Petition for Writ of Certiorari — Michael Matthew Phillips, Petitioner v. United States

Supreme Court briefSep 28, 2020

Ask Donna

What actually matters in this document.

Text

NO. _____________

In The

Supreme Court of the United States

-------------------------♦-------------------------

MICHAEL MATTHEW PHILLIPS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

-------------------------♦------------------------ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

-------------------------♦-------------------------

PETITION FOR WRIT OF CERTIORARI

-------------------------♦------------------------Wesley P. Page

Federal Public Defender

Jonathan D. Byrne

Appellate Counsel

Counsel of Record

David R. Bungard

Assistant Federal Public Defender

OFFICE OF THE FEDERAL PUBLIC DEFENDER

300 Virginia Street East, Room 3400

Charleston, West Virginia 25301

(304) 347-3350

jonathan_byrne@fd.org

Counsel for Petitioner

Dated: September 28, 2020

THE LEX GROUPDC  1050 Connecticut Avenue, N.W.  Suite 500, #5190  Washington, D.C. 20036

(202) 955-0001  (800) 856-4419  www.thelexgroup.com

-iI. QUESTION PRESENTED FOR REVIEW

Whether evidence that a defendant walked with a person to a public

place where the other person retrieved a firearm is sufficient to show that the

defendant exercised dominion and control over the firearm such that he

constructively possessed it.

Whether, in a prosecution for being a felon in possession of a firearm,

evidence that a witness testifying against a defendant had used drugs with that

defendant in the past was intrinsic evidence such that it was not subject to the

restrictions of Rule 404(b) of the Rules of Evidence.

- ii II. LIST OF ALL DIRECTLY RELATED PROCEEDINGS

•

United States v. Phillips, No. 2:18-cr-00107-1, U.S. District Court for the

Southern District of West Virginia. Judgment entered March 4, 2019.

•

United States v. Phillips, No. 19-4154, U.S. Court of Appeals for the

Fourth Circuit. Judgment entered on May 1, 2020.

- iii III. TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ......................................................... i

II.

LIST OF ALL DIRECTLY RELATED PROCEEDINGS ................................... ii

III.

TABLE OF CONTENTS .................................................................................... iii

IV.

TABLE OF AUTHORITIES .............................................................................. vi

OPINIONS BELOW ............................................................................................ 1

VI.

JURISDICTION .................................................................................................. 1

VII.

STATUTES AND REGULATIONS INVOLVED ............................................... 1

VIII. STATEMENT OF THE CASE ............................................................................ 2

IX.

Federal Jurisdiction ................................................................................. 2

Facts Pertinent to the Issue Presented ................................................... 2

Hyer steals a firearm from his uncle, trades it for heroin,

then comes up with a plan to recover it ........................................ 3

Hyer works with local law enforcement to recover the gun ......... 3

Phillips is charged with being a felon in possession of a

firearm and is convicted by a jury................................................. 6

The district court denies Phillips’ motion for a judgment of

acquittal and sentences Phillips to 30 months in prison ............. 8

The Fourth Circuit affirms Phillips’ conviction ........................... 9

REASONS FOR GRANTING THE WRIT........................................................ 10

The writ should be granted to determine whether evidence that a

defendant walked with a person to a public place where the other

person retrieved a firearm is sufficient to show that the defendant

exercised dominion and control over the firearm such that he

constructively possessed it ..................................................................... 10

- iv -

II.

Constructive possession requires proof that a person

exercised dominion and control over the item in question ........ 11

There was no evidence that Hyer gave money, or anything

else of value, to Phillips in exchange for Phillips leading

him to the gun .............................................................................. 12

That Phillips walked with Hyer to where the gun was

retrieved does not establish that he exercised dominion and

control over the firearm ............................................................... 16

The writ should be granted to determine whether, in a

prosecution for being a felon in possession of a firearm, evidence

that a witness testifying against a defendant had used drugs with

that defendant in the past was intrinsic evidence such that it was

not subject to the restrictions of Rule 404(b) of the Rules of

Evidence .................................................................................................. 19

Evidence that Phillips and Hyer got high together was not

intrinsic to the charge that Phillips was a felon in

possession of a firearm ................................................................ 20

Hyer’s testimony that Phillips “got me high,” implying that

Phillips was a drug dealer, was irrelevant character

evidence ........................................................................................ 25

Phillips did not “open the door” to the introduction of

improper 404(b) evidence by asking Hyer whether K was a

supplier of his heroin ................................................................... 26

The admission of Hyer’s testimony about his drug use was

not harmless error ....................................................................... 30

CONCLUSION .................................................................................................. 31

XI.

APPENDIX:

Unpublished Opinion of the

United States Court of Appeals

For the Fourth Circuit

entered May 1, 2020 ................................................................ Appendix A

-vMemorandum Opinion and Order of the

United States District Court

For the Southern District of West Virginia

entered February 28, 2019 ...................................................... Appendix B

Excerpts of Transcript of Jury Trial before

The Honorable David A. Faber of the

United States District Court

For the Southern District of West Virginia

on September 12, 2018 ............................................................ Appendix C

Judgment of the

United States District Court

For the Southern District of West Virginia

entered March 4, 2019 ............................................................ Appendix D

- vi IV. TABLE OF AUTHORITIES

Page(s)

CASES

Alford v. United States,

282 U.S. 687 (1931) ........................................................................................... 27

Davis v. Alaska,

514 U.S. 308 (1974) ........................................................................................... 27

Gov’t of Virgin Islands v. Archibald,

987 F.2d 180 (3d Cir. 1993) .............................................................................. 28

Rehaif v. United States,

139 S. Ct. 2191 (2019) ....................................................................................... 11

United States v. Abel,

469 U.S. 45 (1984) ............................................................................................. 27

United States v. Bailey,

553 F.3d 940 (6th Cir. 2009) ............................................................................. 12

United States v. Basham,

561 F.3d 302 (4th Cir. 2009) ................................................................. 20, 23, 25

United States v. Behanna,

814 F.3d 1318 (9th Cir. 1987) ........................................................................... 17

United States v. Blue,

957 F.2d 106 (4th Cir. 1992) ................................................................. 11, 12, 16

United States v. Brizuela,

962 F.3d 784 (4th Cir. 2020) ............................................................................. 24

United States v. Chance,

306 F.3d 356 (6th Cir. 2002) ............................................................................. 28

United States v. Chin,

83 F.3d 83 (4th Cir. 1996) ................................................................................. 20

United States v. Cooper,

482 F.3d 658 (4th Cir. 2007) ............................................................................. 20

- vii United States v. Grubbs,

506 F.3d 434 (6th Cir. 2007) ............................................................................. 16

United States v. Jenkins,

90 F.3d 814 (3d Cir. 1996) ................................................................................ 16

United States v. Johnson,

617 F.3d 286 (4th Cir. 2010) ............................................................................. 20

United States v. Jordan,

622 F. App’x 345 (5th Cir. 2015) ....................................................................... 13

United States v. Kaiser,

609 F.3d 556 (2d Cir. 2010) .............................................................................. 28

United States v. Kennedy,

32 F.3d 876 (4th Cir. 1994) ................................................................... 20, 21, 22

United States v. Langley,

62 F.3d 602 (4th Cir. 1995)(en banc) ................................................................ 11

United States v. Lovern,

293 F.3d 695 (4th Cir. 2002) ............................................................................. 23

United States v. Manigan,

592 F.3d 621 (4th Cir. 2010) ............................................................................. 30

United States v. Martinez,

937 F.2d 299 (7th Cir. 1991) ............................................................................. 13

United States v. Masters,

622 F.2d 83 (4th Cir. 1980) ......................................................................... 20, 21

United States v. McBride,

676 F.3d 385 (4th Cir. 2012) ....................................................................... 20, 25

United States v. McLaurin,

764 F.3d 372 (4th Cir. 2014) ............................................................................. 29

United States v. Molinaro,

877 F.2d 1341 (7th Cir. 1989) ........................................................................... 13

United States v. Moye,

454 F.3d 390 (4th Cir. 2006) ............................................................................. 11

- viii United States v. Nungaray,

697 F.3d 1114 (9th Cir. 2012) ..................................................................... 13, 14

United States v. Osazuwa,

564 F.3d 1169 (9th Cir. 2009) ........................................................................... 29

United States v. Pahulu,

274 F. Supp. 1235 (D. Utah 2003) .................................................................... 17

United States v. Rea,

958 F.2d 1206 (2d Cir. 1992) ............................................................................ 28

United States v. Rosa,

11 F.3d 315 (2d Cir. 1993) ................................................................................ 28

United States v. Rusher,

966 F.2d 868 (4th Cir. 1992) ....................................................................... 11, 12

United States v. Shrader,

675 F.3d 300 (4th Cir. 2012) ....................................................................... 11, 12

United States v. Siegel,

536 F.3d 306 (4th Cir. 2008) ....................................................................... 20, 25

United States v. Smith,

725 F.3d 340 (3d Cir. 2013) .............................................................................. 25

United States v. Towne,

870 F.2d 880 (2d Cir. 1989) .............................................................................. 20

United States v. Virciglio,

441 F.2d 1295 (5th Cir. 1971) ..................................................................... 13, 14

United States v. Ways,

832 F.3d 887 (8th Cir. 2016) ............................................................................. 16

United States v. Wells,

721 F.2d 1160 (8th Cir. 1983) ........................................................................... 13

United States v. White,

932 F.2d 588 (6th Cir. 1991) ............................................................................. 16

United States v. Winston,

447 F.2d 1236 (D.C. Cir. 1971) ......................................................................... 28

- ix STATUTES

18 U.S.C. § 922(g)(1) ............................................................................................ 1, 2, 11

18 U.S.C. § 924(a)(2) ...................................................................................................... 2

18 U.S.C. § 3231 ............................................................................................................. 2

18 U.S.C. § 3742 ............................................................................................................. 2

28 U.S.C. § 1254 ............................................................................................................. 1

28 U.S.C. § 1291 ............................................................................................................. 2

RULES

Fed. R. Crim. P. 29......................................................................................................... 8

Fed. R. Evid. 403 .......................................................................................................... 25

Fed. R. Evid. 404(b) ..............................................................................................passim

Fed. R. Evid. 404(b)(2) ................................................................................................. 25

Sup. Ct. R. 10(c) ..................................................................................................... 10, 19

Sup. Ct. R. 13.1 .............................................................................................................. 1

Sup. Ct. R. 13.3 .............................................................................................................. 1

OTHER

Daniel D. Blinka, Why Modern Evidence Law Lacks Credibility,

58 Buff. L. Rev. 357 (2010) ............................................................................... 27

V. OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit in

United States v. Phillips, 809 F. App’x 144 (4th Cir. 2020), is an unpublished opinion

and is attached to this Petition as Appendix A. The district court’s resolution of the

first issue came in a written opinion after trial. A copy of that opinion is attached to

this Petition as Appendix B. The second issue was resolved by the district court at

trial. The relevant portion of the trial transcript is attached to this Petition as

Appendix C. The final judgment order of the district court is unreported and is

attached to this Petition as Appendix D.

VI. JURISDICTION

This Petition seeks review of a judgment of the United States Court of Appeals

for the Fourth Circuit entered on May 1, 2020. This Petition is filed within 150 days

of the date the court’s judgment, pursuant to this Court’s order of March 19, 2020. No

petition for rehearing was filed. Jurisdiction is conferred upon this Court by 28 U.S.C.

§ 1254 and Rules 13.1 and 13.3 of this Court.

VII. STATUTES AND REGULATIONS INVOLVED

The issue in this Petition requires interpretation and application of 18 U.S.C.

§ 922, which provides, in pertinent part:

(g) It shall be unlawful for any person –

(1) who has been convicted in any court of, a crime

punishable for a term exceeding one year

-2As well as Rule 404 of the Rules of Evidence, which provides, in pertinent part:

(b) Prohibited Uses. Evidence of a person’s character or

character trait is not admissible to prove that on a

particular occasion the person acted in accordance with

the character or trait.

VIII. STATEMENT OF THE CASE

Federal Jurisdiction

On May 22, 2018, an indictment was filed in the Southern District of West

Virginia charging Michael Matthew Phillips (“Phillips”) with being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). J.A. 8-9.1

Because that charge constitutes an offense against the United States, the district

court had original jurisdiction pursuant to 18 U.S.C. § 3231. This is an appeal from

the final judgment and sentence imposed after Phillips was convicted by a jury of the

charge in the indictment. J.A. 287. A judgment order was entered on March 4, 2019.

