United States v. Lawrence Williams , 796 F.3d 951 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3532
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Lawrence Edward Williams
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: June 11, 2015
Filed: August 7, 2015
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Before GRUENDER, BEAM, and BENTON, Circuit Judges.
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GRUENDER, Circuit Judge.
Lawrence Williams was indicted for possessing a firearm as a felon. See
18 U.S.C. § 922(g)(1). A jury found Williams guilty, and the district court1 sentenced
him to 66 months’ imprisonment. Williams appeals his conviction. We affirm.
1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
I.
On January 26, 2013, Officer Jennifer Hendricks of the St. Louis Metropolitan
Police Department was driving her patrol car when its license plate recognition
(“LPR”) system gave an alert about a nearby car. The LPR system scans the license
plates of cars that are within range of cameras mounted on the patrol car and can
generate an alert if a scanned car is connected to a wanted person.
The alert showed Officer Hendricks that a man named Otis Hicks was
associated with a nearby car and was wanted by the St. Louis County Police
Department, a department that neighbors Hendricks’s, for first-degree domestic
assault. The alert also said that Hicks may be armed and dangerous. The LPR alert
did not explain how or when Hicks was associated with the car.
After pulling the car over, Officer Hendricks approached the driver’s side and
saw two men inside. She asked the driver for his license, which identified him as Otis
Hicks. Officer Hendricks then waited for a second police officer to arrive. Upon
arrival, Officer David Christensen asked the passenger, Williams, to get out of the car
and present identification. According to Officer Christensen, Williams patted his
waistband two times while getting out of the car and Williams’s hands were shaking
uncontrollably as he retrieved his identification. Officer Christensen handcuffed
Williams and conducted a pat-down search for weapons. Officer Christensen felt
what he recognized to be a firearm and removed a handgun from Williams’s
waistband. After finding the handgun, Officer Christensen found a bag containing
“a dark rock-like substance” in Williams’s pocket that was later identified as heroin.
A federal grand jury indicted Lawrence Williams for one count of possessing
a firearm as a felon. Before trial, Williams moved to suppress the handgun and
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heroin. A magistrate judge2 held an evidentiary hearing and heard testimony from
Officers Hendricks and Christensen. The magistrate judge recommended the denial
of Williams’s motions. The district court adopted the magistrate judge’s relevant
proposed factual findings and rulings.
Pursuant to Federal Rule of Evidence 404(b), the Government notified
Williams that it would introduce his prior firearm-possession convictions at trial.
Williams submitted two motions in limine that sought to exclude his 2002 conviction
for possessing a firearm as a felon, his 1995 conviction for unlawful possession of a
concealable firearm and unlawful use of a firearm, and his earlier conviction of first-
degree robbery. Williams also moved to exclude the heroin. The district court denied
Williams’s motions to exclude the heroin and the 2002 and 1995 convictions.
However, the court excluded the earlier robbery conviction because of, among other
reasons, “the age, when it was completed, the similarity of the offenses, and the fact
that we will already have two others that will be introduced into evidence.”
At trial, Williams’s counsel attempted to cross-examine Officer Hendricks
about her motivation for testifying that Williams had actual possession of the
handgun. After Williams’s counsel asked Officer Hendricks if she had been
frustrated with prosecutors’ past decisions regarding whether to bring firearm
charges, the Government objected, and the following colloquy took place at sidebar:
Counsel: Judge, it’s my good faith belief that the police
officers in the city of St. Louis sometimes
decide to charge somebody with a gun that
they found in the car even though the gun was
not found on the person, and that the person
that they decide to charge is the person in the
car that has the worst record.
2
The Honorable Terry I. Adelman, United States Magistrate Judge for the
Eastern District of Missouri, now retired.
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Court: Have you got some evidence of this that you
are going to present here?
Counsel: No, I want to ask her.
Court: Do you have some evidence of that fact that
you are prepared to present to me?
Counsel: No.
