United States v. Brian Trotter
721 F.3d 501
8th Cir.
2013
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Docket

UNITED STATES of America, Plaintiff-Appellee, v. Brian TROTTER, Defendant-Appellant.

No. 12-2622.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 18, 2013. Filed: July 17, 2013.

Rehearing and Rehearing En Banc Denied Sept. 3, 2013.

722 F.3d 1133

fact that parties to a document have or suggest opposing interpretations of the document does not necessarily, or by itself, compel the conclusion that the document is ambiguous.“). Only the panel majority finds an ambiguity here.6

When the contract has no ambiguity, the contract‘s interpretation, viewing the contract as a whole, becomes a question of law. . Although Friend conceded lack of ambiguity and did not discuss ambiguity in any detail, the district court, contrary to the majority opinion‘s reference, ante at 498, did “meaningfully analyze whether the 2002 franchise agreements are ambiguous.” The district court thoroughly analyzed the contract language and determined the provisions of § 2.F., when “read naturally and together” with the provisions governing renewals, contravened Friend‘s “strained” interpretation. As the district court explained, “§ 2.F[.] creates a floor, not a ceiling.” The district court reasoned-Section 2.F. does not prohibit Home Instead

from raising the minimum amount. A minimum of $70,000 includes, and is not inconsistent with, a minimum of $30,000.

. . . .

Home Instead may ... continue to update the standard requirements for new franchises, and insist that renewing franchises conform. This serves two important functions. First, it allows Home Instead to maintain relatively uniform franchise agreements. . . . Second, it prevents Home Instead from being stuck with terms that have ceased being profitable or are failing to account for current market conditions.

. . . .

[Friend] cannot demonstrate any probability that they will succeed on the merits. This is the 800-pound gorilla in the room, and it is not going to budge, even if the remaining Dataphase factors all joined in pushing.

I agree. I would affirm the well reasoned judgment of the district court.

Steven E. Achelpohl, Omaha, NE, for Appellant.

Nancy A. Svoboda, AUSA, Omaha, NE, for Appellee.

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Brian Trotter was charged with unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Trotter pleaded not guilty, and the case proceeded to trial. At the close of the government‘s case, Trotter moved for a judgment of acquittal, contending that the government had adduced insufficient evidence of identity and venue. The district court1 denied the motion, and the jury convicted Trotter. The court sentenced Trotter to 110 months’ imprisonment. Trotter appeals, and we affirm.

I.

Clay Nolte, a senior special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives, was investigating armed drug dealers in Omaha, Nebraska, during February and March of 2011. Nolte learned from a confidential informant that a methamphetamine dealer named Brian Trotter wanted to purchase guns. Nolte ran a background check on Trotter and discovered that he was a convicted felon who was prohibited from possessing firearms. Nolte spoke to Trotter over the phone, and they arranged to meet at an apartment building on March 7, 2011. At the meeting, Nolte showed Trotter four firearms, and Trotter paid for two of them with a combination of cash and methamphetamine. After Nolte handed Trotter the guns, other officers entered the apartment and arrested Trotter.

During his testimony at trial, Nolte identified the guns that he sold to Trotter, stated that they were still in the same condition, and said that he had tested the guns to ensure they could fire live rounds. A different agent with specialized training in firearms testified that the guns were not produced in Nebraska, so they must have moved in interstate commerce.

Trotter stipulated that he previously had been convicted of a felony. The stipulation-agreed to by “the plaintiff, United States of America, and the defendant, Brian Trotter“-was read into evidence. After reading the stipulation, the government rested its case.

Trotter moved for a judgment of acquittal. He argued that there was insufficient evidence of identity, because no witness identified the Brian Trotter in the courtroom as the same Brian Trotter who purchased the guns on March 7. He also maintained that there was no evidence establishing that venue was proper-that is, that the crime occurred in the District of Nebraska. The district court denied the motion as to venue, but reserved judgment as to identity. Trotter presented no evidence and rested his case. The jury convicted Trotter, and the district court denied Trotter‘s motion for judgment of acquittal. Before sentencing, Trotter moved for a new trial, again contending that the evidence was insufficient to sup-

port his conviction. The court denied the motion.