J.A. 380-387. Phillips timely filed a notice of appeal on March 6, 2019. J.A. 388. The

United States Court of Appeals for the Fourth Circuit had jurisdiction pursuant to

18 U.S.C. § 3742 and 28 U.S.C. § 1291.

Facts Pertinent to the Issue Presented

This case involves a firearm that was stolen by Jeremy Hyer (“Hyer”) then

subsequently recovered by him while working with local law enforcement. Hyer, a

confessed drug addict and thief, recovered the gun from a public place in the company

of Phillips. Phillips was charged with and convicted by a jury of being a felon in

possession of a firearm based on that incident.

1 “J.A.” refers to the Joint Appendix that was filed with the Fourth Circuit in this

appeal.

-31.

Hyer steals a firearm from his uncle, trades it

for heroin, then comes up with a plan to

recover it.

On January 18, 2017, Hyer was a heroin addict who had been shooting up four

to six times a day for the past five years. He was looking for a way to get more heroin,

without which he would begin to experience withdrawal symptoms. J.A. 158-161.

Hyer went to his home of his uncle, James Monk (“Monk”) in Sissonville, West

Virginia, where the garage was unlocked, to find something to steal. J.A. 161. Hyer

stole a Ruger pistol, its holster, and several tubes of coins. J.A. 162. He then traded

the firearm and some of the coins for heroin from an African-American man known

only as “K.” J.A. 169-170.

Monk reported the theft of his gun and coins and Hyer was questioned as a

suspect several days later by the Kanawha County Sheriff’s Office. Hyer admitted to

a deputy that he stole the gun and traded it for drugs, thus putting it in the hands of

a drug dealer. J.A. 122, 140, 170. Hyer was told it was in his best interest to try and

help get the gun back. J.A. 170. Hyer agreed because he thought he might avoid

criminal charges for the theft, it might help him return to the good graces of his uncle,

and he might avoid going to jail and being cut off from using heroin. J.A. 170-171.

Hyer works with local law enforcement to

recover the gun.

On January 24, 2017, Hyer met with Corporal Jeremy Hatfield (“Hatfield”) of

the Kanawha County Sheriff’s Office and proposed a plan to recover Monk’s firearm.

Before meeting Hatfield, Hyer had called K. J.A. 123, 131. Hatfield was not privy to

the details of the discussion between Hyer and K. J.A. 132. Hyer agreed to work with

-4officers to set up a controlled buy to return the gun, presumably from K. J.A. 123.

Hyer never mentioned Phillips during the meeting and did not indicate that he was

involved in the transaction. Hyer was given money to buy back the gun, as well as

additional funds to purchase a small amount of heroin. He was also given a device to

record the transaction on audio and video. J.A. 124-125.2

As part of arranging the deal, Hyer engaged in a series of text messages with

K, who was a listed contact in Hyer’s cell phone:3

2 A copy of the video was introduced into evidence at Phillips’ trial. J.A. 146, 359

3 The texts are taken from exhibits introduced at trial. J.A. 135, 282-283.

-5-

Although there are several Go-Mart locations in Charleston, Hyer knew that

K was referring to a particular store in North Charleston because of his previous

conversation with K. J.A. 174. Hyer admitted he was troubled by the idea of setting

up K, because he could lose a source of heroin if K was incarcerated and Hyer did not

want to be labeled a snitch. J.A. 171.

Hatfield drove Hyer to a location near the North Charleston Go-Mart, to which

Hyer walked with the intent to meet “one of K’s friends.” J.A. 144. After talking to

several different people at Go-Mart, Hyer finally “ran into” Phillips at the store’s front

door. Ibid.

Hyer and Phillips then walked across the street and entered a house. Hyer

admitted that he did not know who owned the house or who lived there. J.A. 144.

They went upstairs and talked briefly in a room where a woman was present. J.A.

150-151. While they were there, Hyer would testify, he “believe[d] I dropped [the

-6money] in the house.” J.A. 155. Hyer never said that the money was given to, or left

in the home for, Phillips or K.4

Hyer and Phillips then left the home and walked down the street. At some

point during their walk, Phillips raised his right arm. J.A. 151, 359 at 15:38:28. Hyer

could not explain the significance of that gesture. J.A. 151-152. A few minutes later

they arrived at the end of the street, where Hyer recovered the gun from tall grass

near the base of a utility pole. J.A. 153, 359 at 15:41:45. Hyer admitted that he could

not say how he came to know where the gun was. He stated that someone had told

him where it was, but could not recall who that person was. He denied that Phillips

“led” him to that location, but he was unsure whether he could have found the gun

otherwise. J.A. 153.

Hyer returned to Hatfield with the firearm and $30 leftover because he was

unable to purchase heroin. J.A. 127, 132. According to Hatfield that was because the

man he met had “ate” the heroin because there were so many police officers in the

area. J.A. 128. At trial, Hyer would not explain why he failed to purchase heroin, nor

was any forensic evidence presented to tie the gun to anyone. J.A. 133.

Phillips is charged with being a felon in

possession of a firearm and is convicted by a

jury.

Sixteen months after the firearm was recovered, Phillips was charged with

being a felon in possession of a firearm. J.A. 8-9. Phillips pleaded not guilty and

proceeded to a jury trial. J.A. 10-287. In its opening statement the Government

4 There was no testimony that the marked bills used to buy back the firearm were

ever recovered.

-7emphasized that the only issue for the jury was whether Phillips constructively

possessed the firearm, never promising to show that Phillips ever actually possessed

it. J.A. 109-110.5 The Government’s primary witness at trial was Hyer, who testified

about his theft of the firearm and its recovery. J.A. 138-185. Hatfield and a second

officer, Corporal James Vernon, also testified about the investigation. J.A. 120-137,

186-198.

On cross examination, Hyer admitted that he did not want to setup K during

the operation to get the gun back because K was one of Hyer’s sources of heroin. J.A.

171. On redirect, the Government asked whether Phillips was also a source of heroin

for Hyer. Phillips objected, arguing that the question was soliciting improper evidence

of other bad acts under Federal Rule of Evidence 404(b). The Government argued that

Phillips had “opened the door.” J.A. 184. The district court overruled the objection.

Ibid. Hyer then testified that he and Phillips got high together and that “[h]e got me

high; I got him high.” J.A. 185. At the conclusion of Hyer’s testimony the district court

instructed the jury that Phillips was not on trial for any drug charge. Ibid.

Phillips presented testimony from Monk about Hyer’s theft of his firearm and

coins and Hyer’s admission of taking them. J.A. 200. Monk also testified that, in his

opinion, Hyer was not a truthful person. J.A. 207.

Following the close of evidence and the arguments of the parties, the jury

convicted Phillips of the charge in the indictment. J.A. 381-382.

5 The other elements of the offense were either stipulated to or not contested.

-84.

The district court denies Phillips’ motion for a

judgment of acquittal and sentences Phillips

to 30 months in prison.

At the close of the Government’s evidence, and then again at the close of all

evidence, Phillips moved for a judgment of acquittal under Rule 29 of the Rules of

Criminal Procedure. J.A. 193-195, 210-211. The district court denied the first motion.

J.A. 197. After considering the second motion overnight, the district court announced

that it was “going to reserve ruling on the Rule 29 motion as made at the conclusion

of all the evidence pursuant to Rule 29.” J.A. 269.

After the verdict, Phillips renewed his motion for a judgment of acquittal and

filed an accompanying memorandum in support. J.A. 288-358. Phillips argued that

there was insufficient evidence to prove that he constructively possessed the firearm

Hyer stole and then recovered. He argued that there was no evidence that Hyer gave

the buy money for the gun to Phillips. J.A. 348-353. He also argued that walking

alongside Hyer to where the gun was located did not show that Phillips exercised

dominion and control over the gun. J.A. 353-356. Finally, Phillips argued that there

was no evidence that Phillips was acting as an agent of K, with whom Hyer arranged

the buy-back of the gun. J.A. 356-358.

The district court denied Phillips’ motion in a written memorandum opinion.

J.A. 365-379. The district court held that there was sufficient circumstantial evidence

to support the jury’s verdict that Phillips constructively possessed the firearm. J.A.

374. The district court also found that Phillips being at the North Charleston Go-Mart

was circumstantial evidence from which the jury could infer that “Phillips was the

-9person who Hyer planned to meet.” J.A. 375. The district court rejected the argument

that Phillips was “merely a fall guy for Hyer” because “there is nothing to suggest

that Hyer needed a fall guy” because if Hyer knew where the gun was located “he

could simply have retrieved the gun.” Ibid. “Therefore,” the district court concluded,

“it is reasonable . . . to infer that Hyer did not know where the gun was until Phillips

showed him.” Ibid. The district court also concluded that the Government was not

required to prove that the buy money went to Phillips, that the verdict was not based

on Phillips’ mere proximity to the gun, but rather that he led Hyer to it, and that the

Government was not required to prove any particular relationship existed between K

and Phillips. J.A. 374-377.

Following the denial of Phillips’ motion for a judgment of acquittal, the district

court sentenced him to a term of 30 months in prison, followed by a three-year term

of supervised release. J.A. 381-382.

The

Fourth

conviction.

Circuit

affirms

Phillips’

Phillips appealed his conviction to the Fourth Circuit Court of Appeals, which

affirmed in an unpublished opinion. United States v. Phillips, 809 F. App’x 144 (4th

Cir. 2020). Phillips argued that the evidence was insufficient to sustain his conviction

and that the district court erred by allowing the Government to elicit testimony from

Hyer about how he and Phillips would get “high” together. As to sufficiency, the court

concluded that, from the evidence presented at trial, “Phillips discussed the gun deal

with Hyer at the Go-Mart, took the money for the gun, led Hyer to it, and signaled to

Hyer its location.” Id. at 147. “This is sufficient evidence,” the court held, “that

- 10 Phillips exercised dominion and control over and thus constructively possessed the

firearm.” Ibid. That was true in spite of the fact that Hyer “testified that Phillips did

not lead him to the gun,” as “a reasonable jury was free to reject Hyer’s testimony

and Phillips’ argument.” Ibid. As to the evidentiary issue, the court concluded that

Rule 404(b) was not implicated, as the evidence “explained the relationship between

Hyer and Phillips and the context of Phillips’ decisions and actions.” Id. at 148. Such

evidence was not prohibited because it “addressed issues relevant at trial.” Ibid. The

court also held that even if the evidence was improperly admitted that error was

harmless, as the “testimony of Phillips’ conduct on the day Hyer recovered the gun

was more than sufficient to independently support his conviction.” Ibid.

IX. REASONS FOR GRANTING THE WRIT

The writ should be granted to determine whether

evidence that a defendant walked with a person to a

public place where the other person retrieved a firearm is

sufficient to show that the defendant exercised dominion

and control over the firearm such that he constructively

possessed it.

The Government never argued that Phillips had a firearm in his hands. Nor

did it show that Phillips lived in a home where a firearm was present, raising the

inference that he exercised dominion and control over it. The only evidence presented

to show constructive possession was that Phillips walked with Hyer to the public

place where Hyer retrieved the firearm. Whether such evidence is sufficient to

demonstrate constructive possession, and support a conviction for being a felon in

possession of a firearm, is an important question of federal law that has not been, but

should be, settled by this Court. Rules of the Supreme Court 10(c).

- 11 A.

Constructive possession requires proof that a

person exercised dominion and control over the

item in question.

In order to obtain a conviction under § 922(g)(1), the Government must prove

that (1) the defendant was previously convicted of a crime punishable by

imprisonment or more than one year; (2) that the defendant was aware of that statute

(3) after that conviction he voluntarily and intentionally possessed a firearm; and

(4) the firearm had been shipped or transported in interstate commerce. United

States v. Langley, 62 F.3d 602, 604 (4th Cir. 1995)(en banc); Rehaif v. United States,

139 S. Ct. 2191 (2019). Possession was the only element that was contested in this

case. Possession “can be actual or constructive.” United States v. Moye, 454 F.3d 390,

395 (4th Cir. 2006). “Constructive” possession occurs “if it is shown ‘that the

defendant exercised, or had the power to exercise, dominion and control over the

item.’” Id. quoting United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). Because

the Government presented no evidence that placed the gun Hyer stole in Phillips’

hands, it could only secure a conviction by proving that he constructively possessed

the gun.

A defendant’s mere proximity to contraband is not a sufficient basis for

concluding that he constructively possessed that contraband. United States v.

