United States v. Pierre Elien

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 24, 2019
• Docket: 18-13316
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13316 Non-Argument Calendar ________________________

D.C. Docket No. 0:18-cr-60032-WPD-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PIERRE ELIEN,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(September 24, 2019)

Before MARTIN, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM:

Pierre Elien appeals his jury conviction for unlawful possession of a firearm

and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Elien Case: 18-13316 Date Filed: 09/24/2019 Page: 2 of 13

argues the evidence introduced at trial was insufficient to establish he possessed

firearms. He also argues the district court abused its discretion by allowing the

government to admit into evidence a recording and the translated transcript of a jail

call in which he discussed his ownership of the car where the firearms were found.

After careful review, we affirm.

I.

In February 2018, a grand jury charged Elien with one count of knowingly

possessing a firearm and ammunition as a convicted felon in violation of 18 U.S.C.

§ 922(g)(1). Elien stipulated that he was a convicted felon and that the firearms

and ammunition he was accused of possessing travelled in interstate commerce.

He then proceeded to trial by jury.

During trial, the government introduced evidence that, in 2016, Homeland

Security Investigation agents began investigating Elien for participating in a

possible cocaine smuggling operation. As part of the investigation, agents

surveilled Elien’s apartment building in Pompano Beach, Florida. During their

surveillance, agents saw Elien driving a silver Mercedes G-Wagon. In particular,

an agent recorded in a report that he saw Elien driving the Mercedes on April 11,

2017. Agents also observed that either the Mercedes or a red Toyota Corolla was

frequently parked in a space assigned to Elien’s apartment.

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In the course of their investigation, agents discovered Elien may have

violated immigration laws. On February 7, 2018, federal agents and officers from

the Broward Sheriff’s Office went to Elien’s apartment building to arrest him for

the suspected immigration violation. After they saw Elien walk out of the

apartment building and enter the Toyota Corolla, agents stopped him, instructed

him to get out of the car, and placed him under arrest.

At the time of the arrest, agents saw the silver Mercedes in the parking lot of

Elien’s apartment building. After Elien was arrested, a Broward officer walked her

canine partner around the Mercedes. The dog alerted, indicating to the officer that

the car should be searched further. Elien’s wife or girlfriend 1 spoke with law

enforcement officers and supplied the keys for the Mercedes. Using those keys,

officers unlocked the car then deployed the dog inside the vehicle. The dog again

alerted, this time signaling the need to search the floorboard behind the vehicle’s

center console.

In the area where the dog alerted, officers discovered an “aftermarket hump”

secured to the car’s floorboard with two screws. Officers removed the screws and

pulled out a “little cubby” containing three firearms and a box of bullets. The three

firearms recovered from the cubby were a Ruger handgun, a Colt handgun, and a

1 The record refers to this person both as Elien’s wife and as his girlfriend. To simplify this opinion, we will refer to her as his wife. 3 Case: 18-13316 Date Filed: 09/24/2019 Page: 4 of 13

Glock 19 handgun. In the car, separate from the cubby, officers found a number of

items associated with Elien. There was a current Florida registration for the car

listing Elien as its owner; proof of insurance for the car identifying Elien as the

insured; a W-2 tax document listing earnings for Elien; medications prescribed to

Elien; and receipts cataloging money sent by Elien.

While some officers were searching the Mercedes, others were speaking

with Elien. After confirming Elien was comfortable speaking English, officers

read him his Miranda rights. Elien agreed to speak without a lawyer present.

During the interview, officers learned a firearm was found in one of the vehicles

believed to belong to Elien. The officers asked Elien about the firearm, and he said

it belonged to his friend. Elien said he allowed his friend to keep the firearm in his

car so long as it was not loaded. But Elien later changed his story and said he had

given his friend $400 for the firearm, and he anticipated his friend would later

purchase it back for $500.

Also, during the interview, officers learned about two more firearms found

in the vehicle. They asked Elien about those additional firearms and he recanted

his earlier statements, saying he did not know about any of the firearms. At some

point, Elien told officers he sold the car to his brother and was keeping it parked at

his apartment building until his brother finished paying for it. However, officers

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testified that the Mercedes was registered to Elien and their research did not turn

up a bill of sale indicating the car’s title had been transferred to Elien’s brother.

Also at trial, the government introduced a recording and the translated

transcript of a jailhouse call made the day after Elien’s arrest. The call’s three

participants spoke three languages—English, Portuguese, and Haitian Creole—

during their discussion. Before trial, a certified translator for the Department of

Homeland Security Investigation listened to the recording and prepared the

transcript. However, the translator did not testify at trial. Instead, an agent who

participated in the investigation of Elien testified about the jail recording and the

transcript.

