rational trier of

13   fact could have found the essential elements of a crime beyond a reasonable doubt.’” United States

14   v. Wexler, 522 F.3d 194, 207 (2d Cir. 2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))

15   (emphasis in Jackson).

16          “It is not necessary for a defendant to touch or exercise exclusive control over contraband

17   to possess it.” United States v. Rios, 856 F.2d 493, 496 (2d Cir. 1988) (per curiam) (emphasis in

18   original). Rather, a possession conviction can be upheld if there is proof of constructive possession

19   – that is, if the jury had before it evidence that the defendant had “the power and the intention at a

20   given time to exercise dominion and control over” the item. United States v. Chavez, 549 F.3d 119,

21   129 (2d Cir. 2008) (holding that there was sufficient evidence of constructive possession of a firearm

22   to support a conviction under 18 U.S.C. § 924(c)(1)(A)). However, a defendant’s “[m]ere presence


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 1   at the location of contraband” cannot establish unlawful possession. United States v. Rodriguez, 392

 2   F.3d 539, 548 (2d Cir. 2004) (internal quotation marks omitted).

 3           Our review of the facts adduced at trial leads us to conclude that the evidence contained

 4   sufficient indications of Barner’s “dominion and control” over the firearms in the storage room to

 5   support the conviction.2 Rios, 856 F.2d at 496. Testimony at trial established that the key to the

 6   storage room was found on Barner’s person shortly before the search, that parole officers found mail

 7   and other possessions on which Barner’s name appeared inside the storage room, and that the door

 8   to the storage space was about ten feet away from Barner’s own apartment door. Drawing all

 9   inferences in the government’s favor, these facts support the jury’s finding that Barner had sufficient

10   control over the storage room and the firearms and ammunition therein to support his weapons

11   possession conviction.3 Thus, because a “rational trier of fact could have found the essential

12   elements of the crime beyond a reasonable doubt,” United States v. Bullock, 550 F.3d 247, 251 (2d

13   Cir. 2008) (internal quotation marks omitted), we reject Barner’s argument that the evidence was

14   insufficient.

15           IV. Courtroom Closure

16           Barner also argues, based on the affidavit of the Federal Defender for the Western District

17   of New York – who was not involved in Barner’s defense – that the courtroom was improperly


             2
 1             Some of the evidence that Barner possessed the firearms underlying his conviction may be
 2   circumstantial, but such evidence is no less valid than direct evidence. See United States v.
 3   Espaillet, 380 F.3d 713, 719 (2d Cir. 2004) (stating that circumstantial evidence “is of no less
 4   intrinsic worth than direct evidence and, indeed, circumstantial evidence alone may support a guilty
 5   verdict”).
             3
 1             The jury considered and rejected the theory, urged by Barner’s counsel in his summation,
 2   that the evidence proving Barner’s control of the storage room and possession of the weapons was
 3   lacking.

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 1   closed during trial and that the district court erred by not ordering a hearing on this issue. We reject

 2   this claim as well. A criminal defendant has a constitutional right to a public trial, but this right “is

 3   not absolute.” United States v. Gupta, 699 F.3d 682, 686-87 (2d Cir. 2012). To determine whether

 4   a courtroom closure violated a defendant’s right to a public trial, the court considers “whether the

 5   closure subverts the values the drafters of the Sixth Amendment sought to protect: ‘1) to ensure a

 6   fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the

 7   importance of their functions; 3) to encourage witnesses to come forward, and 4) to discourage

 8   perjury.’” Smith v. Hollins, 448 F.3d 533, 540 (2d Cir. 2006) (quoting Peterson v. Williams, 85 F.3d

 9   39, 43 (2d Cir. 1996)). In this case, Barner has not shown that his Sixth Amendment right was

10   violated by a courtroom closure, nor that a hearing was required.

11             The federal defender’s affidavit states that she found the courtroom locked when she came

12   to the courthouse “sometime later in the morning” of September 21, 2012. She was informed by a

13   court security officer that testimony was ongoing, but made no further effort to ascertain whether

14   this was the case. In fact, no testimony was taken that day. The chronology reflected in the trial

15   transcript shows that, early on the morning of September 21, the parties held their final conference

16   on the jury charge, and starting shortly after 9:00 a.m., the jury was charged and the parties gave

17   their closing arguments. The jury began deliberating at some point shortly before 10:46 a.m., and

18   after that point the court was in recess until early in the afternoon, when the court received a

19   question from the jury. We conclude that, on this record, Barner has failed to show any improper

20   courtroom closure implicating the Sixth Amendment right to a public trial – that is, he has not

21   demonstrated that there was any ongoing proceeding in the courtroom at the time it was allegedly

22   closed.


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 1          V. Jury Unanimity

 2          The final issue that Barner presents for our review is the district court’s refusal to deliver an

 3   instruction requiring the jurors unanimously to determine that Barner illegally possessed at least one

 4   of the particular firearms or rounds of ammunition seized from the storage room. Usually, however,

 5   a “general instruction on unanimity is sufficient to insure that such a unanimous verdict is reached”

 6   as to the factual basis for a conviction, “except in cases where the complexity of the evidence or

 7   other factors create a genuine danger of jury confusion.” United States v. Schiff, 801 F.2d 108, 114-

 8   15 (2d Cir. 1986); see also Richardson v. United States, 526 U.S. 813, 817 (1999) (stating that

 9   although “a jury in a federal criminal case cannot convict unless it unanimously finds that the

10   Government has proved each element,” it “need not always decide unanimously which of several

11   possible sets of underlying brute facts make up a particular element”). Here, the district court

12   instructed the jury that its verdict must be unanimous, and the evidence as to possession was the

13   same for all of the firearms and ammunition underlying the indictment. There is no reason to believe

14   that the jurors could have disagreed as to the factual predicate for Barner’s conviction, and

15   accordingly, we see no error in the district court’s refusal to charge the jury more specifically on

16   unanimity.

17                                                   ***

18          We have considered all of Barner’s remaining arguments and find them to be without merit.

19   For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

20                                                          FOR THE COURT:
21                                                          Catherine O’Hagan Wolfe, Clerk
22




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