14-2618-cr
United States v. Cannon

                          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.

       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 11th day of January, two thousand sixteen.

PRESENT: RALPH K. WINTER,
                 REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                     v.                                                     No. 14-2618-cr

FEDERICO CANNON,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                         JEREMIAH DONOVAN, ESQ., Old Saybrook,
                                                 Connecticut.
APPEARING FOR APPELLEE:                          RAHUL KALE, Assistant United States
                                                 Attorney (Marc H. Silverman, Assistant United
                                                 States Attorney, on the brief), for Deirdre M.
                                                 Daly, United States Attorney for the District of
                                                 Connecticut, New Haven, Connecticut.

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

Connecticut (Robert N. Chatigny, Judge).


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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on July 17, 2014, is AFFIRMED.

       Defendant Federico Cannon stands convicted after a jury trial of being a felon in

possession of a firearm and ammunition. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On

appeal, Cannon challenges (1) the sufficiency of the evidence supporting his conviction,

and (2) certain adverse evidentiary rulings. We assume the parties’ familiarity with the

facts and the record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

1.     Sufficiency of the Evidence

       Cannon asserts that he was entitled to a judgment of acquittal under Fed. R. Crim.

P. 29 because the trial evidence was insufficient as a matter of law to prove that he

“knowingly possess[ed]” the charged firearm or ammunition. United States v. Amante,

418 F.3d 220, 221 n.1 (2d Cir. 2005) (reciting elements of § 922(g)(1)).1 We review a

sufficiency challenge de novo and must affirm the conviction if, “viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis in original); accord United States v. Kozeny, 667 F.3d

122, 139 (2d Cir. 2011). In conducting such review, we are mindful that “[d]irect

evidence is not required” and that “the government is entitled to prove its case solely


1
  Cannon does not contest the sufficiency of the evidence as to the second and third
elements of a § 922(g)(1) crime, i.e., that the charged possession was “in or affecting
commerce,” and that he had “a previous felony conviction.” United States v. Amante,
418 F.3d at 221 n.1.
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through circumstantial evidence, provided, of course, that the government still

demonstrates each element of the charged offense beyond a reasonable doubt.” United

States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008) (internal quotation marks omitted).

       Cannon argues that the government failed to carry this burden because the trial

evidence gave “equal or nearly equal circumstantial support to a theory of guilt and a

theory of innocence.” United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002). The

government maintains that Glenn cannot be construed to impose a stricter review

standard than that pronounced in Jackson v. Virginia. Indeed, it notes that sister circuits

have expressly rejected the equipoise standard urged by Cannon. See United States v.

Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (“We abandon use of the

‘equipose rule’”); United States v. Caraballo-Rodriguez, 726 F.3d 418, 431–32 (3d Cir.

2013) (en banc) (rejecting view that evidence of drug conspiracy is insufficient where

such evidence is “just as consistent” with conspiracy to deal in contraband other than

drugs).   We need not pursue the point here because, as the district court correctly

observed, the evidence was not in equipoise but, rather, tilted decidedly in favor of guilt.

       This evidence included (1) the proximity of the firearm to Cannon. When spotted

by law enforcement authorities, the gun was on the rear floor of the car in which Cannon

was the only back-seat passenger, less than a foot away from Cannon’s feet. While

proximity alone cannot prove possession, see United States v. Rodriguez, 392 F.3d 539,

548 (2d Cir. 2004), here the evidence further showed that (2) as soon as police stopped

the vehicle, Cannon jumped out of the car and started walking away. Further, when told

to stop, (3) Cannon provided a false explanation for walking away: a purported visit to

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the nearby home of the non-existent “Misha.” Such attempted flight and false statements

can admit a jury finding of consciousness of guilt, in turn supporting an inference of

possession. See United States v. Perez, 387 F.3d 201, 209 (2d Cir. 2004) (recognizing

flight and false statements as evidence of consciousness of guilt); United States v. Castro,

813 F.2d 571, 577 (2d Cir. 1987) (concluding that defendant’s attempt to flee premises

before police conducted search that discovered narcotics was evidence that defendant was

in possession of contraband).     Thereafter, when Cannon reentered the car at police

direction, (4) officers saw him squirming and shifting in his seat. It was soon after that

police discovered the firearm at Cannon’s feet, (5) on a floor mat that was askew.