Shrader, 675 F.3d 300, 308-309 (4th Cir. 2012). In United States v. Blue, 957 F.2d

106 (4th Cir. 1992), the defendant was a front-seat passenger in a car stopped due to

seatbelt violations. A search of the car uncovered a revolver underneath the

passenger seat where Blue was sitting. Both he and the driver denied knowing

- 12 anything about the gun. Nonetheless, Blue was convicted of being a felon in

possession of that firearm. Id. at 107.

The court reversed the conviction, holding that the Government had failed to

present sufficient evidence that Blue possessed the weapon. As in Phillips’ case, the

Government’s case in Blue relied entirely on constructive possession. The two factors

cited by the Government as proof of that possession was an officer seeing Blue’s

shoulder dip as he approached the car and Blue’s proximity to the gun. Blue, 957 F.2d

at 107-108. The court concluded those were insufficient because the Government

lacked any other evidence that Blue had previously been seen in possession of the

gun or any forensic evidence linking him to the gun. Nor was there any evidence that

Blue was the owner of the car or had even previously been in that vehicle. Id. at 108;

see also Shrader, 675 F.3d at 308-309 (approving of jury instruction that proximity,

while not enough on its own to show constructive possession, can be pertinent to the

amount of additional evidence required); Rusher, 966 F.2d at 878 (“[m]ere presence

on the premises where the drugs were found . . . is insufficient to establish

possession”); United States v. Bailey, 553 F.3d 940 (6th Cir. 2009)(finding evidence

insufficient to show constructive possession of firearm found in car defendant was

driving, where Government provided no other evidence).

There was no evidence that Hyer gave money, or

anything else of value, to Phillips in exchange for

Phillips leading him to the gun.

Courts have held that the Government can prove constructive possession by

showing that the defendant became a broker in negotiating the terms of sale of a

- 13 firearm with a third party. See United States v. Nungaray, 697 F.3d 1114, 1117 (9th

Cir. 2012); United States v. Wells, 721 F.2d 1160, 1162 (8th Cir. 1983); United States

v. Virciglio, 441 F.2d 1295, 1298 (5th Cir. 1971); United States v. Jordan, 622 F.App’x

345, 347 (5th Cir. 2015).6 One of the key factors in such cases is whether the

defendant accepted payment in return for delivering the firearm. For example, in

Wells the defendant both negotiated the terms of sale (including demanding payment)

of a sawed-off shotgun and connected the undercover agent with the person who

delivered the gun to the agent. Wells, 721 F.2d at 1162. Similarly, in Jordan the

defendant’s conviction was affirmed based on his constructive possession of a

handgun for which he had found a buyer, established the sale price, and accepted the

payment for delivery of the gun. Jordan, 622 F.App’x at 347. By contrast, in this case

the Government failed to prove that Phillips had any role in negotiating the terms of

the sale of the gun to Hyer or that he accepted payment in return for leading Hyer to

the gun.

In Virciglio, the defendant was convicted for possessing an unregistered

machine gun because of his extensive participation in negotiating the terms for

delivery of the gun to an undercover agent. The agent had contacted the defendant

with an interest in purchasing a machine gun. Days later the defendant contacted

the agent and said he had located a gun and asked the agent to be at his home the

next night with $800. The defendant took the $800 and split it with a third party.

6 Courts have recognized a similar standard in cases in cases involving the possession

of drugs. See United States v. Martinez, 937 F.2d 299, 305‐306 (7th Cir. 1991); United

States v. Molinaro, 877 F.2d 1341, 1348 (7th Cir. 1989).

- 14 Virciglio, 441 F.2d at 1297. The court found that was an ample basis for the jury’s

finding of constructive possession because the sale would not have happened without

the defendant’s role as a broker, including his acceptance of payment. Id. at 1298.

The defendant in Nungaray faced an enhancement for possessing multiple

firearms under the Sentencing Guidelines based on a similar fact pattern. Nungaray,

697 F.3d at 1115-1117. In that case the defendant made initial contact with an

informant about selling four guns. He then negotiated a price with the informant then

met with the informant and an undercover officer to deliver the guns. After using a

third party to make the actual delivery, the defendant accepted payment for the guns.

Id. at 1115. The court concluded that it was proper to attribute the guns to the

defendant because his acceptance of payment and arranging delivery of them showed

that he maintained constructive possession of those guns. Id. at 1116.

No similar evidence was presented in this case to show that Phillips was any

kind of a broker of the sale of the gun back to Hyer. There is no evidence that Phillips

accepted payment from Hyer for any reason. The only evidence is that Hyer dropped

money on the floor at the home where he and Phillips went, an unfamiliar home in

which a person was present that Hyer did not know. J.A. 144, 155. There was no

evidence that Hyer had talked to Phillips previously about the gun. Instead, the

evidence was that Hyer negotiated the return of the gun with the person to whom he

sold it after he first stole it – K. J.A. 139-140.

It was K whom Hyer called to retrieve the gun. J.A. 172-174. That call took

place before Hyer met with Hatfield on the day the gun was retrieved. J.A. 171. By

- 15 the time Hyer was equipped with a recording device to make the controlled buy, he

had already negotiated the purchase price with K. It was then K with whom Hyer

conversed over text messages to agree on a location to meet. J.A. 282-283. Hyer

testified that he thought he was going to meet up with one of K’s friends, but never

testified that Phillips was one of them. J.A. 144. There was simply no evidence that

Phillips brokered the deal for Hyer to recover the firearm he stole.

As to the buy money itself, nothing in the video recorded during Hyer’s

undercover operation shows him giving any money to Phillips. There are no scenes

where Phillips shows any acknowledgment of Hyer handing over money. Nor was

there any evidence that the prerecorded buy money was found on Phillips sometime

after the gun was recovered. Hyer’s explanation for what happened to the money was

that “I believe[d] I dropped it in the house.” J.A. 155. He did not say where in the

house he dropped it or who, if anyone, retrieved it. There was no evidence that

Phillips lived in that house or had any other interest in it and, in fact, Hyer did not

know who owned the house. J.A. 144. What Hyer said happened to the money does

not lead to any reasonable inference that Phillips accepted payment for the firearm.

Finally, there was no evidence that Phillips told Hyer where the gun was.

When asked by the Government how he learned “of the location of the gun?”, Hyer

answered that “[s]omeone told me at some point.” J.A. 153. When the Government

asked him who that someone was, he testified “I don’t – I can’t recall a hundred

percent.” Ibid. When the Government asked “who led you to that place?”, Hyer

explained that he and Phillips “just walked together. He didn’t really lead me.” Ibid.

- 16 Hyer’s testimony does not show that Phillips was the person who told him where the

gun was.

That Phillips walked with Hyer to where the gun

was retrieved does not establish that he exercised

dominion and control over the firearm.

Courts have consistently held that a defendant’s mere presence in a location

where contraband is present does not establish proof of constructive possession. See

Blue, 957 F.2d at 107-108; United States v. Ways, 832 F.3d 887, 897 (8th Cir. 2016);

United States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 2007); United States v. White,

932 F.2d 588, 589-590 (6th Cir. 1991). At most, the Government’s evidence in this

case showed that Phillips was in proximity to the firearm when Hyer retrieved it.

That is not enough to sustain a conviction.

In Ways the defendant was convicted of being a felon in possession of

ammunition found in a storage area of the basement of the home where his girlfriend

and daughter lived. Evidence showed that the defendant occasionally stayed in the

home and some of his belongings were found there. In spite of that connection, the

court found that the defendant neither owned the home nor was it his primary

residence. As a result, his connection to the home was not sufficient to prove he knew

that there was ammunition stored in the basement. Ways, 832 F.2d at 897; see also

White, 932 F.2d at 589 (reversing possession of marijuana conviction where “the only

evidence linking White to the marijuana was the fact that he lived three feet from the

patch”); United States v. Jenkins, 90 F.3d 814, 818 (3d Cir. 1996)(defendant’s

presence in friend’s apartment where nearly two ounces of cocaine and two revolvers

- 17 were found on top of a coffee table did not establish constructive possession of the

contraband items); United States v. Behanna, 814 F.3d 1318, 1320 (9th Cir. 1987)

(passenger in car did not constructively possess machine gun located in a bag on the

floorboard in front of driver’s seat); United States v. Pahulu, 274 F. Supp. 1235, 1240‐

1242 (D. Utah 2003)(judgment of acquittal granted to defendant where Government

could not demonstrate that defendant had constructive possession of shotgun found

in closed case in the back of a minivan which he had been driving).

Similarly, there are no incriminating inferences that can be drawn from Hyer’s

testimony that he and Phillips walked together from Go-Mart to a nearby house and

then on to the end of the street where Hyer retrieved the gun. Hyer never testified

that he expected to meet Phillips at Go-Mart. He thought he was going to meet one

of K’s associates. While at Go-Mart Hyer “ran into a few people,” including Phillips.

J.A. 144. Hyer did not testify that while he and Phillips walked together to a nearby

home they talked about getting the stolen gun back. There was no testimony that

they spoke of it while inside the house. More important, he disputed the

Government’s inference during his questioning that Phillips led him to the firearm.

When the Government asked “[w]ho were you following?” after he left the house, Hyer

answered “I was walking with Matt.” J.A. 151. Then when asked who “led you to that

place?”, he answered that he and Phillips “just walked together. He didn’t really lead

me.” J.A. 153. When asked if he could have found the gun without Phillips, Hyer

testified that “I’m not sure. I don’t know. Probably not, but I can’t say a hundred

- 18 percent.” Ibid. Thus even when the Government was leading Hyer in its questioning

to implicate Phillips, he would not do so.

In its opinion, the Fourth Circuit held that while Hyer testified that Phillips

did not lead him to the gun, the jury was free to reject his testimony. Phillips, 809

F.App’x at 147. No reasonable juror could have reached the conclusion that Hyer

should be disbelieved as to that part of his testimony and believed as to the rest, to

the extent it implicated Philips. The video of the journey to retrieve the firearm shows

why. First, the scene where Phillips points to something on the video occurs at

timestamp 15:38:28,7 as evidenced from the still picture of that moment introduced

by the Government. J.A. 281. But Hyer did not recover the gun for several more

minutes, at approximately 15:41:30. Furthermore, when Hyer recovers the gun the

video does not show Phillips assisting him in any way, nor does it show him pointing

out where the gun was. Because the video does not show what Phillips was pointing

toward (if anything), it is not a reasonable inference that Phillips was pointing toward

something that was recovered several minutes later. It is a particularly unreasonable

inference given that the video in question was made by the Government’s star witness

solely for the purpose of documenting the operation. Hyer could have recorded to what

Phillips was pointing, but he did not. Second, Hyer never testified about what Phillips

was pointing toward. It is notable that while the Government tried to lead Hyer to its

preferred testimony in several other instances, when it came to this image the only

7 The video is part of the Joint Appendix at page 389.

- 19 questions of Hyer were to the identity of the person depicted, which was never at

issue. J.A. 151-152.

Finally, the location where the gun was found does not support an inference

that Phillips exercised dominion and control over it. Hyer retrieved the gun from a

public area, as opposed to any private place that Phillips had control over. Someone

put the gun at the base of a utility pole in tall grass at the end of a public street where

anyone could have discovered it. There was no evidence that Phillips is the one who

put it there or had ever handled the gun. That Phillips was in close proximity to the

pistol when Hyer recovered it is not sufficient to support a conclusion that he

possessed the gun.

II.

The writ should be granted to determine whether, in a

prosecution for being a felon in possession of a firearm,

evidence that a witness testifying against a defendant had

used drugs with that defendant in the past was intrinsic

evidence such that it was not subject to the restrictions of

Rule 404(b) of the Rules of Evidence.

Phillips was on trial for being a felon in possession of a firearm. He was not

charged with any drug offense. Regardless, after Hyer was questioned on crossexamination about his sources for heroin, the Government was allowed to question

him about Phillips and drugs, with the result being that the jury learned that Phillips

and Hyer “got high” together. Whether evidence like this falls within the ambit of

Rule 404(b), or is intrinsic to the offense charged, is an important question of federal

law that has not been, but should be, settled by this Court. Rules of the Supreme

Court 10(c).

- 20 A.

Evidence that Phillips and Hyer got high together

was not intrinsic to the charge that Phillips was a

felon in possession of a firearm.

