United States v. Darnell Dunn ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2539
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Darnell Andre Dunn,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of Minnesota
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Submitted: May 11, 2023
Filed: August 9, 2023
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Before SMITH, Chief Judge, COLLOTON and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
A jury convicted Darnell Dunn of unlawful possession of a firearm as a felon.
See 18 U.S.C. § 922(g)(1). The district court* determined that Dunn had three prior
convictions for a “violent felony,” and sentenced him to the statutory minimum
*
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
sentence of 180 months’ imprisonment. See 18 U.S.C. § 924(e). Dunn asserts error
during trial and at sentencing, but we affirm the judgment.
I.
Dunn was apprehended and charged after a shooting in St. Paul, Minnesota.
Early one morning, Brittney Jones left a friend’s house to drive home. A dark sport
utility vehicle suddenly drove in front of Jones and pulled over to the side of the road.
The occupants of the SUV then began to fire a gun at Jones’s car.
Jones drove away and fled on foot. She hid in a bush and called the police.
Officer Dustin Sweeney responded to the area of the shooting.
Sweeney saw a black SUV driving without headlights. He stopped the vehicle
and found three people inside. Dunn was in the front passenger seat and identified
himself as “Andre Jones England.” Due to a mix-up in communication from the
dispatcher, however, Sweeney thought the suspect vehicle bore Nebraska license
plates, so he released the SUV carrying Dunn when the plates did not match the
description. Sweeney later discovered the mistake, but could not locate information
about a person named “Andre Jones England.”
The next night, Sweeney was on patrol and entered a gas station in St. Paul.
He saw a car parked halfway out of a designated space and blocking traffic. Two men
sat in the car; the passenger appeared to be the man from the black SUV who
identified himself as “Andre Jones England” the night before.
Sweeney walked to the passenger side of the car and directed the passenger to
get out of the vehicle. The occupants initially refused to comply, but the passenger
eventually exited the vehicle. A second officer observed that the passenger “was also
sliding his bottom along the seat to try to conceal the firearm that he was sitting on.”
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The firearm, a .40 caliber semiautomatic handgun, fell to the floor of the car. A crime
scene investigator later determined that the firearm was the same gun that fired shots
at Jones the night before.
The passenger was identified as Dunn, and the driver was Dunn’s cousin, Justin
Lindsey. Both were convicted felons. A grand jury charged both men with unlawful
possession of a firearm as a felon. See 18 U.S.C. § 922(g)(1).
Lindsey pleaded guilty. At his plea hearing, Lindsey testified that he owned
the firearm, but did not know that the gun had been used in a shooting on the night
before his arrest. Lindsey claimed that he purchased the gun on the morning of his
arrest “from a person [he knew] through a person.” Lindsey said that Dunn did not
know the gun was in the car, and that he “threw the gun to Dunn and told him to put
it into the glove compartment” during the encounter with Officer Sweeney.
Lindsey was unavailable to testify at Dunn’s trial, but Dunn sought to introduce
Lindsey’s testimony from the plea hearing to show that he, Dunn, did not knowingly
possess a firearm in Lindsey’s car. The district court ruled that Lindsey’s testimony
was inadmissible hearsay and excluded it.
At trial, the government theorized that the shooting at Brittney Jones was a
“gang shooting” at which Dunn was present, and cross-examined Dunn about his
membership in the Crips street gang. The prosecution suggested that the shooter in
the black SUV mistook Jones for a rival gang member, because she was operating a
rental car in the early morning hours in the “heart” of gang territory. Dunn denied
that he was a member of the Crips, and denied any involvement in the shooting at
Jones. The government, however, introduced a post from Dunn’s Facebook account
in which Dunn identified himself as a Crips gang member.
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The jury found Dunn guilty of the firearm charge. At sentencing, the district
court determined that Dunn was an armed career criminal under 18 U.S.C. § 924(e),
because he had sustained three previous convictions for a violent felony. The court
then sentenced Dunn to 180 months’ imprisonment.
II.
A.
