Appeal from the United States District Court for the Southern District of Illinois. No. 01 CR 30080--William D. Stiehl, Judge.
Before Flaum, Chief Judge, and Cudahy and Kanne,
The opinion of the court was delivered by: Kanne, Circuit Judge.
A jury found defendant Warren G. Griffin, Jr. guilty of being a felon in possession of a firearm that had traveled in interstate commerce in violation of 18 U.S.C. § 922(g)(1). Griffin appeals, arguing (1) that the district court committed plain error in admitting improper rebuttal testimony; (2) that the evidence was insufficient to support his conviction; and (3) that the district court clearly erred in applying a two-level sentence enhancement for obstruction of justice. Because the evidence was sufficient and because we find no error either in the district court's decision to admit evidence or in its application of the enhancement, we affirm both Griffin's conviction and his sentence.
At 11:00 p.m. on June 12, 2000, in East St. Louis, Illinois, Detective Desmond Williams pulled over a blue fourdoor Pontiac Grand Am for speeding. He illuminated the car's interior by shining his car-mounted spotlight into the vehicle and saw that two men were inside. Approaching the car on the driver's side, Williams stopped at the car's center post and requested the driver's license and registration. While speaking with the driver, Darryl Russell, Williams saw that the car's front-seat passenger had the handle of a handgun protruding from the waistband of his pants. Drawing his own gun and ordering both the driver and passenger to keep their hands in the air and make no sudden movements, Williams reached inside the car from the back seat and tried to retrieve the gun from the passenger's waist. Before Williams could secure the gun, the passenger grabbed Williams's hand. A stand-off ensued, with Williams training his gun at the passenger's head, demanding that the passenger release his grip. The passenger refused, only letting go of Williams's hand as he opened the car door and fled. Instead of giving chase, Williams arrested Russell.
Williams conducted an investigation to identify the unknown passenger. He first searched the car and found a traffic ticket and a bond sheet issued to Griffin. By running the car's license plates, he determined Griffin had rented the car from a rental agency. Also, Williams recovered an envelope containing a set of photographs that had been recently developed by Griffin at a local supermarket. Examining the photos, Williams identified the passenger who had fled the scene as one of the individuals depicted. And after comparing that photo to a set of mug shots at the station house, Williams identified Griffin as that passenger.
Russell gave a statement to police after the incident in which he claimed that someone named "James" or "Jaybo" was the passenger in the car who had the gun, not Griffin. According to Russell's statement, Jaybo had picked him up in Griffin's car that evening; Griffin was never in the car with Russell. When U.S. Deputy Marshal Sean Newlin arrested Griffin, Griffin corroborated Russell's story, claiming he had loaned the rental car to Jaybo that evening and had not been in the car with Russell when Williams pulled it over. According to Newlin, Griffin was adamant as to this last point stating, "I wasn't arrested by any skinny policeman." And although Griffin denied he was the passenger, Newlin reported that Griffin admitted to possessing guns while on supervised release. In the end, despite Griffin's and Russell's protestations of mistaken identity, Griffin was arrested and indicted with the charge of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
Not surprisingly, Griffin presented an elaborate mistaken-identity and alibi defense at trial supported by his own testimony and that of five other defense witnesses, including Russell. But curiously, gone was the claim that Jaybo had been the gun-bearing passenger. Griffin and Russell admitted at trial that they had made up the Jaybo story, hoping to throw police off of Griffin's trail. Nevertheless, they continued to maintain that Griffin wasn't the passenger; they now claimed that the unknown individual was a minor named Issac Windom, also known as "Boo."
After being apprised of his Fifth Amendment rights, Boo testified that he was the passenger in the car. According to Boo, he was attending a friend's party when Russell drove up in Griffin's rental car. Although he did not know either Griffin or Russell (at trial, he was only able to identify Russell as the driver by describing him as the man in the courtroom wearing an orange jumpsuit), he had heard from others that Russell was driving to Duck's Variety Store and, wanting to get something from the store himself, he decided to ride along. Boo testified that it was during this trip to the store that Williams pulled the car over. When Williams saw that he had a gun and tried to retrieve it, Boo ran.
Russell corroborated Boo's story, testifying that he had borrowed the rental car from Griffin at Duck's Variety Store earlier that evening. Russell was to return the car to Griffin at the store before it closed. Boo had hitched a ride with him back to the store, and on the way, Williams pulled the car over. On cross-examination, Russell admitted that he had lied in his statement to police and that he and Griffin had made up the Jaybo story.
Griffin, likewise, admitted at trial that he and Russell had manufactured the Jaybo story in an attempt to mislead the police. What had really happened, he testified, was that in the early evening of June 12, 2000, he had driven his rental car to Duck's Variety Store, where he was to meet Russell. He loaned the car to Russell for a joyride, requesting that Russell return the car later that evening. In the meantime, Griffin would walk around the store's neighborhood, visiting friends. But as he made his rounds, Griffin noticed that it was getting late and Russell had not yet returned. By 9:00 p.m., he decided to call another friend, Charles Gray, to give him a ride home. Gray picked him up around 10:00 p.m., and it took them about an hour to get to Griffin's home, arriving sometime around 11:00 p.m.
Gray testified that he had received a call from Griffin, who was calling from his cellular phone, sometime around 10:30 p.m. on the night of June 12, 2000. He remembered the time because he had been sitting at his computer when his phone rang. Griffin wanted Gray to give him a ride home from Duck's Variety Store. Gray agreed. He estimated that the trip lasted between fifteen and twenty-five minutes.
To corroborate Gray's story, Griffin called both Gregory Parker, the owner of Duck's Variety Store, and Griffin's wife, Jocelyn. Parker testified that he had seen Griffin walk up to the store that evening and that Griffin had left sometime around 10:00 p.m. Jocelyn testified that she had been at home watching television on the night of June 12, 2000, and that Griffin returned home just as the previews of "In the Heat of ...