Federal Rule of Evidence 404(b) provides the authority for excluding evidence

which would serve to improperly taint the defendant’s character where the

Government cannot establish all of the requirements for admitting evidence of other

bad acts allegedly committed by the defendant. United States v. McBride, 676 F.3d

385, 395 (4th Cir. 2012); United States v. Johnson, 617 F.3d 286, 296 (4th Cir. 2010);

United States v. Siegel, 536 F.3d 306, 314 (4th Cir. 2008). Evidence of “uncharged

conduct is not considered ‘other crimes’ evidence if it ‘arose out of the same . . . series

of transactions of the charged offense . . . or if it is necessary to complete the story of

the crime (on) trial.” United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994),

quoting United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989); see also United

States v. Masters, 622 F.2d 83, 87 (4th Cir. 1980). In other words, such evidence is

relevant if it is “intrinsic” to the crime charged and “is necessary to ‘provide context

relevant to the criminal charges.’” United States v. Basham, 561 F.3d 302, 326 (4th

Cir. 2009), quoting United States v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007); see also

United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996)(“[o]ther criminal acts are

intrinsic when they are inextricably intertwined or both acts are part of a single

criminal episode or the other acts were necessary preliminaries to the crime

charged”)(internal quotation mark omitted). Cases where courts have found evidence

that would otherwise fall within the confines of Rule 404(b) was admissible because

it was intrinsic to the charged offense are easily distinguished from this case.

- 21 For example, the defendant in Kennedy was charged with a drug conspiracy

and objected to testimony by a police officer about his investigation of the defendant’s

drug activities prior to the dates alleged in the indictment. Kennedy, 32 F.3d at 885.

The district court admitted the evidence because it provided context to the charged

drug distribution scheme. Id. at 885-886. The court determined that the evidence of

the defendant’s uncharged conduct was admissible because it “served to complete the

story of the crime on trial” by providing background information and that the

defendant erroneously assumed that “all evidence falling outside of the charged

conspiracy period necessarily involves a separate, unrelated offense.” Id. at 885.

Similarly, in Masters, the defendant was charged with dealing in firearms or

ammunition without a valid license. Masters, 622 F.2d at 83. Evidence of

conversations with other undercover officers about selling firearms that occurred

outside the dates alleged in the indictment was admitted by the trial court over the

defendant’s objection. Id. at 84-85. The court affirmed the admission of that evidence

in order “to complete the story of the crime on trial” and to provide “context” to show

the defendant’s status as a gun dealer. Id. at 86-87. In order to prove its case, the

Government had to show that the defendant had a “willingness to deal, a profit

motive, and a greater degree of activity than occasional sales by a hobbyist.” Id. at 88.

The evidence the Government elicited from Hyer during redirect examination

does not share the characteristics of the evidence at issue in Kennedy or Masters.

Where the evidence in those cases involved other instances of the same crime for

which the defendant was on trial, the evidence here had nothing to do with the issue

- 22 at hand – did Phillips constructively possess the firearm that was only ever in Hyer’s

hands, first when he stole it and then when he recovered it from a public place? That

Hyer and Phillips had shared drugs before has no bearing on that issue. This is, yet

again, an example of the Government not being able to get out of Hyer the evidence

it really wanted. All evidence at trial showed that K, to whom Hyer had sold the

stolen firearm in return for heroin, was a drug dealer, someone involved in the

commercial distribution of drugs.8 Indeed, part of the intended controlled buy

operation was for Hyer to buy heroin while getting the gun back. J.A. 124-125.9 Try

as it may, the Government could not get Hyer to label Phillips a drug dealer. When

asked if Phillips was “one of those sources?”, Hyer only said that he and Phillips “got

high together.” J.A. 185. When asked directly “[d]id you get heroin from him?”, he

answered, “[h]e got me high; I got him high.” Ibid. Even if evidence that Phillips was

a commercial drug dealer was intrinsic to the issue of his possession of the gun, Hyer’s

actual testimony was not.

That Hyer’s testimony about he and Phillips getting high together is not

intrinsic evidence to the charged grime is evident from the Government’s own

presentation of it to the jury. If the fact that Hyer and Phillips got high together was

truly intrinsic and therefore “necessary to complete the story of the crime (on) trial,”

Kennedy, 32 F.3d at 885 (emphasis added), then the Government would have

8 According to Hyer, K was “someone I bought heroin from,” not a friend with whom

he shared drugs. J.A. 141 (emphasis added)

9 He did not purchase heroin because, according to the officer who ran the controlled

buy, the man Hyer met “ate” the heroin because there were so many police officers in

the area. J.A. 128.

- 23 presented it during its case-in-chief. Instead it waited until after Hyer had been cross

examined and argued that Phillips had “opened the door” to the evidence of drug use.

If the evidence was intrinsic, the Government did not have to wait for Phillips to open

the door – it would have opened it in the first place.

In addition to not trying to rebut Phillips’ argument about the scope of the

“opening the door” doctrine, the Government does not argue that the admission of the

evidence that Phillips and Hyer got high together, if erroneous, was harmless. See

United States v. Lovern, 293 F.3d 695, 701 (4th Cir. 2002)(“[t]he government bears

the burden of demonstrating that the error was harmless”). The Government could

not meet the burden of showing that the error was harmless in this case because it

relied on the evidence in arguing its case to the jury. In its closing argument, the

Government argued that Phillips was Hyer’s “heroin buddy” and that Hyer would be

reluctant to testify against him unless he was telling the truth. J.A. 232. It then

argued that when Hyer was trying to escape prosecution for the gun theft that he

“didn’t fully realize that his heroin-sharing buddy was also going to face charges.”

J.A. 233.

The evidence that the Government solicited regarding Hyer and Phillips

sharing drugs was not intrinsic to the crime charged – Phillips’ alleged possession of

a firearm as a convicted felon. It did not meet the requirements for admissibility

under Rule 404(b) as a prior bad act. Basham, 561 F.3d at 326. Nor did Phillips “open

the door” for its presentation. Phillips Brief at 22-26. For those reasons, the district

court abused its discretion by allowing the Government to present that evidence.

- 24 The Fourth Circuit itself recently discussed the limits of intrinsic evidence in

United States v. Brizuela, 962 F.3d 784 (4th Cir. 2020). Brizuela was a physician who

was convicted on fifteen counts of unlawfully distributing controlled substances. At

trial, the Government presented testimony not only from patients to whom these

distributions took place, but also presented testimony from four other patients

“although none of Brizuela’s charges related to their treatment.” Id. at 789. The

Government argued that such evidence was admissible because it was “necessary to

complete the story of the crime on trial.” Id. at 791. The court disagreed and reversed

the convictions. Such evidence, to be admissible without meeting the requirements of

Rule 404(b), “must be probative of an integral component of the crime on trial or

provide information without which the factfinder would have an incomplete or

inaccurate view of other evidence or of the story of the crime itself.” Id. at 795.

Furthermore, “that evidence must be necessary to complete the story of the charged

offense.” Ibid (internal quotation marks omitted, emphasis added). Importantly,

close attention is required to the nexus between the evidence at issue and the offense

of conviction, or else “the ‘complete the story’ doctrine might be used to disguise the

type of propensity evidence that Rule 404(b) is meant to exclude.” Ibid. That is what

occurred in this case – Hyer’s testimony that he and Phillips got high together was

not necessary to complete the story of the offense of conviction, but was a way for the

Government to place before the jury evidence of Phillips’ character that had no place

at trial.

- 25 B.

Hyer’s testimony that Phillips “got me high,”

implying that Phillips was a drug dealer, was

irrelevant character evidence.

Rule 404(b) prohibits evidence of other crimes or bad acts to show bad

character or the propensity to break the law. Siegel, 536 F.3d at 317. In order to be

considered to be admissible under Rule 404(b), evidence must be (1) relevant to an

issue other than character; (2) necessary in the sense that it is probative of an

essential claim or element of the offense; (3) and reliable. Basham, 561 F.3d at 326.

In addition, any such evidence must pass the Rule 403 balancing test to determine

whether its probative value is substantially outweighed by the danger of confusion or

unfair prejudice. McBride, 676 F.3d at 396. Finally, the Government must provide

“reasonable notice” that it intends to present such evidence at trial if the defendant

requests such notice. Fed. R. Evid. 404(b)(2).

Evidence that Phillips shared drugs with Hyer does not meet the requirements

for admissibility under Rule 404(b). First, the Government not only provided no

notice it would introduce such evidence, but stated specifically that it planned not to

do so in a pretrial discovery disclosure. J.A. 2 at Dkt. No. 18. Second, it is not relevant

to an issue other than character because it had no relation to the crime charged, being

a felon in possession of a firearm. While Hyer was a heroin addict and traded the gun

he stole for heroin, he did not get the heroin from Phillips and, when he was to

purchase heroin as part of the operation to retrieve the stolen firearm, he was unable

to do so. See United States v. Smith, 725 F.3d 340, 345-348 (3d Cir. 2013)(evidence of

prior drug sale by defendant charged with later assault with a firearm “did not have

- 26 a proper Rule 404(b) purpose” and was not admissible). Third, it was not probative of

an essential claim or element of the offense, as the charged offense involved only the

possession of a firearm by a convicted felon. Finally, it would be hard to call the

evidence provided by Hyer reliable. When asked about Phillips being a source of

heroin for him, Hyer refused to label Phillips a drug dealer, saying only that they got

high together. J.A. Tr. 176. Without even considering Monk’s uncontested opinion

that Hyer was not a truthful person, J.A. Tr. 198, his testimony is of dubious

reliability. Even if those conditions were met, the evidence would still be inadmissible

under Rule 403 because it would be more prejudicial to Phillips than probative.

Phillips did not “open the door” to the introduction

of improper 404(b) evidence by asking Hyer whether

K was a supplier of his heroin.

The Government’s basis for questioning Hyer about whether Phillips supplied

him with drugs was that Phillips “opened the door.” J.A. 184. The Government did

not explain how Phillips did this, but the district court nonetheless immediately (and

without hearing argument from Phillips) concluded that “I think you did, [defense

counsel]. I’ll overrule the objection.” Ibid. The district court was incorrect because

evidence is not allowed under the doctrine of “opening the door” in situations like this,

where the initial evidence presented was not improper.

One theme of Phillips’ cross-examination of Hyer was that he was reluctant to

testify against K, with whom he set up the arrangement to retrieve the stolen firearm.

At the time of the theft and retrieval of the firearm Hyer was a heroin addict, having

used up to six times a day for the previous five years. J.A. 158. Indeed, the reason he

- 27 stole the gun in the first place was to sell it to be able to obtain more heroin. J.A. 161.

He sold the gun to K and obtained heroin. Thus, Hyer was asked whether it was “fair

to say that you didn’t like the idea of setting K up to send him to jail?” J.A. 171. Hyer

agreed that he did not. That was, he agreed, because he would lose a source of heroin

if K went to jail, although he admitted having “a few sources.” Ibid. Phillips was

probing Hyer’s bias as to how it might shape his testimony.

This Court has “recognized that the exposure of a witness’ motivation in

testifying is a proper and important function of the constitutionally protected right of

cross-examination.” Davis v. Alaska, 514 U.S. 308, 316-317 (1974). It has also

recognized that even before the Rules of Evidence, which “do not by their terms deal

with impeachment for ‘bias,’” it had held that “a trial court must allow some crossexamination of a witness to show bias.” United States v. Abel, 469 U.S. 45, 49, 50

(1984), citing Alford v. United States, 282 U.S. 687 (1931). As one commentator put

it, “[m]odern evidentiary doctrine highly esteems impeachment by bias.” Daniel D.

Blinka, Why Modern Evidence Law Lacks Credibility, 58 Buff. L. Rev. 357, 385 (2010).

It was thus perfectly proper (and required) for Phillips to probe any potential bias on

Hyer’s part.

That Phillips brought up the subject of Hyer’s sources for heroin does not mean

that it opened the door to further questioning on that matter. The doctrine of “opening

the door,” also known as curative admissibility, is directed at a particular situation

where one party introduces otherwise inadmissible evidence by allowing the other

party to respond. Thus it “gives the trial court discretion to permit a party to

- 28 introduce otherwise inadmissible evidence.” United States v. Rosa, 11 F.3d 315, 335

(2d Cir. 1993). Such evidence is allowed “(a) when the opposing party has introduced

inadmissible evidence on the same issue, and (b) when it is needed to rebut a false

impression that may have resulted from the opposing party’s evidence.” Ibid.

