United States of America v. Gary Denson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-2578
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UNITED STATES OF AMERICA
v.
GARY DENSON,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 06-cr-00075)
District Judge: Honorable Joy Flowers Conti
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Submitted Pursuant to Third Circuit LAR 34.1(a)
October 29, 2009
Before: SMITH, FISHER and NYGAARD, Circuit Judges.
(Filed: October 29, 2009)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Gary Lamar Denson (“Denson”) appeals from his jury conviction for the unlawful
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

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Denson argues that the Government failed to present sufficient evidence that he
knowingly possessed a firearm. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On July 1, 2005, at approximately 3:20 a.m., three narcotics detectives from the
City of Pittsburgh Police Department were patrolling the Homewood neighborhood of
Pittsburgh in an unmarked police car when one of the officers, Detective Philip Mercurio,
saw Denson standing on the sidewalk in front of 615 Collier Street, about 100 to 120 feet
away. Detective Mercurio, who was operating the police car, drove the vehicle closer to
Denson. At a distance of approximately 75 feet, Detective Mercurio observed Denson lift
up his shirt and tuck it behind what appeared to Detective Mercurio to be a black semi-
automatic pistol. Denson then ran inside the row house at 615 Collier Street.
Detective Mercurio told the other two detectives what he had seen, and they
decided to set up a surveillance of the house. When Denson returned to the sidewalk,
Detective Mercurio, who was concealed behind a fence across the street roughly 35 feet
from Denson, saw the same firearm sticking out of Denson’s waistband. Aided by a
streetlight, Detective Mercurio identified the firearm as a Colt style semi-automatic pistol.
Detective Mercurio later testified that he was familiar with the Colt pistol’s appearance

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due to his experience working with firearms and his personal ownership of a Colt pistol
for several years. Detective Mercurio also testified that Denson’s white t-shirt provided a
good background for viewing the firearm.
After calling additional officers for backup, Detectives Mercurio and Robert
Kavals, another one of the three original detectives, attempted to seize Denson; however,
when Detective Kavals identified himself as a police officer, Denson fled inside the house
and locked the door. Approximately 10 seconds later, a woman standing on the porch
used a key to reopen the door. Upon entering, Detectives Mercurio and Kavals
immediately observed Denson walk out of the kitchen and into the living room, where
four or five other individuals sat without moving. Detective Kavals patted Denson down
and, after receiving permission from the owner of the residence to search the kitchen,
found a loaded Colt .45 semi-automatic pistol inside the microwave. Detective Mercurio
identified the firearm as the one he had seen on Denson earlier, and Detective Kavals
directed another officer to arrest Denson. Thereafter, the detectives determined that
Denson did not have a permit for the pistol and that the pistol had been reported stolen.
The firearm was not tested for fingerprints.
Denson was subsequently charged with a single count of unlawful possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). After a jury trial in the
United States District Court for the Western District of Pennsylvania, a verdict was
entered against Denson on January 31, 2007. The District Court sentenced Denson to 110

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months of imprisonment, followed by three years of supervised released. Denson filed a
timely appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “We review a
defendant’s challenge to the sufficiency of evidence in the light most favorable to the
government.” United States v. Wise, 515 F.3d 207, 214 (3d Cir. 2008). We will affirm a
verdict “if a rational trier of fact could have found the defendant guilty beyond a
reasonable doubt and if the verdict is supported by substantial evidence.” United States v.
Bobb, 471 F.3d 491, 494 (3d Cir. 2006).
III.
Denson’s sole argument on appeal is that the Government failed to produce
sufficient evidence to support his conviction under 18 U.S.C. § 922(g)(1). To show that
Denson was a felon in possession of a firearm in violation of § 922(g)(1), the
Government had to establish the following elements beyond a reasonable doubt: (1) that
Denson had been convicted of a crime punishable by more than one year of
imprisonment; (2) that Denson knowingly possessed a firearm; and (3) that the firearm
had passed in interstate commerce. United States v. Dodd, 225 F.3d 340, 344 (3d Cir.
2000). Denson concedes the first and third elements, and argues only that the
Government failed to show that he knowingly possessed a firearm.

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Denson contends that the jury could not have reasonably concluded that the Colt
.45 semi-automatic pistol found in the microwave was the same object that Detective
Mercurio had previously seen on Denson’s waistband. Denson argues that Detective
Mercurio’s testimony was unreliable because his two brief observations were made at
night and from far distances – approximately 75 feet and 35 feet – and because the object
was partially obstructed by Denson’s waistband. In addition, Denson notes that there was
no testimony of any distinguishing marks or features that would have aided Detective
Mercurio in identifying the firearm and that no fingerprints were collected to confirm that
Denson had touched the firearm that Detective Kavals recovered from the microwave.
Denson’s arguments challenge the credibility of Detective Mercurio’s testimony.
However, because “[c]redibility determinations are the unique province of a fact finder
. . . . [w]here the record supports a credibility determination, it is not for an appellate
court to set it aside.” United States v. Kole, 164 F.3d 164, 177 (3d Cir. 1998). Instead,
we review the evidence in the light most favorable to the government. Wise, 515 F.3d at
214.
Here, a reasonable jury could have concluded that the object Detective Mercurio
observed on Denson’s waistband was the same Colt .45 semi-automatic pistol that
Detective Kavals later found in the microwave. Detective Mercurio testified that he twice
observed Denson with a black semi-automatic pistol in his waistband. Aided by a
streetlight, the color contrast of Denson’s white t-shirt, and his familiarity with Colt

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pistols, Detective Mercurio also testified that he was able to identify the firearm as a Colt
pistol. Both Detectives Mercurio and Kavals testified that Denson fled inside the
residence at 615 Collier Street when the detectives approached him. Finally, Detective
Kavals testified that he uncovered a loaded Colt .45 semi-automatic pistol from inside the
kitchen microwave just moments after Denson exited the kitchen, when the other
individuals inside the residence sat without moving in the living room. Therefore, taking
the evidence in its entirety, the jury could have reasonably concluded that Denson had
attempted to evade the detectives by hiding the firearm in the microwave.
IV.
In conclusion, we find that the evidence was sufficient for a rational jury to find
beyond a reasonable doubt that Denson knowingly possessed a firearm in violation of 18
U.S.C. § 922(g)(1). Accordingly, we will affirm Denson’s conviction.

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