UNITED STATES оf America, Plaintiff-Appellee v. Delvonn BATTLE, Defendant-Appellant.
No. 13-3134.
United States Court of Appeals, Eighth Circuit.
Submitted: Sept. 11, 2014. Filed: Dec. 22, 2014.
774 F.3d 504
A jury should determine whether it was objectively reasonable for the officers to have the allegedly-mistaken perception or belief Partlow posed an immediate threat to their safety, i.e., whether it was reasonable for the officers to believe Partlow was going to imminently shoot them. Evidence presented by Partlow indicates he was not threatening the officers; he was not holding the gun in a shooting position; he was talking on the phone rather than aiming the gun; he was turning his back to the officers at the time he exited the building; the officers were tactically hiding themselves; the officers failed to give Partlow any meaningful verbal warning before employing deadly force; Partlow responded to the officers by turning to place the gun on the ground rather than firing; and the most senior and experienced officer did not fire his weapon. Even given the fact Partlow was holding a gun, Partlow‘s “evidence create[s] genuine issues of material fact concerning whether the force used was objectively reasonable in light of the facts and circumstances confronting [the officers].” Rohrbough, 586 F.3d at 586 (internal quotation marks omitted).
A jury should also determine whether a warning under these circumstances was feasible. Partlow has presented evidence showing the officers fаiled to warn Partlow of their presence and failed to meaningly warn Partlow they intended to shoot. An officer‘s failure to assess the situation and give any feasible warning “adds to the unreasonableness” of an officer‘s actions. Ngo v. Storlie, 495 F.3d 597, 603 (8th Cir.2007).
Because the officers’ actions are not protected by qualified immunity, I would affirm the district court.
Justin A. Lightfoot, AUSA, argued, Cedar Rapids, IA, for Appellee.
Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Delvonn Battle was convicted of being a felon in possession of a firearm, in violation of
I. Background
We recount the evidence in the light most favorable to the jury‘s verdict. United States v. Stevens, 439 F.3d 983, 986 (8th Cir.2006). On January 13, 2012, two Waterloo, Iowa police officers, Michael Girsch and Spencer Gann, were conducting surveillance on an apartment complex where they suspected a subject with an outstanding warrant was hiding. The officers saw several individuals getting into a parked vehicle behind the complex. As the vehicle exited the complex, the officers noticed its rear license plate was not properly lit and initiated a traffic stop. The officers observed that the vehicle, which was moving 10 to 15 miles per hour, stopped slowly, tаking approximately 20 seconds to come to a complete stop.
There were three individuals in the vehicle: the driver, Ryan Marshall; the front seat passenger, Battle; and a back right passenger, Darrel Hardy. Their identification cards showed that all three men were from Des Moines, Iowa. Officer Girsch asked Marshall to exit the vehicle so he could show him the lighting problem. Officer Gann talked to Battle and Hardy, who both remained in the car. The officers noticed inconsistencies among the three mens’ accounts as to why they were in Waterloo and what stops they had made during their trip.
A third officer, Officer Bose, arrived on the scenе with a drug detection dog. Based on the vehicle‘s slow stop and the occupants’ inconsistent accounts, the officers became suspicious and asked Battle and Hardy to exit the vehicle so they could conduct a dog sniff. When Hardy exited the vehicle, he fled from the scene. Officer Gann immediately pursued on foot and Officer Girsch followed shortly after, leaving Officer Bose at the vehicle with Marshall and Battle. Hardy ran about 35 yards before being apprehended. The pursuing officers did not observe him discarding anything while he was running and did not find any contraband when they retraced his steps in the snow. The officers arrested Hardy and searched the vehicle, where they found a Ruger 9-millimeter handgun that contained a loaded
Officer Gann interviewed Battle at the police station. During that interview, Battle stated he did not have family in Waterloo, though he had said at the scene that he did. Battle also told Officer Gаnn the trio had just arrived in Des Moines when they were pulled over and had only made one stop, in Dike, Iowa. He did not admit they had stopped at the apartment complex where officers first observed their vehicle. Battle denied possessing the firearm or knowing it was in the vehicle. Police initially suspected the gun had been placed by the back seat passenger and charged only Marshall and Hardy with possession.
