13-379-cr United States v. Barner 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 31 st day of March, two thousand fourteen. 3 4 PRESENT: R OBERT D. S ACK , 5 D EBRA A NN L IVINGSTON , 6 RAYMOND J. L OHIER , J R ., 7 Circuit Judges

. 8 9 10 U NITED S TATES OF A MERICA , 11 12 Appellee , 13 14 -v- No. 13-379-cr 15 16 J IMMY LEE B ARNER , 17 18 Defendant-Appellant

. 19 20 21 T IMOTHY P. M URPHY (Herbert L. Greenman, on the 22 brief ), Lipsitz Green Scime Cambria, LLP, Buffalo, 23 NY, for Defendant-Appellant

. 24 25 J OSEPH J. KARASZEWSKI , Assistant United States 26 Attorney, for William J. Hochul, Jr., United States 27 Attorney for the Western District of New York, 28 Buffalo, NY, for Appellee

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1UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 1 DECREED that the judgment of the district court is AFFIRMED

. 2 Defendant-Appellant Jimmy Lee Barner app eals from a judgment of the United States 3 District Court for the Western Di strict of New York (Judge Billy Roy Wilson, of the Eastern District 4 of Arkansas, sitting by designation), entered January 22, 2013. Barner was convicted of a single 5 count of unlawful possession of a fi rearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) 6 and 924(a)(2), for which he is currently serv ing a sentence of 100 months in prison. Barner 7 challenges the jury instructions and an Allencharge 1 delivered by the district court, argues that the 8 evidence was insufficient to support his conviction, and further contends that his trial was subject 9 to several other procedural errors that undermine his conviction. We assume the parties’ familiarity 10 with the underlying facts, the procedural history of the case, and the issues presented on appeal. 11 I. Jury Instructions 12 The first set of arguments that Barner advances concern jury instructions that his counsel 13 proposed but that were not included in the district court’s charge to the jury. “We review a jury 14 instruction challenge de novo , but we will reverse only where the charge, viewed as a whole, 15 demonstrates prejudicial error.” United States v. Coppola , 671 F.3d 220, 247 (2d Cir. 2012); see 16 also United States v. Sabhnani , 599 F.3d 215, 237 (2d Cir. 2010) (“ A defendant challenging a jury 17 instruction as erroneous must show both error and ensuing prejudice.” (internal quotation marks 18 omitted)). We “do not review a jury charge on the basis of excerpts taken out of context, but in its 19 entirety, to determine whether considered as a whol e, the instructions adequately communicated the 20 essential ideas to the jury.” Sabhnani , 599 F.3d at 237 (citation and internal quotation marks 21

1 See Allen v. United States , 164 U.S. 492, 501-02 (1896).

1 2omitted). “A conviction will not be overturned for refusal to give a requested charge . . . unless that 1 [requested] instruction is legally correct, represents a theory of defense with basis in the record that 2 would lead to acquittal, and the theory is not effectively presented elsewhere in the charge.” United 3
States v. Stewart , 433 F.3d 273, 310 (2d Cir. 2006) (alteration and omission in original) (internal 4 quotation marks omitted). 5 A. Mere Presence or Association 6 Barner’s first challenge concerns the district court’s decision not to specifically instruct the 7 jury that neither Barner’s presence near the storage room where the firearms were discovered nor 8 his association with persons who owned or contro lled the weapons provides a legally sufficient basis 9 on which the jury could convict him. Barner’s proposed instruction, however, was unnecessary in 10 context here: the district court made clear in its instruction regarding possession that, even for 11 purposes of constructive possession, a person must have “both the power and intention at a given 12 time to exercise dominion or control over a thi ng, either directly or through another person or 13 persons.” This instruction properly precluded th e jury from finding possession simply by virtue of 14 Barner’s proximity to the weapons or association with others who controlled them. Therefore, we 15 conclude that the addition of Barner’s proposed language to the charge was not necessary and would 16 not have “le[d] to acquittal.” Stewart , 433 F.3d at 310. Accordingly, we reject Barner’s challenge 17 on this ground. 18 B. Other Instructions 19 Barner next challenges the charges regarding possession and intent delivered by the district 20 court, but his argument is meritless. He has identif ied no error in the distri ct court’s instructions. 21 The charges that the district judge gave on these points included the same elements as Barner’s 22

