NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 19-2957 and 19-2976
UNITED STATES OF AMERICA
v.
JESSE TULLIES,
Appellant in case no. 19-2957
EUGENE WILLIAMS,
Appellant in case no. 19-2976
On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action Nos. 2-18-cr-00021-001 and 2-18-cr-00021-002) District Judge: Honorable Kevin McNulty
Submitted Under Third Circuit LAR 34.1(a) November 16, 2020
Before: AMBRO, BIBAS and ROTH, Circuit Judges
(Opinion filed: February 10, 2022) OPINION *
AMBRO, Circuit Judge,
Defendants Jesse Tullies and Eugene Williams (unless otherwise noted, jointly
referred to as “Defendants”) were tried together and convicted for selling drugs and
illegally possessing firearms. They appealed their convictions, and we consolidated the
appeals. Because neither Defendant has shown any redressable error, we affirm their
convictions.
I.
Detective Yusef Ellis and his colleagues at the Essex County Sherriff’s Office
arrested Defendants after observing them sell heroin in Newark, New Jersey, to John
Potts and an unidentified woman. On arrest, law enforcement searched Tullies and
Williams’ car and found significant amounts of crack cocaine and heroin along with three
loaded 9-millimeter handguns. This resulted in the following charges: conspiracy to
distribute heroin in violation of 21 U.S.C. § 846; distribution of heroin, in violation of 21
U.S.C. § 841(a), (b)(1)(C); possession with intent to distribute crack, in violation of 21
U.S.C. § 841(b)(1)(C); possession of a firearm by a convicted felon, in violation of 18
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 U.S.C. § 922(g)(1); and possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A).
A three-day joint jury trial followed. Defendants argued that Ellis was lying, they
had been near the drug sale for unrelated reasons, and different individuals must have
sold the heroin. The jury first considered the counts other than the felon-in-possession
charges and convicted Defendants on those charges. It then received stipulations stating
that each Defendant had previously been “convicted of a crime punishable by
imprisonment for a term exceeding one year.” Convictions then followed on the felon-in-
possession charges. The District Court denied Defendants’ motions for a judgment of
acquittal or in the alternative for a new trial.
II.
Defendants requested new trials for their felon-in-possession charges under 18
U.S.C. § 922(g). 1 Their reasoning was that the Government did not prove, as required by
Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019), that each of them knew he was a
felon (meaning someone who has been convicted of a crime punishable by more than one
year in prison) at the time he possessed the firearms at issue. Indeed, that is correct. See
Greer v. United States, 141 S. Ct. 2090, 2095 (2021). But neither Defendant made an
objection at trial, and so we review only for plain error. See United States v. Vosburgh,
602 F.3d 512, 531 (3d Cir. 2010). There must be an error, it must be plain, it must affect
1 The District Court incorrectly instructed the jury that Tullies and Williams did not need to have knowledge of their prior felony status. Both Defendants stipulated that they had prior felonies, but their stipulations did not address when they were aware of this fact. 3 the Defendants’ “substantial rights,” and it must be the case that leaving the error
uncorrected would “seriously affect[ ] the fairness, integrity or public reputation of
judicial proceedings.” United States v Olano, 507 U.S. 725, 732 (1993) (quoting United
States v. Young, 470 U.S. 1, 15 (1985)).
What this means practically is that each Defendant must show (among other
things) “there is a reasonable probability that he would have been acquitted.” Greer, 141
S. Ct. at 2097 (internal quotation marks and citation omitted). But “[i]f a person is a
felon, he ordinarily knows he is a felon,” id., and neither Defendant has offered any
evidence that his case is extraordinary. Williams contends that he would have argued he
was unaware he was a felon because New Jersey does not use the term “felon.” But he
does not suggest being unaware of a conviction for at least one crime punishable by over
one year in prison. This is not surprising, as Williams had served over three years’
imprisonment for two of his several prior felonies. In Tullies’s case, he had at least
eleven prior sentences of over one year and had served multiple terms of imprisonment of
at least one year. Because their presentence reports confirm their felon status and they
offer no evidence suggesting they were unaware they had been convicted of crimes
punishable by over one year’s imprisonment, Defendants cannot show by a reasonable
probability that the jury would have acquitted them. See Greer, 141 S. Ct. at 2097–98
(noting that we “may consider the entire record” on plain-error review, “including
information contained in a pre-sentence report” (emphasis in original)).
4 III.
Besides the Rehaif error, each Defendant raises an additional issue on appeal.
Tullies argues that the Government’s questioning of Potts created the impression that
Tullies only remained silent because he was guilty in violation of his Fifth Amendment
protections. Williams contends that the District Court erred in declining either to
overturn the jury’s verdict or to grant a new trial on the firearm convictions because there
was insufficient evidence to show Williams constructively possessed the guns and
ammunition at issue. We consider each in turn.