Further investigation implicated Battle‘s possession of the gun. The photographs from the scene showing the gun‘s position under the seat indicated it had been placed there from the front. The photographs also led officers to believe the gun could not have been pushed under the front seat from the rear seat area because of how the debris was positioned and because the tubing under the front seat blocked access to the handgun from the rear. Recordings of Hardy‘s prison phone conversations included discussions with Marshall about the firearm and “DV,” a nickname Battle uses, and with both Marshall and Battle about how Hardy would handle his charges. When an investigator interviewed Battle on January 21, 2012, he denied talking to Hardy on the phone while he was in prison and denied using the nickname “DV.” Shortly after the Waterloo incident, Hardy agreed to testify against Marshall and Bаttle in exchange for his charges being dropped. The state filed charges against Marshall and Battle for being felons in possession of a firearm. Marshall was convicted in state court, but the state charges against Battle were dropped in favor of federal charges. In December 2012, investigators interviewed another man, Lonnie Williams, who told them that Battle, who he knew only as “DV,” was the shooter in a December 4, 2011 shooting Williams witnessed in a Des Moines gas station parking lot. In January 2013, Waterloo police received a lab report matching the Waterloo firearm to casings from the 2011 Des Moines shooting. Battle was federally chargеd with being a felon in possession of a firearm.
The district court granted the government‘s pre-trial motion to admit evidence concerning the Des Moines shooting at Battle‘s trial, holding it was admissible as direct evidence probative of the crime charged and thus not subject to the analysis for admissibility of character evidence under
The court also considered and denied several motions Battle made during trial. On the first day of trial, Battle made an oral motion to admit evidence of Hardy‘s prior conviсtions and other criminal acts. The government listed Hardy as a potential witness, so both parties presented arguments about admission of the convictions as impeachment evidence under
After a two-day trial, the jury convicted Battle of being a felon in possession of a firearm. The Presentence Report (PSR) placed Battle in criminal history category VI based on his criminal history score of 17. The PSR recommended a total offense level of 29 based on the charged offense and a finding that Battle committеd the Des Moines shooting and caused serious bodily injury to that victim. The Guidelines established an imprisonment range of 151 to 188 months, and the PSR recommended the 120-month statutory maximum sentence, pursuant to section
Battle now appeals the admission of the Des Moines shooting evidence, exclusion of Hardy‘s prior bad acts evidence, denial of judicial immunity for Marshall, denial of his motion for acquittal, application of the sentencing enhancement, and the reasonableness of his sentence.
Battle argues the district court erred in admitting evidence of the Des Moines shooting because it was too remote to be considered direct evidence and thus was evidence of crimes, wrongs, or other acts, improperly offered to suggest his propensity to commit thе charged crime. See
When “evidence of other crimes ... tends logically to prove any element of the crime charged ... it is admissible as an integral part of the immediate context of the crime charged ... [and] is not extrinsic and therefore is not governed by Rule 404(b).” United States v. Bass, 794 F.2d 1305, 1312 (8th Cir.1986) (internal quotation marks and citations omitted). To convict Battle under
The government can prove knowing possession by showing actual or constructive possession, and possession can be sole or joint. Id. at 846-47. Constructive possession “is established if the person has dominion over the premises where the firearm is located, or control, ownership, or dominion over the firearm itself.” Id. at 847 (quoting United States v. Boykin, 986 F.2d 270, 274 (8th Cir.1993)). “Mere physical proximity to a firearm is not enough to show constructive possession, but knowledge of [a firearm‘s] presence, combined with control is constructive possession.” United States v. Mann, 701 F.3d 274, 304-05 (8th Cir.2012) (internal quotation marks omitted), cert. denied, U.S. —, 134 S.Ct. 470, 187 L.Ed.2d 316 (2013). As “a jury rarely has direct evidence of a defendant‘s knowledge of a firearm‘s presence ... knowledge is generally established through circumstantial evidence.” Id. at 305 (internal quotation marks omitted). Prior possession of a firearm is directly relevant to proving later possession of that same weapon because it helps establish ownership or control of the weapon. United States v. Adams, 604 F.3d 596, 599 (8th Cir.2010); United States v. Rock, 282 F.3d 548, 551 (8th Cir.2002). Limited evidence of a prior crime committed by the defendant with the same firearm may be admitted in a felon-in-possession case because it is highly probative of the defendant‘s possession of that weapon. United States v. Flenoid, 415 F.3d 974, 976-77 (8th Cir.2005).
