United States v. Jeffrey Allen Stoltz , 683 F.3d 934 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-3695
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Jeffrey Allen Stoltz, *
*
Appellant. *
___________
Submitted: May 18, 2012
Filed: July 10, 2012
___________
Before LOKEN and BEAM, Circuit Judges, and PERRY,1 District Judge.
___________
BEAM, Circuit Judge.
A jury convicted defendant Jeffrey Stoltz of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Stoltz appeals his conviction, asserting
that the district court2 erroneously (1) denied his motion to suppress; and (2) excluded
1
The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri, sitting by designation.
2
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
prior convictions of a government witness under Federal Rule of Evidence 609; and
that there was (3) insufficient evidence to support the jury's verdict.3 We affirm.
I. BACKGROUND
On the morning of November 16, 2010, Special Agents Scot Umlauf and Steve
Parshall conducted an investigation into a drug overdose death in Alexandria,
Minnesota. During the investigation, they learned that a suspected drug dealer fled
the scene of the crime and was possibly staying twenty miles away at a known drug
house in Lowry, Minnesota. Parshall relayed this information to Deputy Jason
Sorenson, who then drove past the Lowry residence and observed a green sport utility
vehicle (SUV), registered to Ingrid Stanley, in the driveway. Later that day, Sorenson
stopped the SUV after he observed the vehicle driving without a front license plate,
which is a violation of state law. See Minn. Stat. § 169.79, subd. 6 ("[O]ne [license]
plate must be displayed on the front and one on the rear of the vehicle.").
After pulling over the SUV, Sorenson approached the driver's side window and
noticed two large dogs and a male driver inside the vehicle. Sorenson asked the
driver to produce a driver's license and proof of insurance but the driver, who was
visibly nervous, told Sorenson that he did not have either with him. In lieu of
providing a driver's license, the driver told Sorenson that his name was David
Michael Stoltz and that his date of birth was October 12, 1965. Sorenson returned to
3
The United States has moved to supplement the record on appeal to include
various trial exhibits and the certified copies of the convictions the district court
excluded under Federal Rule of Evidence 609. We may supplement the record to
include "anything material to either party [that] is omitted from or misstated in the
record by error or accident." Fed. R. App. P. 10(e)(2)(C). We find that the
documents at issue are material to the issues raised on appeal. Therefore, we grant
the motion to supplement the record. See United States v. Ruff, 472 F.3d 1044, 1047
n.4 (8th Cir. 2007).
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his patrol car and verified, through dispatch, that David Stoltz was a valid Minnesota
driver. Sorenson then began to fill out a citation for no proof of insurance. See
Minn. Stat. § 169.791, subd. 2 ("If the driver does not produce the required proof of
insurance upon the demand of a peace officer, the driver is guilty of a
misdemeanor.").
While Sorenson was filling out the citation, Agents Umlauf and Parshall
arrived on the scene and Sorenson explained that the driver of the SUV was David
Stoltz. Umlauf became suspicious that the driver was actually Jeffrey Stoltz and that
the driver had falsely identified himself. Umlauf was aware that Jeffrey Stoltz lived
with Ingrid Stanley, the registered owner of the SUV, but Umlauf was unable to
visually confirm the driver's identity from his vantage point. To confirm the identity
of the driver, the officers retrieved a photograph of David Stoltz on a database via
Parshall's mobile computer. After viewing the photo, Sorenson determined that the
driver did not resemble David Stoltz. The officers agreed that, before they proceeded
with an arrest, Sorenson should get the driver out of the SUV so the officers could
compare the driver with photographs of David and Jeffrey Stoltz. Umlauf advised
Sorenson to proceed with caution because Jeffrey Stoltz had been found in possession
of firearms in previous encounters with law enforcement.
