United States of America v. Michael John Walker
No. 15-2921
United States Court of Appeals for the Eighth Circuit
October 18, 2016
Appeal from United States District Court for the District of Minnesota - St. Paul. Submitted: May 18, 2016. Filed: October 18, 2016. Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
A jury convicted Michael Walker of being a felon in possession of a firearm and ammunition. Based on Walker‘s criminal history, the district court sentenced him to 20 years in prison under the Armed Career Criminal Act (ACCA),
I. Background
On January 21, 2014, Walker was charged in a two-count indictment with being a felon in possession of a firearm, and being a felon in possession of ammunition, both in violation of
II. Discussion
A. Motion to Suppress Evidence
During the suppression hearing before a magistrate judge, Minneapolis police officers James Golgart and Jeremy Foster testified as follows. In the early morning hours of September 30, 2013, Golgart and Foster were on patrol, when Walker,
Golgart acknowledged that, in 2010, he had been the subject of an internal affairs (IA) investigation regarding an incident in which he examined a suspicious suitcase without contacting the bomb squad. He testified that he was terminated from the police department after the investigators concluded that he had given a false statement during the IA investigation, but that his termination was later rescinded and replaced with a 40-hour suspension without pay for his failure to use proper discretion regarding the suspicious suitcase.
On appeal, Walker does not dispute that the BMW‘s windshield was cracked; he asserts only that the windshield was not cracked to such an extent that it impeded the driver‘s view, and he argues that Golgart therefore lacked a valid basis for the traffic stop. Walker also argues that Golgart impermissibly extended the traffic stop beyond the time necessary to investigate the cracked windshield, citing Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015), which held that an officer‘s authority for conducting a traffic stop ends when tasks related to the traffic infraction are, or reasonably should have been, completed.
“We review the denial of a motion to suppress de novo but the underlying factual determinations for clear error, giving due weight to inferences drawn by law enforcement officials.” United States v. Hurd, 785 F.3d 311, 314 (8th Cir. 2015) (quoting United States v. Clutter, 674 F.3d 980, 982 (8th Cir. 2012)). We will affirm unless the denial of the motion is unsupported by substantial evidence, is based on an
“Under the
Walker also contends that Golgart impermissibly extended the traffic stop beyond the time necessary to investigate the cracked windshield. In Rodriguez, the Supreme Court held that a police officer may conduct checks unrelated to a traffic stop, but he may not do so in a manner that prolongs the stop, “absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Rodriguez, 135 S. Ct. at 1615. Under the automobile exception to the
Walker also challenges the district court‘s denial of his motion to reopen the suppression issue. We review the denial of a motion to reopen a suppression issue for abuse of discretion. United States v. Chavez Loya, 528 F.3d 546, 555 (8th Cir. 2008). The only evidence Walker sought to present related to the allegation that he was blocking a crosswalk at or near the time of the traffic stop. Given that the district court determined that the traffic stop was valid based on the crack in the BMW‘s windshield, we cannot say that the court abused its discretion by denying his motion
B. Motion to Dismiss
On June 24, 2014, two weeks after the denial of Walker‘s suppression motion, the government filed its motions in limine in anticipation of the then-scheduled June 30 trial date. The next day, Walker‘s counsel moved for a competency evaluation, and then moved to withdraw as counsel. The district court granted the motions, directed the Attorney General to conduct an evaluation, and ordered that the report be returned “within 30 days or as soon as possible.” However, Walker was not transported to the Metropolitan Correctional Center (MCC) in Chicago, Illinois, for the evaluation until late August. On September 16, the district court granted MCC‘s request for a 15-day extension to complete Walker‘s evaluation, and ordered that the report be returned by October 31. The district court received the report via email on November 14, and, approximately 10 days later, conducted a competency hearing. On December 1, the court entered an order, finding that Walker was competent.
