NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 11a0230n.06
No. 09-5141
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. DEAND RE YOUNG, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN NESSEE

OPI NI ON

Before: BOGG S and COOK, Cir cuit Judges; and CARR, D istrict Judge. *
JAMES G. CARR, Senior District Judge. Def endant- Appellant Dea

ndre Young appea ls his conviction for being a felon in possession of a firea rm in violation o f 1 8 U. S

. C. § 922(g ). He
appea ls on two g rounds: 1) the proof submitt ed at trial was insufficient to e stablish g uilt bey ond a

reas o n ab l e d oubt; and 2) the district court improperly curta iled cross-e x amination of a key
g overnme nt witness and concur rently acc used d ef

en s e co u nsel befor e the jury of dece ptive trial conduct, de priving Young of his rig ht to a fair tr ial.
For the re asons that follow, we AF F IRM the district court’s judg ment. BACK GR OUND
I n Fe bruar

y , 2008, Ba

rtlett Police Depa

rtment Detec tive Patrick Cici went to an a partment complex looking for Young to arr est him on outstanding war rants. Cici saw Young eng ag e in what

The Honora

ble J ames G. Carr, Senior United States District J udg e for the Norther n District * of Ohio, sitting by

desig nation.Cici believed to be a hand-to-ha nd drug transac tion. Young then appea red either to place or retrie ve something in a

maroon c ar. Cici ca lled for ba ckup. When Young g ot into the car and turned on the headlig hts, as if to drive awa y , office rs
approa ched the car and order ed Young to g et out. Young initially complied, but then ran awa y and eluded the pursuing office rs. Police sear ched the car , finding in the cente r co n s ole a bag of marijuana and a .38 c aliber r evolver

. After Young fled, he pag ed S andra Wooten, whom he had b ee n d at i n g. When she pi cked him up on a street corne r, he told her that he had esca ped from the police. Wooten br oug ht Y oung to her house. The next day , office rs came looking for Young

. Thoug h Wooten told them Young was not there , she indicated with g estures that he indeed was prese nt. She led office rs to an entra nce to her attic, wher e Young was hiding . Young fled out of a window but was a

pprehe nded nea

rby

. W o o ten testified she had rente d the maroon car for Young

. She had rente d car s for hi m

sever al times. Another g overnme nt witness, Tanisha Turner , testified that she had also dated Young and rente d car s for him. Young had direc ted her to the same renta l ag ency wher e Wooten rente d the

maroon c ar in whic h office rs found the g un. The firea rm was reg istered to Wooten. She had repor ted it stolen months ear lier, telli ng police it had disappea

red from a closet in her home. After Young ’s arr est, howeve r, she told police that she had g iven Young the g un. I n response to her demands that he return the g un to her, Young claimed it had been s tolen from him

. Wooten there afte r n o t i fi ed t h e poli ce that the gun had been stolen from her

home.

2Wooten testified that, while Young was in custody following his arr est, he asked her to tell

the police that she had put the g un in the car . Young told her that beca use it was her g un she would
not g et in trouble and he would not be char g ed. Young also told her Cici had planted the marijuana in the car

. Young testified that on the day the g un was found, he had picked u p t h e re n t al car from Wooten at her wor

k, and that the g

un belong ed to her

. After Young ’s arr est, Wooten, at Cici’s reque st, provided a statement. Thoug h not admitted at trial, the stateme nt is part of the a ppellate r ecor d. 1
At trial, Young ’s attorney , as part of a sequenc e of questions challeng ing Wooten’s

cre dibilit y , asked he r about the state ment:

