                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2008

USA v. Rasberry
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2298




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2298


                           UNITED STATES OF AMERICA

                                                          Appellee
                                           v.

                                GERALD RASBERRY

                                                          Appellant




           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                              (D.C. Criminal No. 05-cr-0271)
                    District Judge: The Honorable William J. Nealon




                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 13, 2008

                      Before: ROTH and MCKEE, Circuit Judges
                              O’NEILL*, District Judge

                                  (Filed: July 7, 2008)




      *The Honorable Thomas N. O’Neill, Jr., United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
                                  OPINION OF THE COURT




O’NEILL, District Judge

       Appellant Gerald Rasberry challenges whether the government produced sufficient

evidence at trial to support the jury’s guilty verdict. Appellant asserts that there was

insufficient evidence that he knowingly possessed a firearm as there was no physical or

forensic evidence, and the pertinent testimony was either unreliable, incredible or

inconclusive. We conclude that there was sufficient evidence that appellant knowingly

possessed a firearm in support of the jury’s verdict. We therefore will affirm.1

                                                I.

       Because we write only for the parties, who are familiar with the factual context

and legal history of this case, we will set forth only those facts necessary to our analysis.

       On July 29, 2003, a confidential informant, Richard Ianuale, arranged to buy a .22

caliber pistol from appellant and his cousin, Russell Jones. Ianuale conducted a

controlled purchase in which he obtained a .32 caliber pistol from appellant and Jones on

July 30, 2003. Tape recordings were made of this controlled purchase and played during



       1
         Appellant also contends that the District Court erred by applying the preponderance of
the evidence standard to find facts upon which it based its Guidelines sentencing calculations.
However, appellant acknowledges that this practice is in accordance with this Court’s binding
precedent in United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en banc), and simply
asserts this issue to preserve it. We affirm the District Court’s judgment in this regard as well.

                                                 2
trial.

         The tape recordings recorded Ianule attempting to persuade appellant to sell him a

.45 caliber pistol and asking how appellant had acquired that gun. Appellant answered,

“Easy. New York you can get em all brand new in the box if you find the right people.

But you have to pay crazy money.” Ianule responded, “I know it. I know it. New York’s

fuckin insane. Up here is no fuckin difference. Look what I’m given you for a fuckin 22.

$300.00 fuckin dollars. And it’s fuckin hot. I can’t even fuckin re-sell it.”

         Later in that same conversation, the jury heard Ianule and appellant discuss the

arranged purchase of a .22 caliber pistol.

         Ianule: You think you can push this motherfuckin’ nimrod until tomorrow
         morning? I come over at noon? The guy had to go to a baseball game.
         With his kids, like I said, alright?

         Rasberry: Push it where?

         Ianule: He’s getting, I get the gun tomorrow. The guy’s off tomorrow at
         noon.

         Rasberry: Well, I’ll push, I’ll tell him to go ahead –

         Ianule: Push him.

         Rasberry: Yeah I have to ‘cause the only way he could find it where he put
         it is in daylight.

         Ianule: Right.

         Rasberry: I told him to do it last night but he fucked, that’s why I got the
         flash batteries cause he killed all the batteries lookin’ for shit on the floor.

         Ianule: Are you on- he wants to be a fuckin’ rock star and that’s all good,

                                                 3
know what I mean? That’s all good.

Rasberry: I like to make money.

Ianule: You know what, that’s right, that’s right. I see you as the brains of
the operation here. But, you know what I mean, you got a fuckin’ .22, it’s
fuckin’ buried in the ground, you can’t fuckin’ play with it, get rid of the
motherfucker.

Rasberry: That’s what I told him. I said - whether, if. Oh, man fuck it.

Ianule: What’d he say, he thought it was stolen from a cop or somethin’?

Rasberry: I don’t know, he that’s what he thought. That’s what this guy
said. Some bullshit, I don’t know why he put it over there. And I don’t
even know why he mentioned all that shit. He’s so stupid!

Ianule: Aw, I don’t give a fuck.

Rasberry: I know I –

Ianule: where it comes from. They guy’s gonna walk into, fuckin’, the
guy’s goin’ over his fuckin’ house, he’s gonna shoot the fuckin’ – into the
fuckin’ car empty a clip on man and maybe empty a clip on his fuckin’
Harley. He don’t give a fuck. And then the fuckin’ gun’s goin’ into the
river.

Rasberry: Yeah I understand all that. He just ain’t supposed to tell you, you
know just say, well, it’s a cop’s gun.