After the Government argued that this had “nothing to do with the facts of this case,”
the court asked Williams’s counsel about the foundation for this line of questions:
Court: I am just going to tell you, [Counsel], absent
some evidence to support some good faith
belief that that occurs or occurred here, I will
not permit you to go down that road.
Counsel: Well, may I tell the Court that my good faith
belief is based on talking to a retired police
officer about this case?
Court: No. If you want to bring that police officer in
to testify here, then I will take his proffer and
we can go from there.
Counsel: All right.
Court: But I will not permit you on the record that
we have here to suggest that with respect to
this witness.
After Officer Hendricks finished testifying, Officer Christensen took the stand.
Before cross-examining Officer Christensen, Williams’s counsel asked the court if
he would be barred from pursuing the same line of questions:
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Counsel: I assume [the Government] still wants to
object and that you would make the same
ruling, that I’m not allowed at this time to go
into questions about the relationship between
the police department and the warrant office
at the [prosecutor’s office].
Court: Not for the purpose and based upon the record
that you have made today, correct.
After the witnesses testified, the court gave limiting instructions to the jury on
how it should consider the evidence of Williams’s 2002 and 1995 convictions. The
jury found Williams guilty.
II.
A.
Williams first argues that Officer Hendricks lacked reasonable suspicion to
stop the car. See Delaware v. Prouse, 440 U.S. 648, 663 (1979); Brendlin v.
California, 551 U.S. 249, 255-57 (2007). According to Williams, because Officer
Hendricks lacked reasonable suspicion to stop the car, the handgun and heroin were
fruits of an illegal stop and should have been suppressed.3 See generally Wong Sun
v. United States, 371 U.S. 471 (1963).
We review the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Farnell, 701 F.3d 256, 260 (8th Cir. 2012).
“The Fourth Amendment permits an investigative stop of a vehicle if officers have
a reasonable suspicion the vehicle or its occupants are involved in criminal activity.”
3
Williams’s Fourth Amendment argument only challenges Officer Hendricks’s
initial stop of the car. Because Williams does not challenge the propriety of the
subsequent searches, we need not address those issues.
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United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007). If police have reasonable
suspicion, they “may briefly stop an individual and make reasonable inquiries aimed
at confirming or dispelling the suspicion.” United States v. Hughes, 517 F.3d 1013,
1016 (8th Cir. 2008). “Reasonable suspicion must be supported by more than a mere
hunch, but the likelihood of criminal activity need not rise to the level required for
probable cause, and it falls considerably short of satisfying the preponderance of the
evidence standard.” United States v. Roberts, 787 F.3d 1204, 1209 (8th Cir. 2015)
(internal quotation marks and citation omitted). “We consider the totality of the
circumstances when determining whether an officer has a particularized and objective
basis to suspect wrongdoing.” United States v. Robinson, 670 F.3d 874, 876 (8th Cir.
2012).
Officer Hendricks relied upon the notice from the LPR system that: (1) Hicks
was associated with a nearby car, (2) Hicks was wanted by the St. Louis County
Police Department for first-degree domestic assault, and (3) Hicks may have been
armed and dangerous. Williams nonetheless argues that Officer Hendricks did not
have reasonable suspicion to conduct the traffic stop because a “police officer who
receives an alert from the LPR system has no way of knowing the extent of the
person’s relationship to the vehicle.” Williams and the Government seem to agree
that there are no reported federal decisions that have specifically dealt with the use
of an LPR system in the Fourth Amendment context. However, as we have held, “if
a flyer or bulletin has been issued on the basis of articulable facts supporting a
reasonable suspicion that the wanted person has committed an offense, then reliance
on that flyer or bulletin justifies a stop to check identification, to pose questions to
the person, or to detain the person briefly while attempting to obtain further
information.” Farnell, 701 F.3d at 262 (internal alteration omitted) (quoting United
States v. Smith, 648 F.3d 654, 659 (8th Cir. 2011)). “Police officers may rely upon
notice from another police department that a person or vehicle is wanted in
connection with the investigation of a felony ‘when making a Terry stop, even if the
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notice omits the specific articulable facts supporting reasonable suspicion.’” Smith,
648 F.3d at 659 (internal alteration omitted) (quoting United States v. Jacobsen, 391
F.3d 904, 906 (8th Cir. 2004)).
