USA v. Raymond Lee Kelly

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10351
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND LEE KELLY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cr-00291-CEM-DCI-1
____________________
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2 Opinion of the Court 21-10351
Before R OSENBAUM , BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
Raymond Lee Kelly appeals his conviction for possession of
a firearm after a felony conviction, in violation of 18 U.S.C.
§ 922(g)(1). He challenges his conviction on two grounds. First, he
contends that the district court erred in denying his motion to dis-
miss the indictment on speedy-trial grounds based on the govern-
ment’s failure to arrest him for 848 days post-indictment. Second,
he argues that the government failed to present sufficient evidence
that he possessed the gun found in the center console of the car he
fled from following a traffic stop. After careful review, we affirm.
I.
Kelly was indicted in this case on December 7, 2017, but he
wasn’t arrested until April 3, 2020. Based on that 848-day delay, he
moved to dismiss the indictment on constitutional speedy-trial
grounds. The district court denied the motion after an evidentiary
hearing. The court found that the delay, though long enough to
be presumptively prejudicial, was justified because during that
time Kelly was in state custody on pending state criminal charges,
and the government had filed a detainer to bring him to federal
custody once the state proceedings concluded. The court also
found that Kelly failed to establish any actual prejudice caused by
the delay.
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21-10351 Opinion of the Court 3
Whether a defendant has been deprived of his constitutional
right to a speedy trial is a mixed question of law and fact.
United
States v. Villarreal, 613 F.3d 1344, 1349 (11th Cir. 2010)
. We review
a district court’s legal conclusions
de novo and its factual findings
for clear error.
Id. We will hold a factual finding clearly erroneous
only if we are left with the definite and firm conviction that a mis-
take has been made.
Id.
The Sixth Amendment provides that in all criminal prosecu-
tions the accused shall enjoy the right to a speedy trial. U.S. Const.
amend. VI. We analyze speedy-trial claims under a four-factor bal-
ancing test, considering the (1) length of the delay, (2) reason for
the delay, (3) defendant’s assertion of the right, and (4) actual prej-
udice to the defendant.
Barker v. Wingo, 407 U.S. 514, 530 (1972);
United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006).
The first factor must be satisfied to proceed with the rest of
the analysis.
United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir.
2003). A post-indictment delay of over one year is generally suffi-
cient to satisfy the first factor.
Id. Only pretrial delay following a
person’s arrest, charge, or indictment is relevant to whether the
Sixth Amendment analysis is triggered.
Ingram, 446 F.3d at 1339.
Nevertheless, once the speedy-trial analysis is triggered, we may
consider inordinate pre-indictment delay to determine how heavily
the post-indictment delay weighs against the government.
Id.
Under the second factor, different reasons for delay are ac-
corded different weights.
United States v. Oliva, 909 F.3d 1292,
1301 (11th Cir. 2018). The government bears the burden of
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4 Opinion of the Court 21-10351
establishing valid reasons for the delay.
Villarreal, 613 F.3d at 1351.
Deliberate attempts to delay trial to impair the defense weigh heav-
ily against the government.
Barker, 407 U.S. at 531. Neutral rea-
sons—including negligence or overcrowded courts—weigh less
heavily against the government but still should be considered be-
cause the ultimate responsibility for the circumstances rests with
the government and not the defendant.
Id. And valid reasons jus-
tify appropriate delay.
Id. The government’s failure to pursue a
defendant diligently will weigh against it, more or less heavily de-
pending on whether the government acted in good or bad faith.
Villarreal, 613 F.3d at 1351
.
Under the third factor, “a defendant has some responsibility
to assert a speedy trial claim,” and his failure to assert that right
may weigh against him.
Barker, 407 U.S. at 529;
see Villareal, 613
F.3d at 1354. If a defendant asserts his right in a timely manner,
then he raises an “inference that [he] was not at fault for the delay
and that the delay prejudiced [him].”
Villareal, 613 F.3d at 1354
(quotation marks omitted).
Finally, “the defendant must demonstrate actual prejudice
unless each of the first three factors weighs heavily against the gov-
ernment.”
United States v. Harris, 376 F.3d 1282, 1290 (11th Cir.
