US v. Habibi

Filing

OPINION issued by David J. Barron, Appellate Judge; Bruce M. Selya, Appellate Judge and Norman H. Stahl, Appellate Judge. Published. [14-1403]

Case: 14-1403

Document: 00116813452

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Date Filed: 03/20/2015

Entry ID: 5894545

United States Court of Appeals
For the First Circuit
No. 14-1403
UNITED STATES,
Appellee,
v.
BAHMAN HABIBI,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]

Before
Barron, Selya and Stahl,
Circuit Judges.

Jeffrey W. Langholtz on brief for appellant.
Thomas E. Delahanty, II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.

March 20, 2015

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BARRON,

Circuit

Page: 2

Judge.

Date Filed: 03/20/2015

Bahman

Habibi

Entry ID: 5894545

raises

three

challenges to his October 2013 conviction for possession of a
stolen firearm in violation of 18 U.S.C. § 922(j).1

Habibi argues

that

in

the

District

extensive

evidence

Court

abused

relating

to

its

discretion

his

heroin

use

admitting

and

heroin

trafficking. Habibi also argues that the District Court abused its
discretion in allowing an FBI agent involved in the investigation
that led to Habibi's arrest to testify on issues relating to DNA
residue.

And, finally, Habibi argues that the District Court

should have instructed the jury on "transitory possession," as he
sought to build his defense against the possession charge on that
basis.

We find no merit to any of these challenges and therefore

affirm the conviction.
I.
We begin with the challenge to the admission of the
evidence of Habibi's past drug use and trafficking.

Although

"[e]vidence of a crime, wrong, or other act is not admissible to
prove a person's character in order to show that on a particular
occasion the person acted in accordance with the character," Fed.
R. Evid. 404(b)(1), "[t]his evidence may be admissible for another
purpose," Fed. R. Evid. 404(b)(2).

In particular, the Federal

Rules of Evidence specifically enumerate a number of purposes for

1

Habibi was sentenced to sixteen months in prison, to be
followed by three years of supervised release.
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which such evidence may be used: "proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident."

Fed. R. Evid. 404(b)(2).

purposes is not exhaustive."

And that "list of

United States v. Landry, 631 F.3d

597, 602 (1st Cir. 2011).
Thus, where a defendant challenges a district court's
admission of prior bad acts evidence, the first question for a
reviewing court is whether the objected-to evidence "has 'special
relevance'" to the case, by which we mean that the objected-to
evidence "is relevant for any purpose apart from showing propensity
to commit a crime."

United States v. Doe, 741 F.3d 217, 229 (1st

Cir. 2013) (quoting United States v. Rodríguez-Berríos, 573 F.3d
55, 64 (1st Cir. 2013)).

For if the evidence does have such

special relevance, then Rule 404(b) does not bar its admission.
Here, proof of possession was complicated by the fact
that Habibi apparently was not involved in either the initial theft
of the firearm (which was taken from a police officer's personal
vehicle) or the robberies in which the gun was subsequently used.
But the gun was found in Habibi's home, in a secret hiding place.
The government thus sought to show how it got there -- and thus,
that Habibi had knowing possession of the stolen gun2 -- by

2

See 18 U.S.C. § 922(j) ("It shall be unlawful for any person
to receive, possess, conceal, store, barter, sell, or dispose of
any stolen firearm or stolen ammunition . . . which is . . . or
which has been shipped or transported in, interstate or foreign
commerce, . . . knowing or having reasonable cause to believe that
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introducing evidence that Habibi had taken possession of the gun
and kept it at his home both in consequence of his ties to two of
his heroin customers and out of his concern that the government
would prosecute him on the basis of his drug trafficking.
According to the government, therefore, the evidence
relating to Habibi's heroin use and trafficking was not introduced
to

show

Habibi's

propensity

to

engage

in

criminal

behavior.

Instead, the government claims, it introduced this evidence to
provide context for the crime, to help explain how Habibi came to
possess the gun by showing the extent of his relationships to those
who claimed he took possession of it, and to show why he had a
special motive to do so.
Specifically, the government called two longstanding
heroin customers of Habibi's to testify at trial about how the gun
came to be in Habibi's possession.