Sorenson returned to the SUV and told the driver to exit the vehicle so the
officers could verify his identity. To ensure officer safety, Sorenson conducted a pat-
down search of the driver after he exited the vehicle and, while doing so, retrieved a
digital scale from the driver's pocket. The officers then compared the driver to
photographs of David and Jeffrey Stoltz and concluded that the driver was, in fact,
Jeffrey Stoltz. The officers then placed Jeffrey Stoltz under arrest for falsely
identifying himself. See Minn. Stat. § 609.506, subd. 2 ("Whoever with intent to
obstruct justice gives the name and date of birth of another person to a peace officer
. . . when the officer makes inquiries incident to a lawful investigatory stop . . . is
guilty of a gross misdemeanor."). Sorenson then searched Stoltz's person and located
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$741 in cash. Parshall and Umlauf also performed a field test on Stoltz's digital scale,
which tested positive for methamphetamine. Sorenson transported Stoltz to the
stationhouse and the SUV was impounded.
The day after Stoltz's arrest, Umlauf applied for and received a search warrant
for the SUV. While executing the warrant, Parshall and Umlauf located a wallet
between the driver's seat and center console of the SUV that contained Stoltz's
driver's license and two pawn receipts. The receipts indicated that Stoltz–a convicted
felon–pawned a shotgun, two shotgun barrels, and a rifle with Viking Pawn on June
29, 2010. Parshall then went to Viking Pawn to investigate the transaction. There,
two employees viewed a photo of Stoltz and verified that Stoltz pawned the firearms
listed on the pawn receipts.
The grand jury returned an indictment charging Stoltz with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Stoltz filed a motion
to suppress evidence obtained during the roadside searches of his person and the
subsequent warrant-based search of the SUV. The magistrate judge4 issued a report
recommending denial of the motion, which the district court adopted. At trial, among
other evidence, the government introduced the testimony of pawnshop employees
Judith Collins and Daniel Tillberg. Under Federal Rule of Evidence 609, the district
court barred Stoltz's attempt to introduce evidence of Tillberg's two prior convictions.
The jury returned a verdict of guilty, and Stoltz appeals.
4
The Honorable Leo I. Brisbois, United States Magistrate Judge for the District
of Minnesota.
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II. DISCUSSION
A. Motion to Suppress
Stoltz contends that the district court erred when it denied his motion to
suppress. When reviewing the denial of a motion to suppress, we review the district
court's factual findings for clear error and its conclusions of law de novo. United
States v. Williams, 669 F.3d 903, 905 (8th Cir. 2012).
First, Stoltz argues that, under the Fourth Amendment, the district court should
have suppressed all evidence obtained after Deputy Sorenson told Stoltz to exit the
SUV because, at that point, Stoltz was unlawfully arrested without probable cause.
We disagree. It is well settled that, "once a motor vehicle has been lawfully detained
for a traffic violation, the police officers may order the driver to get out of the vehicle
without violating the Fourth Amendment's proscription of unreasonable seizures."
Maryland v. Wilson, 519 U.S. 408, 412 (1997) (quotation omitted). Stoltz does not
contend that he was unlawfully stopped for driving an SUV without a front license
plate, which is a violation of Minnesota law, or that the detention was unreasonably
prolonged. See United States v. Long, 320 F.3d 795, 799 (8th Cir. 2003) ("Any
traffic stop is constitutional . . . so long as the officer had probable cause to believe
that a traffic violation actually occurred."); United States v. Bowman, 660 F.3d 338,
343 (8th Cir. 2011) ("If complications arise during . . . routine [traffic stop] tasks, the
vehicle may be detained for a longer period of time."); Bowman, 660 F.3d at 344("An officer's suspicion of criminal activity may reasonably grow over the course of
a traffic stop as the circumstances unfold and more suspicious facts are uncovered."
(quotation omitted)). Stoltz's argument on this point is meritless.
Second, Stoltz argues that the pawn receipts officers seized from his wallet,
while executing a search warrant on the SUV, should be suppressed because the
search of the wallet fell outside the scope of the search warrant. We disagree. We
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review de novo whether officers exceeded the scope of a warrant during a search.
United States v. Weinbender, 109 F.3d 1327, 1329 (8th Cir. 1997). The search
warrant at issue expressly authorized officers to search the SUV for "receipts" and
"other items evidencing the . . . expenditure of money." And, "[a] lawful search
extends to all areas and containers in which the object of the search may be found."
