NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 20-3325 _______________
UNITED STATES OF AMERICA
v.
DENNIS D. DAVIS, Appellant _______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cr-00531-001) District Judge: Honorable Mitchell S. Goldberg _______________
Submitted Under Third Circuit L.A.R. 34.1(a): April 11, 2024 _______________
Before: CHAGARES, Chief Judge, PORTER and SCIRICA, Circuit Judges.
(Filed: April 12, 2024) ______________
OPINION ∗ ______________
∗ This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.
A jury found Dennis Davis guilty of possession of a controlled substance with
intent to distribute and possession of a firearm by a felon. During trial, the government
elicited testimony from a witness revealing the nature of one of Davis’s prior felony
convictions. Davis argues that the District Court should have sua sponte declared a
mistrial based on that testimony. He also contends that there was insufficient evidence for
the jury to find him guilty of each crime. For the reasons that follow, we will affirm.
I
In July 2017, Davis was driving in Middletown Township, Pennsylvania, when an
officer attempted to pull him over for tinted windows. Davis sped away and crashed into
another vehicle. He then fled into the woods carrying a bag. With multiple officers in
pursuit, Davis dropped the bag into high grass and tossed an object onto the roof of a
garage. Officers ultimately arrested Davis and recovered the thrown items. They found a
loaded handgun, a digital scale, a razor, large rocks of crack cocaine, small baggies filled
with crack cocaine, and empty baggies.
The government charged Davis with possession of a controlled substance with
intent to distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm by a felon, 18
U.S.C. § 922(g)(1). 1 The parties agreed to split the trial into two phases. For the drug-
related phase, the government presented testimony from an expert who opined that the
1 The government also charged Davis with possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c). The jury found Davis not guilty of that crime, and no issue on appeal turns on it.
2 quantity of recovered drugs and paraphernalia were consistent with distribution rather
than personal use of crack cocaine. The jury found Davis guilty under § 841(a)(1). For
the felon-in-possession phase, the government presented evidence of Davis’s signed
guilty pleas from four prior felony convictions. The government also elicited testimony
from an FBI agent. During that testimony, the government asked whether one of Davis’s
prior felonies was for possession of a controlled substance with intent to distribute, to
which the agent responded “yes.” App. 422. Davis objected, and the District Court
instructed the jury to “disregard” the testimony “as to what [specific] crime” Davis was
previously convicted of. App. 426. The jury found Davis guilty under § 922(g)(1). Davis
appealed.
II 2
Davis argues that (1) for the felon-in-possession phase of trial, the District Court
erred by failing to sua sponte declare a mistrial after the government elicited testimony
regarding the nature of one of his prior felonies, 3 and (2) there was insufficient evidence
for the jury to find him guilty under § 841(a)(1) and § 922(g)(1). Neither argument is
persuasive.
A
Davis did not request a mistrial after the government elicited testimony regarding
the nature of one of his prior felonies. So we review the issue for plain error. United
2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. 3 Davis does not argue that a mistrial was required during the drug-related phase of trial.
3 States v. Boone, 279 F.3d 163, 174 n.6 (3d Cir. 2002). Davis must show that “(1) an error
occurred, (2) the error [was] plain, and (3) it affect[ed] substantial rights”—that is, it
“affected the outcome of the district court proceedings.” United States v. Payano, 930
F.3d 186, 192 (3d Cir. 2019) (internal quotation marks and quoted source omitted). If
Davis establishes all three elements, we may exercise our discretion to award relief only
if the error “seriously affect[ed] the fairness, integrity[,] or public reputation of judicial
proceedings.” Id. (internal quotation marks and quoted source omitted).
Davis fails to carry his heavy burden because the District Court’s alleged error did
not affect the outcome of the proceedings. After the government elicited testimony
regarding Davis’s prior drug-related offense, the District Court provided a curative
instruction for the jury, directing it to disregard that testimony. We must presume that the
jurors “follow[ed] the instruction[] given [to] them” and disregarded that testimony in
reaching their verdict. United States v. Sussman, 709 F.3d 155, 180 (3d Cir. 2013)
(internal quotation marks and quoted source omitted); see also United States v. Riley, 621
F.3d 312, 339 (3d Cir. 2010) (holding that a district court did not plainly err where the
prosecutor made an “improper comment” to the jury and the court gave a curative
instruction without declaring a mistrial).