At sentencing, the district court determined that Trotter‘s base offense level was 24, based on two prior felony convictions for crimes of violence: (1) assault by a confined person, and (2) possession of a short-barreled shotgun. See USSG § 2K2.1(a)(2). The court also found that during the instant offense, Trotter possessed the firearms in connection with another felony-possession with intent to distribute methamphetamine-and therefore applied a four-level enhancement pursuant to USSG § 2K2.1(b)(6)(B). The court sentenced Trotter within the advisory guideline range to 110 months’ imprisonment. Trotter appeals, arguing that the district court committed multiple errors.

II.

Trotter‘s lead argument is that the court erred by denying his motion for judgment of acquittal because there was insufficient evidence to establish identity. Trotter contends that none of the testimony about “Brian Trotter” gave the jury a sufficient basis to conclude that the Brian Trotter in the courtroom was the same Brian Trotter who possessed the firearms. We review the denial of a motion for acquittal de novo, reversing only if no reasonable jury could have found Trotter guilty beyond a reasonable doubt. .

There was sufficient evidence to support the jury‘s finding that the defendant was the person who committed the offense. “Courtroom identification is not necessary when the evidence is sufficient to permit the inference that the defendant on trial is the person who committed the acts charged.” (internal quotation and alteration omitted). Although much of the testimony established only that a “Brian Trotter” possessed the weapons, the prosecution linked some evidence to the defendant in the courtroom. The government introduced the testimony of the arresting officer, who answered affirmatively that his “responsibility [was] to take down the defendant,” T. Tr. 61 (emphasis added), and that he arrested “Mr. Brian Trotter.” T. Tr. 62. At trial, the government read into evidence a stipulation between the United States and “the defendant, Brian Trotter.” T. Tr. 212. Because there was only one defendant on trial, the jury reasonably could have inferred that “the defendant” named Brian Trotter whom the officer arrested was the same “defendant” named Brian Trotter who appeared at the trial and executed the stipulation. See .

Trotter also argues that there was insufficient evidence to establish that the crime occurred in the District of Nebraska. The government must prove venue by a preponderance of the evidence. . One officer testified that the sting operation occurred “here in the Omaha area.” T. Tr. 21. Another officer was asked, “where in Omaha is the apartment,” and replied that it was “in the area of I-80 and 72nd Street exit.” T. Tr. 121. That evidence was sufficient to permit an inference that the crime occurred in the District of Nebraska. We therefore conclude that the district court did not err in denying Trotter‘s motion for judgment of acquittal. For essentially the same reasons, there was no miscarriage of justice, and the court did not abuse its discretion in denying Trotter‘s motion for new trial.

Trotter‘s three remaining arguments are without merit. First, he argues

that the district court abused its discretion by admitting the firearms into evidence. “Where a ... physical object is offered as evidence in a criminal prosecution, an adequate foundation for the admission of that object requires testimony first, that such object is the same object which was involved in the alleged incident, and that the condition of that object is substantially unchanged.” (internal quotation omitted). Agent Nolte established that the weapons introduced at trial were the same as those he handed to Trotter in the undercover transaction. Nolte also testified that the condition of the guns at trial was the same as their condition on March 7. That testimony established a foundation for the admission of the firearms, so the court did not abuse its discretion.

Next, Trotter argues that the district court committed procedural error at sentencing when it found that he previously had been convicted of two crimes of violence-assault by a confined person and possession of a short-barreled shotgun. See USSG § 2K2.1(a)(2). Trotter argues that possession of a short-barreled shotgun is not a crime of violence, but this contention is foreclosed by circuit precedent. . The district court correctly calculated Trotter‘s base offense level.

Finally, Trotter says the court erred at sentencing by finding, for purposes of USSG § 2K2.1(b)(6)(B), that he possessed the guns in connection with another felony-namely, possession with intent to distribute methamphetamine. He argues that the government failed to prove at trial that the substance he brought to the apartment on March 7 was methamphetamine. Whatever the evidence at trial, the government introduced at sentencing a laboratory report that supported the district court‘s finding that Trotter gave Nolte methamphetamine in exchange for the firearms. Trotter offers no reason to doubt the accuracy of the report, so we see no clear error in the district court‘s determination.

The judgment of the district court is affirmed.

Notes

1
The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska.
6
The majority opinion in footnote 3 misses my point: we always may accept a concession by a party-here, non-ambiguity. Of course, we may evaluate whether the contract language is ambiguous, which the district court did, and in which I concur. The district court rejected both parties’ interpretations and itself interpreted the language of § 2.F. Further evaluation of the parties’ respective interpretations is unnecessary because the provisions of § 2.F. use “clear and unambiguous language.” .