Id. Because receipts may be found in a wallet, the officers' search of the wallet did
not exceed the scope of the search warrant.
B. Rule 609 Convictions
Next, Stoltz argues that, under Federal Rule of Evidence 609, the district court
erroneously excluded two prior convictions of government witness Daniel Tillberg.
We review the district court's exclusion of the convictions under Rule 609 for an
abuse of discretion. United States v. Swanson, 9 F.3d 1354, 1356 (8th Cir. 1993).
Under Rule 609(a), convictions may be used to attack a witness's character for
truthfulness if: (1) subject to Rule 403, the conviction is punishable by more than one
year in prison; or (2) the crime's elements required proving "a dishonest act or false
statement." Fed. R. Evid. 609(a). Rule 609(b) places additional limitations on the
admissibility of old convictions. Specifically, "if more than 10 years have passed
since the witness's conviction or release from confinement for it, whichever is later[,]"
then the conviction is admissible only if (1) its probative value substantially
outweighs its prejudicial effect; and (2) the proponent gives the adverse party written
notice of the intent to use the conviction. Fed. R. Evid. 609(b).
Stoltz attempted to admit two of Tillberg's prior convictions into evidence
under Rule 609: (1) a misdemeanor disorderly conduct conviction;5 and (2) a 2001
5
Although Stoltz asserts that Tillberg pled guilty to misdemeanor "obstruction
of legal process" on June 9, 2008, the record reveals that Tillberg pled guilty to
misdemeanor "disorderly conduct" and the obstruction of legal process charge was
dismissed.
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felony aiding and abetting unauthorized use of a vehicle conviction. The district
court excluded the misdemeanor conviction under Rule 609(a)(2) and excluded the
2001 felony conviction under Rule 609(b). We hold that, in doing so, the district
court did not abuse its discretion.
First, Stoltz's misdemeanor disorderly conduct conviction is not the sort of
crime of falsehood contemplated in Rule 609(a)(2). See United States v. Collier, 527
F.3d 695, 699 (8th Cir. 2008) (explaining that Rule 609(a)(2) refers to "crimes such
as perjury . . . false statement, criminal fraud, embezzlement, . . . or any other offense
in the nature of crimen falsi" (quotation omitted)). Indeed, under Minnesota law, the
elements of Tillberg's disorderly conduct offense do not require the government to
prove a "dishonest act or false statement." See Minn. Stat. § 609.72, subd. 1(3).
Therefore, the district court did not err when it excluded the disorderly conduct
conviction under Rule 609(a)(2).
Stoltz's arguments regarding the admissibility of the felony conviction are
equally unconvincing. Tillberg was convicted of felony aiding and abetting
unauthorized use of a vehicle in January 2001, and began serving probation for that
offense in April 2001. Tillberg was discharged from probation on July 14, 2004, and
Stoltz's trial in this case began on July 27, 2011. Stoltz contends that the phrase
"release from confinement" in Rule 609(b) encompasses release from probation and,
because Tillberg was discharged from probation within ten years of trial, the felony
conviction is not stale. We disagree. As our sister circuits have held, "'confinement'
for purposes of the ten-year time limit in Rule 609(b) does not include periods of
probation." United States v. Rogers, 542 F.3d 197, 201 (7th Cir. 2008). Rather, Rule
609(b)'s "[ten-year] clock starts at the witness's release from any physical
confinement, or in the absence of confinement, the date of the conviction." Id.-7-
(emphasis added). Therefore, because Tillberg was convicted more than ten years
before trial, the additional limitations of Rule 609(b) apply.6
In the alternative, Stoltz argues that, even if the conviction was stale, it should
have been admitted under Rule 609(b)(1) because its probative value substantially
outweighed its prejudicial effect. We disagree. Rule 609(b) effectively establishes
"a rebuttable presumption against the admissibility of prior convictions more than ten
years old." United States v. Felix, 867 F.2d 1068, 1073 (8th Cir. 1989) (quotation
omitted). Indeed, such stale convictions "should be admitted very rarely and only in
exceptional circumstances." Id. (internal quotation omitted). The district court, after
considering the parties' arguments, concluded that such exceptional circumstances did
not exist in this case. After careful review, we hold that the district court acted well
within its discretion when it excluded Tillberg's felony conviction under Rule 609(b).