Ianule: Well, I’d rather have it fuckin’ hot. I could care less where it comes
from. (Pause) No, hot gun’s are easy, you throw them in the fuckin’ river.
Ain’t no bodies on it though, right? That’s all good. I’ll bring gloves,
know what I mean, with my prints on the motherfucker. (Pause) Hey if you
get it in your hands, make sure you shoot her down with WD-40, that’s how
you get prints off her.

Rasberry: He ain’t even got the clip with it. The clip, I found the clip last
night when I was diggin’ lookin’ for some tools. The clip is in the goddamn
garage.

                                      4
       Ianule: Well, I want the whole gun.

       Rasberry: He’s so fuckin’ stupid. He ain’t even got the clip with the gun.
       But I think he got 3 or 4 bullets. I’m not sure. Probably can get .22's.

       As to the actual purchase itself, the jury heard the following conversation between

appellant, Ianule and Jones:

       Ianule: I caught him at the gas station, he waiting for me.

       Rasberry: He ain’t gonna give it to you unless...

       Ianule: I got cash in my pocket

       Rasberry: Oh...

       Ianule: Yea, I got his cash for the gun, no problem

       Ianule: (Inaudible)

       Rasberry: This gas station

       Ianule: Yea, I got to drop this off...(Inaudible)

       Rasberry: I hear what your saying, but...

       Ianule: I’m gonna run there and come right back...

       Ianule: Alright

       Ianule: I’m gonna drop off the gun at the gas station then come right back
       and get you.

       Jones: You got the money for the gun

       Ianule: I got the money...(Inaudible) in my pocket.

       Jones: Alright man.



                                              5
Jones: (Inaudible)

Rasberry: Are we leaving him the 30, 32 then

Jones: Yea

Rasberry: 32

Ianule: Oh, it’s a 32, I thought your said 22

Rasberry: This one’s a 32.

Jones: The 22 is my hit man gun

Ianule: Oh, your hit man gun, (laughing)...alright

Jones: How much is that...

Ianule: There’s 3. For a 32, I can give you 250.

Jones: No, you should give me 4.

Rasberry: For a 22, you get less.

Ianule: A 32 is less than a 22.

Jones: Hell no.

Rasberry: 32, then a 22.

Ianule: 22 will do more fucking damage...man ricochet like a fucking
rabbit.

Ianule: (Unintelligible)

Ianule: Yea, I hear ya, you’ll see, you’ll see

Jones: He even got a bag to go with that

Jones: (Unintelligible)

                                       6
      Rasberry: (Unintelligible)...That bag.

      Jones: Same one you had today.

      Ianule: Oh, all right...

      Jones: Clip

      Ianule: I thought you said the 22.

      Jones: No, that’s the 32

      Ianule: Oh, all right

      Jones: Load joint

      Rasberry: Might have been one in the...

      Ianule: Is that the one from the cop?

      Jones: Na, na, na, not from the cop.

      Ianule: Oh its not from the cop?

      Jones: Na, na, na.

      Ianule: Oh, all right.

      Jones: He still can get what you said he gonna use this to shoot up the
      mother fucking house though.

      In addition to the tape recordings, the government also presented testimony from

Special Agent Seth Graybill of the Bureau of Alcohol, Tobacco and Firearms outlining

the circumstances surrounding the controlled buy. Agent Graybill also testified that the

address on appellant’s license as of July 2003 was 17 Highland Circle and that appellant

admitted to living there during the relevant time frame. Moreover, Agent Graybill stated

                                               7
that the individual he personally observed dealing with Ianule matched appellant’s

description, and that appellant’s voice matched the one on the tape recordings.

       Furthermore, Ianule himself testified as to the events of the July 30, 2003

controlled buy and the parties involved. He also testified that when he bought the firearm

from appellant and Jones appellant had the firearm in his hand and gave it directly to

Ianule. During cross examination, Ianule admitted to troubles with law, other dishonest

behavior, drug use, and his compensation for cooperating with the government.

       On December 18, 2006, a jury convicted Rasberry of possession of a firearm by a

convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), specifically a Llama

.32 caliber semi-automatic pistol. On April 18, 2007, the District Court sentenced

Rasberry to 51 months imprisonment, followed by three years of supervised release. This

timely appeal followed.

                                            II.