According to the transcript, a participant who identified himself as “Peter”

asked a participant identified as “Graca” to get him a lawyer. Officers believed

Graca was Elien’s wife. On the call as translated by the Homeland Security agent,

Peter told Graca, “you are going to need my name, my name is Elien Pierre.” Peter

told another call participant who called himself “Gui” that he needed a lawyer

because “they found three guns inside my car.” Later in the call, Peter asked Gui

to “say I sell the car to you, so anything inside the car you don’t have anything to

do with it because the car belonged to you, because I sell the car to you.” Peter

also told Gui to have Graca “look for the title, to sign the title to [Gui’s] name.”

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Before the recording and transcript were introduced, the agent testified that

he received the recording after requesting phone calls pertaining to Elien from the

jail’s records custodian. The agent also testified that he recognized Elien’s voice

on the call. Out of the hearing of the jury, the prosecutor told the district court that

during discovery the government provided defense counsel with the recording of

the call, the certification of the interpreter who translated the call, and a business

records affidavit from the jail’s records custodian. Over Elien’s objections, the

district court allowed the government to admit the transcript and the recording.

At the close of the government’s evidence, Elien moved for a directed

verdict. Elien argued the government’s evidence did not show he possessed the

firearms. He noted that no DNA evidence or fingerprints linked him to the

Mercedes, the firearms, or the ammunition. He also said the government did not

show that he had driven the Mercedes on the day of the arrest. The district court

denied the motion. After Elien elected not to put on any evidence, he renewed his

motion. The district court again denied it.

After deliberating, the jury found Elien guilty of possession of a firearm and

ammunition by a convicted felon. The district court later sentenced Elien to 27-

months imprisonment. This is Elien’s appeal.

II.

A.

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Elien first challenges the district court’s admission of the recording and

translated transcript of the jail call. Elien argues the district court abused its

discretion by admitting the recording and the transcript because: the call’s

participants did not identify their voices on the call; the participants did not testify

and thus did not verify that the transcript accurately reflected their discussion; and

the law enforcement agent who prepared the transcript did not testify at trial to

confirm the accuracy of the translation.

“We review a district court’s decision to admit or exclude evidence for

abuse of discretion.” United States v. Reeves, 742 F.3d 487, 501 (11th Cir. 2014).

“[E]ven where an abuse of discretion is shown, non-constitutional evidentiary

errors are not grounds for reversal absent a reasonable likelihood that the

defendant’s substantial rights were affected.” Id. (quotation marks omitted).

The district court did not abuse its discretion by admitting the recording of

the jail call. To introduce an audio recording at trial, the government has the

burden of presenting sufficient evidence to show that it “is an accurate

reproduction of relevant sounds previously audited by a witness.” Id. (quotation

marks omitted). Ordinarily, the government must show “(1) the competency of the

operator; (2) the fidelity of the recording equipment; (3) the absence of material

deletions, additions, or alterations in the relevant portions of the recording; and (4)

the identification of the relevant speakers.” Id. “But even if one or more of these

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requirements has not been satisfied, if there is independent evidence of the

accuracy of the tape recordings admitted at trial, we shall be extremely reluctant to

disturb the trial court’s decision to admit the recording.” Id. (alteration adopted

and quotation marks omitted). “The district court has broad discretion in

determining whether to allow a recording to be played before the jury,” and this

Court will only disturb the district court’s decision if “there is no competent

evidence in the record to support it.” Id. (citation and quotation marks omitted).

There was sufficient evidence establishing the accuracy of the jailhouse

recording. For one, an agent testified that he received the recording from the jail’s

records custodian when he requested records associated with Elien. Also, the

government put into evidence a sworn affidavit from the jail’s records custodian

attesting that the recordings she supplied “consist[ed] of . . . communication

recordings for [an] account number . . . assigned exclusively to Pierre Elien.”

Additionally, the testifying agent, who had investigated Elien and was present

when Elien was arrested and interviewed, also testified that he recognized Elien’s

voice on the call. See Fed. R. Evid. 901(b)(5) (providing a witness may identify a

voice “based on hearing the voice at any time under circumstances that connect it

with the alleged speaker”); see also United States v. Puentes, 50 F.3d 1567, 1577

(11th Cir. 1995) (holding the government satisfied Rule 901(b)(5) where an officer

became familiar with a defendant’s voice while conducting wiretap surveillance).

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And one of the call’s participants identified himself as “Elien Pierre.” Based on

this evidence, we decline to disturb the district court’s decision to admit the

recording.

As for the translated transcript, Elien has waived arguments challenging its

accuracy. This Circuit has a procedure for “challenging the accuracy of an

English-language transcript of a conversation conducted in a foreign language.”