Tullies fails to show that the Government improperly questioned Potts during the
trial. Potts testified that he bought drugs from two unidentified individuals rather than
from either Defendant. The Government impeached Potts’s testimony by eliciting that he
only began saying he bought drugs from a third party after talking to Williams’s wife.
He had previously remained silent.
Tullies now argues this line of questioning violated his Fifth Amendment
protections by suggesting that Potts did not make a statement to the police because he
(Potts) was guilty. Tullies further asserts that the Government invited the jury to make
the same inference about his decision not to speak to law enforcement. He did not press
this argument before the District Court. Therefore, we review for plain error. United
States v. Iglesias, 535 F.3d 150, 158 (3d Cir. 2008).
Tullies cannot articulate any error, let alone a plain one. The cases he relies on all
involve examination of the defendant himself, see Doyle v.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 19-2957 and 19-2976
UNITED STATES OF AMERICA
v.
JESSE TULLIES,
Appellant in case no. 19-2957
EUGENE WILLIAMS,
Appellant in case no. 19-2976
On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action Nos. 2-18-cr-00021-001 and 2-18-cr-00021-002) District Judge: Honorable Kevin McNulty
Submitted Under Third Circuit LAR 34.1(a) November 16, 2020
Before: AMBRO, BIBAS and ROTH, Circuit Judges
(Opinion filed: February 10, 2022) OPINION *
AMBRO, Circuit Judge,
Defendants Jesse Tullies and Eugene Williams (unless otherwise noted, jointly
referred to as “Defendants”) were tried together and convicted for selling drugs and
illegally possessing firearms. They appealed their convictions, and we consolidated the
appeals. Because neither Defendant has shown any redressable error, we affirm their
convictions.
I.
Detective Yusef Ellis and his colleagues at the Essex County Sherriff’s Office
arrested Defendants after observing them sell heroin in Newark, New Jersey, to John
Potts and an unidentified woman. On arrest, law enforcement searched Tullies and
Williams’ car and found significant amounts of crack cocaine and heroin along with three
loaded 9-millimeter handguns. This resulted in the following charges: conspiracy to
distribute heroin in violation of 21 U.S.C. § 846; distribution of heroin, in violation of 21
U.S.C. § 841(a), (b)(1)(C); possession with intent to distribute crack, in violation of 21
U.S.C. § 841(b)(1)(C); possession of a firearm by a convicted felon, in violation of 18
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 U.S.C. § 922(g)(1); and possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A).
A three-day joint jury trial followed. Defendants argued that Ellis was lying, they
had been near the drug sale for unrelated reasons, and different individuals must have
sold the heroin. The jury first considered the counts other than the felon-in-possession
charges and convicted Defendants on those charges. It then received stipulations stating
that each Defendant had previously been “convicted of a crime punishable by
imprisonment for a term exceeding one year.” Convictions then followed on the felon-in-
possession charges. The District Court denied Defendants’ motions for a judgment of
acquittal or in the alternative for a new trial.
II.
Defendants requested new trials for their felon-in-possession charges under 18
U.S.C. § 922(g). 1 Their reasoning was that the Government did not prove, as required by
Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019), that each of them knew he was a
felon (meaning someone who has been convicted of a crime punishable by more than one
year in prison) at the time he possessed the firearms at issue. Indeed, that is correct. See
Greer v. United States, 141 S. Ct. 2090, 2095 (2021). But neither Defendant made an
objection at trial, and so we review only for plain error. See United States v. Vosburgh,
602 F.3d 512, 531 (3d Cir. 2010). There must be an error, it must be plain, it must affect
1 The District Court incorrectly instructed the jury that Tullies and Williams did not need to have knowledge of their prior felony status. Both Defendants stipulated that they had prior felonies, but their stipulations did not address when they were aware of this fact. 3 the Defendants’ “substantial rights,” and it must be the case that leaving the error
uncorrected would “seriously affect[ ] the fairness, integrity or public reputation of
judicial proceedings.” United States v Olano, 507 U.S. 725, 732 (1993) (quoting United
States v. Young, 470 U.S. 1, 15 (1985)).