       We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. When

reviewing a jury verdict for sufficiency of the evidence, we employ a highly deferential

standard. See United States v. Greenridge, 495 F.3d 85, 100 (3d Cir. 2007). We must

“view the evidence in the light most favorable to the government, and will sustain the

verdict if any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Leahy, 445 F.3d 634, 657 (3d Cir. 2006)

(citation omitted).



                                              8
                                             III.

       Such “a claim of insufficiency of the evidence places a very heavy burden on the

appellant.” Id. Appellant clearly has failed to carry that burden here. The evidence in

this case, when viewed in the light most favorable to the government, was sufficient for a

rational trier of fact to find based upon that evidence that appellant was guilty beyond a

reasonable doubt of all the elements of possession of a firearm by a convicted felon.

       Prior to trial, appellant and the government stipulated that the firearm had moved

in interstate commerce and that appellant was a convicted felon. As a result, the only

issue at trial was whether appellant had knowingly possessed the firearm. Possession is

“having or holding property in one’s power; the exercise of dominion over property.”

Black’s Law Dictionary 1201 (8th ed. 2004). Possession can be either actual or

constructive. Constructive possession requires that “an individual knowingly has both the

power and the intention at a given time to exercise dominion or control over a thing,

either directly or through another person or persons.” United States v. Iafelice, 978 F.2d

92, 96 (3d Cir. 1992) (citation omitted). Thus, “both ‘dominion and control’ over an

object and knowledge of that object’s existence” is necessary. Id.

       On appeal, appellant claims the government failed to produce sufficient evidence

at trial to sustain the jury’s verdict of guilty because there was no physical or forensic

evidence tying appellant to the firearm. Moreover, appellant argues that all of the direct

testimonial evidence against appellant was not credible. Specifically, appellant asserts



                                               9
that Special Agent Graybill’s perception was fatally compromised and Ianule was a drug-

abusing convicted felon with a past history of lying as well as incentive to do the same

here.

        First, there is no legal requirement that the government present physical or forensic

evidence tying appellant to the firearm, and the lack of the same is an issue for the jury.

Moreover, in lieu of physical or forensic evidence, the government presented the tape

recordings using appellant’s own words as proof of the transaction and appellant’s

involvement. The jury chose to believe that it was appellant on the tape recordings

discussing with Ianule the sale of .22 caliber pistol, and later negotiating the price of a .32

caliber pistol. The government also presented substantial direct testimony from both

Agent Graybill and Ianule tying appellant to the firearm.

        Although only Ianule testified to actually seeing appellant with the firearm in his

hand,2 the testimony of a single witness even standing alone is sufficient to uphold a

conviction. See Gov’t of Virgin Islands v. Henry, 232 Fed. Appx. 170, 174 (3d Cir.

2007); compare United States v. Perez, 280 F.3d 318, 344 (3d Cir. 2002) (holding that

uncorroborated accomplice testimony may provide the exclusive basis for a criminal

conviction); United States v. De Larosa, 450 F.3d 1057, 1060 (3d Cir. 1971) (same).

Moreover, similar to United States v. Hopkins, Ianule’s testimony was corroborated in


        2
        We also note that the government need not prove actual possession. Even in the absence
of Ianule’s testimony, there is sufficient evidence that would have provided a basis for the jury to
find constructive possession (e.g. the tape recording of appellant negotiating the sale price of the
firearm with Ianule).

                                                10
part “by federal agents who kept him under surveillance immediately before and during

the critical period of his alleged transaction with” appellant. 518 F.2d 152, 154 (3d Cir.

1975).

         Contrary to appellant’s arguments, “it is not for us to weigh the evidence or to

determine the credibility of the witnesses.” United States v. Dent, 149 F.3d 180, 187 (3d

Cir. 1998) (citation omitted). The limitations of the tape recordings and questions

regarding the identity of the speakers recorded were explored during cross-examination of

Agents Graybill and Kovach. Moreover, several facts reflecting poorly on Ianule’s

credibility were highlighted for the jury during the testimony of both Ianule and Agent

Graybill. See id. at 154-55. Thus, we cannot overturn the jury’s verdict because it chose

to believe it was appellant’s voice on the tape recordings, or that it found the testimony of

Ianule and Agent Graybill credible. As long as a rational trier of fact could have found

appellant guilty beyond a reasonable doubt of the crimes with which he was charged we

must sustain the jury’s verdict. The evidence in this case as outlined above was sufficient

for a rational trier of fact to find that appellant had possession of a firearm.

                                             IV.

         For the foregoing reasons, we will affirm the judgment of the District Court.




                                              11