These two customers testified

that they, along with a friend who had stolen the gun, hid the gun
prior

to

the

friend's

arrest.

And

these

customers

further

testified that, after their friend's arrest, the two of them, plus
Habibi, together retrieved the gun.

The two government witnesses

explained, however, that it was Habibi who picked up and carried
the gun back to the car, and it was Habibi who hid the gun in a
hole in the wall in the basement of his residence after they had
secreted it away.

the firearm or ammunition was stolen.").
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The government also put on evidence relating to Habibi's
heroin trafficking to show that Habibi had a special motive to keep
possession of the stolen gun.

In particular, the two heroin

customers testified that Habibi wanted to hold onto the gun in case
he was arrested for drug trafficking and needed leverage, which he
thought the stolen police gun could provide.
On this record, the District Court did not abuse its
discretion in concluding that the objected-to evidence was not
"'evidence

.

.

.

extrinsic

government

introduced

to

"solely

villainous propensity.'"

the

crime

'for

the

charged'"
purpose

that

of

the

showing

United States v. Gonyer, 761 F.3d 157,

162 (1st Cir. 2014) (quoting United States v. Roszkowski, 700 F.3d
50, 56 (1st Cir. 2012)).

As the government contends, the evidence

about Habibi's customers frequenting his residence to use heroin
that he supplied them "helped the jury understand the basis for
[those customers'] trusting relationship with Habibi."

See United

States v. Arias-Montoya, 967 F.2d 708, 712–13 (1st Cir. 1992)
(evidence may have "special relevance" where it shows a "common
scheme or suggested course of continuous dealing" or where "the
earlier bad act [is] likely to provide context or complete the
story of the one subsequently charged"); United States v. Harrison,
679

F.2d

942,

948

(D.C.

Cir.

1982)

(evidence

of

past

drug

distribution admissible to show "course of dealing" and intent on
instant drug charges).

And, as the government further contends,

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the

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testimony

from

those

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Date Filed: 03/20/2015

customers

about

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Habibi's

heroin

trafficking "was highly probative of Habibi's motive and intent
regarding his possession of the firearm."

See Fed. R. Evid.

404(b)(2) (motive and intent are valid purposes for prior bad acts
evidence).

Thus, the evidence had more than sufficient "special

relevance" for admission under Rule 404(b).
That conclusion, however, does not end our inquiry.
Evidence that has "special relevance" may still be inadmissible "if
its probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence."
even

Habibi

concedes

that

Fed. R. Evid. 403.

"some

limited

And while

reference

to

drug

trafficking" "[a]rguably . . . may have been appropriate to
establish motive," he contends that the government leveraged this
evidence to such an extent that it crossed the line set forth by
Rule 403.
But

district

courts

are

afforded

"especially

wide

latitude" in balancing the relative probative and prejudicial
values of evidence.

United States v. Nai Fook Li, 206 F.3d 78, 84

(1st Cir. 2000) (quoting United States v. Rivera, 83 F.3d 542, 545
(1st

Cir.

1996)).

And

thus,

"[o]nly

rarely

--

and

in

extraordinarily compelling circumstances -- will we, from the vista
of a cold appellate record, reverse a district court's on-the-spot

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judgment concerning the relative weighing of probative value and
unfair effect."

Id. at 84-85 (quoting Freeman v. Package Mach.

Co., 865 F.2d 1331, 1340 (1st Cir. 1988)).
Given the government's legitimate purpose in showing both
that Habibi had extensive ties to certain heroin users implicated
in the gun theft and that Habibi's prior involvement in drug
trafficking supplied his motive in taking hold of the gun, this
case is not the "rare and 'extraordinarily compelling'" one that
requires us to "'reverse a district court's on-the-spot judgment
concerning the relative weighing of probative value and unfair
effect.'"