In addition, the FBI agent’s fleeting reference to Davis’s past drug conviction
occurred during a trial on an unrelated firearm offense and only after the jury found him
guilty of a drug offense. So there is no reason to believe that the jury considered that
testimony in reaching its verdict. See United States v. Bailey, 840 F.3d 99, 131 (3d Cir.
2016) (concluding that a “single, fleeting reference” to the defendant’s past conduct
4 unrelated to the offense at issue did not warrant a mistrial). For these reasons, the District
Court did not commit plain error by not declaring a mistrial.
B
Davis similarly faces a “very heavy burden” in asking us to overturn the jury’s
verdicts based on insufficiency of the evidence. United States v. Root, 585 F.3d 145, 157
(3d Cir. 2009) (internal quotation marks and quoted source omitted). “We will sustain his
conviction[s] if, viewing the evidence in the light most favorable to the Government, any
rational trier of fact could have found the essential elements of the crime[s] beyond a
reasonable doubt.” Id. (internal quotation marks and quoted source omitted). Davis fails
this “bare rationality” standard for each conviction. United States v. Caraballo-
Rodriguez, 726 F.3d 418
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 20-3325 _______________
UNITED STATES OF AMERICA
v.
DENNIS D. DAVIS, Appellant _______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cr-00531-001) District Judge: Honorable Mitchell S. Goldberg _______________
Submitted Under Third Circuit L.A.R. 34.1(a): April 11, 2024 _______________
Before: CHAGARES, Chief Judge, PORTER and SCIRICA, Circuit Judges.
(Filed: April 12, 2024) ______________
OPINION ∗ ______________
∗ This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.
A jury found Dennis Davis guilty of possession of a controlled substance with
intent to distribute and possession of a firearm by a felon. During trial, the government
elicited testimony from a witness revealing the nature of one of Davis’s prior felony
convictions. Davis argues that the District Court should have sua sponte declared a
mistrial based on that testimony. He also contends that there was insufficient evidence for
the jury to find him guilty of each crime. For the reasons that follow, we will affirm.
I
In July 2017, Davis was driving in Middletown Township, Pennsylvania, when an
officer attempted to pull him over for tinted windows. Davis sped away and crashed into
another vehicle. He then fled into the woods carrying a bag. With multiple officers in
pursuit, Davis dropped the bag into high grass and tossed an object onto the roof of a
garage. Officers ultimately arrested Davis and recovered the thrown items. They found a
loaded handgun, a digital scale, a razor, large rocks of crack cocaine, small baggies filled
with crack cocaine, and empty baggies.
The government charged Davis with possession of a controlled substance with
intent to distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm by a felon, 18
U.S.C. § 922(g)(1). 1 The parties agreed to split the trial into two phases. For the drug-
related phase, the government presented testimony from an expert who opined that the
1 The government also charged Davis with possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c). The jury found Davis not guilty of that crime, and no issue on appeal turns on it.
2 quantity of recovered drugs and paraphernalia were consistent with distribution rather
than personal use of crack cocaine. The jury found Davis guilty under § 841(a)(1). For
the felon-in-possession phase, the government presented evidence of Davis’s signed
guilty pleas from four prior felony convictions. The government also elicited testimony
from an FBI agent. During that testimony, the government asked whether one of Davis’s
prior felonies was for possession of a controlled substance with intent to distribute, to
which the agent responded “yes.” App. 422. Davis objected, and the District Court
instructed the jury to “disregard” the testimony “as to what [specific] crime” Davis was
previously convicted of. App. 426. The jury found Davis guilty under § 922(g)(1). Davis
appealed.
II 2
Davis argues that (1) for the felon-in-possession phase of trial, the District Court
erred by failing to sua sponte declare a mistrial after the government elicited testimony
regarding the nature of one of his prior felonies, 3 and (2) there was insufficient evidence
for the jury to find him guilty under § 841(a)(1) and § 922(g)(1). Neither argument is
persuasive.
A
Davis did not request a mistrial after the government elicited testimony regarding
the nature of one of his prior felonies. So we review the issue for plain error. United
2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. 3 Davis does not argue that a mistrial was required during the drug-related phase of trial.
3 States v. Boone, 279 F.3d 163, 174 n.6 (3d Cir. 2002). Davis must show that “(1) an error
occurred, (2) the error [was] plain, and (3) it affect[ed] substantial rights”—that is, it
“affected the outcome of the district court proceedings.” United States v. Payano, 930
F.3d 186, 192 (3d Cir. 2019) (internal quotation marks and quoted source omitted). If
Davis establishes all three elements, we may exercise our discretion to award relief only
if the error “seriously affect[ed] the fairness, integrity[,] or public reputation of judicial
proceedings.” Id. (internal quotation marks and quoted source omitted).
