United States v. Tarpkin

68 F. App'x 594
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 19, 2003
DocketNo. 01-6515
StatusPublished

This text of 68 F. App'x 594 (United States v. Tarpkin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tarpkin, 68 F. App'x 594 (6th Cir. 2003).

Opinion

OBERDORFER, District Judge.

Jermaine Tarpkin appeals his four-count conviction, for which he was sentenced to a total of 195 months of imprisonment. He [595]*595challenges the sufficiency of the evidence for each count of conviction. For the reasons set forth below, we AFFIRM the judgment of conviction.

I. BACKGROUND

A. Facts

Unless otherwise noted, the following facts are undisputed or based on uncontroverted testimony. On April 3, 2001, Tarp-kin, the defendant, had arranged to visit his minor child, who resided with the child’s mother, Pamela McIntosh. Tarp-kin was at his own mother’s house when McIntosh, accompanied by her 80-year-old aunt, came to pick him up. On the way to McIntosh’s residence, Tarpkin initially rode in the back seat, but moved to the front after the aunt was dropped off.

The afternoon visit at McIntosh’s house did not go well. Tarpkin and McIntosh argued; Tarpkin also cursed at her “constantly,” and, at one point, McIntosh hid in her bedroom to avoid him. McIntosh considered calling the police, but decided not to because her disabled, five-year-old son was afraid of the police. Eventually, McIntosh asked Tarpkin to leave, telling him that she would pay for a cab. Tarpkin insisted that she drive him home. McIntosh asked her neighbor, Connie Miles, to ride with them. When Miles arrived, McIntosh asked her if she had a gun or a knife because she was so upset she wanted to shoot him.

On the trip back to Tarpkin’s mother’s house, Tarpkin sat in the front with his book bag, while Miles sat in the back. As they were driving, Tarpkin argued with McIntosh and poked her in the face. McIntosh finally pulled over into a convenience store parking lot, telling Tarpkin that she was going to call the police. Tarpkin then showed her that he had a bag of marijuana in his pocket, apparently hoping to deter her. McIntosh nonetheless went inside the store and called the police, telling them that she wanted Tarp-kin out of her car. As the police arrived, McIntosh looked out to her car and saw Tarpkin, still sitting in the front passenger seat, “bend down” a couple of times. Miles, still sitting in the back seat, saw Tarpkin reach under the front seat twice with his right hand. Tarpkin then got out of the car and tried to “sweet talk” McIntosh into coming to talk to him.

When it appeared that the police were going to leave without doing anything. McIntosh told them that Tarpkin had had marijuana in his jacket and that it was probably now in her car. She then gave the police permission to search the car. On the floor of the front passenger side of the car, under Tarpkin’s book bag, the police found a plastic bag containing 62.8 grams of marijuana. On Tarpkin’s person, they found a box of cigars, with one of the four cigars missing. In the car’s ashtray, they found a partially smoked “blunt,” a marijuana cigar, which Tarpkin admitted was his, along with a few marijuana cigarettes. And under the front passenger seat, they found a loaded Ruger .45-cali-ber semi-automatic pistol, lying as if the person who put it there had been holding it in his/her right hand. Tarpkin denied that the gun was his. Tarpkin was arrested at the scene.

B. Procedural History

On April 11, 2001, a grand jury returned a five-count indictment against Tarpkin. He was charged with: (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g); (2) being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g); (3) possession of a stolen firearm in violation of 18 U.S.C. § 922(g); (4) possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a) and (b)(1)(C); and (5) possession of a firearm in furtherance of a drug traf[596]*596ticking offense in violation of 18 U.S.C. § 924(c).

Trial commenced on June 14, 2001. In addition to the facts described above, there was testimony from the government’s lay witnesses that: Tarpkin had sold marijuana in the past; McIntosh did not own a gun; McIntosh had never seen Tarpkin with a gun; McIntosh had cleaned out her car the night before Tarpkin was in it; no one had been in the car in the interim except her 80-year old aunt; the seized firearm had been stolen in November 2000; McIntosh had smoked and sold marijuana in the past; a single person smoking three blunts a day could use a dime bag (approximately 2 grams) of marijuana; and Tarpkin had called McIntosh from the police station after his arrest and told her that because of what she had told the police they now knew about the robbery and where the gun came from. The government’s uncontroverted expert witnesses testified that: the amount of marijuana seized was a “distribution amount”; the marijuana was probably in a single bag simply because it had been recently purchased and not yet divided up for resale; the lack of cash was consistent with a recent purchase; the lack of drug-trafficking paraphenalia was not surprising given that Tarpkin was in McIntosh’s car at the time the marijuana was seized; most drug dealers carry firearms; and the firearm seized was a large-caliber gun that a woman would be unlikely to use.

After the close of the government’s case, Tarpkin filed a motion for a judgment of acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Tarp-kin then put on his defense, which was limited to reading into the record a written stipulation that he was left-handed. He did not renew his Rule 29 motion at the close of his case.

The case went to the jury. The jury was instructed that if it found Tarpkin not guilty of possession of marijuana with intent to distribute, it could convict for the lesser included offense of simple possession. The jury convicted on all counts, as indicted, except for Count 2, the charge of being a felon in possession of ammunition.1

On October 19, 2001, the district court sentenced Tarpkin to 195 months of imprisonment. The defendant filed a timely Notice of Appeal on October 30, 2001.

II. DISCUSSION

A. Standard of Review

The parties disagree about the applicable standard of review. Generally, a challenge to the sufficiency of the evidence supporting a criminal conviction requires the reviewing court to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the prosecution proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Russell, 76 F.3d 808 (6th Cir.1996).

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
United States v. Garrett Lee Russell
76 F.3d 808 (Sixth Circuit, 1996)
Green v. United States
534 U.S. 830 (Supreme Court, 2001)

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Bluebook (online)
68 F. App'x 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tarpkin-ca6-2003.