Wooten wrote: 1
I Sandra Wooten rente d a marc oon (sic) malaiu (sic) from EZ Auto Sales & renta l at 9:30 to 10:30 am, Young was in my truck while I rente d the car and when I g ot back I g ave the car to him and we went our seper ated (sic) way s, he also g ave me the $235 dollars to rent the c ar, a

nd I also went the ( sic) wor k that night. I

only road ( sic) to t h e store with him, [b] ut afte r that I never drove the car . I did not put an y o f m y proper ty in the car . I never put no (sic) drug s in the car or any thing I own in the car I had no money in the car . On 9-27-07 I did r eport my g un stole (sic) (we are taking (sic) about a taurus .38 calie (sic) specia l revolve r) , b u t I was in the apt. that night (Simor (sic) L ak (sic) apts) it was late and I g ave him the g un that n i gh t an d I ask (sic) for it back s ev er al t i m e an d he told me it was stolen. I continue to ask so I decide d to call the police and repor ted it stolen, so I d i d n ’t tell the police the truth about the g un beca

use I didnt (sic) want him to hurt me fo r get t i n g him in trouble with t h e p o l i ce . I did not put that g un in the car (the rente d malibu) the l ast time I saw that g un is when I g ave it to him in Simore (s i c) l ak e ap t s in the (sic) ear ly September.
I Sandra Wooten was aff

aid (sic) when the police ask me was DeAndr e in my house at first I , said no, then the next few seconds I said y es beca use I was aff

aid (sic) of the safe ty of me a

nd my kids, [ a]nd I new ( sic) hes ( sic) a convec ted (sic) fele ony (sic) and I wounld (sic) not have let the police left (sic) the house without telling the truth. 3Q: You d o n ’t wa n t to tell a fib, but y ou have told sever al fibs throug hout this case , isn’t that rig ht?
A: I told a fib about the g un. Q: J ust one?
A: I told—I told a fib about the gun, how I —how t he gun g ot missi ng beca use I didn’t want to g et him in trouble at that particula r time. Q: But isn’t it also true that y ou told the pol ice that y ou h ad g iven a convicted felon a firea rm that y ou would have be en in trouble?
A: I didn’t know he wa s a convic ted fe lon. Q: Oh, y ou didn’t?
A: When we first met, I didn’t discuss no criminal bac kg round. Q: I ’m sorry . Do y ou reme mber providing a s t at ement to Detec tive Cici on Fe bruar y the 26 , 2008?

t h
A: I sure do. Q: d o y ou reme mber putting in there I knew he was a convicted felon and I would not have let the police -- A: That’s if I

had known. I

miswritten (sic) it, if -- Ms. Webber: Objection The Court: Objection sustained. L et me see counsel a t sidebar. (The fol low ing p roce edings h ad a sid e-bar bench.)

The Court: You will have to stop when there ’s an o b j ection, y ou can’ t keep g oing. L et me see the document. Ms. Webber: I n order for a prior statement to be admissib l e, i t h as to be

inconsistent. She said when I first met him, I didn’t not know he was a felon. T h i s is when he g ot arr ested at her home in Fe bruar y , I believe, the 19 or 20 of 2008, so that’s not t h t h

4inconsistent with I d idn’t know he was a felon when I filed the re port bac k in September. The Court: I t’s clea

ring (sic) she is say

ing if I k n ew he was a

convicted felon, I would not have let the police—the g rammar is not g ood—leave the house without telling the truth.
Mr. Alden: Well, I wasn’t attempting to admit the statement, I was just asking – Ms. Webber: That’s not – The Court: Ex cuse me . Mr. Alden: Sorry , Your Honor

. The Court: I t’s a dec eptive use of the statement. I

will tell the j ury it was an improper use of the statement, and I will rea d to t h em the p o rt i on of the statement corr ect and the lang uag e. I t wa s inappropria te to do that. You cannot eng ag e i n t hat prac tice. Objection sustained. ( The f ollow ing p roce edings w ere held in open court.) The Court: Sustain the objection. I t was a dece ptive use of the statement by the witness. The witness said—and I ’m g oing to chang e the g rammar just a littl e to clea

r up the meaning of the document—we l l , I tell y ou what, I wi l l just have the witness rea d this statement, the portion about wher e y ou indicated had y ou known he was a convicted felon. The Witness: Okay , I put, and I knew he —and I knew he ’s a c onvicted fe lon, and I would not have let the police left the house without telling the truth. That mean I meant if I had known he was a convicted felon, I wasn’t g oing to let the police leave the house without telling them the truth. That’s wha t I meant. The Court: All rig ht. The statement is clea r from its context. I think that corr ect (sic) the issue. I f y ou will ha nd that back to me. All r ight. Counsel, y ou may proce ed. By Mr. Alden Q: You know what it means to be a convicted felon , don’t y ou? I mean y ou have some one in y our fa mily that’s a c onvicted fe lon, is that right?