The firearm police found in the vehicle in Waterloo was the same handgun used in the prior Des Moines shooting. As there were three individuals in the vehicle in which the handgun was found and no one was in actual possession of the firearm, the government had to prove constructive possession. Evidence that Battle used the firearm previously is highly probative of his ownership or subsequent control over it, which supports a finding of constructive possession. See Adams, 604 F.3d at 599; Flenoid, 415 F.3d at 977. Sincе this evidence “tend[ed] logically to prove [an] element of the crime charged,” it was direct evidence and was not subject
Battle also argues the evidence was unduly prejudicial because it created a “trial within a trial,” diverting significant time and attention to proving he committed an uncharged crime. See
III. Exclusion of “Reverse 404(b)” Evidence
Battle claims the district court erred in excluding evidence of Hardy‘s prior convictions and other bad acts, which he sought to introduce to suggest Hardy was in sole possession of the firearm. “We review a district court‘s ruling excluding evidence for an abuse of discretion.” Clark v. Martinez, 295 F.3d 809, 812 (8th Cir.2002). “Absent an abuse of discretion, this Court will not substitute its judgment for the judgment of the district court.” Id. Battle challеnges the exclusion of this evidence as “reverse 404(b)” evidence.
Battle sought to introduce evidence of a number of prior convictions, dismissed charges, and facts and circumstances underlying these prior bad acts, extending back more than 15 years to include incidents that occurred when Hardy was a juvenile. The table of evidence Battle proffered included more than 20 charges between 1996 and 2012. The convictions included assault with a weapon, multiple counts of possession of controlled substances, burglary, theft, and a 2000 conviction for being a felon in possession of a firearm. The dismissed charges and underlying facts included instances where Hardy ran from police or had a firearm when he was apprehended. While Battle acknowledged that this evidence “starts to sound like propensity,” he claimed he sought to introduce it for non-propensity purposes. He argued he would use the
If the party introducing
Battlе advanced two primary theories for the evidence‘s non-propensity purpose: (1) modus operandi and (2) knowledge and intent. The district court considered each of Hardy‘s prior convictions and found that neither theory demonstrated how the evidence was relevant to any material issue at trial. Battle‘s motion and appeal focus on admitting this evidence to show Hardy‘s modus operandi of carrying guns and running from police. The generic nature of this theory is insufficient to prove modus operandi. See United States v. Carroll, 207 F.3d 465, 468 (8th Cir.2000). A viable modus operandi theory must show a pattern of behavior that is “sufficiently idiosyncratic” to make the acts “clearly distinсtive” from other instances of the same criminal behavior. Id. Absent this distinctiveness, “evidence of the prior crime is ‘nothing more than the character evidence that Rule 404(b) prohibits.‘” Id. (quoting United States v. Smith, 103 F.3d 600, 603 (7th Cir.1996)). A history of running from police when confronted, sometimes while carrying a weapon, does not meet this high bar. And the district court noted that even if this could establish a modus operandi, it would not be relevant to proving or disproving Battle‘s knowing possession of the firearm.
On knowledge and intent, the court found the bulk of the convictions and underlying facts and circumstances were also irrelevant to any issue at trial. It noted that Hardy‘s felon-in-possession conviction may have been admissible if he had testified he had never owned a handgun or was not familiar with handling or operating firearms, but it was otherwise not clearly relevant because his knowledge and familiarity with handguns was not at issue. As the government agreed that Hardy knew the gun was in the car and intended to
The court then considered the risk of distraction and waste of time arising from the presentation of this evidence and decided it substantially outweighed any minimal probative value the evidence may have offered. See
IV. Judicial Immunity
Battle argues the district court erred in refusing to grant judicial immunity to Marshall so he could testify about drugs and a firearm magazine he said he recovered when he retraced Hardy‘s steps the day after their arrest. “Judicial immunity is a concept that comes from case law holding that a court has inherent authority to grant use immunity to witnesses, in the absence of a government request, to secure essential exculpatory testimony.” United States v. Campbell, 410 F.3d 456, 464 (8th Cir.2005). There is no clear standard of review for a denial of judicial immunity because the Eighth Circuit has not recognized the concept of judicial immunity. See id.; United States v. Washington, 318 F.3d 845, 856 (8th Cir.2003). Thus we find no error in the court‘s refusal
V. Motion for Acquittal
Battle contends that the district court erred in refusing to grant his mоtion for acquittal based on insufficient evidence. We review the denial of a motion for judgment of acquittal de novo, evaluating “the evidence in the light most favorable to the government and draw[ing] all reasonable inferences in its favor.” United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir.2004). “We reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” Id. (quoting United States v. Frank, 354 F.3d 910, 916 (8th Cir.2004)).
