United States v. Drake Banks, Sr.United States v. Drake Banks, Sr.
Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
Drake Banks was convicted of a firearms offense after police seized evidence during a traffic stop. The district court* sentenced Banks to a term of forty-eight months’ imprisonment. Banks appeals the conviction and sentence on several grounds. We discern no reversible error, and therefore affirm.
I.
On September 19, 2019, Lincoln police officer John Hudec was monitoring eastbound traffic on Interstate 80 when a silver Nissan Altima caught his attention. Hudec accelerated to follow the vehicle. He observed the Altima following another vehicle at what he believed to be an unsafe distance. Using a stopwatch, he twice clocked the Altima as traveling less than a second behind the vehicle in front of it. He then watched the Altima move from the left lane to the right lane, leaving only about forty feet between the car and a semi-truck behind.
Officer Hudec initiated a traffic stop. Hudec asked the driver, Zachary Macomber, to accompany him to his patrol car. After talking with Macomber, Hudec returned to the Altima to check the vehicle identification number and to speak with the passenger, Drake Banks. Banks and Macomber each explained that they had set out from the St. Louis area to visit Denver and were now on their way home. But they gave inconsistent accounts concerning whom they intended to visit, whether they spent any time in Denver
Hudec eventually detained Macomber, and seated him in the back seat of the patrol car. Hudec then asked Banks, who was still sitting in the Altima‘s passenger seat, whether he had any contraband in the vehicle. Banks admitted he had some “smoke,” and pulled out a plastic baggie of marijuana from the glove compartment. Hudec detained Banks, and seated him with Macomber in the patrol car.
Hudec then searched the Altima. He found marijuana crumbs throughout the cabin. He also discovered a used blunt near the center console and 1.5 grams of methamphetamine stowed inside a pill bottle in a compartment in the driver-side door. Hudec seized this drug evidence and five cellular phones.
Hudec also searched the vehicle‘s trunk. He found two Glock pistols stored in a black Nike bag, three larger “military style” pistols in a duffel bag, and two more Glock pistols that were fully loaded and wrapped in a blue towel toward the back of the trunk. One of the loaded guns, a Glock .45, bore DNA with a profile that was 1.43 trillion times more likely to match Banks than an unknown individual. The officer also uncovered several magazines and “a large amount” of ammunition.
As Hudec started his search of the rental car, his patrol car‘s interior camera recorded a distressed Banks saying “no, no, no,” and questioning why Macomber stopped for the officer. The camera also captured attempts by Banks and Macomber to escape the patrol car. At one point, the pair succeeded in unlocking the partition separating the back seat from the front cabin, and Macomber was able briefly to push open the front passenger-side door before retreating to the back seat.
A grand jury charged Banks with unlawful possession of a firearm by an unlawful user of a controlled substance. See
After the trial, a jury found Banks guilty. At sentencing, the district court applied a two-level increase under
II.
Banks first challenges the district court‘s denial of his motion to suppress. He asserts that the traffic stop was not justified at its inception, and that all evidence discovered during the stop should be suppressed as fruit of an unlawful seizure. The government responds that Officer Hudec observed the driver of the Altima commit two traffic violations: (1) following too closely, see
An officer‘s observance of a traffic violation, no matter how minor, gives the officer probable cause to initiate a stop. United States v. Cox, 992 F.3d 706, 709 (8th Cir. 2021). Hudec testified that he twice timed the Altima as traveling less than a second behind the vehicle in front of it—once at 0.9 seconds and once at 0.8 seconds. Nebraska law prohibits “follow[ing]
III.
Banks also argues that the district court erred when it denied his motions in limine to exclude certain evidence at trial. We review a district court‘s evidentiary rulings, including its decision to deny a motion in limine, for abuse of discretion. United States v. Petroske, 928 F.3d 767, 771 (8th Cir. 2019).
Banks first disputes the admission of four government exhibits. Exhibits 22C and 22D are videos showing Banks and Macomber handling handguns inside the Altima. Exhibits 25A1 and 25A2 are images of a green, leafy substance consistent with the appearance of marijuana. These exhibits were extracted from a pair of cellular phones that Banks was holding during the traffic stop. Banks contends that the exhibits depicted events that occurred before the traffic stop and are not relevant to the charged offense.
Evidence is relevant if it has “any tendency” to make a fact of consequence “more or less probable.”
The photographs of suspected marijuana also were relevant. The pictures were taken on July 19, 2019, and September 1, 2019, within two months and three weeks, respectively, of the traffic stop on September 19. The drug-user-in-possession firearms offense under
Banks next asserts that the same four exhibits were “overly prejudicial.” A court may exclude evidence if its probative
Banks argues briefly that these exhibits should not have been admitted because they “lacked in foundation.” But “‘foundation’ is simply a loose term for preliminary questions designed to establish that evidence is admissible.” A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001). As best we can tell, Banks suggests that the government failed to show that the exhibits were authentic, because the prosecution did not produce a witness who was present when the exhibits were created.
To authenticate the challenged exhibits, the government needed only to “produce evidence sufficient to support a finding” that the exhibits were what the government claimed they were.
Banks further asserts that the district court should have excluded as unduly prejudicial the evidence of his attempted escape from the patrol car. It is well established, however, that evidence of flight is admissible to show consciousness of guilt. United States v. Davis, 867 F.3d 1021, 1030 (8th Cir. 2017). The district court did not abuse its discretion in concluding that a jury reasonably could infer that Banks sought to flee the patrol car because he recognized that officers were on the brink of discovering his unlawful possession of firearms in the trunk of the rental car. Banks‘s efforts to escape coincided with Hudec‘s search of the Altima‘s trunk and with Banks‘s anxious statements about that search. The evidence was properly admitted.
IV.
Banks next argues that there was insufficient evidence to sustain his conviction. Under
There was substantial evidence that Banks used controlled substances.
There was also sufficient evidence that Banks possessed a firearm. Firearm possession “may be actual or constructive, sole or joint.” United States v. Vega, 720 F.3d 1002, 1003 (8th Cir. 2013). A reasonable jury could have found that Banks had actually possessed at least one firearm that likely bore his DNA, and maintained joint constructive possession of all seven firearms found in the Altima‘s trunk. Banks had shared dominion over the vehicle for at least the duration of his trip with Macomber. As Hudec initiated his search of the trunk, Banks made anxious statements from which a jury could have inferred that Banks knew what was in the trunk. The jury also heard testimony about DNA evidence connecting Banks to the Glock .45 handgun found in the trunk, and watched footage of Banks wielding a Glock inside the rental car fifteen days before the traffic stop. Banks objects that much of this evidence is “merely circumstantial,” but circumstantial evidence can support a conviction, and the combination of direct and circumstantial evidence here was sufficient to support a finding that Banks was guilty beyond a reasonable doubt.
V.
Finally, Banks asserts that the district court erred at sentencing when it applied a two-level increase under the guidelines for an offense that involved three to seven firearms. See
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The judgment of the district court is affirmed.