We fail to see how the use of the LPR system makes any difference in this case.
Williams does not cite any precedent holding that the mechanism through which an
officer receives notice from another department matters for Fourth Amendment
purposes. Indeed, the LPR system merely automates what could otherwise be
accomplished by checking the license-plate number against a “hot sheet” of numbers,
inputting a given number into a patrol car’s computer, or “calling in” the number to
the police station. Thus, we conclude that Officer Hendricks was entitled to “rely
upon notice from another police department,” she obtained by using a more
automated process: the LPR system. See id. at 656-60 (upholding a police officer’s
reliance on a wanted notice he discovered by performing a search on a license-plate
number).
Williams argues further that Officer Hendricks’s stop violated the Fourth
Amendment “because she could not tell who was driving the car until after she
stopped it.” Williams asserts, without citation, that Officer Hendricks must “have
[had] some idea at least that there [was] a black male driving the car” before making
the traffic stop. Officer Hendricks testified that she was unable to see who was inside
the car until after she stopped it. Common sense dictates that police officers will
often be unable to confirm the race or gender of a driver before initiating a traffic
stop. Accordingly, we fail to see how Officer Hendricks’s decision to briefly stop the
car and check the driver’s identification was an unreasonable seizure in violation of
the Fourth Amendment merely because she initially could not identify the driver’s
race or gender. See Farnell, 701 F.3d at 262.
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Williams concedes that Hicks was “perhaps associated with the car” but
nonetheless argues that the stop violated the Fourth Amendment because Officer
Hendricks “had no information of the time frame of when Hicks had been associated
with the car.” But our precedent makes clear that “officers may rely upon notice from
another police department that a person or vehicle is wanted in connection with the
investigation of a felony ‘when making a Terry stop, even if the notice omits the
specific articulable facts supporting reasonable suspicion.” Smith, 648 F.3d at 659
(internal alteration omitted) (quoting United States v. Jacobsen, 391 F.3d at 906).
Accordingly, this argument is without merit.4
B.
Williams next argues that the district court abused its discretion when it
admitted, under Rule 404(b), evidence that Williams had twice been convicted of
illegal firearm possession. “We review the district court’s admission of evidence of
past crimes under Federal Rule of Evidence 404(b) for abuse of discretion, and we
will not reverse unless the evidence clearly had no bearing on the case and was
introduced solely to prove the defendant’s propensity to commit criminal acts.”
United States v. Bassett, 762 F.3d 681, 687 (8th Cir. 2014) (internal alteration
4
Williams’s opening brief notes that Hicks “was not the registered owner of the
car” and his reply brief suggests that “the police only had information ‘associating’
[Hicks] with driving a particular car once upon a time.” To the extent that this could
be construed as attempting to argue that the St. Louis County Police Department had
an insufficient factual basis to link Hicks to the car initially, we will not consider it
as it was not properly developed by Williams. Williams’s opening brief does not
develop this argument and does not provide any case law in support. See Fed. R.
App. P. 28(a)(8); Christensen v. Titan Distribution, Inc., 481 F.3d 1085, 1098 n.7
(8th Cir. 2007). And while Williams’s reply brief arguably comes closer to making
this argument, as a general rule we do not entertain arguments that are first raised in
a reply brief. See Bearden v. Lemon, 475 F.3d 926, 930 (8th Cir. 2007).
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omitted) (quoting United States v. Banks, 706 F.3d 901, 906 (8th Cir. 2013)). Rule
404(b) is “one of inclusion, such that evidence offered for permissible purposes is
presumed admissible absent a contrary determination.” United States v. Wilson, 619
F.3d 787, 791 (8th Cir. 2010) (quoting United States v. Littlewind, 595 F.3d 876, 881
(8th Cir. 2010)).
