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


7-8-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1834




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NOT PRECEDENTIAL


                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                   Case No: 07-1834

                           UNITED STATES OF AMERICA

                                              v.

                                     JEVON LEWIS,

                                             Appellant


                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                             District Court No. 05-CR-00034
                   District Judge: The Honorable Eduardo C. Robreno


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     July 1, 2008

                              Before: RENDELL, SMITH,
                              and FISHER, Circuit Judges

                                  (Filed: July 8, 2008)


                                       OPINION


SMITH, Circuit Judge.

      On June 29, 2005, a jury found Jevon Lewis guilty of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). The District Court sentenced

Lewis on March 16, 2007, to 87 months of imprisonment and three years of supervised
release. This timely appeal followed.1

       Lewis advances four arguments on appeal. The two primary issues are whether:

(1) the evidence offered at trial was sufficient to support Lewis’s conviction for unlawful

possession of a firearm, and (2) the District Court abused its discretion by limiting the

scope of cross-examination. Because we conclude that the evidence was sufficient for the

jury to convict and that the District Court did not abuse its discretion in limiting the scope

of cross-examination, we will affirm Lewis’s conviction. Lewis’s other two

contentions—that 18 U.S.C. § 922(g)(1) is unconstitutional, and that his due process

rights were violated when the District Court applied a preponderance of the evidence

standard for facts relevant to a sentence enhancement—are raised only to preserve the

issues for possible Supreme Court review. See United States v. Singletary, 268 F.3d 196

(3d Cir. 2001) (holding § 922(g)(1) is constitutional); United States v. Grier, 475 F.3d

556 (3d Cir. 2007) (en banc) (holding that a preponderance of the evidence standard

applies when determining facts relevant to sentencing). We, therefore, undertake no

further discussion of these claims.

                                                  I.

       The evidence against Lewis was sufficient as a matter of law to support his

conviction. This Court employs a deferential standard of review to sufficiency of the




   1
     The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                              2
evidence challenges. United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996). “It is not

for us to weigh the evidence or to determine the credibility of the witnesses. The verdict

of a jury must be sustained if there is substantial evidence, taking the view most favorable

to the Government, to support it.” Id. (citation omitted). The substantial evidence

standard is met where “‘any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)). The two essential elements of 18 U.S.C. § 922(g)(1) are prior conviction of

a felony and possession of a firearm.2 At trial, the parties stipulated to Lewis’s prior

felony conviction; thus, the jury needed only to determine the element of possession.

       While there were inconsistencies in the police officers’ testimony, all four officers

testified that Lewis was in possession of a firearm. This Court adheres to the well-

established principle that witness credibility determinations must be made by the jury.

United States v. Giampa, 758 F.2d 928, 935 (3d Cir. 1985) (citing United States v.

Cravero, 530 F.2d 666, 670 (5th Cir. 1976)). Only in the rare circumstance that

testimony is “unbelievable on its face” should an appellate court overturn a jury verdict

due to insufficient evidence. Cravero, 530 F.2d at 670; see United States v. Hunter, 145

F.3d 946, 949–50 (7th Cir. 1998) (limiting judicial review of credibility determinations to


   2
    Section 922(g)(1) reads, “It shall be unlawful for any person . . . who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one
year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce.”

                                              3
“the rare case in which it was physically impossible for the witness to observe that which

he claims occurred, or impossible under the laws of nature for the occurrence to have

taken place at all”) (quotation omitted).

       We disagree with Lewis’s assertion that the conflicting testimony of the police

officers rises to the level of creating an impossible event. This Court’s independent

review of the factual record reveals that a rational jury could have found that Lewis was

in possession of a firearm. The jury’s unanimous conviction of Lewis is also probative of

this determination.3 Accordingly, we conclude that the evidence offered at trial was

sufficient to support Lewis’s conviction for unlawful possession of a firearm.

                                                II.

       Lewis also claims that the District Court’s ruling during trial to limit the scope of

cross-examination of Officer Elkins violated his Sixth Amendment right to confront a

witness. This Court analyzes the limitation on cross-examination of a witness under an

abuse of discretion standard. United States v. Mussare, 405 F.3d 161, 169 (3d Cir. 2005)

(citation omitted) (“[A] district court retains ‘wide latitude . . . to impose reasonable

limits on cross-examination to avoid . . . harassment, prejudice, confusion of [the] issues .

. . or interrogation that is repetitive or only marginally relevant.’”) (quoting Delaware v.

Van Arsdall, 475 U.S. 673, 679 (1986)). This Court will only conclude that the district



   3
     We admonish counsel for Lewis for attempting to use a post-trial letter from a juror
to impeach the verdict in clear violation of Fed. R. Evid. 606(b). See United States v.
Lloyd, 269 F.3d 228, 237 (3d Cir. 2001).

                                               4
court abused its discretion if “no reasonable person would adopt the district court’s

view.” United States v. Frazier, 469 F.3d 85, 88 (3d Cir. 2006) (quotation omitted).

       The District Court held extensive discussions with counsel regarding the

permissible scope of inquiry into prior allegations of Elkins’ use of force.4 Lewis sought

to cross-examine Elkins regarding the facts surrounding the allegations. The District

Court emphasized the need for confining the scope of cross-examination “to avoid mini-

trials on peripheral or irrelevant matters.” Therefore, the Judge allowed limited cross-

examination regarding a narrow issue—the accuracy of Elkins’ prior testimony at the

suppression hearing. This Court’s precedent clearly establishes a judge’s broad discretion

to exclude collateral matters. United States v. Casoni, 950 F.2d 893, 919 (3d Cir. 1991).

We conclude that the Judge acted reasonably in excluding irrelevant and potentially

confusing testimony. Accordingly, we will affirm the judgment of the District Court.




   4
     During the April 7, 2005 suppression hearing, Officer Elkins testified that he had
never been the subject of either an investigation or a complaint alleging “excessive
force.” Elkins further testified that he had never been the subject of a complaint alleging
“police brutality.” At the time of this testimony, he was the subject of a citizen complaint
alleging “physical abuse” resulting from a September 2004 incident. Officer Elkins, along
with the four other officers involved, were exonerated before Lewis’s trial began.

                                             5
