United States v. Bryan Kirkendoll, II ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3916
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Bryan Kirkendoll,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 18, 2022
Filed: March 14, 2023
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Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.
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COLLOTON, Circuit Judge.
A jury convicted Bryan Kirkendoll of offenses involving interstate
transportation of stolen property and witness tampering. The district court1 sentenced
him to a total of 108 months’ imprisonment, along with a term of supervised release
1
The Honorable Beth Phillips, Chief Judge, United States District Court for the
Western District of Missouri.
and restitution. Kirkendoll appeals, arguing that there was insufficient evidence to
support the convictions, and that the district court erred when imposing the sentence.
We affirm.
I.
We recite the facts in the light most favorable to the verdict. Kirkendoll’s co-
conspirator, Viktor Chernetskiy, testified at trial that Kirkendoll contacted him on
Facebook, and that the duo then started to burglarize cell phone stores in Missouri
during November 2018. They later branched out to stores in other States and
continued until they were arrested in June 2019.
In researching stores to target, the conspirators looked for off-brand stores and
authorized dealers that would be easier to enter than flagship stores. Their objective
was to “break in and get the most phones and get away with it.”
Chernetskiy identified himself and Kirkendoll in security footage that depicted
each of the burglaries relating to the charges for interstate transportation of stolen
property. The security footage showed Chernetskiy and Kirkendoll entering the
stores, locating and loading cell phones into trash bags, and depositing the stolen
phones into Chernetskiy’s car. After the burglaries, the men returned to Missouri and
split up the phones at the home of Kirkendoll’s girlfriend.
Police arrested Chernetskiy and Kirkendoll in Missouri on the morning of June
13, 2019, shortly after two burglaries in Enid and Pond Creek, Oklahoma. Law
enforcement agents had tracked the pair’s movements through the night by
monitoring GPS data on Chernetskiy’s phone. This information showed that the men
traveled from Missouri to Enid and Pond Creek before returning to Missouri.
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At the time of their arrests, Chernetskiy and Kirkendoll wore clothing that
matched the suspects in the security footage from the stores in Oklahoma and from
prior burglaries. The gray Dodge Charger in which they were arrested matched the
car seen in security footage at the crime scenes. The vehicle contained more than 150
packaged cell phones in black garbage bags, along with burglary tools.
In June 2019, after the indictment was returned, the district court released
Kirkendoll from custody pending trial. In September 2019, a woman identifying
herself as Briona Willis, later confirmed to be Taressa Swygert, informed the FBI that
Kirkendoll had been involved in selling stolen cell phones. In February 2020,
Swygert forwarded to investigators a Snapchat message from Kirkendoll that she felt
was threatening to her life. The Snapchat message read: “Just no U gone die rat
bitch. U act like I don’t know where U lay yo head at.”
The FBI also discovered a post by Kirkendoll on his Facebook page from
February 18, 2020, that read “Rats get Klapped, snitch. Put that in ya journal.”
Another contemporaneous post said: “You on borrowed time, so utilize it wisely.
Food for thought.” This statement was followed by a devil emoji. The posts were
made shortly before Kirkendoll stated in a Facebook Live video on February 19,
2020, that he had identified an informant in his case to whom he referred as “that
Kansas bitch.” Chernetskiy testified that “Briona” lived in Kansas, and FBI agents
interviewed Swygert in Kansas during September 2019. In light of this information,
the court revoked Kirkendoll’s pretrial release and ordered him detained pending trial.
The case proceeded to trial, and a jury convicted Kirkendoll on seven counts.
The district court imposed the sentence, and this appeal followed.
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II.
Kirkendoll first argues that the evidence was insufficient to support the
convictions. We view the evidence in the light most favorable to the verdict, and will
sustain the judgment if a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. United States v. Tillman, 765 F.3d 831, 833 (8th Cir.
2014).
There were four convictions involving transportation of stolen property: one
count of conspiracy to commit interstate transportation of stolen property, see 18
U.S.C. §§ 371 and 2314, and three counts of aiding and abetting the interstate
transportation of stolen property, see 18 U.S.C. §§ 2314 and 2. The jury also
convicted on three charges arising from Kirkendoll’s messages and posts regarding
witness Swygert: one count of witness tampering, see 18 U.S.C. § 1512(b)(1); one
count of transmitting threats in interstate commerce, see 18 U.S.C. § 875(c); and one
count of witness tampering by harassment, see 18 U.S.C. § 1512(d)(1).
On the stolen property offenses, Kirkendoll’s entire argument on sufficiency
is that the government’s case rested on the testimony of a co-conspirator with a
motive to lie. Credibility determinations, however, are within the province of the jury
and virtually unreviewable on appeal. United States v. McCraney, 612 F.3d 1057,
1063 (8th Cir. 2010). The jury heard that Chernetskiy had pleaded guilty and was
testifying as a cooperating witness with the hope of receiving a reduced sentence, but
permissibly credited his account. Chernetskiy gave detailed testimony about the
scheme that was neither incredible nor insubstantial on its face. His testimony was
corroborated by other evidence, including security camera videos, GPS data, and
seized evidence of burglaries. We therefore conclude that there was sufficient
evidence to support Kirkendoll’s convictions for conspiracy and for aiding and
abetting the interstate transportation of stolen property.