What this means practically is that each Defendant must show (among other
things) “there is a reasonable probability that he would have been acquitted.” Greer, 141
S. Ct. at 2097 (internal quotation marks and citation omitted). But “[i]f a person is a
felon, he ordinarily knows he is a felon,” id., and neither Defendant has offered any
evidence that his case is extraordinary. Williams contends that he would have argued he
was unaware he was a felon because New Jersey does not use the term “felon.” But he
does not suggest being unaware of a conviction for at least one crime punishable by over
one year in prison. This is not surprising, as Williams had served over three years’
imprisonment for two of his several prior felonies. In Tullies’s case, he had at least
eleven prior sentences of over one year and had served multiple terms of imprisonment of
at least one year. Because their presentence reports confirm their felon status and they
offer no evidence suggesting they were unaware they had been convicted of crimes
punishable by over one year’s imprisonment, Defendants cannot show by a reasonable
probability that the jury would have acquitted them. See Greer, 141 S. Ct. at 2097–98
(noting that we “may consider the entire record” on plain-error review, “including
information contained in a pre-sentence report” (emphasis in original)).
4 III.
Besides the Rehaif error, each Defendant raises an additional issue on appeal.
Tullies argues that the Government’s questioning of Potts created the impression that
Tullies only remained silent because he was guilty in violation of his Fifth Amendment
protections. Williams contends that the District Court erred in declining either to
overturn the jury’s verdict or to grant a new trial on the firearm convictions because there
was insufficient evidence to show Williams constructively possessed the guns and
ammunition at issue. We consider each in turn.
Tullies fails to show that the Government improperly questioned Potts during the
trial. Potts testified that he bought drugs from two unidentified individuals rather than
from either Defendant. The Government impeached Potts’s testimony by eliciting that he
only began saying he bought drugs from a third party after talking to Williams’s wife.
He had previously remained silent.
Tullies now argues this line of questioning violated his Fifth Amendment
protections by suggesting that Potts did not make a statement to the police because he
(Potts) was guilty. Tullies further asserts that the Government invited the jury to make
the same inference about his decision not to speak to law enforcement. He did not press
this argument before the District Court. Therefore, we review for plain error. United
States v. Iglesias, 535 F.3d 150, 158 (3d Cir. 2008).
Tullies cannot articulate any error, let alone a plain one. The cases he relies on all
involve examination of the defendant himself, see Doyle v. Ohio, 426 U.S. 610, 611
(1976); Carter v. Kentucky, 450 U.S. 288, 293–94 (1981), but here Tullies objects to the
5 cross-examination of a third party. The Government’s questioning did not suggest any
inference should be drawn from Tullies’s initial silence, and, in any case, the District
Court issued clear curative instructions. Nor does Tullies explain why the jury would
have drawn an improper inference about him based on Potts’s conduct. In sum, Tullies
cannot show the Government acted improperly in eliciting relevant impeachment
testimony.
The District Court also did not err in declining to give Williams a new trial or
denying his Rule 29 motion for judgment of acquittal. When reviewing a district court’s
decision to deny a Rule 29 motion, “[w]e review sufficiency of the evidence ‘in the light
most favorable to the prosecution’ to determine whether ‘any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” United
States v. Garner, 915 F.3d 167, 169 (3d Cir. 2019) (quoting United States v. Caraballo-
Rodriguez, 726 F.3d 418, 424–25 (3d Cir. 2013) (en banc)). We review denials of Rule
33 motions for a new trial for abuse of discretion. United States v. Kelly, 539 F.3d 172,
181 (3d Cir. 2008).
An individual constructively possesses a firearm if he “knowingly has both the
power and the intention at a given time to exercise dominion or control over [it], either
directly or through another person or persons.” United States v. Iafelice, 978 F.2d 92, 96
(3d Cir. 1992) (quoting United States v. Blackston, 940 F.2d 877, 883 (3d Cir. 1991)).
Here, Ellis saw Williams accessing drugs in a car’s rear bumper. The firearms were also
in the car’s bumper, and at least one was immediately adjacent to the drugs. The jury
found that Williams had possession of these drugs. It also heard testimony about how
6 guns are used to facilitate drug trafficking and how some drug dealers keep their firearms
with their stashes of drugs.
Based on this evidence, the jury could have rationally concluded beyond a
reasonable doubt that the drugs and the firearms were placed into the car’s rear bumper in
furtherance of a single criminal scheme and that the same individuals had possession over
both. Accord United States v. Booker, 436 F.3d 238, 241–43 (D.C. Cir. 2006) (affirming
felon-in-possession conviction on similar facts). Therefore, we will not disturb the jury’s
verdict. And, based on the same evidence, we also conclude the District Court did not
abuse its discretion in denying Williams a new trial. See United States v. Silveus, 542
F.3d 993, 1004–05 (3d Cir. 2008) (explaining a Court may grant a new trial “only if it
believes that there is a serious danger that a miscarriage of justice has occurred—that is,
that an innocent person has been convicted.” (internal citation omitted)).
* * * * *
We thus affirm the judgment of the District Court.