United States v. Nicholas Ryan Hemsher
893 F.3d 525
| 8th Cir. | 2018Background
- In Feb 2016 police investigated a burglary of Jack Hulscher's home; two safes and multiple firearms were reported stolen and later matched to eight recovered guns.
- Nicholas Hemsher was indicted on possession of stolen firearms (18 U.S.C. § 922(j)) and being a felon in possession (18 U.S.C. § 922(g)(1)); three co-defendants were charged, two of whom pleaded guilty and cooperated at trial (Wingler and Marshall).
- Evidence included: (1) Wingler and Marshall testifying that Hemsher had guns at his tattoo shop, transferred them to Wingler for sale, and communicated about prices; (2) seven guns found in Wingler's apartment and one gun in a Camry Hemsher had driven; (3) testimony that Hemsher threatened Marshall and pressured retrieval of guns; (4) text messages and witness statements suggesting Hemsher called Wingler a "snitch."
- Hemsher was convicted on two counts (possession of stolen firearms; felon in possession). The district court enhanced his sentence for (a) eight firearms, (b) possession in connection with another felony (trafficking), and (c) obstruction of justice; resulting Guidelines range 120–150 months, and the court imposed concurrent 120-month sentences.
- On appeal Hemsher challenged sufficiency of the evidence, two hearsay exclusions (impeachment evidence and an alleged excited utterance), and the three Guidelines enhancements and overall reasonableness of his sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to convict on possession counts | Hemsher: cooperating witnesses were too inconsistent and self-interested; no reasonable juror could credit them | Government: testimony, circumstantial evidence, and admissions tied Hemsher to guns (tattoo shop, texts, Camry, threats) | Conviction affirmed; evidence (actual/constructive possession and knowledge of stolen nature) sufficient; not an "extraordinary" credibility case |
| Exclusion of detective's testimony as impeachment under Fed. R. Evid. 613(b) | Hemsher: court erred by excluding extrinsic prior inconsistent statements through the detective | Government: sought to admit statements for truth; court ruled hearsay | Court: exclusion was error if viewed as Rule 613(b) evidence, but not plain error because defendant failed to lay foundation at trial and inconsistencies were already explored on cross-examination |
| Exclusion of neighbor's testimony (claimed excited utterance) | Hemsher: neighbor could testify about officers' statements during search as excited utterance to support Marshall's credibility | Government: statements were hearsay and not within an exception | Court: properly excluded; even if excited-utterance might apply, exclusion did not plainly affect substantial rights |
| §2K2.1(b)(1)(B) firearms-count enhancement (8 firearms) | Hemsher: count improperly based on unreliable witness testimony and lack of proof he entered apartment | Government: seven guns in Wingler's apt and one in Camry driven by Hemsher; supporting texts and testimony | Court: affirmed; clear-error standard satisfied—eight firearms attributable to Hemsher |
| §2K2.1(b)(6)(B) enhancement (use/possession in connection with another felony—trafficking) | Hemsher: Guidelines commentary excludes "trafficking" as the "another felony offense" supporting the enhancement | Government: possession was connected to trafficking; guidance construes commentary to exclude only the underlying firearm offense of conviction | Court: affirmed; follows precedent that note 14(C) excludes only the underlying offense of conviction, permitting enhancement where possession is connected to a separate trafficking offense |
| §3C1.1 obstruction enhancement | Hemsher: alleged error applying obstruction for witness intimidation | Government: text messages and other conduct showed attempts to influence witnesses | Court: affirmed; district court's obstruction finding not clearly erroneous |
| Sentencing reasonableness / disparity with co-defendants | Hemsher: 120 months unreasonable compared to short sentences for cooperating co-defendants | Government: cooperators pleaded, accepted responsibility, and received below-guidelines sentences | Court: affirmed; sentence at bottom of Guidelines range presumptively reasonable and no undue disparity shown |
Key Cases Cited
- United States v. Jackson, 365 F.3d 649 (8th Cir. 2004) (constructive possession may be shown by circumstantial evidence)
- United States v. Eagle, 498 F.3d 885 (8th Cir. 2007) (extrinsic evidence of prior inconsistent statements under Rule 613(b))
- United States v. Jackson, 633 F.3d 703 (8th Cir. 2011) (interpretation of application note narrowing what counts as "another felony offense")
- United States v. Walker, 771 F.3d 449 (8th Cir. 2014) (clarifying application-note interpretation after 2011 Guidelines amendments)
- United States v. Dixon, 822 F.3d 464 (8th Cir. 2016) (preponderance standard for §2K2.1(b)(6) finding that a separate felony was facilitated by the firearm)
- United States v. Crenshaw, 359 F.3d 977 (8th Cir. 2004) (standard on reviewing witness credibility and when extraordinary circumstances permit appellate reweighing)