18-173-cr
United States v. Hayes

                          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
27th day of April, two thousand twenty.

Present:
            RICHARD C. WESLEY
            DEBRA ANN LIVINGSTON,
            JOSEPH F. BIANCO,
                   Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                 18-173-cr

WILBERT HAYES,

                  Defendant-Appellant.
_____________________________________

For Appellee:                             MONICA J. RICHARDS, Assistant United States Attorney,
                                          for James P. Kennedy, Jr., United States Attorney for
                                          the Western District of New York, Buffalo, NY

For Defendant-Appellant:                  JAMES M. BRANDEN, The Law Office of James M.
                                          Branden, New York, NY

        Appeal from a judgment of the United States District Court for the Western District of New

York (Arcara, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Wilbert Hayes (“Hayes”) appeals from a judgment of conviction and

sentence in the United States District Court for the Western District of New York (Arcara, J.) for

one count of being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) and

§ 924(a)(2). Hayes was charged following an investigation by the Niagara Falls Police Department

(“NFPD”) into potential marijuana-dealing activities at an apartment at 1318 Walnut Avenue in

Niagara Falls, New York, where Hayes resided with his girlfriend and two children. Following

two controlled purchases of marijuana and a series of surveillance operations, the NFPD obtained

a warrant to search the apartment. When NFPD officers executed the warrant on August 15, 2014,

they discovered, inter alia, a bolt-action shotgun hidden in a bedroom closet and a bag of marijuana

(along with additional unused plastic bags) hidden in a fish tank. Hayes’s conviction concerns his

possession of the shotgun. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

                                         *       *          *

       I. The Sufficiency of the Trial Evidence

       A conviction under 18 U.S.C. § 922(g)(1) requires the government to prove, inter alia, that

the defendant knowingly possessed or received a firearm. The defendant’s mere presence in the

same location as a weapon does not establish possession, United States v. Rios, 856 F.2d 493, 496

(2d Cir. 1988), but it is sufficient for the government to prove that a defendant had the “power and

[] intention . . . to exercise dominion and control” over it, United States v. Jones, 531 F.3d 163,

169 (2d Cir. 2008). On appeal, Hayes argues that the government presented insufficient evidence

at trial to prove that he had possession of the shotgun found in the bedroom closet. He contends




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that, “[a]t best, the evidence suggest[s] that [he] was a regular visitor to the upper apartment at

1318 Walnut [Avenue] and that he had some authority to receive visitors there and even barbecue

on the outdoor porch,” both of which NFPD officers had observed him doing. Appellant’s Br. 9–

10. For the following reasons, we disagree.

       We review challenges to the sufficiency of the evidence de novo. United States v. Lyle, 919

F.3d 716, 737 (2d Cir. 2019), cert. denied, 140 S. Ct. 846 (2020). In so doing, we view the evidence

“in a light that is most favorable to the government, and with all reasonable inferences resolved in

favor of the government.” United States v. Anderson, 747 F.3d 51, 60 (2d Cir. 2014) (quoting

United States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011)). We must uphold the jury’s verdict “if

any rational trier of fact could have found the essential elements of the crime had been proved

beyond a reasonable doubt.” United States v. Valle, 807 F.3d 508, 515 (2d Cir. 2015). The verdict

“may be based on circumstantial evidence,” and “the Government is not required to preclude every

reasonable hypothesis which is consistent with innocence.” United States v. Ogando, 547 F.3d

102, 107 (2d Cir. 2008) (internal quotation marks omitted).

       Here, the government presented sufficient evidence for the jury to find that Hayes had

dominion and control over the shotgun. First, the jury heard testimony that at each of the five times

police surveilled the premises, Hayes was present and acting in a manner consistent with the

exercise of dominion and control of the apartment, including by allowing visitors to enter and

barbecuing on the apartment’s deck. It heard further evidence that confidential informants

purchased marijuana from Hayes at the apartment, a narrative corroborated by the presence of

marijuana and unused plastic bags hidden there. Second, police testified that when an officer

accidentally discharged his weapon while clearing the apartment, Hayes repeatedly asked, “Who

shot a shot in my house?” Trial Tr. 115, 124, 131–32. Third, when Hayes was booked and asked




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for his address by law enforcement, he provided the address where police found the shotgun.