Together this evidence permitted a reasonable jury to find that Cannon had constructive

possession of the gun and, indeed, was intent on exercising control over it by attempting

to conceal it from the police. See United States v. Greer, 631 F.3d 608, 614 (2d Cir.

2011) (stating that constructive possession is evident when person has “power and

intention to exercise dominion and control” over item at issue).2

       The absence of any comparable evidence of proximity, flight, falsity, or possible

concealment by the car’s driver or front-seat passenger defeats Cannon’s argument that

the record was as consistent with their possession of the firearm as with his own. Cannon

was, of course, free to, and in fact did, argue his alternative theories to the jury, which

apparently rejected them.


2
 The jury also heard that Cannon, as well as the other two passengers in the stopped
vehicle, had prior convictions for firearms possession. As to Cannon, these convictions
were admitted for the limited purpose of assessing knowledge and intent, see Fed. R.
Evid. 404(b), a ruling to which no challenge is raised on appeal.
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       Our task is not to substitute our judgment for that of the jury in weighing the

evidence. See United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003). We consider

only whether the evidence was sufficient to allow any reasonable jury to find Cannon

guilty beyond a reasonable doubt.            Because we conclude that it was, Cannon’s

sufficiency challenge fails on the merits.

2.     Evidentiary Challenges

       Cannon contends that the district court erred in (1) denying his request to have the

jury view front-seat passenger Elijah Lewis, who had invoked his Fifth Amendment right

against self-incrimination when called by Cannon to testify; and (2) precluding

Dominique Turner from testifying to statements made by Lewis purportedly exculpating

Cannon and inculpating the car driver. We review these evidentiary challenges for abuse

of discretion, see United States v. Miller, 626 F.3d 682, 687–88 (2d Cir. 2010), which we

do not identify here.

       Cannon argues that the jury should have been allowed to view Lewis because his

large size would have made it more likely that Lewis, rather than Cannon, was

responsible for the car rocking observed by police moments before the gun was

discovered. The district court concluded that such a viewing was unlikely to yield

relevant evidence given that no witness testified to seeing Lewis moving in the car.

Further, a viewing could be confusing when the jury would not be hearing any testimony

from Lewis. We “accord great deference” to a district court’s assessment of relevance

and prejudice or confusion, mindful of its advantage in seeing the witnesses, parties, and

jurors, and its superior position in evaluating the likely impact of the evidence. United

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States v. Gupta, 747 F.3d 111, 132 (2d Cir. 2014). We will only find abuse of discretion

if its evidentiary ruling was “arbitrary and irrational.” Id. That is not this case. Cannon

himself conceded in the district court that there was no evidence of Lewis moving in the

vehicle. In any event, the district court did not preclude Cannon from eliciting testimony

from police witnesses about the relative sizes of Lewis and Cannon.           Further, the

government’s references to car rocking were minimal; instead, its emphasis was on

Cannon’s observed movements. In these circumstances, the district court did not exceed

its discretion in denying the requested viewing.

       Nor do we identify error in the district court’s decision to preclude Dominique

Turner from testifying that Lewis had told her that it was the car’s driver, Louis Durrett,

who threw the gun in the back of the car after Cannon had exited the vehicle and that

Cannon had no knowledge that the firearm was there.           Cannon maintains that the

statement was admissible because Lewis was rendered “unavailable” by his invocation of

his right against self-incrimination and the statement was against his penal interest. See

Fed. R. Evid. 804(b)(3) (providing for admission of out-of-court statement if reasonable

person in unavailable declarant’s position would have made it only if he believed it to be

true because, “when made, it . . . had so great a tendency . . . to expose the declarant to

civil or criminal liability”).

       The district court did not abuse its discretion in concluding that Cannon failed to

satisfy the latter requirement.    First, Lewis’s statement is not, on its face, “self-

inculpatory” because it places blame for possession of the firearm only on Durett.

Williamson v. United States, 512 U.S. 594, 600 (1994) (holding that statement must be

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“self-inculpatory” to satisfy Rule 804(b)(3)). Second, and in any event, the statement

when made did not expose Lewis to liability because some three months earlier, he had

already pleaded guilty in Connecticut court to occupancy of a vehicle in which he knew a

firearm was located. See Conn. Gen. Stat. § 29-38.

      Accordingly, Cannon’s evidentiary challenges are without merit.

3.    Conclusion

      We have considered Cannon’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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