In the meantime, on November 17, Walker, through new counsel, moved to dismiss the case, contending that the delay occasioned by the competency proceedings violated his right to a speedy trial under both the Speedy Trial Act,
On appeal, Walker argues that neither the approximately 60-day delay in his transportation to MCC, nor the 14 days by which MCC‘s report exceeded the district court‘s deadline, should be excluded from the speedy-trial computation under the Speedy Trial Act. His arguments, however, are foreclosed by United States v. McGhee, 532 F.3d 733 (8th Cir. 2008). In McGhee, the district court ordered a competency evaluation in August; in October, the defendant, still awaiting transportation for the evaluation, moved to withdraw his competency motion. The court denied the motion and ordered that the defendant be transported. The evaluation report—dated in December—was filed in early January. Id. at 736–37. This court concluded that the time periods while the defendant was awaiting transportation for the evaluation and while the evaluation was being completed, as well as the time period between the date on the report and its filing, were all excluded from the speedy-trial computation under the Speedy Trial Act because they were part of the competency proceedings, whether or not the time periods were reasonable. Id. at 736–38 (reviewing district court‘s legal conclusions de novo); see also
Walker also argues that his
As to the first factor, the defendant must allege that “the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay” in order to trigger the remainder of the Barker analysis. United States v. DeGarmo, 450 F.3d 360, 364–65 (8th Cir. 2006) (quoting Doggett, 505 U.S.
As to the second factor, the court must determine whether the government or the defendant was “more to blame” for the delay. United States v. Rodriguez-Valencia, 753 F.3d 801, 806 (8th Cir.), cert. denied, 135 S. Ct. 390 (2014). Here, Walker was responsible for most of the delay, which was occasioned by his motions to suppress evidence, for a competency evaluation, and to dismiss. See McGhee, 532 F.3d at 739 (concluding that defendant was responsible for delays by motions for competency evaluation and to dismiss indictment on speedy-trial grounds). Further, there is no evidence that the government intentionally caused any delay in order to gain a tactical advantage. See id.
As to the third factor, Walker asserted his speedy-trial right in due course on November 17, three days after MCC returned its report regarding his competency. See id. (defendant asserted his speedy-trial right upon return from competency evaluation). As to the fourth factor, Walker asserts that he was prejudiced by the delay due to the “ennui of waiting,” but he does not argue that his defense was impaired by the delay. His “ennui,” without more, is insufficient to demonstrate prejudice. See id. at 740 (“although anxiety and concern are present in every case, this alone does not demonstrate prejudice“; noting that defendant had not shown any “actual prejudice“).
C. Limitations on Cross-Examination
Shortly before Walker moved for the competency evaluation, the government filed its motions in limine, seeking, as relevant, to preclude Walker from introducing at trial evidence regarding the IA investigation, and to preclude him from relitigating the lawfulness of the traffic stop. The district court granted the motion, reasoning that the IA investigation was only “marginally relevant” and would likely confuse the jury, and that the lawfulness of the traffic stop had already been determined. On appeal, Walker contends that cross-examination regarding the IA investigation was necessary to impeach Golgart‘s basis for the traffic stop, and to show that he had a “habit of inaccuracy.”
The Confrontation Clause of the
In the present case, the IA investigation was minimally relevant for the purpose of impeaching Golgart‘s testimony regarding the basis for the traffic stop, given that
D. Rejection of Walker‘s Proposed Jury Instructions
Walker submitted two proposed jury instructions, Instruction 26 and Instruction 27. Instruction 26 read:
When evaluating whether or not Mr. Walker was in knowing possession of the gun and ammunition in question, you are further instructed that the fact he drove the car when it was stopped, or that he obtained the car from the BMW dealership beforehand is not proof he possessed
what was discovered inside. Knowingly driving that car differs from knowing possession of its contents.
Walker contended that this instruction was necessary in light of United States v. Dooley, 580 F.3d 682, 686–87 (8th Cir. 2009) (district court erred in instructing jury that defendant was in constructive possession of firearm if he had control over vehicle in which it was located; defendant‘s proximity to contraband does not establish constructive possession when he is unaware of its presence). Instruction 27 read:
[T]he [g]overnment must prove beyond a reasonable doubt that Mr. Walker knowingly possess[ed] the firearm and ammunition. The law does not permit the jury to presume his knowledge of illegality. That is to say, it is the government‘s singular burden to prove Mr. Walker not only knowingly possessed the gun and ammunition, but that he also knew said possession was in violation of federal statutes. This additional requirement of proof is imposed upon the government to assure that no conviction be had on the basis of an assumption that Mr. Walker necessarily understood the law when he may not have.