Fourth, a search of the apartment revealed a New York State benefits card and a letter concerning

child support payments, both of which were addressed to Hayes.

       This evidence was sufficient to find, beyond a reasonable doubt, that Hayes had dominion

and control over the entire apartment and the items inside it. He identified the residence as his

house, both at the time of the search and when he was later asked for his address. He was seen at

the apartment on numerous occasions and kept government documents and credentials—items one

would not ordinarily leave in a place where one does not exercise dominion and control—on the

premises. And the evidence that Hayes dealt marijuana from the residence suggested a motive for

him to keep a weapon near the front door, where the shotgun was found. See United States v.

Rivera, 844 F.2d 916, 926 (2d Cir. 1988) (citing United States v. Hernandez, 780 F.2d 113, 116–

17 (D.C. Cir. 1986)).

       II. The Jury Instructions

       A “criminal defendant is entitled to a jury charge that reflects his defense.” United States

v. Vasquez, 82 F.3d 574, 577 (2d Cir. 1996). On appeal, Hayes contends that the district court’s

instructions on the law of constructive possession did not sufficiently track his defense theory—

i.e., that his only connection to the shotgun found in the apartment where he was arrested was

physical proximity—and were therefore inconsistent with our decision in Vasquez. After the close

of evidence at trial, Hayes filed a written request for an instruction that a defendant’s “mere

presence” at the location where contraband is found is insufficient evidence of possession. The

district court ultimately denied the request, concluding that the requested instruction risked

confusing the jury and that the court’s intended explanation of the law was sufficient. The district

court’s ultimate instruction explained, inter alia, that possession entails the “power and intention




                                                 4
to exercise control over” the firearm and that the defendant must have “possessed the firearm

purposely and voluntarily and not by accident or mistake.” Trial Tr. 385–86. Hayes now argues

that by excluding his requested instruction, the district court “left [the jury] to conclude that the

principal defense was not legally viable and that the defense lacked a supportable foundation.”

Appellant’s Br. 18. For the following reasons, we again disagree.

       We review a challenge to the jury instructions de novo, but will “reverse only where the

charge, viewed as a whole, demonstrates prejudicial error.” United States v. Coppola, 671 F.3d

220, 247 (2d Cir. 2012). This occurs only “if we conclude that a charge either fails to adequately

inform the jury of the law, or misleads the jury as to a correct legal standard.” United States v.

Quattrone, 441 F.3d 153, 177 (2d Cir. 2006); accord Turley v. ISG Lackawanna, Inc., 774 F.3d

140, 153 (2d Cir. 2014). We will not order a new trial if “the instructions, read as a whole,

presented the issues to the jury in a fair and evenhanded manner.” Turley, 774 F.3d at 153 (quoting

Lore v. City of Syracuse, 670 F.3d 127, 156 (2d Cir. 2012)). Though a defendant is entitled to a

charge that reflects his defense, moreover, we will not overturn a conviction for a district court’s

refusal to give a requested instruction unless that instruction is “legally correct, represents a theory

of defense with basis in the record that would lead to acquittal, and the theory is not effectively

presented elsewhere in the charge.” Vasquez, 82 F.3d at 577. A criminal defendant is not entitled

to have the district court read to the jury the exact language proposed. United States v. Johnson,

994 F.2d 980, 988 (2d Cir. 1993).

       For the reasons articulated in Vasquez, the district court’s instruction here “adequately

apprised the jury of the defense” and was not prejudicial error. See 82 F.3d at 578. In Vasquez, as

here, the defendant requested that the court tell the jury that the “mere presence of the defendant

in the vicinity of the gun or the gun’s accessibility to the defendant is not enough to prove knowing




