United States v. Gehringer , 385 F. App'x 830 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 7, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-3260
v.
(District of Kansas )
(D.C. No. 6:07-CR-10223-MLB-1 )
TODD R. GEHRINGER,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
GORSUCH, Circuit Judge.
In a twelve count indictment filed in the United States District Court for the
District of Kansas on May 29, 2008, Todd Gehringer (“defendant’), was charged
with various counts of being a drug user in possession of firearms, possession of
drugs, possession of methamphetamine with intent to distribute, and possession of
a firearm during and in relation to a drug trafficking crime. These charges stem
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
from five separate incidents spanning from October 10, 2006 to May 25, 2007. A
jury trial was held and defendant was convicted on all counts. A Presentence
Report was prepared based on the 2008 Federal Sentencing Guidelines.
Defendant was sentenced to 240 months imprisonment.
Defendant has raised three issues on appeal. First, whether the district
court abused its discretion in refusing to sever Counts 3-6. Second, whether there
was sufficient evidence presented at trial to support a conviction. And, third,
whether the district court erred in failing to instruct the jury that Counts 3, 4, and
9 require a mandatory minimum sentence. We do not believe the court erred in
its disposition of these matters, and therefore affirm the conviction and sentence
below.
FACTS
In July 2006 ATF agents and the Harvey County Sheriff’s Department
traveled to a house in reference to an investigation of stolen guns. A check
revealed that defendant occupied the residence. Defendant gave consent to search
the house for the stolen weapons and during the search officers found marijuana,
cocaine and various other illegal drugs. On October 10, 2006, officers were
patrolling for a stolen vehicle when one matching the description was seen
speeding and being driven erratically. A traffic stop was initiated and the officers
saw defendant exit the driver’s side door. A woman was in the passenger seat and
pointed to where defendant was hiding. Defendant was found and taken into
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custody. A search of defendant revealed $4000 in cash, and a search of the
vehicle revealed methamphetamine under the driver’s seat, other pills, empty
plastic baggies, a spoon, and an electric scale.
On December 19, 2006, Wichita police officers witnessed a vehicle strike a
signpost in a parking lot. The officers stopped the vehicle, driven by defendant,
and performed a sobriety test. Defendant was arrested for driving under the
influence. A firearm was observed in the passenger compartment as was
methamphetamine, marijuana, and prescription pills.
On February 2, 2007, Kansas Highway Patrol attempted to stop a pickup
driven by defendant after a check revealed the vehicle was stolen. Defendant did
not stop, and led troopers on a pursuit through numerous neighborhoods.
Defendant nearly hit two vehicles, and eventually jumped out of the moving
vehicle causing it to spin out of control. Defendant fled on foot, discarding a
black object as he ran. Defendant ran into a frozen river and fell through the ice.
He was arrested and a search of his person revealed a baggie of methamphetamine
and the discarded item was determined to be an electronic scale.
On February 26, 2007, agents of the Bureau of Alcohol Tobacco and
Firearms (ATF) contacted defendant in his driveway to question him about his
past arrests and drug use, and requested permission to search his residence for
firearms related to a burglary. Defendant did not want the agents to enter his
house. Eventually, defendant told agents he had three long guns and gave them
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permission to go into the house to verify these guns were not used in the burglary.
In the search of the house, agents recovered several long guns, handguns,
marijuana, and prescription pills.
On May 25, 2007, Wichita Police Officers executed a search warrant at the
defendant’s residence and recovered a rifle, two shotguns, marijuana, small
amounts of methamphetamine and narcotics paraphernalia. On December 3,
2007, ATF agents were conducting surveillance of the defendant’s house in
anticipation of a search warrant for stolen firearms. Agents observed defendant
leave the house and go to a nearby restaurant. Agents went to defendant,
identified themselves, and defendant fled toward his residence. Defendant was
apprehended and taken to the ATF field office and interviewed. Defendant told
agents that he discarded narcotics during the chase and officers then found four
small clear plastic baggies containing methamphetamine and one baggie of
marijuana. During the interview defendant also gave agents permission to search
a storage unit, advising them that there was a backpack with four handguns inside
which he was given as payment for a car. During a search of the storage unit,
officers found six handguns, ammunition, and other items, all of which were
reported stolen in a previous burglary report received by WPD.
MOTION TO SEVER COUNTS
Defendant first argues that the district court abused its discretion in
refusing to sever counts 3-6. Defendant moved for separate trials on those charges
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alleging that he would be prejudiced by trying all of the charges together.