As noted previously, the government only had to prove Battle knowingly possessed the firearm. It could do so by showing “he had actual or constructive possession of the firearm, and possession of the firearm could have been sole or joint.” Walker, 393 F.3d at 846-47. Constructive possession can be proved by showing “‘control, ownership, or dominion over the firearm itself‘” or the premises where it is found. Id. at 847 (quoting Boykin, 986 F.2d at 274). A defendant‘s prior use of a firearm is probative of his ownership and control of that weapon and thus probative of his later possession. Flenoid, 415 F.3d at 977. Circumstantial evidence, such as the location of the firearm when it is found or the defendant‘s deceitful behavior during questioning, is also probative of possession. United States v. Bradley, 473 F.3d 866, 868 (8th Cir.2007); Walker, 393 F.3d at 847.
The government‘s evidence of the position of the firearm when it was found, Battle‘s previous possession of the firearm, and his dishonesty with officers was sufficient proof for a reasonable jury to find beyond a reasonable doubt that Battle knowingly possessed the firearm in Waterloo. The firearm was found directly underneath Battle‘s seat. See Walker, 393 F.3d at 847 (location of firearm under defendant‘s seat was evidence of his possession). Police testified the gun‘s position under the front seat was consistent with placement from the front and it would have been difficult or impossible for someone to place it under the seat from the rear. The photographs showed that debris on the floor of the backseat and tubing underneath the front seat would have obstructed Hardy‘s access to the firearm from the backseat. The Des Moines shooting evidence indicated Battle‘s prior ownership or control over the firearm, which supported a finding that he possessed that same firearm just five weeks later. See Adams, 604 F.3d at 599; Flenoid, 415 F.3d at 977. While Battle contests the credibility of the witnesses identifying him as the shooter, “[t]he jury has the sole responsibility to resolve conflicts or contradictions in testimony, and credibility determinations are resolved in favor of the verdict.” United States v. Wiest, 596 F.3d 906, 910 (8th Cir.2010). Investigators testified that Battle lied to them on multiple occasions, giving inconsistent accounts during the Waterloo incident and denying he was involved in jail phone conversations with Hardy and that he used the nickname “DV.” The jury could reasonably find Battle‘s dishonesty incriminating. See United States v. Chatmon, 742 F.3d 350, 353 (8th Cir.2014) (jury could infer that lying indicatеd consciousness of guilt); Walker, 393 F.3d at 847 (lying supported knowing possession of a firearm). Taken together, this evidence was sufficient for a reasonable jury to find beyond a reasonable doubt that Battle knowingly possessed the firearm.
VI. Sentencing Enhancement
Battle challenges the court‘s application of a four-level sentencing enhance-
“We review de novo the ‘legal conclusions a district court reaches in order to apply an enhancement for purposes of calculating an advisory guidelines range ... while the factual findings underpinning the enhancement are reviewed for clear error.‘” United States v. Butler, 594 F.3d 955, 965 (8th Cir.2010) (quoting United States v. Septon, 557 F.3d 934, 936 (8th Cir.2009)). In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. In Alleyne, the Court extended Apprendi to hold that facts which increase a defendant‘s mandatory minimum sentence must also be submitted to the jury. 133 S.Ct. at 2155. “Regarding whether a jury is required, application of a statutory maximum or minimum are to be distinguished from ‘factfinding used to guide judicial discretion in selecting a punishment within limits fixed by law.‘” United States v. Davis, 753 F.3d 1361, 1361-62 (8th Cir.) (per curiam) (quoting Alleyne, 133 S.Ct. at 2161 n. 2), cert. denied, 135 S.Ct. 393 (2014). In applying the section 2K2.1(b)(6)(B) enhancement, the court neither exceeded the statutory maximum nor increased a statutory mandatory minimum. See
The section 2K2.1(b)(6)(B) enhancement applies if a firearm facilitated another felony offense, which the Guidelines define as an offense “punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.”
VII. Downward Variance
Finally, Battle claims his sentence was unreasonable because the court denied his motion for downward sentencing variance. “We review all sentences, whether inside or outside the Guidelines range, under a deferential abuse of discretion standard.” United States v. Martinez, 557 F.3d 597, 599 (8th Cir.2009) (quoting United States v. Pepper, 518 F.3d 949, 951 (8th Cir.2008)). Battle argues his sentence should have been reduced to avoid disparities with Hardy and Marshall‘s punishments. One of the section 3553(a) factors that courts are to consider is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
VIII. Conclusion
Having reviewed the record carefully, and having considered all of the arguments on appeal, we find no basis for reversal. Thus we affirm Battle‘s conviction and sentence.
BOBBY E. SHEPHERD
UNITED STATES CIRCUIT JUDGE