U.S. v. Tucker, No. 09-10319 (4-15-11) (Callahan with Gould and England, D.J., E.D. Ca.).
A distraught ex-girlfriend, a boyfriend who was a felon, and a call to the probation officer by the girlfriend saying there was a shotgun in the closet? It was a set-up, argued the defendant, pointing to the lack of fingerprints on the firearm and the bullets. She wanted to get even with me. Not so, countered the prosecution at trial, using statements by the defendant, inconsistencies with a state proceeding, and presence of belongings in the master bedroom. The jury convicted, and he received a 96-month sentence. On appeal, the 9th found sufficient evidence to support the conviction. The circumstances were such that a jury could find he had possession. The court did not err in not giving a mere presence instruction, as there was evidence of his living in the apartment. The 9th also held that there was not prosecutorial misconduct in the closing argument, as the prosecutor was responding to defense statements, and the language did not cause burden shifting. Finally, the court could find a prior was a crime of violence because the information to which the defendant had plead in state court had acts of attempted physical assault on a child.