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possession.” Id. at 577. Instead, that court gave a charge on possession materially identical to the

one given here, instructing the jury that possession requires “the power and intention to control the

firearm” but not “proof of ownership.” Id. We remarked that although “it would have been

preferable” to incorporate a more specific instruction that mere presence is insufficient to find

possession, “the court’s instructions adequately apprised the jury of the defense and [did] not

warrant reversal of Vasquez’s conviction.” Id. at 578.

       Central to Vasquez’s holding was that “the instructions . . . clearly required the jury to find

that the defendant had the intent to exercise dominion or control over the firearm and that

possession could not be established by accident or mistake[,] . . . effectively preclud[ing]

conviction for mere presence or proximity.” 1 Id. at 577–78. The same is true here. Even if the

district court might have more closely tailored its instruction to Hayes’s defense theory, the

instructions it gave effectively presented the jury with the law and plainly precluded a finding of

possession based on “mere presence.” The district court’s decision not to present the precise

language Hayes requested was in no way tantamount to a condemnation of Hayes’s theory of

innocence. See Johnson, 994 F.2d at 988. Hayes’s argument to the contrary is without merit.

       III. The Admission of Evidence Regarding Confidential Informants

       Before trial, Hayes moved, pursuant to Federal Rule of Evidence 403, to preclude evidence

of his two uncharged marijuana transactions with the confidential informants. The district court

granted Hayes’s motion to exclude testimony by NFPD detectives regarding controlled purchases

of marijuana from Hayes, but allowed the government to examine those detectives regarding their

surveillance operations, their observations of Hayes at the apartment, and the seizure of the


1
  We have cited Vasquez for the proposition that a district court’s failure to give a requested charge
does not merit reversal “where the omitted jury instructions, although legally correct and even
‘preferable,’ were not necessary.” See United States v. Pabon-Cruz, 391 F.3d 86, 94 (2d Cir. 2004).


                                                  6
marijuana and plastic bags found during the search.

       At trial, the government elicited testimony regarding the NFPD’s recovery of marijuana,

unused plastic bags, and the shotgun at the apartment. When cross-examining Detective Joseph

Giaquinto, the detective who initiated the investigation into Hayes, defense counsel elicited

testimony that the marijuana found in Hayes’s apartment was a small amount and “could be”

intended for personal use. Trial Tr. 220–21. He then elicited testimony that Hayes, but not his

girlfriend who also lived in the apartment, was arrested and charged in connection with the

marijuana and shotgun. At the government’s request, the district court ruled that this testimony—

which arguably created the impression that Hayes had been targeted arbitrarily for investigation

and prosecution in connection with personal use marijuana—opened the door to testimony that the

NFPD also oversaw two controlled evidence purchases of marijuana from Hayes. On redirect,

Detective Giaquinto testified that Hayes let confidential informants into the apartment and that

those informants returned with green matter that field tested positive for marijuana. He also

testified that the amounts purchased by the informants were consistent with the amount seized in

the search, and that their packaging was consistent with the plastic bags found in the apartment

during the search.

       On appeal, Hayes claims that the district court’s admission of Detective Giaquinto’s

redirect testimony was error. In his summation, counsel for the government referred to the

controlled purchases and linked them to the possession charge by arguing, inter alia, that “he kept

[the gun] at 1318 Walnut Avenue, because that’s where he sold marijuana. So, he had the motive

to make sure it was nearby, to possess it when he engaged in the dangerous world of drug dealing.”

Trial Tr. 300. In Hayes’s view, the admission of the controlled purchase evidence—particularly in

combination with the government’s theory—was unduly prejudicial because it “paint[ed] . . .