Therefore, “[p]roperly admitted evidence does not open the door to inadmissible

evidence.” United States v. Rea, 958 F.2d 1206, 1225 (2d Cir. 1992); see also United

States v. Kaiser, 609 F.3d 556, 572, n.4 (2d Cir. 2010)(evidence not admissible under

doctrine because “the government has not argued that Kesler’s testimony was in any

way inadmissible”); Gov’t of Virgin Islands v. Archibald, 987 F.2d 180, 187 (3d Cir.

1993); (where “the government did not argue that Williams’ testimony on crossexamination was inadmissible . . . her testimony did not ‘open the door’ to the

admission of hearsay on redirect”). The evidence of potential bias Phillips elicited

from Hyer was not improper, therefore there was no basis to introduce other evidence

to counter it. Notably, the Government did not object when Phillips asked Hyer about

K being a source of the heroin he used.

In addition, even if the evidence Phillips elicited had been improper, the open

door only opens wide enough for the other party to “rebut any false impression that

may have been created by the earlier admission of evidence.” United States v. Chance,

306 F.3d 356, 385 (6th Cir. 2002). That is because the purpose of the doctrine “is to

prevent prejudice” and evidence is admissible only to the extent necessary to remove

any unfair prejudice which might otherwise have ensued from the original evidence.”

United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971)(internal citations

- 29 omitted); United States v. McLaurin, 764 F.3d 372, n.4 (4th Cir. 2014)(doctrine

applied because defendant’s “line of questioning left the jury with the misimpression

that there was no proof the McLaurin had previously committed a robbery”); US v.

Osazuwa, 564 F.3d 1169, 1175-1176 (9th Cir. 2009)(door opens when defendant

“introducing potentially misleading information” and rebuttal evidence only

introduced “to rebut any false impression that might have resulted from the earlier

admission”)(internal citation omitted). However, Phillips’ questioning of Hyer did not

result in any false impressions – K was one of Hyer’s sources for heroin. The entire

reason Hyer was able to work to get the gun he stole back was because he sold it to K

for heroin. Questioning Hyer about other sources of heroin could not clarify or correct

anything related to that issue. That is particularly true because Hyer’s testimony

elicited on re-direct examination did not go where the Government was trying to lead

him. The Government was trying to draw a comparison between K – a drug dealer

who trades in stolen firearms – and Phillips, but Hyer would not agree to the

equivalence. When asked if Phillips was “one of those sources?”, Hyer only said that

he and Phillips “got high together.” J.A. 185. When asked directly “[d]id you get

heroin from him?”, he answered, “[h]e got me high; I got him high.” Ibid. Those

answers could not clarify anything. Rather than clarifying or rectifying otherwise

misleading and inadmissible evidence, injecting character evidence that Phillips used

and shared drugs was highly prejudicial.

- 30 D.

The admission of Hyer’s testimony about his drug

use was not harmless error.

The Fourth Circuit concluded that even if Hyer’s testimony about his drug use

with Phillips should have been excluded, any error was harmless, because the

“testimony of Phillips’ conduct on the day Hyer recovered the gun was more than

sufficient to independently support his conviction.” Phillips, 809 F.App’x at 148. As

set forth above, however, the evidence was far from sufficient to support Phillips’

conviction. Moreover, the admission of evidence that Hyer and Phillips got high

together was profoundly prejudicial. Hyer did not just steal a firearm, he traded it for

drugs to a known drug dealer, adding to, and consistent with, the well-known

connection between firearms and drugs. United States v. Manigan, 592 F.3d 621, 629

(4th Cir. 2010). By allowing him to insinuate that Phillips was also a drug dealer, it

prejudiced the jury against Phillips on an issue of character that bore no relation to

the central issue of whether he constructively possessed the firearm.

That is particularly true in light of the question the Government actually asked

Hyer on redirect examination. On cross examination Hyer admitted that he was

troubled by the idea of setting up K, partly because he was afraid of losing a source

of heroin. J.A. 171. At this point Hyer had been addicted to heroin for years and was

using it four to six times per day. J.A. 158. Indeed, one of the reasons he agreed to

work with police to recover the firearm he stole was that he did not want to go to jail

and be cut off from heroin. J.A. 170-171. It is with that context that the Government

asked “[w]as the defendant one of those?.” meaning one of Hyer’s sources for heroin.

J.A. 184. Thus the question was not whether Phillips and Hyer got high together, it

- 31 was whether Phillips dealt drugs. That evidence had no relevance to the issue the

jury was required to decide.

X. CONCLUSION

For the reasons stated, the Supreme Court should grant certiorari in this case.

Respectfully submitted,

MICHAEL MATHEW PHILLIPS

By Counsel

WESLEY P. PAGE

FEDERAL PUBLIC DEFENDER

Jonathan D. Byrne

Appellate Counsel

Counsel of Record

David R. Bungard

Assistant Federal Public Defender

OFFICE OF THE FEDERAL PUBLIC DEFENDER

300 Virginia Street East, Room 3400

Charleston, West Virginia 25301

(304) 347-3350

jonathan_byrne@fd.org

Counsel for Petitioner

XI. APPENDIX

TABLE OF CONTENTS

Unpublished Opinion of the

United States Court of Appeals

For the Fourth Circuit

entered May 1, 2020 ........................................................................... Appendix A

Memorandum Opinion and Order of the

United States District Court

For the Southern District of West Virginia

entered February 28, 2019................................................................. Appendix B

Excerpts of Transcript of Jury Trial before

The Honorable David A. Faber of the

United States District Court

For the Southern District of West Virginia

on September 12, 2018 ....................................................................... Appendix C

Judgment of the

United States District Court

For the Southern District of West Virginia

entered March 4, 2019 ....................................................................... Appendix D

APPENDIX A

United States v. Phillips, 809 Fed.Appx. 144 (2020)

809 Fed.Appx. 144

This case was not selected for publication in West's Federal Reporter.

See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial

decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of Appeals 4th Cir. Rule 32.1.

United States Court of Appeals, Fourth Circuit.

UNITED STATES of America, Plaintiff – Appellee,

Michael Matthew PHILLIPS, Defendant – Appellant.

No. 19-4154

Submitted: March 18, 2020

Decided: May 1, 2020

Synopsis

Background: Defendant was convicted in the United States District Court for the Southern District

of West Virginia, David A. Faber, Senior District Judge, of possessing a firearm as a felon.

Defendant appealed.

Holdings: The Court of Appeals, Quattlebaum, Circuit Judge, held that:

[1] evidence supported conviction, and

[2] testimony regarding relationship and prior drug use between defendant and buyer of firearm

was admissible.

Affirmed.

Procedural Posture(s): Appellate Review; Trial or Guilt Phase Motion or Objection.

West Headnotes (3)

[1]

Weapons

Possession

United States v. Phillips, 809 Fed.Appx. 144 (2020)

Sufficient evidence supported conviction for possession of firearm by felon, despite claim

that there was insufficient evidence to show that defendant had constructive possession of

firearm; jury could have found that defendant discussed gun deal with buyer, took money

for gun, led buyer to gun, and signaled buyer to its location, as buyer met defendant and

entered house, buyer dropped money in house to buy back gun, buyer then left house

with defendant and walked with him towards location of gun, defendant raised arm and

made hand gesture, buyer then grabbed gun from specific place at end of street, and buyer

admitted that he probably would not have found gun without defendant.

§§ 922(g)(1),

[2]

Criminal Law

18 U.S.C.A.

924(a)(2).

Weapons and explosives

Testimony regarding relationship and prior drug use between defendant and buyer of

firearm was admissible in prosecution for possession of firearm by felon; nature of drug

buy, gun recovery effort, and interrelation between defendant, buyer, and person with

whom buyer originally traded gun for drugs were pertinent issues at trial, testimony

explained relationship between defendant and buyer and context of defendant's decisions

and actions, and district court took further and swift step of instructing jury that defendant

was not on trial for any drug offense, controlling any associated risk of unfair prejudice.

18 U.S.C.A. §§ 922(g)(1),

[3]

Criminal Law

924(a)(2); Fed. R. Evid. 404(b).

Evidence of other offenses and misconduct

Any error in trial court's admission of testimony regarding relationship and prior drug use

between defendant and buyer of firearm was harmless in prosecution for possession of

firearm by felon; testimony of defendant's conduct on day buyer recovered gun was more

than sufficient to independently support conviction.

(2); Fed. R. Crim. P. 52(a).

18 U.S.C.A. §§ 922(g)(1),

924(a)

*145 Appeal from the United States District Court for the Southern District of West Virginia, at

Charleston. David A. Faber, Senior District Judge. (2:18-cr-00107-1)

Attorneys and Law Firms

Brian J. Kornbrath, Acting Federal Public Defender, Jonathan D. Byrne, Assistant Federal Public

Defender, David R. Bungard, Assistant Federal Public Defender, OFFICE OF THE FEDERAL

United States v. Phillips, 809 Fed.Appx. 144 (2020)

PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Michael B. Stuart, United

States Attorney, Charleston, West Virginia, R. Gregory McVey, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West Virginia, for Appellee.

Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.

Opinion

Affirmed by unpublished opinion. Judge Quattlebaum wrote the opinion, in which Judge Niemeyer

and Judge Diaz joined.

Unpublished opinions are not binding precedent in this circuit.

QUATTLEBAUM, Circuit Judge:

Michael Matthew Phillips appeals the final judgment entered on his conviction of possessing a

firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Phillips contends the government did

not produce sufficient evidence to support the jury's verdict that Phillips exercised dominion and

control over a firearm. He also argues the district court abused its discretion by allowing the

government to question its witness, Jeremy Hyer, about his drug relationship with Phillips. Having

reviewed and considered the record, we affirm.

We begin by summarizing the relevant facts. Jeremy Hyer, an admitted heroin addict, stole several

rolls of coins and a 9mm pistol from a garage at his uncle's house in West Virginia. He traded the

firearm and some of the coins for heroin from a man known as “K.” After Hyer's uncle reported the

firearm as stolen, Hyer, when questioned by local authorities, admitted stealing it. He then began

working with law enforcement to recover the firearm. More specifically, Hyer met with Corporal

Jeremy Hatfield of the Kanawha County Sheriff's Department to set up a controlled buy back of

the firearm and the purchase of $30.00 worth of heroin. Hyer arranged the buy-back deal through

a series of text messages with “K.” After law enforcement officials drove Hyer to a location near

a Go-Mart convenience store, Hyer exited the vehicle to meet “one of K's friends” to buy back

the firearm. (J.A. 125-126, 144.)

Hyer “ran into” a few people in the parking lot of the Go-Mart, including Phillips. (J.A. 126, 144.)

After a conversation, Hyer and Phillips walked together to a house across the street from the store.

*146 Hyer left money in the house for the gun. Hyer and Phillips then left the house and walked

down the street. After walking some distance together down the street, Phillips raised his arm and

United States v. Phillips, 809 Fed.Appx. 144 (2020)

made a hand motion. Hyer then recovered the firearm from some tall weeds near a utility pole.

Hyer returned to Hatfield with the firearm and $30.00 leftover cash because he was not able to

buy heroin.

Several months after the firearm was recovered, Phillips was charged with possessing a firearm as

a felon. 1 After pleading not guilty, Phillips proceeded to a jury trial. The sole question for the jury

was whether Phillips constructively possessed the firearm, as the other elements of the offense

were stipulated by Phillips and the government. The jury found Phillips guilty. Phillips moved for

a judgment of acquittal, arguing there was insufficient evidence to support the jury's verdict that

Phillips constructively possessed the firearm at issue. The district court denied Phillips’ motion

and sentenced him to a term of 30 months in prison followed by three years of supervised release.

It is undisputed that he had been previously convicted of crimes punishable by terms of

imprisonment exceeding one year as defined in

18 U.S.C. § 921 (a)(20).

Phillips filed a timely notice of appeal of his conviction. We have jurisdiction over the appeal

pursuant to 28 U.S.C.§ 1291 and

18 U.S.C. § 3742.

II.

[1] We turn to Phillips’ first argument on appeal. Phillips maintains that his conviction under

U.S.C. §§ 922(g)(1) and 924(a)(2) should be reversed because the district court erred in denying

his motion for acquittal. He argues that there was insufficient evidence from which a reasonable

jury could conclude, beyond a reasonable doubt, that he possessed the firearm Hyer stole and then

recovered.

