United States v. Alfred Tucker , 689 F.3d 914 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-2444
___________________________
United States of America
llllllllllllllllllll Plaintiff - Appellee
v.
Alfred Tucker
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 11-2489
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Alfred Tucker
lllllllllllllllllllll Defendant - Appellant
____________
Appeals from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: April 18, 2012
Filed: August 23, 2012
____________
Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Alfred Tucker was convicted of being a felon in possession of a firearm,
simultaneously resulting in a revocation of his supervised release from a previous
conviction. He now appeals his conviction and sentences on various grounds. We
affirm.
I. BACKGROUND
Tucker was arrested in Omaha, Nebraska after a traffic stop conducted by two
Omaha police officers, Jodi Sautter and Anna Doyle. Officers Sautter and Doyle
were on patrol when they were flagged down by an Omaha Housing Authority
Officer, Dan Hagen. Sautter knew Hagen and had worked with him on a number of
prior occasions. Hagen told the two police officers that gunshots had just been fired
from the Ford Crown Victoria that he was following. The two police officers
immediately pulled the Crown Victoria over. Tucker, who was seated in the front
passenger seat, exited the Crown Victoria, repeatedly failed to comply with the
officers’ commands, and struggled with them, leading them to tase him a number of
times and then arrest him. In a search of the Crown Victoria conducted incident to
Tucker’s arrest, the officers found a handgun and an ammunition box under the front
passenger seat. Tucker’s fingerprint was later found inside the ammunition box.
Tucker was charged by grand jury indictment with the knowing possession of
a firearm after having been convicted of a prior felony, in violation of 18 U.S.C.
-2-
§§ 922(g), 924(a)(2). Tucker filed a motion to suppress evidence from the traffic stop
and subsequent search of the Crown Victoria, which was denied by the district court,1
and the case proceeded to trial. A jury found Tucker guilty, and the district court,
determining him to be an armed career criminal in possession of a firearm pursuant
to 18 U.S.C. § 924(e), sentenced him to 188 months’ imprisonment and a consecutive
24 months’ imprisonment for violating supervised release conditions related to
Tucker’s prior conviction.
Tucker now appeals on a number of grounds. He argues (1) that the district
court erred in denying his motion to suppress because Officers Sautter and Doyle
lacked reasonable suspicion to stop the Crown Victoria; (2) that the evidence
presented at trial was insufficient to sustain his conviction; (3) that the district court
erred in admitting testimony by Officer Hagen as to statements made by onlookers
who witnessed the shooting because the testimony was unduly prejudicial; and (4)
that the district court made various sentencing errors.
II. DISCUSSION
A. Motion to Suppress
“We affirm a denial of a motion to suppress unless the district court’s decision
‘is unsupported by substantial evidence, based on an erroneous interpretation of
applicable law, or, based on the entire record, it is clear a mistake was made.’”
United States v. Bay, 662 F.3d 1033, 1035 (8th Cir. 2011) (quoting United States v.
Annis, 446 F.3d 852, 855 (8th Cir. 2006)). We review the district court’s findings of
fact for clear error and its legal conclusions de novo. Id. Police are allowed to stop
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska, adopting the findings and recommendation of the
Honorable Thomas D. Thalken, United States Magistrate Judge for the District of
Nebraska.
-3-
and briefly detain a person for investigative purposes if they have a “reasonable,
articulable suspicion of criminal activity.” United States v. Sawyer, 588 F.3d 548,
553 (8th Cir. 2009); see Terry v. Ohio, 392 U.S. 1, 21 (1968). The reasonableness of
an officer’s suspicion is assessed “in light of the facts known to the officer at the
time” of the stop. Adams v. Williams, 407 U.S. 143, 146 (1972). Tucker claims that
Officers Sautter and Doyle had no reasonable suspicion to justify the felony stop and
that all evidence resulting from the stop, including the handgun and ammunition box,
should be suppressed.
Officers Sautter and Doyle were flagged down by Officer Hagen, who told
them that shots had just been fired from the Crown Victoria that they saw he was
following. Officer Sautter had previously interacted professionally with Officer
Hagen, who regularly worked with Omaha police officers. We have found reasonable
suspicion on much less compelling facts. In United States v. Collins, for example, we
found a Terry stop to have been proper when officers pulled over a car solely because
it matched a description of a car that had been reported as having been involved in
a robbery. 532 F.2d 79, 81 (8th Cir. 1976). We also have held security guards to be
especially reliable tipsters in the context of assessing the reasonableness of a police
officer’s suspicion, especially when such guards work directly with police in the
course of their duties. United States v. Robinson, 670 F.3d 874, 876-77 (8th Cir.
2012). A direct, in-person identification of a car as having just been involved in a
crime, especially one made by a housing authority officer who had previously worked
with one of the investigating officers, is sufficient to give rise to the necessary
“reasonable, articulable suspicion” to justify a Terry stop.