We employ a four-part test to determine whether a district court abused its
discretion in admitting 404(b) evidence. United States v. Robinson, 639 F.3d 489,
494 (8th Cir. 2011). Evidence is properly admitted under Rule 404(b) if “(1) it is
relevant to a material issue; (2) it is similar in kind and not overly remote in time to
the crime charged; (3) it is supported by sufficient evidence; and (4) its potential
prejudice does not substantially outweigh its probative value.” Id. (quoting United
States v. Frazier, 280 F.3d 835, 847 (8th Cir. 2002)). “The requirement to balance
probative value and prejudice is found in [Federal Rule of Evidence] 403,” United
States v. Cook, 454 F.3d 938, 941 (8th Cir. 2006), which provides in relevant part that
“[t]he court may exclude relevant evidence if its probative value is substantially
outweighed by [the] danger of . . . unfair prejudice.” Williams argues that the
evidence of his former firearm-possession convictions was improperly admitted
because (1) the evidence was irrelevant, (2) the evidence was not similar in kind and
was overly remote in time, and (3) the potential prejudice outweighed the probative
value. We disagree and address each in turn.
As a general rule, “[e]vidence that a defendant possessed a firearm on a
previous occasion is relevant to show knowledge and intent.” United States v.
Walker, 470 F.3d 1271, 1274 (8th Cir. 2006). Williams first contends that the
evidence of his prior firearm-possession convictions was not relevant as
“[k]nowledge and intent were not issues” in the case because the Government’s
theory involved only actual possession. Williams cites United States v. Caldwell in
support of his argument. 760 F.3d 267 (3d Cir. 2014). Caldwell explained that
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because “the Government proceeded solely on a theory of actual possession, we hold
that [the defendant’s] knowledge was not at issue in the case.” Id. at 279. While
Williams’s argument may be supported by Caldwell, it is foreclosed by our precedent.
“Knowing possession of a firearm is an element of 18 U.S.C. § 922(g)(1), and
[Williams] placed his knowledge of the firearm’s presence at the scene on his person
at issue by pleading not guilty to the crime and requiring the government to prove his
guilt beyond a reasonable doubt.” See United States v. Oaks, 606 F.3d 530, 539 (8th
Cir. 2010). And we have held that the defendant places his knowledge and intent at
issue by pleading not guilty even when the prosecution proceeds solely on an actual
possession theory. United States v. Halk, 634 F.3d 482, 485-87 (8th Cir. 2011)
(holding that previous firearm possessions were relevant to defendant’s knowledge
and intent to possess a firearm where police saw defendant holding and discarding a
gun).
Williams next argues that the evidence of his prior firearm-possession
convictions fails the second part of our 404(b) test because the crimes were not
“similar in kind” and were “overly remote in time to the crime charged.” See
Robinson, 639 F.3d at 494. On the issue of similarity, our test merely requires that
the prior acts are “sufficiently similar to support an inference of criminal intent.”
Walker, 470 F.3d at 1275 (quoting United States v. Strong, 415 F.3d 902, 905 (8th
Cir. 2005)). As such, we have no trouble concluding that the district court did not
abuse its discretion when it concluded that Williams’s prior illegal possessions of
firearms were sufficiently similar to his instant illegal possession of a firearm. See
id.
As to temporal remoteness, Williams notes that the firearm-possession offenses
each occurred more than 10 years before he was arrested for the instant offense. We
determine if a crime is too remote in time to be admissible under Rule 404(b) by
applying a reasonableness standard that evaluates the facts and circumstances of each
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case. Id. “[T]here is no specific number of years beyond which prior bad acts are no
longer relevant to the issue of intent.” Id. (quoting United States v. Shoffner, 71
F.3d 1429, 1432 (8th Cir. 1995)). Here, the district court permitted the Government
to introduce evidence of Williams’s 2002 and 1995 firearm-possession convictions
but held that his earlier robbery conviction was inadmissible. Williams’s two
firearm-possession offenses were committed in February 2001 and April 1994,
respectively, and he was arrested for the instant crime on January 26, 2013. Thus, the
two prior offenses were more than 11 and 18 years old. We have upheld the
admission of a crime committed more than 20 years before the offense at issue.
