Submitted: February 12, 2016
Appeal from United States District Court for the District of Minnesota
Before SMITH and COLLOTON, Circuit Judges, and GRITZNER,  District Judge.
GRITZNER, DISTRICT JUDGE.
A jury convicted Akram Hameed Muhammad (Muhammad) of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Muhammad challenges the district court's denying his motion for judgment of acquittal and his post-trial motion for a new trial due to insufficiency of the evidence and juror misconduct. We affirm.
On December 15, 2014, the Grand Jury indicted Muhammad on one count of being a felon in possession of a firearm. Muhammad's arrest and indictment arose out of federal and state law enforcement officers' efforts to execute a federal arrest warrant on another individual, Veltrez Black (Black). Surveillance officers observed Black exiting an apartment building with Muhammad and another individual. The surveillance officers witnessed the three men enter a parking lot and approach a Buick Rendezvous owned by Black's girlfriend.
At trial, the government called Supervisory Special Agent Brian McCarthy of the Bureau of Alcohol, Tobacco and Firearms (ATF), who was the first agent to arrive on the scene. Special Agent McCarthy testified that after arriving at the parking lot, he exited his vehicle and observed Muhammad approximately 15 feet away behind the open, driver-side rear door of the Buick Rendezvous. Special Agent McCarthy identified himself as a police officer and commanded Muhammad to raise his hands. Special Agent McCarthy testified that the door of the Buick Rendezvous obscured his view of Muhammad's waist and lower half but that Special Agent McCarthy made eye contact with Muhammad through the car door's tinted window.
Special Agent McCarthy observed Muhammad lower his hands to be obscured by the solid portion of the opened car door, pull his hand toward his waist area, and engage in movements "consistent with trying to secrete a firearm." T. Tr. 62. Special Agent McCarthy drew his gun, pointed it at Muhammad, and commanded Muhammad to raise his hands. Special Agent McCarthy said that Muhammad then turned right, bent down, and leaned toward the cabin of the Buick Rendezvous. When Muhammad did this, Special Agent McCarthy said that he could see below the car door and saw that Muhammad had also turned his feet to face the cabin of the Buick Rendezvous. Special Agent McCarthy testified that as he moved a few feet forward and to the right to get a better view, Muhammad stood up, backed away from the vehicle, turned toward Special Agent McCarthy, and raised his hands. Other law enforcement officers arrived on the scene and placed Muhammad under arrest.
After Muhammad was secured, Special Agent McCarthy saw a firearm on the floor of the back seat of the Buick Rendezvous, partially hidden under the driver's seat. Special Agent McCarthy testified that he found the firearm where he had seen Muhammad leaning and that there were no other items in that space. Special Agent McCarthy admitted that he had not seen a firearm during this encounter until he saw a Sig Sauer model 250, .45 caliber semi-automatic handgun on the floor of the Buick Rendezvous. The firearm was photographed in its original position as seen by Special Agent McCarthy.
At trial, Muhammad called private investigator Michael Grostyan, who testified that due to the shape of the space beneath the driver's seat in the Buick Rendezvous, an object such as a firearm might slide around on the floor of the vehicle's back seat while the vehicle was in motion. The officers handling the firearm wore gloves. When analyzed, the government found no identifiable DNA or fingerprints on the gun, magazine, or bullets in the firearm.
Muhammad's jury trial began on April 28, 2015. At the conclusion of the government's case, Muhammad moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), which the district court took under advisement. The jury returned a guilty verdict on April 29, 2015, and on April 30, 2015, the district court entered an order denying Muhammad's motion finding sufficient evidence to sustain his conviction.
On May 29, 2015, Muhammad timely filed a motion for a new trial and a request for an evidentiary hearing due to juror misconduct. Muhammad alleged that a juror's husband took notes throughout the trial; stared at Muhammad's family; eavesdropped on a conversation between Muhammad's counsel and family; and on the second day of trial, the same juror and her husband eavesdropped on a lunch-time conversation between Muhammad's family members. Muhammad further alleged that the juror's husband engaged in non-verbal communication with the juror before the verdict was announced. On July 7, 2015, the district court issued an order denying the motion finding "no colorable evidence of outside influence" to warrant an evidentiary hearing or a new trial. United States v. Muhammad, Cr. No. 14-408 (DSD/HB), 2015 WL 4094078, at *2 (D. Minn. July 7, 2015). On September 9, 2015, the ...