3requested charge, often using very similar language. For instance, the district court’s possession 1 charge – much like Barner’s requested charge – in cluded definitions of sole and joint possession and 2 stated that a defendant must havethe “power and intention” to exercise control over an object in 3 order to possess it. 4 We also reject Barner’s contention that the district court incorrectly refused to deliver other 5 jury instructions that his counsel proposed. Some of these instructions would simply have been 6 duplicative of instructions that did appear in the charge: for instance, Barner says that the court 7 erroneously did not deliver his “i ndictment is not evidence” charge, but the court explicitly told the 8 jury that “an indictment is simply an accusati on. It is not evidence of anything.” The other 9 proposed charges simply were not necessary, in this case, to “adequately communicate[] the 10 essential ideas to the jury.” Sabhnani , 599 F.3d at 237 (internal quotation mark omitted). 11 Accordingly, we detect no error in the district c ourt’s decision to omit the remaining instructions. 12
II. Allen Charge 13 Barner argues that the district court erred in its delivery of an Allencharge to the jury. He 14 contends that the charge was coercive becauseit did not contain his proposed language, which he 15 says would ensure that the jurors’ votes reflected their own conscientiously held beliefs, and because 16 the judge delivered the charge sua sponte and in the absence of a note from the jurors stating that 17 they were deadlocked. 18 We review a district court’s decision to give an Allencharge for abuse of discretion. United 19 States v. Vargas-Cordon , 733 F.3d 366, 377 (2d Cir. 2013). Our analysis of whether an Allen charge 20 is proper “hinges on whether it tends to coerce undecided jurors intoreaching a verdict – that is, 21 whether the charge encourages jurors to abandon, without any principled reason, doubts that any 22

4juror conscientiously holds as to a defendant’s guilt.” Id. (quoting United States v. Melendez , 60 1 F.3d 41, 51 (2d Cir. 1995)) (internal quotation mark s omitted). We conduct the analysis of the 2 “potential coercive effect” of an Allencharge “in its context and under all the circumstances.” 3 Spears v. Greiner , 459 F.3d 200, 205 (2d Cir. 2006) (quoting Lowenfield v. Phelps , 484 U.S. 231, 4 237 (1988)) (internal quotation mark s omitted). Even a modified Allen charge that omits language 5 admonishing jurors not to give up their conscientious ly held beliefs is permissible, we have held, 6 where the district court made clear, in context, th at the jurors should retain their own opinions and 7 that they were not required to reach a verdict. See id. at 206. 8 We conclude that the charge here was not coercive “in its context and under all the 9 circumstances.” Id. The district court’s instruction incl uded the following excerpt, which urged the 10 jurors to retain their own beliefs in deliberating to reach a verdict: 11 [I]t is your duty to consult with one another and to deliberate with a view to reaching 12 agreement if you can do so without violence to your individual judgment. Of course, 13 you must not surrender your honest convictions as to the weight or effect of the 14 evidence solely because of the opinions of the other jurors or for the mere purpose 15 of returning a verdict. Each of you must decide the case for yourself, but you should 16 do so only after consideration of the evidence with your fellow jurors. 17 18 Moreover, beyond instructing jurors not to surrender their convictions, the district court also told 19 them to “take all the time that you feel is necessary” to come to a verdict, and stated that “a hung 20 jury is an acceptable option” if it was not possible to reach an agreement as to the verdict. Thus, we 21 conclude that the additional language that Barner’s counsel requested was unnecessary due to the 22 cautions contained in the district court’s instructions. 23 Furthermore, the jurors continued to delib erate for about two hours after receiving the Allen 24 charge, and during that time, they sent notes asking to review testimony and several pieces of 25 evidence presented during the trial. The continuati on of deliberations for so me period of time after 26

5the Allen instruction tends to indicate that the charge was not coercive. See Vargas-Cordon , 733 1 F.3d at 378; Spears , 459 F.3d at 206-07. Nor is our conclusion altered by the fact that the district 2 court delivered the Allencharge sua sponte : we have previously held that the sua sponte delivery 3 of an Allencharge is not coercive on this basis alone. See United States v. Martinez , 446 F.2d 118, 4 120 (2d Cir. 1971). On the whole, we hold that th e district court did not abuse its discretion in 5 giving the Allencharge, and we reject Barner’s contention that the instruction was coercive. 6 III. Sufficiency of the Evidence 7 Barner argues that there was insufficient evidence to convict him of the possession of the 8 firearms and ammunition beyond a reasonable doubt. We disagree. On a challenge to the 9 sufficiency of the evidence in a criminal case, we “draw all permissible inferences in favor of the 10 government and resolve all issues of credibility in favor of the jury verdict.” United States v. 11 Kozeny , 667 F.3d 122, 139 (2d Cir. 2011). We “must sustain a jury verdict ‘if anyrational trier of 12 fact could have found the essential elements of a crime beyond a reasonable doubt.’” United States 13 v. Wexler , 522 F.3d 194, 207 (2d Cir. 2008) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)) 14 (emphasis in Jackson ). 15 “It is not necessary for a defendant to touch or exercise exclusive control over contraband 16 to possess it.” United States v. Rios , 856 F.2d 493, 496 (2d Cir. 1988) (per curiam) (emphasis in 17 original). Rather, a possession conviction can be upheld if there is proof of constructive possession 18 – that is, if the jury had before it evidence that the defendant had “the power and the intention at a 19 given time to exercise dominion and control over” the item. United States v. Chavez , 549 F.3d 119, 20 129 (2d Cir. 2008) (holding that there was sufficient evidence of constructiv e possession of a firearm 21 to support a conviction under 18 U.S.C. § 924(c)(1)(A )). However, a defendant’s “[m]ere presence 22