5A: I have a brother, but I ’m not c lose to him. That’s my fathe r’s side. Me and my brother on m y m o t h er ’s side never been in trouble wit h the l aw, so I ’m just not familiar with all convicted felons and stuff, I ’m not. So I have never been in trouble , so I don’t know. Q: What about a husband?
A: Yes, my

husband is in jail, y es, he is. Young now appea ls, claiming the district judge impermissibly curta iled his examination of
Wooten about the alleg ed inconsistency betwee n her s t at em en t to Cici and trial testimony vis-avis her knowledg e of Young ’s status as a convicted felon. Young also claims that the J udg e manifested bias toward his attorne y , an d impugne d him with the term “dec eptive” during and following the colloquy at the bench. We find no err or, and cer tainly , in any event, no err or meriting

reve rsal and a

new tria l.
Discussion

I. Right to a F air Trial
A. Lim itation on Cross-Exam ination The Six th Amendment confe rs the rig ht to confr ont witnesses, including the rig ht to test their

cre dibilit y throug h cross-e x amination. See, e.g., Davis v. Alaska, 415 U.S. 308, 315-16 (1974). I n
response to Young ’s claim that the district judge improperly curta iled cross-e x amination of Wooten, the g overnme nt contends that cross-e x amination was not meaning fully li mi te d. We revie w for abuse of discre tion. U.S. v. Howard , 621 F.3d 433, 456 ( 6th Cir. 2010).
We evalua te a restric tion on cross-e x am i n at ion by deter mining whether the jury , despite limit s on cross-e x amination, had enoug h information to assess the defe nse theory

. Dorsey v. Parke , 872 F.2d 163, 1 6 7 (6 t h C i r. 1989). I f t he trial court im proper ly limit ed cross-examination, “[t] he

6corr ect inquiry is whether , assuming that the damag ing potential of the cross-e x amination wer e fully

rea liz ed, a r eviewing court mig ht none theless say that the er ror wa s harmless bey ond a re asonable doubt.” Delaware v. V

an Arsdall , 475 U.S. 673, 684 (1986).
Wooten was a key witness whose direc t t est imony provided essential elements of the
g overnme nt’s case . Young ’s attorne y attacke d her c redibility

by asking about “f

ibs” she had told.
Wooten acknow ledg ed she had lied to the police when she repor ted the g un stolen from her home. After Wooten stated, “I didn’t know he was a convicted felon,” Young ’s attorney soug ht to ask h er about the appar ent inconsistency betwee n that asser tion and a portion of her written
statement. I n full, that seg ment is:
I Sandra Wooten was aff

aid (sic) when the police ask me was DeAndr e in my house at first I , said no, then the next few seconds I said y es beca use I was aff

aid (sic) of the safe ty of me and my kids, [a] nd I new ( sic) hes ( sic) a c onvecte d (sic) f eleony (sic) and I wounld (sic) not have let the police left (sic) the house without telling the truth. Asserting a lack of inconsistency betwee n the testimony and prior writing , the g overnme nt objected. At sidebar, the district court stated it was sustaining the objection, and it so informed the jury

. Despite this ruling , the court permitted Wooten to rea d the statement an d offe r her explanation of i ts meaning

. What thus transpire d was, to a co nsiderable extent, what would have happene d had the prosec utor not objected or the court overr uled the objection. The jury had, in full, the prior statement, which it could compare to her testimony . I t also had her explanation, which it could assess in eva luating he r cr edibility

.

