United States v. Curtis Cotton

United States Court of Appeals
For the Eighth Circuit
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No. 16-3545
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Curtis J. Cotton
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: May 12, 2017
Filed: July 6, 2017
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Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
While on supervised release following a prison term for his 2009 bank robbery
conviction, Curtis Cotton was found to have violated the terms of his supervision by
committing assault, in violation of Iowa Code section 708.1(2)(c). The district court1
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The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
revoked Cotton’s supervision and sentenced him to twenty-four months in prison.
Cotton challenges the sufficiency of the government’s evidence. Having jurisdiction
under 28 U.S.C. § 1291, we affirm.
I. Background
Cotton was sentenced to sixty months imprisonment and three years supervised
release after pleading guilty to bank robbery in 2009. He began his supervised
release on September 16, 2015. Relevant to the present case, the supervised release
included the following terms: (1) “The defendant shall not commit another federal,
state or local crime”; and (2) “The defendant shall not possess a firearm, destructive
device, or any other dangerous weapon.” On November 10, 2015, Cotton’s probation
officer filed a petition alleging that Cotton violated these two mandatory conditions.
Around 1:55 a.m. on October 26, 2015, Ryan Storey exited the Horseshoe
Casino in Council Bluffs, Iowa, with approximately $8000 in baccarat winnings. As
Storey retrieved his overnight luggage from his truck in a hotel parking lot adjacent
to the casino, an armed assailant ran toward Storey shouting “hold up,” coming within
five to ten feet of Storey and pointing a large silver handgun at him. Storey jumped
back, shouted loudly, and ran into the hotel office. The assailant ran in the opposite
direction. The encounter lasted 10 to 15 seconds.
Storey identified Cotton as the assailant. Cotton admitted that he was at the
Horseshoe Casino that night and that he made contact with Storey while in the casino.
Storey testified that while he played baccarat with several thousand dollars in chips
in public view, Cotton lingered behind him and hung around asking questions. Storey
testified that Cotton stood out to him because he was just “moseying around the
casino,” was lingering behind him, and was not gambling. Storey remembered
conversing with Cotton at the casino.
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Casino surveillance video shows that Cotton exited the casino with Bronson
Birdow through the same door as Storey about 20 seconds ahead of him and got into
a black Chevrolet Avalanche pickup truck waiting just outside the casino doors
driven by a third unidentified individual. Storey walked past the truck carrying a
pizza as he exited the casino. Casino parking lot video shows that the black truck
containing Cotton followed Storey at a distance with its lights off as Storey walked
to his vehicle. The same black truck is seen on the video following Storey’s vehicle
leaving the casino parking lot. Storey made the very short drive to the Country Inn
and Suites adjacent to the casino. The “hold up” incident occurred after Storey
checked in at the hotel desk and returned to his vehicle in the hotel parking lot to
retrieve his overnight luggage.
Storey testified that he recognized Cotton as the assailant because of his eyes,
voice, short stature, gait, and clothes—which he remembered from their interaction
and his observations of Cotton earlier at the casino. Cotton claims that he went
straight home from the casino, but called no witnesses to support that assertion.
The district court found “by the greater weight of the evidence” that Cotton
pointed a handgun at Storey in the parking lot that night, committing assault in
violation of Iowa state law. The district court, therefore, found Cotton guilty of both
violations since he broke an Iowa law and possessed a firearm. The district court
sentenced Cotton to twenty-four months imprisonment followed by an additional year
of supervised release.
Cotton appeals the district court’s revocation of his supervised release and its
finding that he violated the terms and conditions of his supervised release, but not the
sentence imposed.
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II. Analysis
“We review for clear error the district court’s factual findings as to whether a
violation occurred.” United States v. Ralph, 480 F.3d 888, 890 (8th Cir. 2007).
“Clear error exists where, viewing the record as a whole, we are left with the definite
and firm conviction that a mistake has been committed.” United States v. Finley, 612
F.3d 998, 1002 (8th Cir. 2010) (internal quotation marks omitted).
Iowa Code section 708.1(2)(c) says, “A person commits an assault when,
without justification, the person . . . [i]ntentionally points any firearm toward another,
or displays in a threatening manner any dangerous weapon toward another.”
Here, the district court found that “Curtis Cotton approached Ryan Storey . . .
[and] pointed a handgun at him in the parking lot,” committing “assault under Iowa
Code § 708.1(2)(c).”
We do not find clear error in the district court’s factual findings because there
is ample evidence to support these findings. Specifically, this evidence included:
(1) Storey’s testimony that Cotton was present at the casino, “moseying
around” without gambling, and lingering around and behind Storey as
Storey gambled at the baccarat table with several thousand dollars of
casino chips visible, giving Cotton a motive to later approach Storey in
the hotel parking lot with a gun;
(2) Storey’s testimony, supported by video, showing that he had ample
opportunity to observe Cotton and to later identify him based upon his
size, clothing, eyes, voice, and other physical characteristics;
(3) Casino video confirming that Cotton exited the casino almost
simultaneously with Storey and that he got into a black truck that
stealthily followed Storey as he walked to his vehicle in the casino
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parking lot, and the same black truck followed Storey’s vehicle while
exiting the parking lot;
(4) Storey’s identification of Cotton as the assailant with “ninety-five
percent certain[ty],” based upon the characteristics he observed in the
casino including Cotton’s eyes, clothing, size, voice, and other features;
(5) Parking lot video corroborating Storey’s testimony about the “hold
up” regarding the nature of the attack including approach and retreat of
the attacker and the duration of the attack; and
(6) Storey’s testimony that Cotton pointed a gun at him during the “hold
up” encounter saying the gun was “staring him in the chest” and that he
feared for his life.
Bolstering the above evidence is the fact that the district court found Storey to be a
“very credible witness throughout the entire proceedings,” and Storey was extensively
cross-examined by Cotton’s counsel. Credibility determinations by the district court
based on testimony at supervised release revocation hearings “are virtually
unreviewable on appeal.” Ralph, 480 F.3d at 890 (internal quotation marks omitted).
In addition, Cotton did not dispute any of Storey’s testimony other than that
naming him as the assailant, and Cotton provided no evidence to support his claim
that he went straight home from the casino, in spite of the fact that he got into a truck
with two other potential witnesses who could have been called to corroborate his
story. Therefore, based upon the evidence above, we find no clear error in the district
court’s finding that Cotton intentionally pointed a gun at Storey in the hotel parking
lot.
Next, the district court found that Cotton violated two terms of his supervised
release in pointing a gun at Storey. First, the district court found that Cotton
committed a crime in violation of Iowa Code section 708.1(2)(c) violating the term
of his release stating, “The defendant shall not commit another . . . state . . . crime.”
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Iowa Code section 708.1(2)(c) clearly defines “assault” as including “[i]ntentionally
point[ing] any firearm toward another.” Based upon the district court’s factual
finding above, the district court necessarily found that Cotton committed the state
crime of assault and therefore violated a term of his supervision. Second, in finding
that Cotton pointed a gun at Storey, the district court had to find that Cotton violated
the term of his supervision that stated, “The defendant shall not possess a firearm,”
since Cotton obviously possessed the firearm he was brandishing.
III. Conclusion
For the reasons stated above, we find that the district court did not clearly err
in its factual determination that Cotton committed an Iowa crime in the parking lot
of a hotel by pointing a gun at another thereby violating the terms of his supervised
release.
Affirmed.
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