                                                7
Hayes as a significant drug dealer in need of an arsenal to protect him.” Appellant’s Br. 23. Yet

again, we disagree.

         “We ‘uphold Rule 403 rulings unless the district court has abused its discretion.’” United

States v. Massino, 546 F.3d 123, 132 (2d Cir. 2008) (per curiam) (quoting Sprint/United Mgmt.

Co. v. Mendelsohn, 552 U.S. 379, 384 (2008)). As long as “the district court has conscientiously

balanced the proffered evidence’s probative value with the risk for prejudice, its conclusion will

be disturbed only if it is arbitrary or irrational.” Id. (internal quotation mark omitted). In the course

of our review, we generally “maximize [the evidence’s] probative value and minimize its

prejudicial effect.” Id. (internal quotation marks and alterations omitted).

         Here, the district court did not abuse its discretion in admitting testimony regarding the

informants’ controlled purchases from Hayes. It was neither arbitrary nor irrational to conclude

that the potential for prejudice did not substantially outweigh the evidence’s probative value.

Detective Giaquinto’s testimony that he witnessed the informants enter the apartment at Hayes’s

invitation and leave with marijuana was relevant to whether Hayes was engaged in selling drugs

at the premises and whether he knowingly possessed the firearm located near the apartment’s

entrance. 2 And as the district court found, this evidence was made all the more relevant by defense

counsel’s cross-examination of Detective Giaquinto. In the absence of the clarifying rebuttal

evidence, this cross-examination might have compromised the NFPD’s credibility by implying

that the government focused on Hayes’s possession of the firearm when the evidence suggested

no particular association between him and other contraband found in the apartment. 3 Cf. United


2
  Hayes does not contest the propriety of the controlled-purchase testimony under Rule 404(b),
which prohibits the use of evidence of uncharged crimes to prove a person’s character. But the
evidence’s relevance to motive renders it permissible under that rule as well. See Fed. R. Evid.
404(b)(2).
3
    Hayes contends that his counsel’s cross-examination was intended merely to “blunt the potential

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States v. Bermudez, 529 F. 3d 158, 163 (2d Cir. 2008) (finding evidence of drug dealing in a

firearm possession charge admissible under Rule 403, even before the defense “opened the door,”

where “it was important for the government to establish . . . why the officers’ attention was focused

on [the defendant] as opposed to any number of other individuals in the high crime area”).

       Moreover, Detective Giaquinto’s testimony presented little risk of unfair prejudice. Rather

than portraying Hayes “as a significant drug dealer in need of an arsenal,” Appellant’s Br. 23, the

evidence suggested that he was a small-time marijuana dealer who sold small bags of marijuana

and possessed a single unloaded shotgun in the place where he sold those drugs. This type of

evidence was unlikely to inflame the passions of a jury. Nor was it likely to prompt a jury to

“declar[e] guilt on a ground different from proof specific to the offense charged.” Old Chief v.

United States, 519 U.S. 172, 180 (1997). The district court instructed the jury regarding its

consideration of the uncharged criminal activity, and we must presume, absent contrary evidence,

that the jury understood and abided by those instructions. United States v. Downing, 297 F.3d 52,

59 (2d Cir. 2002). As such, the district court’s admission of the controlled-purchase evidence was

not an abuse of its discretion.

       IV. Hayes’s Post-Rehaif Challenge to the Indictment and Jury Instructions

       After Hayes’s conviction, the Supreme Court decided Rehaif v. United States, 139 S. Ct.

2191 (2019), holding that to obtain a conviction pursuant to 18 U.S.C. § 922(g), the government

must prove not only that the defendant knew that he possessed a firearm, but also that he “knew

he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif, 139 S.



prejudice of the marijuana/paraphernalia evidence.” Appellant’s Br. 22. But as the government
argues, this only demonstrates the false impression that Detective Giaquinto’s redirect testimony
sought to correct. Hayes knew that he had been selling marijuana out of the apartment, so his
attempt to counter the impact of the marijuana evidence was actually to suggest, contrary to fact,
that he had not been engaged in drug sales and the marijuana was solely for personal use.


