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United States v. Davis

United States Court of Appeals, Seventh Circuit

July 24, 2018

United States of America, Plaintiff-Appellee,
v.
Keenan Davis, Defendant-Appellant.

          Argued May 15, 2018

          Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:16-cr-00055-TLS-SLC-1-Theresa L. Springmann, Chief Judge.

          Before Bauer, Kanne, and Hamilton, Circuit Judges.

          BAUER, CIRCUIT JUDGE.

         Keenan Davis was charged with and convicted of two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), arising from two unrelated incidents. Davis appeals three evidentiary rulings as to testimony from three witnesses, and argues that the government failed to provide sufficient evidence to prove Count Two.

         Count One arose from an incident that occurred on July 20, 2016. Davis drove with his girlfriend, Heather Gaff ("Heather"), to the home of Anthony Wamue and Jacqueline Gaff ("Jackie"), Davis's ex-girlfriend and Heather's sister. The visit quickly resulted in a fight, starting inside the house and then moving to the backyard; the fight involved Davis, Jackie, and Wamue. Police were called and arrived shortly after and found a firearm lying on the curb outside the house.

         Davis's theory at trial was that the gun was Jackie's or Wamue's, both convicted felons, who set up Davis knowing they would face the same charges if the gun was found to be theirs. The government presented evidence to prove that Davis brought the gun to the house. On appeal from the conviction on Count One, Davis objects to testimony from Officer Matthew Cline, one of the responding police officers, as to prior consistent statements made by Jackie and Wamue on the day of the incident, and testimony from Davis's six-year-old daughter.

         After the police arrived, Jackie and Wamue recounted the altercation to Officer Cline. At trial, the government called Jackie to testify, but during cross-examination, she could not recall many of the details of the incident. Later in the trial, the government called Officer Cline to testify about incriminating statements made by Jackie and Wamue against Davis on the day of the incident. No objection was made to this testimony.

         The government also called C.D., Davis's six-year-old daughter, to testify at trial. Prior to trial, Davis filed a motion under 18 U.S.C. § 3509(c) requesting that the district court hold a child competency hearing before allowing C.D. to testify. The court agreed and questioned C.D. outside the presence of the jury regarding her ability to distinguish truth and falsehood. After this questioning, defense counsel agreed that C.D. was competent and did not object to her testifying.

         C.D. testified that she was in a bedroom towards the back of the apartment when Davis arrived and came out when she heard loud noises in the front of the apartment where Davis, Jackie, and Wamue were fighting. She also testified that she never saw the gun during the incident, but knew there was a gun because Jackie, her mother, told her Davis had a gun.

         Count Two arose from an incident that occurred on August 30, 2016, when police executed a warrant for Davis's arrest. During a pat down of Davis, an officer found a Crown Royal bag tied to his boxer shorts. While executing the arrest, officers also saw a revolver barrel sticking out of a Crown Royal bag in the mudroom of the house. The officers then obtained and executed a search warrant for the home. During this search, they discovered the firearm was a disassembled, stolen revolver. Additionally, the officers found a third Crown Royal bag in a basement crawl space inside a partially unscrewed and open air duct, lying next to a gun lock.

         At the time of his arrest, Davis lived with six other individuals in his home: Heather; Heather's mother, Michelle; Davis's 23-year-old son Keenan Davis, Jr. (J.R.); Molly Cobb; James "Jim Bob" Sullivan; and a man named Reggie.

         Davis and Heather were running a transportation company out of their home, providing safe rides home for intoxicated people; Davis kept the home running and paid the bills to keep the gas and electricity on in the home. After Davis's arrest, the six individuals had to move first to a motel, then a small apartment.

         At trial, the government's theory was that the revolver belonged to Davis. The government called several witnesses and introduced into evidence calls Davis received from jail. The testimony and evidence was conflicting as to the owner of the revolver. On appeal, Davis contests the government calling J.R. to testify, and argues that the government failed to provide sufficient evidence to prove the gun belonged to him.

         Before calling J.R. to the stand, the district court held a bench conference with counsel where the government requested permission to treat J.R. as a hostile witness. The government told the court that they had attempted to contact J.R. to meet with them before trial, but he failed to respond. The district court then asked both counsel if either of them would like a voir dire, but neither accepted. The district court asked the government how long it anticipated the questioning would take to determine whether the court should give the jury a short break. The government responded, "I only have to get one thing out of him. I anticipate he's ...


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