Section 922(g)(1) makes it unlawful for a defendant previously convicted of a crime punishable

by a term of imprisonment exceeding one year to ship, transport, receive, or possess a firearm

or ammunition which has been shipped or transported in interstate or foreign commerce. 18

U.S.C. § 922(g)(1). The possession element is at issue in this case. Possession can be actual, which

means physical control over property, or constructive, which means a “defendant exercised, or had

the power to exercise, dominion and control over the item.” United States v. Moye, 454 F.3d

390, 395 (4th Cir. 2006) (internal quotation marks and citation omitted). Here, the pertinent issue

is whether Phillips constructively possessed the gun. Phillips argues there was no evidence from

which a jury could reasonably conclude he maintained constructive possession. In support of that

argument, he insists a defendant's mere proximity to contraband or awareness of a gun's position

is not a sufficient basis for concluding constructive possession.

United States v. Phillips, 809 Fed.Appx. 144 (2020)

As the district court denied Phillips’ motion for acquittal, we review de novo and employ the

same standards applied by the district court. United States v. Wolf, 860 F.3d 175, 194 (4th Cir.

2017). “Any defendant who contends that there was insufficient evidence to sustain a guilty verdict

against him ‘must overcome a heavy burden.’ ” Id. (quoting United States v. Hoyte, 51 F.3d

1239, 1245 (4th Cir. 1995)). Viewing the evidence in the light most favorable to the government,

the court must uphold the jury's verdict if it is supported by substantial evidence. United States v.

Kiza, 855 F.3d 596, 601 (4th Cir. 2017). And by “substantial evidence,” we mean, evidence “that

a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a

defendant's guilt *147 beyond a reasonable doubt.” United States v. Cornell, 780 F.3d 616, 630

(4th Cir. 2015) (internal quotation marks omitted). Thus, “[r]eversal for insufficient evidence is

reserved for the rare case where the prosecution's failure is clear.” United States v. Ashley, 606

F.3d 135, 138 (4th Cir. 2010) (internal quotation marks omitted). “A reviewing court, therefore,

may not overturn a substantially supported verdict merely because it finds the verdict unpalatable

or determines that another, reasonable verdict would be preferable.”

94 F.3d 849, 862 (4th Cir. 1996).

United States v. Burgos,

Having reviewed the record, we affirm the district court and the jury's verdict. The record contains

evidence that Hyer went to the Go-Mart to retrieve the gun from one of K's friends and then met

Phillips. After meeting Phillips, the two men walked to and entered the house across the street.

Hyer dropped some money in the house to buy back the gun. He then left the house with Phillips

and walked with him to the end of the street. As they approached the location of the gun, Phillips

raised his arm and made a hand gesture. Hyer then “grabbed the gun from a specific place at the

end of the street.” (J.A. 153.) He admitted that he probably would not have found the gun without

Phillips. From this evidence a reasonable jury could have found, beyond a reasonable doubt, that

Phillips discussed the gun deal with Hyer at the Go-Mart, took the money for the gun, led Hyer to

it, and signaled to Hyer its location. This is sufficient evidence that Phillips exercised dominion

and control over and thus constructively possessed the firearm.

To be sure, the record contained support for Phillips’ argument that he was not guilty. Hyer did

not specifically identify who told him the location of the gun. And he testified that Phillips did not

lead him to the gun. The two men, Hyer suggests, simply walked together down the street. But

a reasonable jury was entitled to reject Hyer's testimony and Phillips’ arguments. See Burgos,

94 F.3d at 862 (citation omitted) (“[T]he jury, not the reviewing court, weighs the credibility of

the evidence and resolves any conflicts in the evidence presented, and if the evidence supports

different, reasonable interpretations, the jury decides which interpretation to believe.”).

Here, the evidence reveals more than an unexplained proximity to the weapon on the part of

Phillips. Because the record provides a sufficient connection between Phillips and the weapon,

United States v. Phillips, 809 Fed.Appx. 144 (2020)

the jury's finding of constructive possession is supported by sufficient evidence, and Phillips’

conviction must be sustained. See generally United States v. Branch, 537 F.3d 328, 343 (4th

Cir. 2008) (affirming conviction and finding facts taken together would allow a reasonable jury to

conclude the defendant constructively possessed the firearm concealed in the vehicle).

III.

[2] We now turn to Phillips’ second argument. Phillips argues the district court abused its

discretion in allowing the government to elicit certain testimony regarding the relationship and

prior drug use between Phillips and Hyer. During cross-examination by Phillips’ counsel, Hyer

revealed that he had several sources for heroin. In response, on re-direct examination, the

government asked Hyer if Phillips was one of those sources. Phillips objected, arguing the question

and testimony sought was inadmissible based on Federal Rule of Evidence 404(b). The government

responded that the defense “opened the door” to the line of questioning by asking about Hyer's drug

use and sources. (J.A. 184.) After the district court overruled the *148 objection, Hyer testified

that he and Phillips “got high together.” (J.A. 185.)

The standard of review for such evidentiary rulings is abuse of discretion. United States v.

Basham, 561 F.3d 302, 325 (4th Cir. 2009). “We will not vacate a conviction unless we find

that the district court judge acted arbitrarily or irrationally in admitting evidence.” Id. at 326

(internal quotation marks and citation omitted). “Judgments of evidentiary relevance and prejudice

are fundamentally a matter of trial management, for [t]rial judges are much closer to the pulse of

a trial than we can ever be and broad discretion is necessarily accorded them.” United States v.

Benkahla, 530 F.3d 300, 309 (4th Cir. 2008) (internal citations and quotation marks omitted).

The district court did not abuse its discretion in allowing the government to present evidence

concerning the relationship between Hyer and Phillips, including their prior drug use. Rule 404(b)

(1) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's

character in order to show that on a particular occasion the person acted in accordance with that

character.” Fed. R. Evid. 404(b)(1). But, importantly, it “does not bar evidence that completes

the story of the crime or explains the relationship of parties or the circumstances surrounding a

particular event.” Basham, 561 F.3d at 327 (citation omitted). Here, the nature of the drug buy,

the gun recovery effort and the interrelation between Hyer, Phillips and “K” were all pertinent

issues at trial. The challenged testimony explained the relationship between Hyer and Phillips and

the context of Phillips’ decisions and actions. Since the challenged testimony addressed issues

relevant at trial and was not prohibited by Rule 404(b), the district court did not abuse its discretion

in determining the testimony was relevant and reasonable.

United States v. Phillips, 809 Fed.Appx. 144 (2020)

[3] Further, to the extent the decision by the district court to allow the line of questioning about

Phillips and Hyer related to prior drug use constituted error, any abuse of discretion in admitting

such testimony was harmless. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.”). “Erroneously admitted

evidence is harmless if a reviewing court is able to say, with fair assurance, after pondering all

that happened without stripping the erroneous action from the whole, that the judgment was not

substantially swayed by the error.” Basham, 561 F.3d at 327 (internal citation and quotation

marks omitted). The testimony of Phillips’ conduct on the day Hyer recovered the gun was more

than sufficient to independently support his conviction.

What's more, the district court took the further and swift step of instructing the jury that Phillips

was not on trial for any drug offense. In doing so, the district court substantially controlled

any associated risk of unfair prejudice and we find no abuse of discretion in the district court's

evidentiary ruling.

IV.

For the foregoing reasons, we affirm Phillips’ conviction under

18 U.S.C. §§ 922(g)(1)

and 924(a)(2). We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the decisional

process.

AFFIRMED

All Citations

809 Fed.Appx. 144

End of Document

APPENDIX B

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 370 of 393 Total Pages:(370 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 1 of 15 PageID #: 596

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

UNITED STATES OF AMERICA

CRIMINAL NO. 2:18-00107

MICHAEL MATTHEW PHILLIPS

MEMORANDUM OPINION AND ORDER

Pending before the court is the defendant’s motion for

judgment of acquittal.

(ECF No. 67).

responded to the motion.

The government has

(ECF No. 70).

For the reasons

expressed below, that motion is DENIED.

Background

After a jury trial, Michael Matthew Phillips (“Phillips” or

“defendant”) was convicted of being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Phillips moved for a judgment of acquittal at the close of all

the evidence and, after the verdict, filed the instant written

motion.

In his motion, Phillips argues that the evidence

presented at trial was insufficient to sustain his conviction.

Specifically, Phillips contends that the government’s evidence

fell short of establishing his constructive possession of the

firearm at issue in this case.

II.

Standard of Review

In evaluating a defendant’s motion for judgment of acquittal

under Federal Rule of Criminal Procedure 29(c), the court must

-365-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 371 of 393 Total Pages:(371 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 2 of 15 PageID #: 597

view the evidence in the light most favorable to the government

to determine if any rational trier of fact could have found the

defendant guilty of the essential elements of the crime beyond a

reasonable doubt.

See United States v. Wilson, 118 F.3d 228, 234

(4th Cir. 1997).

Accordingly, defendant’s conviction must be

sustained if, viewed in the light most favorable to the United

States, there is substantial evidence to support it.

v. United States, 315 U.S. 60, 80 (1942).

See Glasser

In reviewing the

sufficiency of the evidence, a court does not weigh the evidence

or assess the credibility of witnesses.

United States v.

Arrington, 719 F.2d 701, 704 (4th Cir. 1983).

The court “must

assume that the jury resolved all contradictions in testimony in

favor of the Government.”

United States v. United Med. &

Surgical Supply Corp., 989 F.2d 1390, 1402 (4th Cir. 1993).

“‘[S]ubstantial evidence,’ in the context of a criminal

action, [is] that evidence which ‘a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion

of a defendant's guilt beyond a reasonable doubt.’”

United

States v. Newsome, 322 F.3d 328, 333 (4th Cir. 2003) (quoting

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)).

“The

jury, not the reviewing court, weighs the credibility of the

evidence and resolves any conflicts in the evidence presented.”

United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994); see

also United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989)

-366-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 372 of 393 Total Pages:(372 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 3 of 15 PageID #: 598

(“[T]his court is bound by the credibility choices of the jury.”)

(internal citations and quotations omitted).

Furthermore, “if

the evidence supports different, reasonable interpretations, the

jury decides which interpretation to believe.”

at 148.

Murphy, 35 F.3d

Therefore, a defendant challenging the sufficiency of

the evidence “`must overcome a heavy burden.’”

United States v.

Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015) (quoting

United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995)).

The Court “may not overturn a substantially supported

verdict merely because it finds the verdict unpalatable

or determines that another, reasonable verdict would be

preferable,” United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996); instead reversal for insufficiency

must “be confined to cases where the prosecution’s

failure is clear,” Burks v. United States, 437 U.S. 1,

17, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).

Id.

III.

Analysis

Where, as here, a defendant argues that a jury's verdict was

based on insufficient evidence, “[t]he verdict of a jury must be

sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.”

States, 315 U.S. 60, 80 (1942).

Glasser v. United

The indictment in this case

charges that, on or about January 24, 2017, defendant did

knowingly possess a firearm, a HI-Point, Model C9, 9mm pistol,

after having been convicted of a crime punishable by a term of

imprisonment exceeding one year.

“To show a § 922(g)(1)

violation, the government must prove three elements:

-367-

(i) that

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 373 of 393 Total Pages:(373 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 4 of 15 PageID #: 599

the defendant was a convicted felon at the time of the offense;

(ii) that he voluntarily and intentionally possessed a firearm;

and (iii) that the firearm traveled in interstate commerce at

some point.”

United States v. Adams, 814 F.3d 178, 183 (4th Cir.

2016) (quoting United States v. Gallimore, 247 F.3d 134, 136 (4th

Cir. 2001)).

Phillips stipulated that he was a convicted felon

and that the firearm at issue was manufactured in Ohio.

Government’s Exhibit 1 (ECF No. 60-1).

See

Therefore, the only

disputed element was whether Phillips possessed the firearm at

issue in this case.

Of the government’s burden in proving possession, the United

States Court of Appeals for the Fourth Circuit has explained:

Under our possession jurisprudence, possession can

be actual or constructive. United States v. Rusher,

966 F.2d 868, 878 (4th Cir. 1992). “Actual possession”

is defined as “[p]hysical . . . control over property.”

Black’s Law Dictionary 1201 (8th ed. 2004).

Constructive possession is established if it is shown

“that the defendant exercised, or had the power to

exercise, dominion and control over the item.” Rusher,

966 F.2d at 878.

United States v. Moye, 454 F.3d 390, 395 (4th Cir. 2006) (en

banc).