7Def ense counsel also attacke d Wooten’s cre dibilit y b y questioning her about the ex tent of her rela tionship with Young and about her failure to inform t h e police that she had lied about the theft of the g un. At most, the trial judge diverted the course of cross-e x amination. The detour was brief, and counsel soon go t b ac k u n derw ay . He lost nothing as a result of how the judge handled the
prosec utor’s objection: the jury hear d Wooten disclaim knowledg e of Young ’s status as a felon and then hea rd wha t she had e arlier

written. I t could there by fully assess the putative inc onsistency

. No Six th Amendment violation occur red.
B. Pr ejudicial Com m ents by the Distric t Court Young next conten d s that the trial judge tainted the proce eding s by disparag ing and chastising defe nse counsel befor e the jury

. This happene d, Young claims, when the judge twice used the term “ dece ptive” in re fer ence to counsel’s ha ndling of Wooten’s written statement. The Six th Circuit g ener ally revie ws a district court’s conduct during trial for ab u s e of discretion. Howeve r, wher e, as here , the defe ndant does not contempora neously object to the trial
court’s c onduct, the cour

t uses a plain-e rror standard. E.g., United St ates v. Hy nes , 467 F.3d 951,
958 (6th Cir. 2006). To establish plain err or, Young must show: 1) an err or; 2) that is plain; 3) that substantially aff

ects his rig hts; and 4) that substantially aff ects the fa i rness and integ rity of the
proce eding s. Fe d. R. Civ. P. 52(b); United States v. Rose , 522 F.3d 710, 714 (6th C i r. 2 0 0 8 ). Hostile comments of the district court may ri s e t o t h e l evel of reve rsible err or. See, e.g., United States v. Segine

s , 17 F.3d 847, 852- 53 (6th Cir. 1994) (c ollecting case s).
At issue are statements made by the district court at sidebar and in open court. At sidebar the trial judg e said:

8I t’s a dece ptive use of the statement. I will tell the jury it was an improper use of the

statement, an d I will rea d to them the porti on of t he st atement corre ct (sic) and the lang uag e. I t was inappropria te to do that. You ca n n o t eng ag e in that prac tice. Objection sustained.
I n open cour

t the trial judg e stated: Sustain the obj ection. I t wa s a deceptive use of t he st atement by the wit ness. The witness said—and I ’m g oing to chang e the g ra m mar just a littl e to clea r up the meaning of the document—we ll, I ’ll tell y ou what, I will just have the witness rea d this statement, the portion about wher e y o u i n dicated had y ou known he was a convicted f

elon.
A preliminary issue is whether the statement m ad e at sidebar was overhe ard by the jury

. Young cites United States v. Poindexte r , 942 F.2d 354, 36 0 (6 t h Cir. 1991), in which the Six th
C i rc u i t h el d t hat “this court will assume that the [si debar ] confe renc e is within the jury ’s hear ing unless the rec ord shows otherwise.” The rec ord here does not specific ally indicate that the jury was unable to hea

r. 2 Assuming the jury overhe ard the sidebar, the rema rks do not rise to the level of plain err or. As this court has recently noted, “a judge ’s misconduct at trial may be char acte rized as bias or prejudice only if it is so extreme as to display clea r inability to r ender fair judgme nt, so extreme in other words that it display s a deep- seate d favor itism or antag onism that would make fair judgme nt

The trial judge ’s statement during the sidebar that he “will tell the jury it was an improper 2 u se of the statement, and I will rea d to them the portion of the statement corr ect [si c] and t h e lang uag e” sug g ests that the jury was unable to hear the conver sation. The same infere nce arises from the note that the pr ocee dings the n returne d to “open c ourt.” Poindexte r has been questioned, and may not be g ood law. United States v. Haye s , No. 09-5390, 2010 WL 4244119 at *3 (6th Cir. Oct. 13, 2010) (un p u b l i s h ed dispositi on) (noting that an ear lier—and there fore controlli n g— d ecision in this circ uit seeme d to reje ct the presumption that Poindexte r adopts). That presumption assumes that this Ci rcuit’s trial judg es ar e inattentive to the need to avoid having the jurors hear what they discuss at sidebar. We doubt that that is so: afte r all, the purpose of having counsel come to t h e b en ch is to keep the jurors from hear ing the ensuing discussion. 9impossibl e.” Lyell v. Renico, 470 F.3d 1177, 1186 (6th Cir. 2006) (interna l citations omitted). The

district court’s comments we re n eg ative, but judicial rema rks of disapproval ordinarily do not support a cla im of bias or par tiality