Davis fails to carry his heavy burden because the District Court’s alleged error did
not affect the outcome of the proceedings. After the government elicited testimony
regarding Davis’s prior drug-related offense, the District Court provided a curative
instruction for the jury, directing it to disregard that testimony. We must presume that the
jurors “follow[ed] the instruction[] given [to] them” and disregarded that testimony in
reaching their verdict. United States v. Sussman, 709 F.3d 155, 180 (3d Cir. 2013)
(internal quotation marks and quoted source omitted); see also United States v. Riley, 621
F.3d 312, 339 (3d Cir. 2010) (holding that a district court did not plainly err where the
prosecutor made an “improper comment” to the jury and the court gave a curative
instruction without declaring a mistrial).
In addition, the FBI agent’s fleeting reference to Davis’s past drug conviction
occurred during a trial on an unrelated firearm offense and only after the jury found him
guilty of a drug offense. So there is no reason to believe that the jury considered that
testimony in reaching its verdict. See United States v. Bailey, 840 F.3d 99, 131 (3d Cir.
2016) (concluding that a “single, fleeting reference” to the defendant’s past conduct
4 unrelated to the offense at issue did not warrant a mistrial). For these reasons, the District
Court did not commit plain error by not declaring a mistrial.
B
Davis similarly faces a “very heavy burden” in asking us to overturn the jury’s
verdicts based on insufficiency of the evidence. United States v. Root, 585 F.3d 145, 157
(3d Cir. 2009) (internal quotation marks and quoted source omitted). “We will sustain his
conviction[s] if, viewing the evidence in the light most favorable to the Government, any
rational trier of fact could have found the essential elements of the crime[s] beyond a
reasonable doubt.” Id. (internal quotation marks and quoted source omitted). Davis fails
this “bare rationality” standard for each conviction. United States v. Caraballo-
Rodriguez, 726 F.3d 418, 432 (3d Cir. 2013) (internal quotation marks omitted).
Under § 841(a)(1), “[t]he essential elements of . . . possession of a controlled
substance with intent to distribute are that the defendant (1) knowingly possessed a
controlled substance [such as a cocaine base, like crack cocaine] with (2) the intent to
distribute it.” United States v. Bobb, 471 F.3d 491, 497 (3d Cir. 2006). After arresting
Davis and recovering the thrown items, officers found large rocks of crack cocaine, small
baggies filled with crack cocaine, empty baggies, a digital scale, and a razor. The
government’s expert then testified that these items were consistent with distribution of
crack cocaine. Based on Davis’s actual possession of the seized drugs and the expert’s
testimony regarding his intent to distribute, a rational trier of fact could find that the
government proved each element beyond a reasonable doubt. Id. (affirming conviction
5 under § 841(a)(1) based on drugs seized from defendant’s residence and testimony
regarding his intent to distribute).
Under § 922(g)(1), the essential elements of possession of a firearm by a felon are
“(1) that the defendant has been convicted of a felony, (2) that after this conviction the
defendant knowingly possessed a firearm, . . . and (3) that the firearm was in or affected
interstate or foreign commerce.” United States v. Adams, 36 F.4th 137, 143 (3d Cir.
2022) (internal quotation marks and quoted source omitted). The government must also
prove that the defendant “had knowledge of . . . his status as a felon” when he possessed
the firearm. Id. at 144 (discussing Rehaif v. United States, 139 S. Ct. 2191 (2019)). 4
Davis contends that the government failed to prove that he had knowledge of his status as
a felon. However, the government presented evidence of Davis’s guilty pleas from four
prior felony convictions, each indicating the charge as a felony and containing his
signature. Based on those signed guilty pleas, a rational trier of fact could find beyond a
reasonable doubt that Davis had knowledge of his status as a felon when he possessed a
firearm. See Greer v. United States, 593 U.S. 503, 509 (2021) (“[A]bsent a reason to
conclude otherwise, a jury will usually find that a defendant knew he was a felon based
on the fact that he was a felon.”).
4 The Supreme Court issued Rehaif prior to Davis’s trial and conviction.
6 * * *
The District Court did not plainly err by not sua sponte declaring a mistrial. And
there was sufficient evidence for the jury to find Davis guilty under § 841(a)(1) and
§ 922(g)(1). We will therefore affirm the District Court’s judgment.