United States v. Curbelo, 726 F.3d 1260, 1271 (11th Cir. 2013) (quotation marks

omitted). “If the parties cannot agree on a stipulated transcript, then each side

should produce its own version of a transcript or its own version of the disputed

portions.” Id. (quotation marks omitted). If a defendant does not use this

procedure, he “waives his right to challenge the translation and the transcripts.” Id.

(alteration adopted and quotation marks omitted).

Elien did not avail himself this procedure. Before asking the district court to

admit the transcript, the government explained that during discovery it provided

Elien’s counsel with the recording, a certification from the interpreter who

translated the call, and an affidavit from the jail’s records custodian. The

prosecutor said he offered Elien’s counsel the opportunity to hire his own

translator to interpret the calls. Elien offered no explanation at trial or here on

appeal, as to why he did not produce any alternative transcripts. Because Elien did

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not use this Circuit’s established procedure for challenging the accuracy of an

English-language transcript, he has waived this argument. See id.

B.

Elien also argues the evidence at trial was legally insufficient to permit a

jury to convict him of possession of firearms and ammunition by a convicted felon.

Specifically, Elien says the government did not prove he possessed the firearms or

ammunition. He notes that the government did not produce evidence showing he

was inside the vehicle where the firearms were recovered. Elien also says the

government did not show he had a key to the vehicle or that his DNA or

fingerprints were found on the firearms or the ammunition. Elien contends the

evidence at trial showed he was “nowhere near the guns or the vehicle” on the day

he was arrested and he had not been seen driving the car in which the firearms

were discovered for more than ten months.

This Court reviews de novo a challenge to the sufficiency of the evidence.

United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007). In doing so, we

“view[] the evidence in the light most favorable to the government and draw[] all

reasonable inferences and credibility choices in favor of the jury’s verdict.” Id.

We will affirm a district court’s denial of a motion for judgment of acquittal “if a

reasonable trier of fact could conclude the evidence established the defendant’s

guilt beyond a reasonable doubt.” Id.

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To prove a violation of 18 U.S.C. § 922(g)(1), the government must show

(1) the defendant was a convicted felon; (2) the defendant was in knowing

possession of a firearm; and (3) the firearm was in or affecting interstate

commerce. See United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008) (per

curiam). To establish the possession element, the government can show either

constructive or actual possession of the firearm. See United States v. Greer, 440

F.3d 1267, 1271 (11th Cir. 2006). “Constructive possession exists when the

defendant exercises ownership, dominion, or control over the item or has the

power and intent to exercise dominion or control.” Id. This Circuit has said a

“firearm need not be on or near the defendant’s person in order to amount to

knowing possession.” United States v. Wright, 392 F.3d 1269, 1273 (11th Cir.

2004). Also, this Circuit has said constructive possession can be established by

showing a defendant had dominion or control over the premises in which a firearm

was located. See United States v. Vereen, 920 F.3d 1300, 1310 (11th Cir. 2019);

see also United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (“[A] court

may find constructive possession by finding ownership, dominion, or control over

the contraband itself or dominion or control over the premises or the vehicle in

which [the] contraband was concealed.”). “However, a defendant’s mere presence

in the area of the contraband or awareness of its location is not sufficient to

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establish possession.” United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir.

2006) (quotation marks omitted).

Viewing the evidence in the light most favorable to the jury’s verdict, a

reasonable factfinder could find Elien constructively possessed the firearms and

ammunition found in the silver Mercedes. At trial, agents testified the Mercedes

was registered to Elien. See Wright, 392 F.3d at 1273–74 (observing that a

defendant “owned the automobile in which the firearm was carried” in assessing

the sufficiency of the evidence showing possession of the firearm). Agents also

testified Elien was seen driving the Mercedes and that the car was often parked in a

space assigned to Elien’s apartment. According to agents, Elien initially

acknowledged in an interview immediately after his arrest that there was a firearm

in a vehicle that belonged to him. Agents also said Elien claimed he purchased one

of the firearms with the expectation of selling it back to its original owner later.

Additionally, a search of the Mercedes turned up a current Florida registration for

the car listing Elien as its owner, proof of insurance for the car identifying Elien as

the insured, a W-2 tax document listing earnings for Elien, medications prescribed

to Elien, and receipts cataloging money sent by Elien. And in the jailhouse

recording made the day after Elien’s arrest, a speaker who identified himself as

“Elien Pierre” told other call participants that officers “found guns in my car.” On

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this record, we conclude that the government presented sufficient evidence to

convict Elien under 18 U.S.C. § 922(g)(1).

AFFIRMED.