“Notably, dominion and control cannot be established by

mere proximity to [ ] contraband, by mere presence on the

property where the contraband is found, or by mere association

with the person who does control the contraband.”

United States

v. Blue, 808 F.3d 226, 232 (4th Cir. 2015); see also United

States v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980) (“There must

-368-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 374 of 393 Total Pages:(374 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 5 of 15 PageID #: 600

be some action, some word, or some conduct that links the

individual to the [contraband] and indicates that he had some

stake in them, some power over them.

There must be something to

prove that the individual was not merely an innocent

bystander.”).

Furthermore, possession can be shared with others.

United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996); see

also United States v. Jones, No. 17-4480, 742 F. App’x 710, 713

(4th Cir. July 18, 2018) (“Possession can be actual, exclusive,

constructive, or joint.”).

“`Possession, whether actual or

constructive, can be extremely brief: a minute of possession is

as much an offense as a year of possession.’”

Jones, 742 F.

App’x at 713 (quoting United States v. Torres-Colon, 790 F.3d 26,

32 (1st Cir. 2015)).

The relevant facts adduced at trial are as follows.

January 18, 2017, Jeremy Hyer* stole the firearm named in the

indictment from his uncle, James Monk.

Hyer, September 12, 2018, at 4-6

___”) (ECF No. 67-1).

Trial Testimony of Jeremy

(hereinafter “Hyer Test. at

Hyer, a self-described drug addict,

testified that he stole the firearm in order to trade it for

heroin.

See id. at 5.

According to Hyer, he traded the gun and

some stolen coins with “K” for one gram of heroin.

35.

See id. at

After being “caught” by the Kanawha County Sheriff’s

At various times in the record, Hyer’s last name is

spelled “Hyre”. The court uses “Hyer” herein.

-369-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 375 of 393 Total Pages:(375 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 6 of 15 PageID #: 601

Department, Hyer admitted to having stolen the gun and agreed to

“[g]et the gun back.”

See id. at 5.

On cross-examination, Hyer

also conceded that he thought getting the gun back would help him

avoid being charged with the theft of the gun.

See id. at 36.

To that end, on January 24, 2017, the Kanawha County

Sheriff’s Department provided Hyer with money to purchase the gun

back in a controlled buy.

See id. at 6.

money to purchase heroin.

See id.

Hyer was also given

According to Hyer, law

enforcement equipped him with a camera in order to videotape the

transaction.

See id. at 8-10.

“K” to get the gun back.

Hyer testified that he contacted

See id. at 7.

Hyer and “K” exchanged text messages and Hyer got a message

from “K” to go to Go Mart.

See id. at 38-40; see also

Defendant’s Exhibits 1 and 2 (ECF Nos. 60-5 and 60-6).

Hyer

testified that he believed that he had talked to “K” prior to

exchange of the text messages.

See id. at 39.

The following

text messages were exchanged between Hyer and “K”:

Hyer:

She had to go to bank I’m tryin to hurry

her ass up lol

Ok I’m back here

Hyer:

Fast as I can bro I’m comin tho for sure

Hyer:

Pulling out the bank nigga

There’s cops every were [sic] go to gomart

-370-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 376 of 393 Total Pages:(376 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 7 of 15 PageID #: 602

Hyer:

I b there in 5ish I got 175 bra

Defendant’s Exhibits 1 and 2.

After meeting with law enforcement, Hyer went to the Go Mart

in North Charleston “[t]o try to get - - retrieve the gun.”

Test. at 9.

Hyer

In doing so, Hyer testified that “I thought I was

meeting one of K’s friends.”

defendant at the Go Mart.

Id.

Eventually, Hyer encountered

See id. at 9, 12.

After meeting up at the Go Mart, Hyer and Phillips left the

Go Mart together and went to a house “across the street.”

10.

Id. at

Hyer testified that he did not know “whose house” it was and

that he left the money in the house “to get the weapon back.”

Id. at 10, 20.

recording.

There was some discussion regarding money on the

A short time later, both Hyer and Phillips left the

house and went to the “end of the street.”

Id. at 18.

The

videorecording of the incident shows Phillips pointing in the

video.

See id. at 17.

gun from some weeds.

Shortly thereafter, Hyer retrieved the

See id. at 18, 20.

Of his retrieval of the gun, Hyer testified:

Now, at that point, did you retrieve the gun?

I believe so.

Well, you retrieved a gun that afternoon, did

you not?

Yes.

And was it that location that you retrieved

the gun?

-371-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 377 of 393 Total Pages:(377 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 8 of 15 PageID #: 603

Yes.

I’m pretty sure.

Before you got that gun, tell us what you

knew about the location of it on that date.

That’s - - that’s all I knew.

What do you mean that’s all you knew?

I didn’t know the location of it.

And how did you learn the location of the

gun?

Someone told me at some point.

And who was that someone?

I don’t - - I can’t recall a hundred percent.

Well, who led you to that place?

We just walked together.

lead me.

Could you have found that gun without Matt?

I’m not sure. I don’t know. Probably not,

but I can’t say a hundred percent.

Mr. Hyre, did you place that gun there that

afternoon?

Did I?

Yes.

I don’t believe so.

Well, did you, or didn’t you?

No.

Prior to meeting Matt, did you know where

that gun was?

Not exactly, no.

-372-

He didn’t really

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 378 of 393 Total Pages:(378 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 9 of 15 PageID #: 604

Well, had anybody else told you?

I don’t - - I don’t believe so.

I don’t recall.

I don’t - -

Id. at 18-19.

Hyer was a reluctant witness for the government.

You don’t want to be here testifying today,

do you?

No, I don’t.

Why?

I - - I just don’t.

Well, is there a particular reason?

No.

I just want to go home.

Id. at 19-20.

Hyer also testified that he was troubled by the idea of

implicating “K”.

Is it fair to say you didn’t like the idea of

setting K up to send him to jail?

Yeah.

Because you agree there would be a lot of

negatives to that, such as, you would lose a

source of heroin if he went to jail?

I had - - I had a few sources but, yeah, that

was - -

But you would lose him if he went to jail,

right?

Right.

And you also risked getting labeled as a

snitch on the streets, correct?

No, I didn’t.

-373-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 379 of 393 Total Pages:(379 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 10 of 15 PageID #: 605

Right.

And, if you’re labeled as a snitch, people

might not sell drugs to you?

Right.

Id. at 36-37.

Hyer testified that he was unsure of the exact

nature of defendant’s relationship with “K” although he stated

that he was “[s]omewhat” sure there was one because he had “seen”

both “K” and “Matt . . . around.”

Id. at 7.

Viewing the evidence in the light most favorable to the

government, the court finds there was sufficient circumstantial

evidence to support the jury's verdict that, on January 24, 2017,

Phillips constructively possessed the firearm at issue in this

case.

Hyer was certainly a reluctant witness.

points, his testimony was clear.

But, on certain

Hyer testified that he stole

the firearm from his uncle and then traded it for heroin.

A week

or so later, Hyer admits to the Kanawha County Sheriff’s

Department that he had stolen the gun.

Believing it in his best

interest to do so, Hyer agrees to work with law enforcement to

recover the gun.

Hyer’s testimony on these points was

corroborated by Corporal Jeremy Hatfield who also testified at

the trial.

Hyer communicates with “K” to see about buying back the gun.

Although Hyer’s testimony on this point was somewhat cagey,

screenshots confirm the communication and the agreement.

Defendant’s Exhibits 1 and 2 (ECF Nos. 60-5 and 60-6).

-374-

See

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 380 of 393 Total Pages:(380 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 11 of 15 PageID #: 606

Whereupon, the Kanawha County Sheriff’s Office arranged for Hyer

to purchase the firearm in a controlled buy.

Although the text messages setting up the transaction were

between Hyer and “K”, Phillips, not “K”, is the person who shows

up at the Go Mart.

Phillips.

Furthermore, Hyer leaves the Go Mart with

This is certainly circumstantial evidence from which a

reasonable jury could infer that Phillips was the person who Hyer

planned to meet.

Hyer and Phillips then walk to a house.

money for the weapon at that house.

Hyer leaves the

Afterwards, Hyer and

defendant walk to a lot where defendant is shown pointing.

See

Government’s Exhibit 3.

Shortly thereafter, Hyer retrieves the

weapon from the weeds.

Most of this can be seen on the

videorecording that was shown at trial.

With respect to defendant’s argument that he was merely a

fall guy for Hyer, there is nothing to suggest that Hyer needed a

fall guy.

Indeed, Hyer admitted to stealing the gun.

According

to him, he thought that he would get off easier if he helped

recover the gun.

If, on January 23, 2017, Hyer had possession of

the gun, actual or constructive, he could simply have retrieved

the gun.

Therefore, it is reasonable to infer that Hyer did not

know where the gun was until Phillips showed him.

Indeed, he

testifies as much:

Could you have found that gun without Matt?

-375-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 381 of 393 Total Pages:(381 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 12 of 15 PageID #: 607

I’m not sure. I don’t know. Probably not,

but I can’t say a hundred percent.

Mr. Hyre, did you place that gun there that

afternoon?

Did I?

Yes.

I don’t believe so.

Well, did you, or didn’t you?

No.

Prior to meeting Matt, did you know where

that gun was?

Not exactly, no.

Well, had anybody else told you?

I don’t - - I don’t believe so.

I don’t recall.

I don’t - -

Hyer Test. at 18-19.

Phillips argues that the government failed to prove his

constructive possession of the firearm because there was no

evidence that Hyer gave the buy money to him or that he had any

ownership interest or lived in the house where Hyer “dropped” the

money.

However, this point is immaterial to whether Phillips is

guilty of being a felon in possession of a firearm.

The

government was not required to prove that any money changed

hands.

Defendant also argues that his mere presence in proximity to

the gun was insufficient to prove his constructive possession of

-376-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 382 of 393 Total Pages:(382 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 13 of 15 PageID #: 608

the weapon.

However, the government did not soley rely on

Phillips’ proximity to the gun but, instead, showed that

defendant exercised dominion and control over the firearm.

The

government’s evidence on this point was shown by Hyer’s testimony

that he could not find the firearm without Phillips’ assistance.

The evidence was sufficient to prove defendant’s constructive

possession of the firearm.

See, e.g., United States v. Clark,

48No. 01-4839, F. App’x 57, 61 (4th Cir. 2002), (“The

Government’s evidence that Clark knew the location of the weapons

prior to the search is sufficient to establish constructive

possession of the weapons.”).

Nor was the government required to prove that Phillips was

the one who placed the gun by the utility pole or that he

maintained exclusive control over the gun.

As noted above,

possession may be joint and it may be brief.

See United States

v. Escobar-de Jesus, 187 F.3d 148, 176 (1st Cir. 1999)

(“[D]uration of possession is not an element of the statute.”).

Finally, the court finds no merit in defendant’s argument

that his Rule 29 motion must be granted because of the

government’s alleged failure to prove an agency or conspiratorial

relationship between “K” and Phillips.

The government was not

required to prove the exact nature of the relationship between

defendant and “K” or that one existed at all.

As discussed

above, the evidence showed that Hyer arranged the recovery of the

-377-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 383 of 393 Total Pages:(383 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 14 of 15 PageID #: 609

gun with “K”.

“K” did not show up; Phillips did.

was with Hyer when the weapon was recovered.

And Phillips

It was certainly

reasonable for the jury to infer that either Phillips was

actually “K” or that Phillips constructively possessed the

firearm in combination with “K”.

The court is mindful that a jury could have concluded that

Phillips was not in possession of the firearm but was merely

present when the firearm was recovered.

“However, it was for the

jury, not this court, to decide which version of the events—the

government’s or [defendant]’s—was more credible.”

United States

v. Moye, 454 F.3d 390, 396 (4th Cir. 2006) (en banc).

As the

Fourth Circuit explained:

To be sure, as appellate judges, we enjoy no

greater vantage point on appeal than did the jury at

trial and we have no right to usurp the jury’s role to

find facts. . . .

If we did otherwise, we would be

substituting our judgment for that of the jury. In

this case, the jury was entitled to reach the

reasonable and quite unremarkable conclusion that

[defendant] possessed the firearms. . . .”

Id. at 396-97.

IV.

Conclusion

For the foregoing reasons, defendant’s motion for judgment

of acquittal is DENIED.

The Clerk is directed to send a copy of this Memorandum

Opinion and Order to counsel of record, to the United States

Marshal for the Southern District of West Virginia, and to the

Probation Office of this court.

