Appeal from the United States District Court for the Southern District of Illinois. No. 04 CR 30155-Michael J. Reagan, Judge.
The opinion of the court was delivered by: Manion, Circuit Judge.
ARGUED SEPTEMBER 11, 2007
Before RIPPLE, MANION, and WOOD, Circuit Judges.
Mark Samuels ("Samuels") was charged in a one-count indictment with aiding and abetting a felon in possession of a firearm in violation of 18 U.S.C. §§ 2 and 922(g)(1). After a jury returned a guilty verdict, the district court sentenced Samuels to a seventy-eight-month term of imprisonment. Samuels appeals his conviction and sentence, and we affirm.
Sometime in the fall of 2004, Mark Samuels provided his cousin, Stephen Perkins ("Stephen"), with a Glock .45 caliber firearm for Stephen's protection after Stephen had been robbed. Samuels later sought to retrieve the Glock from Stephen. After unsuccessfully attempting to contact Stephen through Stephen's mother, Samuels told another cousin, Katraelyus Franklin ("Katraelyus"), that he wanted his Glock and asked if he knew where Stephen was.*fn1 On October 13, 2004, Katraelyus drove Samuels and Samuels's brothers, Marlon Samuels and Terry Samuels, a convicted felon, ("Marlon" and "Terry," respectively), in his van to find Stephen. In addition to bringing along his brothers, Samuels also brought a baseball bat and a gun, an FEG Model FP9 .9mm semi-automatic pistol ("FEG" or "gun"), with him. Samuels later stated during a taped police interview that he brought the gun because he was afraid Stephen might fight him or that he might encounter "escalated problems" in the course of trying to retrieve the Glock from Stephen.
The group found Stephen at County Line, a liquor store and gas station located in Cahokia, Illinois. Stephen recognized his cousins and walked toward the van to talk with them. Stephen testified at trial that Samuels "turn[ed] around to give Terry the gun when I was walking towards them." Upon further questioning, Stephen clarified that he had not actually seen what Samuels handed Terry, but rather he "watched [Samuels] go into his pants and pull something out [Stephen] reflected as a gun, turn[ ] around and hand it to [Samuels's] brother." Although the transfer of the gun from Samuels to Terry was not clear, there was no question that Terry had the gun in the encounter with Stephen that followed.
Samuels patted down Stephen and, when he did not find the Glock, went to search Stephen's car. At Samuels's direction, Marlon and Terry took Stephen around the side of the store building. When he did not find the Glock in the car, Samuels returned with the ashtray from Stephen's car and began beating Stephen in the face with it. Marlon and Terry also struck Stephen. Stephen testified that all of the men started hitting him until he passed out.
The County Line clerk heard a scuffle and yelling outside the store where he saw one person holding Stephen, one person standing next to him, and another person hitting him. The clerk also testified at trial that Stephen was bleeding and that one of the individuals was pointing a gun at him. The clerk identified the clothing of the person with the gun, a jacket hood and pair of pants, as the same clothing identified by Stephen as having been worn by Terry that day. At that point, the clerk yelled at them to take their argument somewhere else, so the group piled into Katraelyus's van and left.
From County Line, Katraelyus drove to Samuels's home. While en route, Samuels and Terry struck Stephen. Stephen told them that another cousin, Tracy Perkins ("Tracy"), had the Glock in her car and that she was working at an area nursing home. Once at Samuels's house, Samuels beat Stephen with a bat, and Marlon beat him with brass knuckles. Leaving Samuels's home, Samuels, Stephen, Terry, Katraelyus, and Marlon drove in Samuels's van to the nursing home. Stephen testified that Terry beat Stephen during that drive and that Samuels never told Terry to stop hitting Stephen.
Upon arriving at the nursing home, Samuels went inside and told Tracy that he was Stephen's cousin and that Stephen needed to get something out of her car. When she walked outside the nursing home, Tracy saw Stephen, who she testified was "beat up bad." Then Tracy and Samuels walked to Tracy's car located in a back parking lot where they searched the trunk. Again, Samuels was unable to find the Glock. While Tracy drove her car to the front lot where Samuels's van was parked so Stephen could go through the car and get whatever was his out of the car, Samuels walked back to his van.
During the time Tracy and Samuels were searching her car, Terry allowed Stephen to exit the van in order to get some fresh air. Stephen testified at trial that Terry had the FEG in his pants at that point and that he jumped on Terry's back in an attempt to wrest the FEG from him. A fight then ensued, and Stephen testified that at Terry's direction Marlon attempted to cut Stephen and that once he was able to break away from Terry he fell because he was bleeding badly. What Samuels did upon his return to the van is disputed: Samuels told Detective Becker, who had conducted his post-arrest interview, that when he returned Stephen and Terry were fighting, Stephen was bloody, and he separated Stephen and Terry from fighting. Stephen, however, testified at trial that Samuels grabbed him by the collar and struck him in the forehead with the butt of the FEG, and then the group threw Stephen back in the van. Based on Stephen's and Samuels's testimony, Samuels must have "separated" Terry and Stephen by taking the gun from Terry (who, according to Stephen's testimony, had the gun in his pants) and hitting Stephen with it. Stephen sustained facial injuries as a result of the events that occurred in the parking lot, leaving blood there as well as in the van.
Before being thrown back into the van, Stephen shouted to Tracy that one of the men had a gun. Tracy ran inside the nursing home where she called 911. A tape recording of Tracy's 911 call was played for the jury. During the call, Tracy frantically told the operator that men had taken her car, were beating and killing her cousin, and had a gun. Tracy also provided a description of her car and Samuels's van. While Tracy was placing her 911 call, Katraelyus drove away with Stephen, Samuels, and Terry as passengers. Marlon left driving Tracy's car.
Responding to the 911 call, Officer Brian Dowdy of the Belleville Police Department noticed a van that fit the description relayed by dispatch, so he started to follow the van, losing sight of it for a short period of time. Seeing a police car behind his van and knowing that Terry could get in trouble if he was found in the van with a gun, Samuels stated that he tried to throw the gun out of the van, but it landed in Terry's lap, who, in turn, threw it out of the vehicle. Stephen, on the other hand, testified at trial that Samuels handed Terry the gun and told Terry to take off running, after which Terry jumped out of the slowly moving van. Either way, Belleville ...