United States v. Green, 698 F.3d 48, 56 (1st Cir. 2012)

(quoting Nai Fook Li, 206 F.3d at 84-85); see also United States v.
Burdulis, 753 F.3d 255, 263 (1st Cir. 2014) (reversal under Rule
403 appropriate only if reviewing court is "left with a definite
and firm conviction that the court made a clear error of judgment"
(quoting United States v. Trenkler, 61 F.3d 45, 57 (1st Cir.
1995))).

We thus find no abuse of discretion in the District

Court's admission of the objected-to evidence of Habibi's drug use
and trafficking.

See United States v. Vizcarrondo-Casanova, 763

F.3d 89, 94 (1st Cir.) (affirming admission of "cumulative" and
nearly "overshooting" evidence that was used "to establish that the
defendants had reason to trust one another"), cert. denied, 135 S.
Ct. 307 (2014).

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II.
Habibi next argues that the District Court abused its
discretion in allowing FBI Special Agent Christopher Peavey to
testify on issues relating to DNA residue.

Habibi bases his

challenge on the limitations Rules 701 and 702 of the Federal Rules
of Evidence place on opinion testimony.
The government asked Agent Peavey -- one of the law
enforcement officers involved in the investigation and arrest -- a
few questions about his experience with DNA residue to address the
fact that test results showed that DNA on the stolen gun did not
belong to Habibi.

Other government witnesses had testified that

Habibi had handled the gun and placed it in his basement.

The

government thus wanted to put on this testimony to show that
detectable DNA is not left every time someone touches an object
with his bare hands.
After voir dire on the inquiry, and over the objection of
defense counsel, the District Court permitted the government to
ask, and Agent Peavey to answer, as follows:
(1) Q: Throughout your career as a special agent with
the FBI, have you worked on cases involving DNA cases?
A: Yes, I have.
(2)

Q: What types of cases?
A: Multiple firearms violations and bank robberies.

(3) Q: Did any of those cases involve circumstances in
which your investigation revealed that an individual
touched or handled a[n] object with a bare hand, but when
tested, no detectable DNA was found on that object?
A: Yes.
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The District Court also allowed the defense to ask Agent Peavey on
cross-examination whether he could "tell us with any certainty what
[was] the probability of DNA being available on a gun after it[']s
been handled," to which Agent Peavey answered that he could not.
Habibi

contends

that

the

District

discretion in permitting this testimony.

Court

abused

its

But the Federal Rules of

Evidence provide that lay witnesses, like Agent Peavey, may offer
"testimony in the form of an opinion" so long as such testimony is
"(a) rationally based on the witness's perception; (b) helpful to
clearly understanding the witness's testimony or to determining a
fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702." Fed. R. Evid.
701. And, here, the District Court did not abuse its discretion in
concluding that Agent Peavey's objected-to testimony -- if opinion
at all -- satisfied each of those criteria.
First, Agent Peavey's testimony was "rationally based on
the witness's perception."

Fed. R. Evid. 701(a).

Each of the

prosecutor's three agreed-upon questions concerned Agent Peavey's
experience as a federal law enforcement officer, and each of Agent
Peavey's answers was likewise based on that experience. And, as we
have explained "[t]ime and again," "Rule 701 lets in 'testimony
based on the lay expertise a witness personally acquires through
experience, often on the job.'"

United States v. George, 761 F.3d

42, 59 (1st Cir. 2014) (quoting United States v. Santiago, 560 F.3d

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62, 66 (1st Cir. 2009)); cf. Santiago, 560 F.3d at 66 (testimony of
individual involved in criminal investigation about code words used
in drug deals "rationally based on the perception of the witness"
under Fed R. Evid. 701(a)).
Second, Agent Peavey's testimony was also "helpful" to
the jury.

Fed. R. Evid. 701(b).

A juror may well have believed

that everyone who touches a gun (or anything else) automatically
leaves DNA residue on it.

The prosecution's colloquy with Agent

Peavey revealed that, at least in Agent Peavey's experience, this
was not the case.

The District Court thus did not abuse its

discretion in finding this testimony, though anecdotal, to be
"helpful" to the jury.