Specifically, under Fed.R.Crim P. 14, a court may order separate trials if the
defendant is prejudiced by joinder of all counts and when a defendant can show
prejudice based on a willingness to testify on some counts but not others. United
States v. Martin, 18 F.3d 1515, 1518 (10th Cir. 1994). Defendant had proffered,
and ultimately testified at trial that he was not the driver of the vehicle that was
stopped on December 19, 2006 and that he did not know the vehicle contained
drugs or firearms which were the basis for Counts 3-6. In moving to sever
counts 3-6, defendant argued that the only way to defend himself on those counts
was to testify; however, in taking the witness stand for that purpose, he could be
subjected to cross-examination regarding his history of drug addiction which
would prejudice the jury on the other drug and firearm possession counts. In
denying the motion, the district court concluded that it had:
...heard Gehringer’s version of the events and cannot
imagine how he believes a jury would find his version to
be credible. In any event, his limited proffer does not
place Gehringer in a position in which he would have to
testify about controlled substances, unless Gehringer
placed himself in that position. Simply testifying that he
was not the person identified as driving the pickup does
not equate to testimony concerning whether Gehringer is
a drug addict.
A defendant bears a heavy burden of showing real prejudice from the
joinder of counts and “in establishing real prejudice, the defendant must
demonstrate that the alleged prejudice he suffered outweighed the expense and
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inconvenience of separate trials.” United States v. Martin, 18 F.3d at 1518; see
also United States v. Muniz, 1 F.3d 1018, 1023 (10th Cir. 1993). The district
court did not abuse its discretion in denying severance.
SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the evidence presented at trial was not sufficient
to sustain his conviction for possession with intent to distribute 5 grams or more
of methamphetamine as charged in Count 9. At trial, Officer Cooper of the
Wichita Police Department testified that he saw a truck matching the description
of a stolen vehicle and stopped it for failing to use a turn signal. According to the
officer, defendant exited the driver’s door and the officer then talked to the
passenger, Ms Starks. She told the officer where defendant was and the officer
spoke with him. Defendant appeared nervous and stated he was driving without a
valid licence. Other officers arrived on the scene and defendant was taken into
custody. When defendant was searched, close to $5000 was found in his pocket,
including ninety seven $20 bills. Officers also recovered several baggies of
methamphetamine underneath the driver’s seat. Ms. Starks testified that she was
the passenger in the car which was driven by defendant, and did not know of any
drugs in the car. The vehicle was not registered to the defendant but did have the
same licence plate as was on the vehicle involved in the incident which was the
basis for the charges in Counts 3-6.
Defendant argues that the government failed to prove constructive
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possession of the methamphetamine because there was no “connection or nexus”
between the defendant and the contraband as required by United States v.
Heckard, 238 F.3d 1222 (10thCir. 2001) and his mere presence in the car was
insufficient. At trial the arresting officer testified that defendant was the driver of
the car. Ms. Starks also testified that she was picked up by the defendant, that
she did not know of any drugs in the car, and never used methamphetamine. The
jury was given a proper instruction on constructive possession and without re-
weighing the evidence, this Court must accept the jury’s decision that the
defendant possessed the methamphetamine.
As to Counts 3, 4, 5 and 6, defendant argues that there was insufficient
evidence that he was the “operator or owner of the pickup truck in this incident.”
Therefore, he argues, a jury could not have found he knowingly possessed the
drugs or guns involved. A rational jury could have found that defendant was the
sole occupant and driver of the truck based on Officer McVay’s testimony at trial.
Officer McVay testified that he followed the truck into a parking lot, and
identified the driver as defendant. The jury was entitled to believe and credit
officer McVay’s testimony that defendant was the driver and could have
rationally concluded and inferred that he was also the sole possessor of the drugs
and guns found inside. See United States v. Mills, 29 F.3d 545, 549 (10th Cir.
1994).
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MANDATORY MINIMUM SENTENCE
At trial, defendant’s counsel requested that the court instruct the jury
regarding the fact that their verdict as to Counts 3, 4 and 9, if guilty, would
require mandatory minimum sentences. Defendant concedes that this Court has
held that “unless a statute specifically requires jury participation in determining
punishment, the jury shall not be informed of the possible penalties.” United
States v. Parrish, 925 F.2d 1293, 1299 (10th Cir. 1991); see also, United States v.
Greer, 620 F.2d 1383, 1384 (10th Cir. 1980). However, defendant argues that the
reasoning of United States v. Polizzi, 549 F.Supp.2d 308 (E.D. N.Y. 2008), that
under the Sixth Amendment of the Constitution, the jury should know the
sentencing impact of its decision, applies and should be considered. In light of
established Tenth Circuit and Supreme Court authorities, the district court had no
discretion to instruct the jury on the sentencing penalties, and therefore did not
abuse its discretion in denying the defendant’s request.
Judgment Affirmed.
ENTERED FOR THE COURT
ROBERT H. McWILLIAMS
Senior Circuit Judge
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