For support, Walker cited United States v. Bruguier, 735 F.3d 754, 760-61 (8th Cir. 2013) (en banc), which held that in order to be convicted of sexually abusing an incapacitated victim, a defendant must have had knowledge of the victim‘s incapacity. The district court summarily declined to give Instruction 26, and declined to give Instruction 27 on the basis that Bruguier was inapplicable. Rather, the court instructed the jury that the essential elements of the offenses included, as relevant, that Walker “knowingly possessed” the shotgun and ammunition. The court further instructed the jury that a person who, “although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.” At the joint request of the parties, the court also instructed the jury that “an act is done
We review the district court‘s rejection of a defendant‘s proposed jury instructions for an abuse of discretion, recognizing that district courts have broad discretion in the formulation of instructions. We will affirm so long as the jury instructions, taken as a whole, fairly and adequately submitted the issues to the jury. United States v. Thunder, 745 F.3d 870, 873–74 (8th Cir. 2014).
First, as to Instruction 26, Walker‘s suggestion that his possession of the BMW was “not proof” that he possessed the items in the trunk incorrectly suggested that his control over the BMW could not constitute some evidence of his knowledge of the BMW‘s contents. See United States v. Ellis, 817 F.3d 570, 576 (8th Cir. 2016) (possession may be either actual or constructive; defendant may be in constructive possession of firearm if he has dominion and control over firearm itself, or over premises in which firearm was located; defendant‘s dominion and control over vehicle may indicate knowledge of vehicle‘s contents). Furthermore, while the instruction at issue in Dooley erroneously stated that constructive possession was established by mere proximity to the contraband, the jury in this case was correctly instructed that the government bore the burden to prove that Walker “knowingly possessed” the shotgun and ammunition, that his possession could be constructive, and that “ignorance, mistake, or accident” were insufficient to establish knowing possession. See United States v. Christy, 647 F.3d 768, 770 (8th Cir. 2011) (there is no error if instructions as whole adequately set forth law, afford counsel opportunity to argue defense‘s theory, and reasonably ensure that jury appropriately considers it).
Second, as to Instruction 27, Walker‘s suggestion that the government had the burden to prove he was aware of the “illegality” of his possession of the shotgun and ammunition was a plain misstatement of the law. This court has held that
E. Classification as an Armed Career Criminal
Under the ACCA, a person convicted of violating
In the district court, Walker objected to his classification as an armed career criminal, asserting, as relevant, that Minnesota‘s burglary statutes were “divisible” because they defined multiple methods by which burglary could be committed, and only one subsection of the definition of first-degree burglary included an element involving violence.1 At the August 2015 sentencing hearing, the district court
On appeal, Walker reasserts his arguments challenging his classification as an armed career criminal, including his argument that Minnesota‘s burglary statutes are divisible. This court reviews de novo the district court‘s determination that a defendant‘s prior conviction constitutes a violent felony under the ACCA. See United States v. Soileau, 686 F.3d 861, 864 (8th Cir. 2012).
“Burglary” is one of the offenses specifically enumerated as a violent felony under the ACCA.
We recently held that Minnesota‘s current third-degree burglary statute is divisible because it sets forth multiple, alternative versions of the crime, only one of which qualifies as a violent felony. United States v. McArthur, Nos. 14-3335, 14-3336, 14-3367, 2016 WL 4698285, at *6-8 (8th Cir. Sept. 8, 2016); see
It is questionable whether Walker sufficiently raised in the district court the particular concern at issue in McArthur, and he did not raise this argument on appeal. However, we exercise our discretion to consider the matter sua sponte under the plain error standard of review, and conclude that Walker is entitled to relief. See Silber v. United States, 370 U.S. 717, 717-18 (1962) (per curiam) (“Appellate courts . . . may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.” (quotation omitted)); United States v. Jones, 574 F.3d 546, 549 (8th Cir. 2009) (when defendant does not raise particular issue in district court, this court reviews for plain error; under plain error review, defendant must show (1) an error; (2) that is plain; and (3) that affects his substantial rights)
When applying the “modified categorical approach,” the court may look to a limited class of documents to determine for what crime the defendant was convicted. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). In this case, the only evidence in the record establishing Walker‘s conviction for second-degree burglary came from the PSR, which described his conviction based on “court records.” Without information specifically identifying the source of that description, we cannot rely on the assertions in the PSR to establish which alternative of the statute Walker was convicted of violating, and we therefore cannot conclude that his second-degree burglary conviction qualified as an ACCA predicate offense. United States v. Shockley, 816 F.3d 1058, 1063 (8th Cir. 2016).3
Accordingly we vacate Walker‘s sentence and remand to the district court for further proceedings. We note that Walker‘s objection to his classification as an armed
III. Conclusion
For the foregoing reasons, we vacate Walker‘s sentence and remand for resentencing. We affirm in all other respects.