6at the location of contraband” cannot establish unlawful possession. United States v. Rodriguez , 392 1 F.3d 539, 548 (2d Cir. 2004) (internal quotation marks omitted). 2 Our review of the facts adducedat trial leads us to conclude that the evidence contained 3 sufficient indications of Barner’s “dominion and c ontrol” over the firearms in the storage room to 4 support the conviction. 2 Rios , 856 F.2d at 496. Testimony at trial established that the key to the 5 storage room was found on Barner’s person shortly be fore the search, that parole officers found mail 6 and other possessions on which Barner’s name app eared inside the storage room, and that the door 7 to the storage space was about te n feet away from Barner’s own apartment door. Drawing all 8 inferences in the government’s favor, these facts s upport the jury’s finding that Barner had sufficient 9 control over the storage room and the firearms and ammunition therein to support his weapons 10 possession conviction. 3 Thus, because a “rational trier of fact could have found the essential 11 elements of the crime beyond a reasonable doubt,” United States v. Bullock , 550 F.3d 247, 251 (2d 12 Cir. 2008) (internal quotation marks omitted), we re ject Barner’s argument that the evidence was 13 insufficient. 14 IV. Courtroom Closure 15 Barner also argues, based on the affidavit of the Federal Defender for the Western District 16 of New York – who was not involved in Barner’s defense – that the courtroom was improperly 17

2Some of the evidence that Barner possesse d the firearms underlyi ng his conviction may be

1 circumstantial, but such evidence is no less valid than direct evidence. See United States v. 2 Espaillet , 380 F.3d 713, 719 (2d Cir. 2004) (stating that circumstantial evidence “is of no less 3 intrinsic worth than direct evidence and, indeed, circumstantial evidence alone may support a guilty 4 verdict”). 5

3 The jury considered and rejected the theo ry, urged by Barner’s counsel in his summation, 1 that the evidence proving Barner’s control of th e storage room and possession of the weapons was 2 lacking. 3 7closed during trial and that the district court erre d by not ordering a hearing on this issue. We reject 1 this claim as well. A criminal defendant has a cons titutional right to a public trial, but this right “is 2 not absolute.” United States v. Gupta , 699 F.3d 682, 686-87 (2d Cir. 2012) . To determine whether 3 a courtroom closure violated a defendant’s right to a public trial, the court considers “whether the 4 closure subverts the values the drafters of the Si xth Amendment sought to protect: ‘1) to ensure a 5 fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the 6 importance of their functions; 3) to encourage w itnesses to come forward, and 4) to discourage 7 perjury.’” Smith v. Hollins , 448 F.3d 533, 540 (2d Cir. 2006) (quoting Peterson v. Williams , 85 F.3d 8 39, 43 (2d Cir. 1996)). In this case, Barner ha s not shown that his Sixth Amendment right was 9 violated by a courtroom closure, nor that a hearing was required. 10 The federal defender’s affidavit states that she found the courtroom locked when she came 11 to the courthouse “sometime later in the morni ng” of September 21, 2012. She was informed by a 12 court security officer that testimony was ongoing, but made no further effort to ascertain whether 13 this was the case. In fact, no testimony was take n that day. The chronology reflected in the trial 14 transcript shows that, early on the morning of September 21, the parties held their final conference 15 on the jury charge, and starting shortly after 9:00 a.m., the jury was charged and the parties gave 16 their closing arguments. The jury began deliberating at some point shortly before 10:46 a.m., and 17 after that point the court was in recess until early in the afternoon, when the court received a 18 question from the jury. We conclude that, on this record, Barner has failed to show any improper 19 courtroom closure implicating the Sixth Amendmen t right to a public trial – that is, he has not 20 demonstrated that there was any ongoing proceeding in the courtroom at the time it was allegedly 21 closed. 22

8V. Jury Unanimity 1 The final issue that Barner presents for our revi ew is the district court’s refusal to deliver an 2 instruction requiring the jurors unanimously to de termine that Barner illegally possessed at least one 3 of the particular firearms or rounds of ammuniti on seized from the storage room. Usually, however, 4 a “general instruction on unanimity is sufficient to insure that such a unanimous verdict is reached” 5 as to the factual basis for a conviction, “except in cases where the complexity of the evidence or 6 other factors create a genuine danger of jury confusion.” United States v. Schiff , 801 F.2d 108, 114- 7 15 (2d Cir. 1986); see also Richardson v. United States , 526 U.S. 813, 817 (1999) (stating that 8 although “a jury in a federal criminal case canno t convict unless it unanimously finds that the 9 Government has proved each element,” it “need not always decide unanimously which of several 10 possible sets of underlying brute facts make up a particular element”). Here, the district court 11 instructed the jury that its verdict must be unanimous, and the evidence as to possession was the 12 same for all of the firearms and ammunition underl ying the indictment. There is no reason to believe 13 that the jurors could have disagreed as to the factual predicate for Barner’s conviction, and 14 accordingly, we see no error in the district court’s refusal to charge the jury more specifically on 15 unanimity. 16
* * * 17 We have considered all of Barner’s remaining arguments and find them to be without merit. 18 For the foregoing reasons, the judgment of the district court is hereby AFFIRMED

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FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22

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