Dunn first argues that the district court erred by excluding testimony from
Lindsey’s plea hearing that exculpated Dunn. Lindsey invoked his right under the
Fifth Amendment to avoid testifying at Dunn’s trial, so he was “unavailable” as a
witness. See Fed. R. Evid. 804(a)(1). Dunn argues that Lindsey’s testimony from the
plea hearing was admissible under the rules of evidence either as “former testimony”
or as a “statement against interest.” We review the district court’s ruling for abuse
of discretion. United States v. Johnson, 108 F.3d 919, 922 (8th Cir. 1997).
Rule 804(b)(1) provides that an unavailable witness’s testimony from a prior
hearing is not excluded by the rule against hearsay if the party against whom the
testimony is offered had “an opportunity and similar motive to develop [the
testimony] by direct, cross-, or redirect examination.” The government’s motive at
the plea hearing, however, was only to establish a factual basis for Lindsey’s guilty
plea, and to ensure that the plea that was knowing and voluntary. See Fed. R. Crim.
P. 11(b). The government had no motive to develop Lindsey’s testimony about
whether Dunn knowingly possessed the firearm, because Dunn’s involvement was
immaterial to the validity of Lindsey’s guilty plea. See United States v. Preciado, 336
F.3d 739, 746 (8th Cir. 2003). The district court correctly declined to admit
Lindsey’s testimony from his plea hearing under Rule 804(b)(1).
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Rule 804(b)(3) provides that a “statement against interest” is not excluded by
the rule against hearsay. A statement in a criminal case qualifies as one against
interest if (a) a reasonable person would have made the statement only if he believed
it to be true, because the statement exposed the person to criminal liability, and (b)
the statement is supported by corroborating circumstances that clearly indicate its
trustworthiness. Only those portions of a declarant’s statement that tend to expose
him to criminal liability are admissible under the rule. Williamson v. United States,
512 U.S. 594, 599-600 (1994).
The district court explained that once Lindsey decided to plead guilty, Dunn’s
culpability for possessing a firearm did not affect Lindsey’s criminal liability.
Lindsey’s statements tending to exculpate Dunn were thus not against Lindsey’s
penal interest. The district court also did not err in concluding that Lindsey’s
statements about Dunn were neither corroborated nor trustworthy. As the court
observed, Lindsey had a “clear motivation to lie to exonerate” his cousin. Lindsey’s
credibility suffered when he could not identify the person from whom he supposedly
purchased the gun on the morning of the arrest: “like I told you, I bought the gun
through a person that I knew, through . . . a mutual person that I knew.” The district
court did not abuse its discretion in declining to admit Lindsey’s prior statements
under Rule 804(b)(3).
Dunn also contends that the district court should have admitted Lindsey’s
statements under Federal Rule of Evidence 807, the “residual exception” to the rule
against hearsay. The district court did not err, however, in concluding that Lindsey’s
statements lacked the “sufficient guarantees of trustworthiness” required by the rule.
As discussed, Lindsey’s statements were not supported by corroborating
circumstances indicating their trustworthiness, and there were sound reasons to doubt
his credibility. The court properly declined to admit the evidence under Rule 807.
See United States v. Jackson, 335 F.3d 170, 179 (2d Cir. 2003).
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B.
Dunn next contends that the district court abused its discretion in allowing the
government to cross-examine Dunn about his membership in the Crips gang. The
parties dispute whether Dunn properly objected, but we will assume for sake of
analysis that the issue is not forfeited, and thus review for abuse of discretion. Dunn
argues that the gang evidence was proof of “other crimes, wrongs, or acts” for which
the government was required to provide advance notice. See Fed. R. Evid. 404(b)(3).
The district court properly determined that the disputed gang evidence was
intrinsic to the crime charged, and thus not governed by Rule 404(b). See United
States v. Battle, 774 F.3d 504, 511 (8th Cir. 2014). Intrinsic evidence “tends logically
to prove any element of the crime charged,” and is “admissible as an integral part of
the immediate context of the crime charged.” United States v. Jackson, 913 F.3d 789,
792 (8th Cir. 2019) (internal quotation omitted).