United States v. Williams, 308 F.3d 833, 835-37 (8th Cir. 2002); see also Halk, 634
F.3d at 484, 487-88 (upholding the admission of a crime that took place
approximately 19 years before the instant § 922(g)(1) offense). Moreover, because
Williams was incarcerated for such a significant amount of time—approximately 12
of the 18 years since his 1995 conviction—“the total number of years separating the
prior offense[s] and the charged offense did not ‘significantly diminish the
probativeness of the evidence.’” Walker, 470 F.3d at 1275 (quoting United States v.
Adams, 401 F.3d 886, 894 (8th Cir. 2005)). Accordingly, we discern no abuse of
discretion in the district court’s 404(b) remoteness analysis. See id.
Williams’s final argument regarding the admissibility of his prior firearm-
possession convictions is that the probative value is substantially outweighed by the
prejudicial effect. “Though all Rule 404(b) evidence is inherently prejudicial, the test
under Rule 403 is whether its probative value is substantially outweighed by the
danger of unfair prejudice.” Cook, 454 F.3d at 941. “We give great deference to a
district court’s application of the Rule 403 balancing test.” United States v. Lupino,
301 F.3d 642, 646 (8th Cir. 2002). Here, the district court carefully balanced the
probative value against any unfair prejudicial effect and excluded evidence of
Williams’s earlier robbery conviction in part to limit any potential unfair prejudice.
The district court also gave a limiting instruction to mitigate the risk of any unfair
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prejudice. The court told the jury to consider the previous convictions “to help . . .
decide intent, knowledge, and absence of mistake,” but instructed them that while
“the defendant may have committed similar acts in the past, this is not evidence that
he committed such an act in this case.” We have “been reluctant to find that the
evidence was unfairly prejudicial when the district court gave an appropriate limiting
instruction.” United States v. Kent, 531 F.3d 642, 651 (8th Cir. 2008) (quoting
United States v. Loveless, 139 F.3d 587, 593 (8th Cir. 1998)). In light of the district
court’s careful analysis and appropriate limiting instruction, we cannot conclude that
the court abused its discretion by admitting the evidence of Williams’s previous
firearm-possession convictions. See id.
C.
Williams’s third argument is that the district court violated his Sixth
Amendment right to confrontation by prohibiting his counsel from cross-examining
Officers Hendricks and Christensen about their alleged motivation to testify falsely
that Williams had a handgun on his person. “We review evidentiary rulings regarding
the scope of a cross examination for abuse of discretion, but where the Confrontation
Clause is implicated, we consider the matter de novo.” United States v. Kenyon, 481
F.3d 1054, 1063 (8th Cir. 2007) (internal citation omitted). The Confrontation Clause
“guarantees an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense might wish.”
United States v. Sigillito, 759 F.3d 913, 938 (8th Cir. 2014) (quoting United States
v. Jasso, 701 F.3d 314, 316 (8th Cir. 2012)), cert. denied, 574 U.S. ---, 135 S. Ct.
1019 (2015). Accordingly, “a district court may impose reasonable limits on cross-
examination based on concerns about prejudice or confusion of the issues.” Id.
(internal alteration omitted) (quoting Jasso, 701 F.3d at 317). A district court has
wide latitude to impose such reasonable limits on cross-examination. Id. We will not
reverse a court’s decision to limit cross-examination “unless there has been a clear
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abuse of discretion and a showing of prejudice to the defendant.” United States v.
Petters, 663 F.3d 375, 382 (8th Cir. 2011).
