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Dubose v. United States

Court of Appeals of The District of Columbia

August 8, 2019

Erwin Dubose, Jr., Appellant,
v.
United States, Appellee.

          Submitted April 4, 2019

          Appeal from the Superior Court of the District of Columbia 2015 CF2 008219, Hon. Juliet J. McKenna, Trial Judge

          Jenifer Wicks was on the brief for appellant Erwin Dubose, Jr.

          Jessie K. Liu, United States Attorney, and Elizabeth Trosman, T. Anthony Quinn, and Chrisellen R. Kolb, Assistant United States Attorneys, were on the brief for appellee.

          Before Fisher, Beckwith, and McLeese, Associate Judges.

          Fisher, Associate Judge

         A jury convicted appellant Erwin Dubose, Jr., of possession with intent to distribute cocaine while armed, possession of a firearm during a crime of violence or dangerous offense ("PFCV"), carrying a pistol without a license ("CPWL"), possession of an unregistered firearm ("UF"), unlawful possession of ammunition ("UA"), and possession of a large capacity ammunition feeding device. We affirmed his convictions on direct appeal. See Dubose v. United States, No. 16-CF-610, Mem. Op. & J. (D.C. Sept. 12, 2017). The trial court subsequently denied relief under D.C. Code § 23-110 (2012 Repl.), and this appeal followed. We affirm.

         I. Background

         On June 16, 2015, Metropolitan Police Department ("MPD") Officers Van Hook and McGinnis responded to a radio call for a black male wearing jeans, a white tank top, and a colorful hat, carrying a gun in front of 830 Crittenden Street, N.W. The officers saw a man matching the description at the intersection of 8th and Crittenden Streets. Officer Van Hook stopped the police vehicle and asked to talk to the man, and the man took off running. Officers Heffelman and Fitzgerald arrived at the scene and Officers Van Hook and McGinnis eventually brought appellant to the ground.

         Appellant told the officers, "I'm going to tell you, I'm going to tell you, it's in my waist, it's in my waist." An officer felt a hard object in appellant's waistband which he recognized to be a gun. A pat down and search of appellant revealed a pistol loaded with fourteen cartridges in an extended magazine, 12.2 grams of crack cocaine, and $1, 339 in cash.

         At trial, appellant testified that he had purchased the drugs the day before to cope with his sister's death and the money was from odd jobs and his family. He asserted that while he was on the way to a friend's house, he stopped to urinate in an alley, found the gun lying on the ground, and was walking to the police station to turn it in for a reward. Appellant stated that he ran when police approached because he was "confused and scared, didn't know what to do."

         This court affirmed his convictions on direct appeal, rejecting arguments that the trial court erred in denying his motion to suppress evidence and in refusing to instruct the jury on the defense of temporary innocent possession of the firearm and ammunition. See Mem. Op. & J. at 1, 5. On October 1, 2017, appellant moved to vacate his convictions for CPWL, UF, and UA, claiming that he had been denied the effective assistance of counsel and that those convictions violated the Second Amendment.[1] Judge McKenna denied appellant's motion in an order issued on June 15, 2018.

         II. Ineffective Assistance of Counsel Claim

         Appellant argued that his trial counsel was ineffective "because he failed to move to dismiss the gun charges pursuant to the Second Amendment of the United States Constitution." The trial court denied appellant's § 23-110 motion, finding that "a ...


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