Here, the government was required to prove that Dunn knowingly possessed
a firearm. The indictment alleged that Dunn possessed a gun in the car with Lindsey
at the time of their arrest. But “[p]rior possession of a firearm is directly relevant to
proving later possession of that same weapon because it helps establish ownership or
control of the weapon.” Battle, 774 F.3d at 511. The evidence showed that the gun
seized from Lindsey’s car was the same firearm fired at Brittney Jones one day
earlier. The government’s theory was that Dunn or another person in the black SUV
with Dunn fired at Jones, and the gang evidence explained why they would have done
so. The gang evidence thus tended to make it more likely that Dunn possessed the
firearm the night before. Possession of the same gun the night before was relevant
to Dunn’s knowing possession of the gun in the car with Lindsey. Therefore, the
gang evidence was intrinsic to the crime charged and not subject to Rule 404(b).
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The district court also properly declined to exclude the gang evidence under
Rule 403 after concluding that the probative value of the evidence was not
substantially outweighed by a danger of unfair prejudice. Evidence of Dunn’s gang
membership was relevant to a disputed issue; its primary effect was not to prejudice
Dunn unfairly by showing association with unsavory characters. See United States
v. Gaines, 859 F.3d 1128, 1131 (8th Cir. 2017). Dunn’s knowledge of the gun was
a disputed issue at trial, and the court was not required to exclude evidence that bore
on that question.
C.
Dunn also maintains that his conviction under 18 U.S.C. 922(g)(1) is overly
broad and violates his constitutional right to keep and bear arms under the Second
Amendment. Dunn forfeited this argument in the district court, so we review only for
plain error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc).
Nothing in the Supreme Court’s decision recognizing an individual right to keep and
bear arms “should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons.” District of Columbia v. Heller, 554 U.S. 570, 626
(2008). Following New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct.
2122 (2022), this court concluded that the felon-in-possession statute is
constitutional, and there is “no need for felony-by-felony litigation regarding the
constitutionality of § 922(g)(1).” United States v. Jackson, 69 F.4th 495, 502 (8th
Cir. 2023), petition for reh’g filed, No. 22-2870 (8th Cir. July 14, 2023). There is
thus no plain error in applying the statute to Dunn. See also United States v. Voelz,
66 F.4th 1155, 1164 (8th Cir. 2023).
D.
Dunn raises two challenges to his sentence as an armed career criminal under
18 U.S.C. § 924(e)(1). First, he asserts that he did not have three prior convictions
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for a “violent felony.” He acknowledges two such convictions, but disputes the
district court’s conclusion that his conviction for third-degree assault in 2008 in
Minnesota also counted. Dunn argues that the assault was an “act of juvenile
delinquency” under § 924(e), because he committed the offense as a juvenile.
The record shows, however, that Dunn was convicted of third-degree assault
in Minnesota state court as an adult. An adult conviction for a violent felony is not
an “act of juvenile delinquency,” even if the offender committed the offense while
under the age of eighteen. United States v. Ronning, 6 F.4th 851, 854 (8th Cir. 2021).
The district court thus did not err in concluding that Dunn’s conviction for third-
degree assault was a violent felony under § 924(e).
Dunn argues for the first time on appeal that the district court erred by finding
without a jury that his three violent felonies were “committed on occasions different
from one another.” Under circuit precedent, however, the Sixth Amendment does not
preclude a sentencing judge from determining whether offenses were committed on
“different occasions,” so there was no plain error. United States v. Robinson, 43
F.4th 892, 896 (8th Cir. 2022); United States v. Harris, 794 F.3d 885, 887 (8th Cir.
2015); United States v. Evans, 738 F.3d 935, 936 (8th Cir. 2014) (per curiam).
Even if there were error, Dunn could not show prejudice. Dunn did not object
to information in the presentence report that he committed a third-degree assault in
December 2007 on a city bus, a robbery in August 2009, and a second-degree assault
in 2012. Those facts are thus admitted. United States v. Menteer, 408 F.3d 445, 446
(8th Cir. 2005) (per curiam). A single factor, especially of time or place, can
decisively differentiate occasions. Wooden v. United States, 142 S. Ct. 1063, 1071
(2022). Even if a jury finding were required, there is no reasonable probability that
a jury would have found that any of these three prior offenses from different years
were committed on the same occasion. There is no plain error warranting relief.
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* * *
The judgment of the district court is affirmed.
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