B. Sufficiency of the Evidence
We review challenges to the sufficiency of the evidence de novo, resolving all
evidentiary conflicts in favor of, and accepting all reasonable inferences that support,
the jury’s verdict. United States v. Yarrington, 634 F.3d 440, 449 (8th Cir. 2011).
-4-
To convict Tucker under § 922(g), the government had to prove beyond a reasonable
doubt that (1) Tucker previously had been convicted of a crime punishable by a term
of imprisonment exceeding one year; (2) Tucker knowingly possessed a firearm; and
(3) the firearm had moved in or affected interstate commerce. See United States v.
Walker, 393 F.3d 842, 846 (8th Cir. 2005). On appeal, Tucker argues only that the
Government presented insufficient evidence on the second element, namely that he
knowingly possessed a firearm.
The evidence presented at trial was sufficient to convict Tucker. Tucker was
in the front passenger seat of the Crown Victoria when it was stopped shortly after
a report of a shooting. A handgun and ammunition box were found under the front
passenger seat, and one of Tucker’s fingerprints was found inside the ammunition
box. Shell casings recovered from the scene of the shooting were later linked through
forensic ballistics analysis to the handgun. Tucker refused to comply with police
orders after the Crown Victoria was pulled over and resisted arrest to the point that
Officers Sautter and Doyle were required to tase him a number of times. It would
have been reasonable for a jury to infer that Tucker knowingly possessed the gun
underneath his seat in light of its location, see, e.g., Walker, 393 F.3d at 846, the
fingerprint found on its accompanying ammunition box, see, e.g., United States v.
Winston, 456 F.3d 861, 867 (8th Cir. 2006), and Tucker’s resistance, see, e.g., United
States v. Peltier, 585 F.2d 314, 323 n.7 (8th Cir. 1978). Although Tucker testified
that the fingerprint may have been placed on the ammunition box accidentally as he
reached for his hat under his seat and that he knew nothing about the gun, we defer
to the credibility determinations of the jury, see United States v. Boyce, 564 F.3d 911,
916 (8th Cir. 2009), which was certainly entitled to disbelieve Tucker’s self-serving
testimony.
-5-
C. Hagen’s Testimony
“We review a district court’s interpretation and application of the rules of
evidence de novo and its evidentiary rulings for abuse of discretion.” United States
v. Pumpkin Seed, 572 F.3d 552, 558 (8th Cir. 2009) (quoting United States v. Street,
531 F.3d 703, 708 (8th Cir. 2008)). At trial, Officer Hagen testified that he was on
patrol when he heard shots fired. He began to follow the Crown Victoria, the only
vehicle he saw in the area, when bystanders shouted at him, “Hey, that car was just
shooting.” Tucker objected at trial that this statement was inadmissible hearsay, but
the district court overruled his objection on the ground that the statement was not
offered for the truth of the matter asserted but rather as showing why Officer Hagen
continued following the Crown Victoria.
Although he now concedes that the statement did not constitute inadmissible
hearsay, Tucker raises for the first time on appeal an alternate argument for the
inadmissibility of the bystander statement—that the statement was unduly prejudicial
and therefore should have been excluded under Federal Rule of Evidence 403. Rule
403 allows a court to “exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Because this argument was not
properly preserved before the district court, we review for plain error and will reverse
only if Tucker can show that the district court committed a clear and obvious error
that affected both his substantial rights and the fairness, integrity, or public reputation
of the judicial process. See United States v. Ali, 616 F.3d 745, 751-52 (8th Cir.
2010). To demonstrate an effect on his substantial rights, a defendant ordinarily has
to show that the error “affected the outcome of the district court proceedings.”
Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano,
507 U.S. 725, 734 (1993)). Satisfying this prong would require Tucker to show “a
reasonable probability that the outcome would have been different absent the alleged
error.” See United States v. Yielding, 657 F.3d 688, 707-08 (8th Cir. 2011), cert.
denied, 565 U.S. ---, 132 S. Ct. 1777 (2012).
-6-
Even if Tucker could show that Hagen’s testimony should have been excluded
under Rule 403, he still would not be able to meet his burden under this rigorous
standard. The evidence that Tucker, a felon, knowingly possessed the firearm found
under his seat was substantial. See supra Part II.B. Furthermore, Hagen’s testimony
that bystanders directed him to the Crown Victoria as the source of the shots he had
heard was not unfairly prejudicial to Tucker. The testimony did not identify Tucker
as the shooter, and subsequent forensic analysis linked the firearm to shell casings
found at the scene. Tucker has failed to show “a reasonable probability that the
outcome would have been different absent the alleged error,” and we therefore find
that “[t]here was no plain error warranting relief.” Yielding, 657 F.3d at 708.
D. Sentence
The Armed Career Criminal Act (“ACCA”) provides for enhanced sentences
for those with three prior convictions for a violent felony who are convicted of being
a felon in possession of a firearm. 18 U.S.C. § 924(e). A violent felony is a felony
that “has as an element the use, attempted use, or threatened use of physical force
against the person of another . . . or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Tucker argues
that the district court erred in considering his conviction for escape from a juvenile
facility and his two convictions for assault as predicate violent felonies for ACCA
purposes.