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On the charges involving witness tampering and threats, Kirkendoll’s entire
argument is that the prosecution relied on “the recanted statements of a jilted
paramour.” He refers to the fact that Swygert originally provided investigators with
a Snapchat message from Kirkendoll and expressed fear for her life, but later
appeared as a witness for the defense and presented a more sympathetic version of
events. At trial, Swygert asserted that Kirkendoll had not threatened her, and that she
had exaggerated matters to get Kirkendoll in trouble.
Aside from Swygert’s vacillating testimony, however, the prosecution
presented evidence that Swygert gave a statement to the FBI implicating Kirkendoll,
and that Swygert thereafter received an objectively threatening Snapchat message
from Kirkendoll’s account. The prosecution showed that Kirkendoll had identified
“that Kansas bitch” as an informant against him, and that Swygert lived in Kansas.
Kirkendoll also made a separate threat against a “rat” and referred to living on
“borrowed time” in Facebook posts a few weeks after the Snapchat message. An FBI
agent testified that Swygert said she recanted her statement because she was afraid
for her life.
The jury was entitled to weigh the conflicting testimony and to make necessary
credibility determinations. A reasonable jury could have discounted Swygert’s
testimony at trial and found that Kirkendoll sent the threatening Snapchat message
in an attempt to harass Swygert and thereby to dissuade her from testifying at his trial.
The Facebook posts, independent of Swygert’s testimony, supported a finding that
Kirkendoll transmitted threats in interstate commerce and threatened Swygert with
intent to prevent her testimony. There was thus sufficient evidence to support the
convictions under 18 U.S.C. §§ 1512(b)(1), 1512(d)(1), and 875(c).
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III.
Kirkendoll next challenges his sentence. He first argues that the district court
committed procedural error in denying a downward adjustment for a minor or
minimal role in the stolen property offenses. See USSG § 3B1.2. These adjustments
apply to a defendant who shows that he is “substantially less culpable than the
average participant in the criminal activity.” Id. § 3B1.2, comment. (n.3(A)); see
United States v. Pruneda, 518 F.3d 597, 606 (8th Cir. 2008). We review the district
court’s interpretation of the sentencing guidelines de novo and its factual findings for
clear error. United States v. Alverez, 235 F.3d 1086, 1090 (8th Cir. 2000).
Kirkendoll contends that he was entitled to a mitigating role reduction because
his co-conspirator Chernetskiy (i) became a cooperating witness, (ii) selected the
stores to burglarize, (iii) drove the car to and from the burglaries, and (iv) committed
at least one burglary with another person. The district court, however, considered the
evidence and found that there was not a sufficient difference in the involvement of
Chernetskiy and Kirkendoll to warrant a mitigating role reduction for Kirkendoll.
This finding was not clearly erroneous. Kirkendoll actively participated in all
but one of the burglaries. He worked alongside Chernetskiy to break into the stores,
carry out the cell phones, and transport them back to Missouri. The two conspirators
divided the stolen phones between them. Even if Kirkendoll was less culpable than
Chernetskiy, he was “deeply involved” in the crimes of conviction and is not entitled
to a reduction for a mitigating role in the offense. Alverez, 235 F.3d at 1090 (quoting
United States v. Thompson, 60 F.3d 514, 518 (8th Cir. 1995)). The district court did
not clearly err in finding that Kirkendoll was an average participant, rather than one
who played a minor or minimal role.
Kirkendoll also contends that his sentence is unreasonable under 18 U.S.C.
§ 3553(a). We review that question under a deferential abuse-of-discretion standard.
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Gall v. United States, 552 U.S. 38, 51 (2007). A district court abuses its discretion
when it (1) fails to consider a relevant factor that should have received significant
weight, (2) gives significant weight to an improper or irrelevant factor, or (3)
considers only the appropriate factors but in weighing those factors commits a clear
error of judgment. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc). Where a sentence is outside the advisory guideline range, we consider the
extent of the deviation and the reasons for it, giving “due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51.
The district court adopted the advisory guideline range of 63 to 78 months’
imprisonment from the presentence report. The court then imposed a sentence of 60
months on the stolen property counts and a sentence of 48 months on the witness
tampering counts, and ordered them to run consecutively for a total of 108 months’
imprisonment. The court cited the command of 18 U.S.C. § 3147 that a term of
imprisonment for an offense committed while on pre-trial release shall be consecutive
to any other term of imprisonment. The court did not formally apply the three-level
increase under USSG § 3C1.3 for cases in which § 3147 applies, but achieved the
same result by varying upward under § 3553(a) by the equivalent of three offense
levels.
In determining Kirkendoll’s sentence, the district court considered the
§ 3553(a) factors. The court acknowledged that Kirkendoll’s prior convictions were
from 2009, but observed that he violated the terms of his conditional release and was
not discharged from his prior sentences until 2018. At that point, Kirkendoll
promptly returned to criminal conduct in the stolen property scheme charged in this
case. The court stressed the seriousness of Kirkendoll’s instant offenses, including
his choice to prey on less sophisticated stores in small communities. The court
viewed Kirkendoll’s attempts to intimidate a witness while on pre-trial release as the
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“most aggravating factor,” and emphasized that there must be consequences for
attempting to manipulate the justice system.
Kirkendoll argues that the court gave too much weight to his prior convictions
and insufficient weight to his potential for rehabilitation after education and training.
Under the circumstances, however, we see no abuse of discretion. Kirkendoll’s
criminal history and offense conduct, including his commission of witness tampering
while on pretrial release, adequately justified the sentence imposed.
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The judgment of the district court is affirmed.
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