2004) (quotation marks omitted). When evaluating actual preju-
dice, we consider three policy interests that the right to a speedy
trial was designed to protect: (1) preventing oppressive pretrial in-
carceration; (2) minimizing anxiety and concern of the accused;
and (3) limiting the chance that the defense will be impaired.
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21-10351 Opinion of the Court 5
Villareal, 613 F.3d at 1355. Mere conclusory allegations of impair-
ment to one’s defense are insufficient to prove actual prejudice.
United States v. Clark, 83 F.3d 1350, 1354 (11th Cir. 1996).
Here, the district court properly denied Kelly’s motion to
dismiss the indictment on speedy-trial grounds. First, the delay of
848 days between indictment and arrest is sufficient to trigger the
Sixth Amendment speedy-trial analysis, and we assume it also tips
the first factor heavily against the government in conjunction with
some pre-indictment delay.
See Ingram, 446 F.3d at 1339;
Dunn,
345 F.3d at 1296. The parties also agree that the third factor weighs
against the government because the record doesn’t establish that
Kelly knew of the indictment against him until his arrest, after
which time he promptly asserted his speedy-trial rights.
See Vil-
lareal, 613 F.3d at 1354.
The second factor, however, is at least neutral if not in the
government’s favor.1 Kelly doesn’t dispute that he was in state cus-
tody from the time of his indictment to his arrest in federal court.
Nor was he simply serving a sentence in state custody. He was
actively being prosecuted in more than one jurisdiction. The gov-
ernment’s evidence established that it was reasonably diligent in
ensuring that it knew Kelly’s whereabouts and that he would be
transferred to federal custody to face the charges in this case once
he was released from state custody. And Kelly was in fact
1 Kelly alleges that the government was at worst “negligent,” not that it acted
in bad faith or for an improper motive.
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transferred to federal custody promptly upon the resolution of the
state proceedings.
We see no basis in the record to conclude that the federal
government’s choice to defer its prosecution until the resolution of
the state criminal cases wasn’t a valid reason for the delay.
See, e.g.,
United States v. Schreane, 331 F.3d 548, 555 (6th Cir. 2003)
(“Simply waiting for another sovereign to finish prosecuting a de-
fendant is without question a valid reason for delay that weighs in
favor of the government.” (cleaned up));
United States v. Grim-
mond, 137 F.3d 823, 828 (4th Cir. 1998) (“When a defendant vio-
lates the laws of several different sovereigns, as was the case here,
at least one sovereign, and perhaps more, will have to wait its turn
at the prosecutorial turnstile.”). At the very least, it’s not a reason
that weighs heavily against the government.
Because the first three factors don’t weigh heavily against
the government, Kelly was required to show he suffered actual
prejudice to establish a violation of his speedy-trial rights.
See Har-
ris, 376 F.3d at 1290. He hasn’t tried to do so on appeal and so
abandons the issue.
United States v. Jernigan, 341 F.3d 1273,
1283 n.8 (11th Cir. 2003) (issues not plainly and prominently raised
on appeal, even if properly preserved below, will be deemed aban-
doned). Regardless, this case doesn’t implicate the policy interests
protected by the speedy-trial right because during the delay, Kelly
was already in state custody facing multiple criminal charges, and
he hasn’t identified any harm to his defense of the federal prosecu-
tion caused by the delay.
See Villareal, 613 F.3d at 1355;
Clark, 83
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21-10351 Opinion of the Court 7
F.3d at 1354. Accordingly, the district court properly denied Kelly’s
motion to dismiss the indictment on speedy-trial grounds.
II.
We review
de novo whether sufficient evidence supports a
guilty verdict, “viewing the evidence in the light most favorable to
the government, and drawing all reasonable factual inferences in
favor of the jury’s verdict.”
United States v. Jiminez, 564 F.3d 1280,
1284 (11th Cir. 2009). The evidence is sufficient if “a reasonable
jury could have found the defendant guilty beyond a reasonable
doubt.”
United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.
2008). “The evidence may be sufficient even when it does not ex-
clude every reasonable hypothesis of innocence or is not wholly
inconsistent with every conclusion except that of guilt, since a jury
is free to choose among reasonable constructions of the evidence.”
United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005)
(cleaned up). In conducting our review, we “must accept a jury’s
inferences and determinations of witness credibility.”
United
States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004).