-378-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 384 of 393 Total Pages:(384 of 399)

Case 2:18-cr-00107 Document 74 Filed 02/28/19 Page 15 of 15 PageID #: 610

IT IS SO ORDERED this 28th day of February, 2019.

ENTER:

David A. Faber

Senior United States District Judge

-379-

APPENDIX C

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 189 of 393 Total Pages:(189 of 399)

175

Jeremy Wade Hyre - Redirect (McVey)

Okay.

Just last week.

Okay.

of federal firearms laws for stealing your uncle's pistol?

Have you ever been charged with any violations

No.

Any other time than last week?

MR. BUNGARD:

Your Honor, could I have a minute,

please?

THE COURT:

Yes.

(Pause)

MR. BUNGARD:

THE COURT:

Any redirect, Mr. McVey?

MR. MCVEY:

A couple, Your Honor.

No further questions at this time.

REDIRECT EXAMINATION

BY MR. MCVEY:

Mr. Hyre, you have no plea agreement with the United

States; is that correct?

No.

Okay.

Yes.

Was the defendant one of those?

MR. BUNGARD:

And you said you had several sources for heroin?

Objection, Your Honor.

This is

404(b).

MR. MCVEY:

Your Honor, they opened the door.

THE COURT:

I think you did, Mr. Bungard.

I'll

overrule the objection.

Ayme A. Cochran, RMR, CRR (304) 347-3128

-184-

USCA4 Appeal: 19-4154

Doc: 12-1

Filed: 06/17/2019

Pg: 190 of 393 Total Pages:(190 of 399)

176

Jeremy Wade Hyre - Redirect (McVey)

BY MR. MCVEY:

Was the defendant one of those sources?

We got high together.

Did you get heroin from him?

He got me high; I got him high.

MR. MCVEY:

MR. BUNGARD:

THE COURT:

That's all I have, Your Honor.

Nothing further, Your Honor.

All right.

Mr. Hyre, your testimony

is concluded.

until after this trial is over.

the custody of the marshal at this time.

Do not discuss your testimony with anyone

THE WITNESS:

THE COURT:

And I'm returning you to

Thank you.

I caution you, ladies and gentlemen of

the jury, the defendant is not on trial in this case for any

-- any drug charge.

in possession of a firearm and I just wish to remind you of

that.

The charge against him is being a felon

MR. MCVEY:

COURTROOM DEPUTY CLERK:

The United States calls Deputy Vernon.

your name?

THE WITNESS:

COURTROOM DEPUTY CLERK:

Would you please state

Corporal James Vernon.

Thank you.

Please raise

your right hand.

CORPORAL JAMES VERNON, GOVERNMENT WITNESS, SWORN

COURTROOM DEPUTY CLERK:

Thank you.

Please take a

Ayme A. Cochran, RMR, CRR (304) 347-3128

-185-

APPENDIX D

USCA4 Appeal:

19-4154

Doc: 12-1

06/17/2019

385

of 8393

Total#:Pages:(385

of 399)

Case

2:18-cr-00107

DocumentFiled:

76 Filed

03/04/19 Pg:

Page

1 of

PageID

612

AO 245B (Rev. )

Judgment in a Criminal Case

Sheet 1

UNITED STATES DISTRICT COURT

Southern District

of West

Virginia

__________

District

of __________

)

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

)

MICHAEL MATTHEW PHILLIPS

Case Number: 2:18CR00107-001

)

USM Number: 12565-087

)

David R. Bungard, AFPD

)

Defendant’s

Attorney

)

THE DEFENDANT:

G pleaded guilty to count(s)

G pleaded nolo contendere to count(s)

which was accepted by the court.

✔ was found guilty on count(s)

one of the one-count indictment

after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section

Nature of Offense

Offense Ended

Count

18 U.S.C. §§ 922(g)(1)

Felon in possession of a firearm

1/24/2017

and 924(a)(2)

The defendant is sentenced as provided in pages 2 through

the Sentencing Reform Act of 1984.

of this judgment. The sentence is imposed pursuant to

G The defendant has been found not guilty on count(s)

G Count(s)

G is

G are dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,

or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,

the defendant must notify the court and United States attorney of material changes in economic circumstances.

3/1/2019

Date of Imposition of Judgment

Signature of Judge

David A. Faber, Senior United States District Judge

Name and Title of Judge

3/4/2019

Date

-380-

USCA4 Appeal:

19-4154

Doc: 12-1

06/17/2019

386

of 8393

Total#:Pages:(386

of 399)

Case

2:18-cr-00107

DocumentFiled:

76 Filed

03/04/19 Pg:

Page

2 of

PageID

613

AO 245B (Rev. ) Judgment in Criminal Case

Sheet 2 — Imprisonment

Judgment — Page

DEFENDANT: MICHAEL MATTHEW PHILLIPS

CASE NUMBER: 2:18CR00107-001

IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total

term of:

thirty (30) months

✔ The court makes the following recommendations to the Bureau of Prisons:

The court recommended that defendant be incarcerated at a facility where he can receive medication for his serious heart

condition. The court further recommended that defendant receive drug counseling and treatment while incarcerated.

✔ The defendant is remanded to the custody of the United States Marshal.

G The defendant shall surrender to the United States Marshal for this district:

G at

G a.m.

G p.m.

G as notified by the United States Marshal.

G The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

G before 2 p.m. on

G as notified by the United States Marshal.

G as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

, with a certified copy of this judgment.

UNITED STATES MARSHAL

DEPUTY UNITED STATES MARSHAL

-381-

USCA4 Appeal:

19-4154

Doc: 12-1

06/17/2019

387

of 8393

Total#:Pages:(387

of 399)

Case

2:18-cr-00107

DocumentFiled:

76 Filed

03/04/19 Pg:

Page

3 of

PageID

614

AO 245B (Rev. ) Judgment in a Criminal Case

Sheet 3 — Supervised Release

Judgment—Page

DEFENDANT: MICHAEL MATTHEW PHILLIPS

CASE NUMBER: 2:18CR00107-001

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of :

three (3) years

MANDATORY CONDITIONS

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court.

G The above drug testing condition is suspended, based on the court's determination that you

SRVHDORZULVNRIIXWXUHVXEVWDQFHDEXVH FKHFNLIDSSOLFDEOH

G <RXPXVWPDNHUHVWLWXWLRQLQDFFRUGDQFHZLWK86&DQG$RUDQ\RWKHUVWDWXWHDXWKRUL]LQJDVHQWHQFHRI

G You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

G You must comply with the requirements of the Sex Offender Registration and Notification Act ( U.S.C. § , et seq.) as

UHVWLWXWLRQ FKHFNLIDSSOLFDEOH

directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in WKHORFDWLRQwhHUH you

reside, work,are a student, or were convicted of a qualifying offense. (check if applicable)

G You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached

page.

-382-

USCA4 Appeal:

19-4154

Doc: 12-1

06/17/2019

388

of 8393

Total#:Pages:(388

of 399)

Case

2:18-cr-00107

DocumentFiled:

76 Filed

03/04/19 Pg:

Page

4 of

PageID

615

AO 245B (Rev. ) Judgment in a Criminal Case

Sheet 3A — Supervised Release

Judgment—Page

DEFENDANT: MICHAEL MATTHEW PHILLIPS

CASE NUMBER: 2:18CR00107-001

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed

because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

10.

11.

12.

13.

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer.

You must answer truthfully the questions asked by your probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was

designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without

first getting the permission of the court.

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this

judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.gov.

Defendant's Signature

Date

-383-

USCA4 Appeal:

19-4154

Doc: 12-1

06/17/2019

389

of 8393

Total#:Pages:(389

of 399)

Case

2:18-cr-00107

DocumentFiled:

76 Filed

03/04/19 Pg:

Page

5 of

PageID

616

AO 245B (Rev. ) Judgment in a Criminal Case

Sheet 3C — Supervised Release

Judgment—Page

DEFENDANT: MICHAEL MATTHEW PHILLIPS

CASE NUMBER: 2:18CR00107-001

ADDITIONAL STANDARD CONDITIONS OF SUPERVISION

The defendant shall comply with the Standard Conditions of Supervision adopted by the Southern District of West Virginia

as contained in Local Rule of Criminal Procedure 32.3 as follows:

1) If the offender is unemployed, the probation officer may direct the offender to register and remain active with Workforce

West Virginia.

2) Offenders shall submit to random urinalysis or any drug screening method whenever the same is deemed appropriate

by the probation officer and shall participate in a substance abuse program as directed by the probation officer. Offenders

shall not use any method or device to evade a drug screen.

3) As directed by the probation officer, the defendant will make copayments for drug testing and drug treatment services at

rates determined by the probation officer in accordance with a court-approved schedule based on ability to pay and

availability of third-party payments.

4) A term of community service is imposed on every offender on supervised release or probation. Fifty hours of community

service is imposed on every offender for each year the offender is on supervised release or probation. The obligation for

community service is waived if the offender remains fully employed or actively seeks such employment throughout the

year.

5) The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon (i.e.,

anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person

such as nunchakus or tasers), and shall reside in a residence free from such items.

6) The defendant shall not purchase, possess, or consume any organic or synthetic intoxicants, including bath salts,

synthetic cannabinoids, or other designer stimulants.

-384-

USCA4 Appeal:

19-4154

Doc: 12-1

06/17/2019

390

of 8393

Total#:Pages:(390

of 399)

Case

2:18-cr-00107

DocumentFiled:

76 Filed

03/04/19 Pg:

Page

6 of

PageID

617

AO 245B(Rev. ) Judgment in a Criminal Case

Sheet 3D — Supervised Release

Judgment—Page

DEFENDANT: MICHAEL MATTHEW PHILLIPS

CASE NUMBER: 2:18CR00107-001

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall participate in a program approved by the United States Probation Office for substance abuse, which

program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol.

-385-

USCA4 Appeal:

19-4154

Doc: 12-1

06/17/2019

391

of 8393

Total#:Pages:(391

of 399)

Case

2:18-cr-00107

DocumentFiled:

76 Filed

03/04/19 Pg:

Page

7 of

PageID

618

AO 245B (Rev. )

Judgment in a Criminal Case

Sheet 5 — Criminal Monetary Penalties

Judgment — Page

DEFENDANT: MICHAEL MATTHEW PHILLIPS

CASE NUMBER: 2:18CR00107-001

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

JVTA Assessment*

Assessment

TOTALS

$ 100.00

Fine

Restitution

G The determination of restitution is deferred until

. An Amended Judgment in a Criminal Case (AO 245C) will be entered

after such determination.

G The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in

the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid

before the United States is paid.

Total Loss**

Name of Payee

TOTALS

0.00

Restitution Ordered

Priority or Percentage

0.00

Restitution amount ordered pursuant to plea agreement $

The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

G the interest requirement is waived for the

G the interest requirement for the

G fine

G restitution.

restitution is modified as follows:

* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or

after September 13, 1994, but before April 23, 1996.

-386-

USCA4 Appeal:

19-4154

Doc: 12-1

06/17/2019

392

of 8393

Total#:Pages:(392

of 399)

Case

2:18-cr-00107

DocumentFiled:

76 Filed

03/04/19 Pg:

Page

8 of

PageID

619

$2% 5HY -XGJPHQWLQD&ULPLQDO&DVH

Sheet 6 — Schedule of Payments

Judgment — Page

DEFENDANT: MICHAEL MATTHEW PHILLIPS

CASE NUMBER: 2:18CR00107-001

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

✔ Lump sum payment of $

✔

100.00

not later than

in accordance with G C,

due immediately, balance due

, or

E, or

G Payment to begin immediately (may be combined with

G Payment in equal

✔ F below; or

G C,

G D, or

G F below); or

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after the date of this judgment; or

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after release from imprisonment to a

term of supervision; or

G Payment during the term of supervised release will commence within

✔ Special instructions regarding the payment of criminal monetary penalties:

(e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

If not paid immediately, the defendant shall pay the special assessment during his term of incarceration in

installments of not less than $25 per quarter through participation in the Bureau of Prisons' Inmate Financial

Responsibility Program. Any remaining balance shall be paid during the term of supervised release at a rate of

$25 per month commencing 30 days after his release.

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during

the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate

Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

G Joint and Several

Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount,

and corresponding payee, if appropriate.

G The defendant shall pay the cost of prosecution.

G The defendant shall pay the following court cost(s):

G The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine

interest, (6) community restitution, (7) JVTA assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.

-387-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.