C. Sufficiency of the Evidence
Finally, Stoltz argues that there was insufficient evidence to support his
conviction for being a felon in possession of a firearm. Specifically, he argues that,
although there is evidence that Stoltz "pawned" a shotgun and rifle, there is no
evidence that he ever actually carried or touched the firearms. We review sufficiency
challenges de novo and we will "reverse[] only if no reasonable jury could have found
the defendant guilty." United States v. Brown, 634 F.3d 435, 439 (8th Cir. 2011)
(alteration in original) (quotation omitted).
6
Although somewhat unclear, the certified copy of Tillberg's conviction
indicates that, commencing on April 30, 2001, Tillberg may have served eighteen
days in jail on the aiding and abetting conviction. If that is the case, Tillberg was
"released from confinement" for the purposes of Rule 609(b) in May 2001, which is
still more than ten years before Stoltz's trial.
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"Possess[ion]" of a firearm, as contemplated in 18 U.S.C. § 922(g)(1), can be
actual or constructive. Brown, 634 F.3d at 439. Actual possession refers to the
"knowing, direct, and physical control over a [firearm]," whereas constructive
possession "is established by proof that the defendant had control over the place
where the firearm was located, or control, ownership, or dominion of the firearm
itself." Id. (quotations omitted). Notably, a showing of possession "may be based on
circumstantial evidence which is intrinsically as probative as direct evidence." Id.(quotation omitted).
We find that there was sufficient evidence for a reasonable jury to conclude
that Stoltz actually possessed the firearms at issue.7 At trial, the government
introduced evidence that pawn receipts were located in Stoltz's wallet along with
Stoltz's driver's license. The pawn receipts bore Stoltz's name and driver's license
number, and indicated that Stoltz pawned a shotgun, two shotgun barrels, and a rifle
at Viking Pawn on June 29, 2010. The government also introduced the testimony of
Judith Collins, the owner of Viking Pawn. Collins testified that Viking Pawn's
standard procedure is to write the name and driver's license number of the individual
pawning items on a pawn receipt. When Stoltz's attorney asked Collins whether she
knew if the firearms belonged to Stoltz or to Stoltz's son, Collins replied, "I don't
know who they belonged to. I know Mr. Jeff Stoltz brought them in. That's all I
know." Later, Collins, who was familiar with Stoltz from previous transactions,
explained that she had "[n]o doubt" that Stoltz was the individual who pawned the
firearms. In addition, Viking Pawn employee Daniel Tillberg testified that Stoltz paid
interest on the pawn loans and, on one occasion, attempted to retrieve the firearms.
Tillberg explained that Stoltz became angry when Tillberg refused to return the
7
Although the government makes compelling arguments with regard to
constructive possession, our finding as to actual possession forecloses the need to
decide whether there was sufficient evidence of constructive possession.
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firearms after Stoltz refused to submit to a mandatory background check.8 Although
Tillberg was prohibited from returning the firearms, he did return a shotgun barrel to
Stoltz. Viewing such evidence in the light most favorable to the government, we hold
that the evidence "substantially supports" the jury's verdict. Id. at 439; see, e.g.,
United States v. Hernandez, 972 F.2d 885, 887 (8th Cir. 1992) (finding "more than
sufficient" evidence that the defendant knowingly possessed a firearm where there
was ample evidence, including receipts, that the defendant "pawned" the firearm in
question).
III. CONCLUSION
We affirm.9
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8
The government also presented evidence that Stoltz granted an individual
named Jason Roers authority to retrieve the firearms from Viking Pawn. Roers
attempted to pick up the firearms on one occasion but was unsuccessful because he
failed the mandatory background check.
9
Stoltz filed a pro se motion to supplement the appellate brief filed by his
counsel. "We generally do not accept pro se motions or briefs when an appellant is
represented by counsel . . . ." United States v. McIntosh, 492 F.3d 956, 961 n.2 (8th
Cir. 2007). Following our typical practice, we deny Stoltz's motion.
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