See United States v. Meises, 645 F.3d 5, 16

(1st Cir. 2011) ("The nub of [Rule 701(b)'s] requirement is to
exclude testimony where the witness is no better suited than the
jury to make the judgment at issue, providing assurance[] against
the admission of opinions which would merely tell the jury what
result to reach." (citations and internal quotation marks omitted,
second alteration in original)).
Finally,
testimony

"on

Agent

Peavey

scientific,

did

not

technical,

knowledge" that he did not possess.

improperly

or

other

base

his

specialized

Fed. R. Evid. 701(c).

Of

course, as Habibi points out, an expert could have testified on the
DNA residue issue.
was

based

only

on

But Agent Peavey's challenged testimony, which
his

own

investigative

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experience,

"f[e]ll

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of

permissible

lay

Entry ID: 5894545

within

testimony."

United States v. Valdivia, 680 F.3d 33, 50 (1st Cir.

was

boundaries

Date Filed: 03/20/2015

comfortably

2012).

the

Page: 11

opinion

And, indeed, the only question asked of Agent Peavey that

directed

to

"scientific,

technical,

or

other

specialized

knowledge" was the one defense counsel asked on cross-examination
and to which, tellingly, Agent Peavey responded that he did not
know the answer.

We thus reject Habibi's challenge to this

testimony.3
III.
Finally, Habibi argues that the District Court committed
reversible error by declining defense counsel's request to instruct
the jury on the defense's so-called "transitory possession" theory.
Defense counsel wanted the jury instructed with "something to the
effect of the following":
If in certain circumstances the contact [with the
firearm] is so fleeting as to be inconsequential, you may
conclude that possession does not attach, and that would
include without intention so fleeting, without intention
as to be inconsequential, you may conclude that
possession does not attach.
The District Court declined to give such an instruction, finding
the factual basis for it lacking.

Instead, the District Court

instructed the jury as follows:
The term "possess" means to exercise authority, dominion
or control over something. It is not necessarily the

3

Because we conclude there was no abuse of discretion, we
need not resolve whether Habibi waived any objection to Agent
Peavey's testimony.
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same as legal ownership. Briefness of contact alone does
not preclude a finding of possession. The law recognizes
different kinds of possession.
Possession includes both actual and constructive
possession. A person who has direct physical control of
something on or around his or her person is then in
actual possession of it. A person who's not in actual
possession, but who has both the power and the intention
to exercise control over something, is in constructive
possession of it.
"To successfully challenge a district court's decision
not to give a requested instruction, the defendant first 'must
present sufficient evidence to be entitled to [the] instruction.'"
United

States

v.

Baird,

712

F.3d

623,

627

(1st

Cir.

2013)

(alteration in original) (quoting United States v. Callipari, 368
F.3d 22, 32 (1st Cir. 2004), vacated on other grounds, Callipari v.
United States, 543 U.S. 1098 (2005)).

This Habibi fails to do.

There was no dispute at trial that Habibi and his
customer-confederates retrieved the gun on April 25, 2013, and put
the gun in his basement on that same day.

Nor was there any

dispute that Habibi led the police to the gun -- which was hidden
away in a hole in the wall in Habibi's basement -- on June 14,
2013, the day the police effectuated their warrant at Habibi's
residence.

Nor, finally, was there any evidence at trial that

anyone other than Habibi ever had or took possession of the gun in
between those two dates.

Thus, the evidence admits of only the

conclusion that Habibi was in knowing possession of the gun for at
least fifty days.

See United States v. Ridolfi, 768 F.3d 57, 61

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(1st Cir. 2014) ("Knowing possession may be proven through either
actual or constructive possession," and "[c]onstructive possession
of a firearm may be established when a person 'knowingly has the
power and intention at a given time of exercising dominion and
control over [it] either directly or through others.'" (quoting
United States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005)) (second
alteration in original)).
fleeting.

And such a time period is hardly

See id. at 59-63 (suggesting that ten-day period of

dominion and control was not fleeting).

The District Court thus

did not err in declining to give the requested instruction.
IV.
For the foregoing reasons, we affirm.

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