Williams’s assertion that “the district court completely foreclosed cross-
examination about the motive, interest, and bias of the police officers” grossly
misconstrues the district court’s ruling. After defense counsel attempted to imply that
police officers sometimes decide to charge a felon with actual firearm possession
based on his record, the court explained that, without a foundation to support a good-
faith belief that this had occurred, the defense could not continue with those
questions. And after prohibiting this line of questions on the record as it then stood,
the court offered the defense the opportunity to present a witness on the matter.
Rather than accept the invitation to lay a proper foundation, Williams’s counsel chose
not to pursue the matter further.
The district court’s implicit concern was that this line of questions would “waft
an unwarranted innuendo into the jury box” that there was some evidence that the
officers were lying. United States v. Tucker, 533 F.3d 711, 714 (8th Cir. 2008)
(quoting United States v. Beeks, 224 F.3d 741, 746 (8th Cir. 2000)); see also United
States v. Sanabria, 645 F.3d 505, 514 (1st Cir. 2011) (“[A] district court may properly
limit cross-examination on inherently speculative theories of bias, where the
defendant is unable to lay a proper evidentiary foundation.” (internal quotation marks
omitted) (quoting United States v. Martinez-Vives, 475 F.3d 48, 53-54 (1st Cir.
2007)). Williams had no good-faith basis to believe that the officers had planted a
handgun in this case and offered only a purported conversation with “a retired police
officer” as a basis for the belief that such a practice occurred generally. We conclude
that the district court was well within its wide latitude of discretion when it required
Williams to first lay a proper evidentiary foundation before implying that Officers
Hendricks and Christensen had planted a handgun on Williams and perjured
themselves. See United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir. 1982) (per
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curiam). The district court’s ruling was not an abuse of discretion and was not
inconsistent with the Confrontation Clause. See Kenyon, 481 F.3d at 1064.
D.
Finally, Williams argues that the district court abused its discretion by
admitting the heroin into evidence. See United States v. Brooks, 715 F.3d 1069, 1076
(8th Cir. 2013). Williams argues that the heroin was extrinsic to his possession of the
handgun as a felon and thus that the district court should have conducted a Rule
404(b) analysis. Rule 404(b) “applies to the admission of wrongful-act evidence that
is extrinsic to the charged offense; the rule does not prevent admission of other
wrongful conduct that is intrinsic to the charged offense.” Id. (quoting United States
v. Ruiz-Chavez, 612 F.3d 983, 988 (8th Cir. 2010)). Wrongful-conduct evidence is
intrinsic “when it is offered for the purpose of providing the context in which the
charged crime occurred. Such evidence is admitted because the other crime evidence
completes the story or provides a total picture of the charged crime.” Id. (quoting
Ruiz-Chavez, 612 F.3d at 988).
The district court explained that the heroin was “part of the events here and is
important for an understanding of why the defendant was arrested. And I believe . . .
it is also relevant to the issue of knowledge and intent to possess the firearm.” We
agree. According to Officer Christensen, the heroin was discovered in the same
sequence of events as the handgun. And the heroin’s presence explains why Williams
may have been carrying the handgun. See United States v. Vincent, 316 F. App’x
275, 278 (4th Cir. 2009) (per curiam) (explaining that “the drug evidence, though
uncharged, was intrinsic to the firearm conviction as the drugs and firearm were
found together during the same criminal episode”).
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Williams also argues that the district court abused its discretion by not
excluding the heroin because its probative value was substantially outweighed by the
danger of unfair prejudice. See Fed. R. Evid. 403; Brooks, 715 F.3d at 1076. The
heroin was probative of Williams’s knowledge and intent to possess the handgun.
See United States v. White, 356 F.3d 865, 870 (8th Cir. 2004) (holding that “drug-
related evidence was related to [the defendant’s] firearm possession” because of the
connection between drug dealing and firearms). And we see nothing in the record
that suggests this probativeness was substantially outweighed by unfair prejudice.
Accordingly, the district court did not abuse its discretion when it determined that the
heroin was admissible. See Brooks, 715 F.3d at 1076.
III.
We affirm.
BEAM, Circuit Judge, concurring in the judgment.
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