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Ct. at 2200. Prior to Rehaif, however, we interpreted § 922(g)(1) and § 924(a)(2) not to include

the latter requirement. Cf. United States v. Gaines, 295 F.3d 293, 302 (2d Cir. 2002). Accordingly,

though Hayes stipulated at trial that he had previously been convicted of a crime punishable by

imprisonment for a term exceeding one year, that stipulation addressed neither his knowledge of

the prior conviction nor its potential penalties. Now, in supplemental briefing filed in response to

Rehaif, Hayes argues that (1) the district court lacked jurisdiction over his case because the

indictment did not properly charge an offense and (2) the jury was not instructed to find—and the

stipulation was not sufficient to establish—that Hayes knew he was a member of the subject class.

Post-Rehaif decisions of this Court foreclose both of these arguments.

        Federal courts have jurisdiction to adjudicate a criminal charge as long as “the indictment

alleges an offense under U.S. criminal statutes.” United States v. Prado, 933 F.3d 121, 134 (2d

Cir. 2019). “[T]he standard for the sufficiency of an indictment is not demanding,” United States

v. Balde, 943 F.3d 73, 89 (2d Cir. 2019), and requires little more than that the indictment “track

the language of the statute charged and state the time and place (in approximate terms) of the

alleged crime,” United States v. Stringer, 723 F.3d 120, 124 (2d Cir. 2013) (quoting United States

v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000)). The indictment here, which closely tracks the language

of § 922(g)(1), plainly meets this standard. See Balde, 943 F.3d at 89 (holding that an indictment

tracking the statutory language of § 922(g)(5)(A) remains sufficient to confer district court

jurisdiction after Rehaif).

        Our recent decision in United States v. Miller, 954 F.3d 551, 560 (2d Cir. 2020), renders

Hayes’s jury instruction challenge similarly meritless. Because Hayes challenges the district

court’s instruction for the first time on appeal, we review that instruction “for plain error,

considering whether (1) there is an error; (2) the error is clear or obvious, rather than subject to




                                                10
reasonable dispute; (3) the error affected the appellant’s substantial rights; and (4) the error

seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 557–58

(internal quotation marks omitted). In Miller, the defendant argued that the district court committed

plain error when, prior to Rehaif, it failed to instruct the jury that § 922(g) requires the government

to prove his knowledge of his former-felon status. Id. at 557. We disagreed, and held that such an

admitted error did not rise to the level of reversible plain error because the defendant’s presentence

investigation report (“PSR”) revealed that he was sentenced to, and actually served, more than one

year in prison for a prior felony conviction. Id. at 559–60 (concluding that affirming the conviction

would not “seriously affect the fairness, integrity, or public reputation of judicial proceedings”).

       As in Miller, Hayes’s PSR demonstrates that prior to the conduct at issue in this case, Hayes

had been sentenced to, and served, more than one year’s imprisonment for a felony conviction.

Like the court in that case, “we have no doubt that, had the Rehaif issue been foreseen by the

district court, [Hayes] would have stipulated to knowledge of his felon status to prevent the jury

from hearing evidence of his actual sentence.” 4 Id. at 560. The district court’s erroneous

instruction and the stipulation’s silence as to Hayes’s knowledge of his prior conviction provide

no basis to vacate Hayes’s conviction.




4
  As we explained in Miller, “at trial, [the defendant] likely would have . . . been successful in
excluding[] the details pertaining to his prior offense as unnecessary and prejudicial embellishment
on his stipulation. We will not penalize the government for its failure to introduce evidence that it
had but that, prior to Rehaif, it would have been precluded from introducing.” 954 F.3d at 559–60
(footnote omitted).


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

Accordingly, we AFFIRM the judgment of the district court.

                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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