With respect to his escape conviction, Tucker concedes that he was convicted
for an escape from custody, but he asserts that his escape was a mere “walk away
escape.” He likens this sort of escape to the failure-to-report offense that the
Supreme Court held was not a violent felony for ACCA purposes in Chambers v.
United States, 555 U.S. 122, 127-30 (2009). However, we have held that “Chambers
. . . leaves intact our precedent holding that escape from custody is a crime of
violence.” United States v. Pearson, 553 F.3d 1183, 1186 (8th Cir. 2009).
-7-
Furthermore, Tucker concedes that his conviction was for the escape from custody
part of the Nebraska escape statute and not the failure-to-report part, see Neb. Rev.
Stat. § 28-912(1), and we have held post-Chambers that convictions under the escape
from custody part of the very same statute are violent felonies for ACCA purposes.
United States v. Williams, 664 F.3d 719, 720 (8th Cir. 2011). Tucker’s argument is
thus precluded by binding precedent, and we therefore hold that his escape conviction
was properly considered an ACCA predicate offense.2
Tucker next argues that neither of his assault convictions are violent felonies
for ACCA purposes because both of the state statutes under which he was convicted
criminalized both recklessly and intentionally causing bodily injury. Some circuits
have held that merely reckless conduct cannot be the basis for an ACCA predicate
offense. See, e.g., United States v. Jenkins, 631 F.3d 680, 685 (4th Cir. 2011); United
States v. Smith, 544 F.3d 781, 785-86 (7th Cir. 2008). We have not adopted such a
broad rule, see United States v. Jones, 574 F.3d 546, 550-51 (8th Cir. 2009) (“[T]he
Eighth Circuit has not held that crimes with a mens rea of recklessness cannot
constitute violent felonies.”), but we have indicated that some assault statutes that
include reckless conduct require analysis under the modified categorical approach,
see United States v. Ossana, 638 F.3d 895, 901-03 (8th Cir. 2011) (declining to find
a conviction under an Arizona aggravated assault statute categorically a crime of
violence); but see id. at 901 n.6 (“We qualify and limit our holding to the crimes such
as the crime at issue which encompasses the unadorned offense of reckless driving
resulting in injury.”).
2
Tucker also argues that the district court erred in permitting Jana Peterson, the
facility administrator of the detention facility from which Tucker had been convicted
of escaping, to testify at sentencing about the characteristics of the facility. Because
our conclusion does not rely on Ms. Peterson’s testimony, any error in allowing her
to testify was harmless. See Fed. R. Crim. P. 52(a).
-8-
Where “the statute of conviction criminalizes multiple kinds of behavior, we
must identify the proper category that embraces the defendant’s conviction.” United
States v. Wilson, 568 F.3d 670, 672 (8th Cir. 2009). Under this modified categorical
approach, we may look to sources including a defendant’s charging document or “any
explicit factual finding by the trial judge to which the defendant assented” to assess
the nature of the offense in question. Shepard v. United States, 544 U.S. 13, 16
(2005). With respect to his first assault conviction, Tucker does not contest that he
was charged by information with and convicted of “[i]ntentionally or knowingly
caus[ing] bodily injury to another person with a dangerous instrument.” Neb. Rev.
Stat. § 28-309(a). In determining the proper category for his second assault
conviction, we may consider the assented-to factual basis provided for a guilty plea.
Williams, 664 F.3d at 721-22. During his guilty plea proceeding, Tucker agreed that
he intentionally struck the victim several times.3 Tucker’s argument that his assault
convictions do not constitute violent felonies therefore fails, and we affirm the
application of the ACCA to his sentencing.
Tucker also requests that we order his supervised-release revocation sentence
to run concurrently to his sentence for his felon-in-possession conviction. However,
“[t]he decision to impose a consecutive or concurrent sentence upon revocation of
supervised release is committed to the sound discretion of the district court,” United
States v. Cotroneo, 89 F.3d 510, 512 (8th Cir. 1996), and Tucker has provided us with
3
We have previously used Shepard documents to determine specifically which
mens rea category of a statute a prior conviction fell into in equivalent applications
of the modified categorical approach. See Olmsted v. Holder, 588 F.3d 556, 560 (8th
Cir. 2009) (making such a determination in the 8 U.S.C. § 1227(a)(2)(A) context);
Bobadilla v. Holder, 679 F.3d 1052, 1054-55 (8th Cir. 2012) (noting that the
§ 1227(a)(2)(A) “categorical approach is consistent with Supreme Court decisions
determining whether a prior conviction was a violent felony under the Armed Career
Criminal Act”).
-9-
no reason to find the imposition of consecutive sentences here to be an abuse of
discretion.
III. CONCLUSION
For the foregoing reasons, we affirm.
______________________________
-10-