. Liteky v. U

nited States , 510 U.S. 540, 555 (1994).
Even if the statements wer e improper, any err or was harmless. See United States v. Segines,
17 F.3d 847, 851 (6th Cir. 1994) (stating that reve rsal for misconduct at trial will not be had wher e the err or is harmless). The trial judge avoided any prejudice by proper ly instructing the jury on the irrele vance of any

thing he may

have sa id that could be construed as expressing an opinion on any issues in the case : Also y ou should not assume from any thing I may have sa id or done that I have a ny opinion conce rning any of the i s s u es b ef ore y ou in this case . Ex cept for my instructions to y ou, y ou should disreg ard any thing I may have said in arr iving at y our own dec ision concer

ning the fac ts. The jury is presumed to follow the trial court’s instructions. See, e.g., Hyne s, supra , 467 F.3d
at 957. Young relies on United States v. Hickm an, 592 F.2d 931 (6th Cir. 1979), for his contention that the j ury instructions wer e ins ufficie nt to offse t the damage done b y t he st atements. However , Hickm an is readily

distinguishable.
I n Hickm an , the trial judge dominated a one-da y trial with “const a

n t interruptions,” exhibi ted

a consistently anti-def

ense tone, interfe red with defe nse cross-e x aminatio n , and attacke d the

cre dibilit y

of def ense w itnesses. Id. at 934-936.
I n this c ase the judge critiqued the use of a statement he considere d to be consistent—once

at sidebar and briefly in open court. The district court’s conduct was a far cry from the actions found
to be reve rsible err or in Hickm an . Especia lly in light o f t he express and emphatic instruction to

10disreg ard any thing he may have said, the judge ’s passing criticism simply would not have been likely to prejudice the def

endant.
II. Su ff

iciency of the Evid ence Young arg ues that the evidenc e prese nted by the g overnme nt at trial was insufficient to find him g ui l ty bey ond a rea sonable doubt of knowing possession of a firea rm. Specifica lly , Young contends that the g overnme nt failed to prove constructive posse ssion of the fire arm. When a defe ndant challeng es his conviction on the basis of insufficienc y of the evidenc e, an appellate court will revie w all the evidenc e in the light most favor able to the g overnme nt, g iving the
g overnme nt the benef

it of all infere nces that could rea sonably be draw n from the testimony

. United
States v. Talley , 164 F.3d 989, 996 ( 6th Cir. 1999); United States v. M/G Transp. Serv s., Inc., 173 F.3d 584, 589 (6th Cir. 1999). The court must deter mine whether an y ra tional trier of fac t could have found eac h essential element of the offe nse bey ond a rea sonable doubt. Un i t ed States v. McAuliffe , 490 F.3d 526, 536 ( 6th Cir. 2007).
Mere associati o n wi t h t h e proper ty wher e the g un is located cannot support a finding of possession. United States v. Bailey, 553 F.3d 940, 945 n.3 (6th Cir. 2009). I n Bailey , this court held that “the g overnme nt must present some evidenc e to show some conne ction or nexus between the defe ndant and the firea

rm, which can be established by a showing that the defe ndant had knowledg e and ac cess.” Id. at 948. This is constructive possession.
Her e, constructive pos session was established larg ely on the basis of W ooten’s testi mony . Her testimony

established that Young knowingly possessed the g un beca use: 1) she g ave the g un
to him; 2) he did not return it; 3) she rented the vehicle for him ; and 4) he had complete control over the car .
11Be cause cross-e x amination of Wo o t en was improperly curta iled, Young arg ues, her

testimony could not provide s ufficie ntly reliable evidenc e for a conviction. Wit hout Wooten’s testimony , Young insists , the g overnme nt could not conclusively prove that Young had knowledg e of, acce ss to, and the i n t en t t o ex ert control over the gun, and there fore the gover nment could not establish constructive posse ssion. There being , as we have found, no violation of the rig ht to cross-e x amine, there is no rea son to disreg ard Wootens’ testimony . That testimony suffice d to convict.
Conclusion
For the re asons stated a

bove, we AF F IRM the district court’s c onviction.

12