Section 922(g)(a) generally makes it unlawful to knowingly
possess a firearm after a felony conviction. 18 U.S.C. § 922(g)(1).
Possession may be actual or constructive.
United States v. Green,
873 F.3d 846, 852 (11th Cir. 2017);
United States v. Perez, 661 F.3d
568, 576 (11th Cir. 2011)
. “A defendant constructively possesses a
firearm or ammunition if he (1) is aware of or knows of the fire-
arm’s or ammunition’s presence and (2) has the ability and intent
to exercise control over that firearm or ammunition.”
Green, 873
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F.3d at 852. Mere presence near or awareness of the object’s loca-
tion is insufficient, but a defendant’s connection to the location
where a gun is found may be relevant to whether he had
knowledge of the gun or the ability and intent to exercise control
or dominion over it.
See id. at 852–54.
In the light most favorable to the verdict, the evidence at
trial showed that Kelly crashed a car while fleeing from a traffic
stop and then fled on foot before eventually being caught and ar-
rested. Inside the car, which was registered to Kelly’s ex-girlfriend,
officers found a loaded Ruger handgun in the center console and a
glass container with cannabis in it, plastic bags, and a digital scale
in the backseat. No one else was in the car, and Kelly was very
likely one of four contributors to DNA found on the gun.
A reasonable jury could infer from these facts that Kelly con-
structively possessed the firearm. Kelly was driving with ready ac-
cess to the weapon later found in the center console. His DNA was
found on the weapon. He had a connection to the car and was its
sole occupant before the gun was found. Cannabis, plastic bags,
and a digital scale were found in the backseat.
See United States v.
Thomas, 242 F.3d 1028, 1032 (11th Cir. 2001) (evidence of drug traf-
ficking in close proximity to a gun is relevant to proving knowing
possession of the gun). And Kelly desperately fled from police,
crashing a car and then fleeing on foot, which a jury could attribute
to his awareness of the firearm he knew he couldn’t lawfully pos-
sess.
See United States v. Blakey, 960 F.2d 996, 1000 (11th Cir. 1992)
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21-10351 Opinion of the Court 9
(“Evidence of flight is admissible to demonstrate consciousness of
guilt and thereby guilt.”).
Viewed in the light most favorable to the verdict, the evi-
dence was more than sufficient to prove beyond a reasonable
doubt that Kelly knew of the gun’s presence and had the ability and
intent to exercise control over it.
See United States v. Howard, 742
F.3d 1334, 1341–42 (11th Cir. 2014) (finding sufficient evidence of
constructive possession where “the firearm was found in the glove
compartment of [the defendant’s] car along with a copy of his tag
receipt, that he had been in the driver's seat just before the search,
and that he had a prior conviction for possession of a firearm”);
United States v. Gonzalez, 71 F.3d 819, 835 (11th Cir. 1996) (hold-
ing that the evidence was sufficient to convict under § 922(g)(1)
when it showed that the defendant was driving a car “with ready
access to the weapon later discovered in the glove compartment”),
abrogated on other grounds by Arizona v. Gant, 556 U.S. 332, 335
(2009);
see also United States v. Gates, 967 F.2d 497, 499 (11th Cir.
1992) (evidence that two pistols were under the driver’s seat estab-
lished that the passenger “had sufficient access to the firearms to
establish possession” under 18 U.S.C. § 924(c)).
Kelly quibbles with the DNA evidence and asserts that it
failed to rule out the possibility that his DNA transferred to the gun
without his knowledge. He notes that DNA testing is unable to
determine how DNA is deposited onto items, and he points to tes-
timony by the DNA analyst who indicated it was possible “a person
identified by a match of DNA discovered at a crime scene may have
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never come in contact with that object or person at that crime
scene.”
But when we review for evidentiary sufficiency, the evi-
dence need not be “wholly inconsistent with every conclusion ex-
cept that of guilt, since a jury is free to choose among reasonable
constructions of the evidence.”
Peters, 403 F.3d at 1268. The jury
was free to infer that the presence of Kelly’s DNA on the gun sup-
ported a conclusion that he possessed the firearm, despite the lim-
itations of that technology.
See id.
For these reasons, we affirm Kelly’s conviction for posses-
sion of a firearm after a felony conviction under 18 U.S.C.
§ 922(g)(1).
AFFIRMED.
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