U.S. v. Harper

• Citation: 466 F.3d 634
• Decision Date: 24 October 2006
• Docket Number: No. 06-1155.,06-1155.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Joseph HARPER, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

466 F.3d 634 UNITED STATES of America, Plaintiff-Appellee,
v.
Robert Joseph HARPER, Jr., Defendant-Appellant. No. 06-1155. United States Court of Appeals, Eighth Circuit. Submitted: June 12, 2006. Filed: October 24, 2006.

[466 F.3d 639]

Randall David Eggert, U.S. Attorney's Office, Springfield, MO, for Plaintiff-Appellee.

David R. Mercer, Federal Public Defender's Office, Springfield, MO, for Defendant-Appellant.

Robert Joseph Harper, Jr., Cameron, MO, pro se.

Before LOKEN, Chief Judge, ARNOLD, Circuit Judge, and DOTY,¹ District Judge.

DOTY, District Judge.

Robert Joseph Harper appeals his conviction and sentence on charges of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g), and possession of stolen firearms, in violation of 18 U.S.C. § 922(j). Specifically, he argues that the district court erred by denying his motion to suppress statements,² stating to the venire that an indictment is based on probable cause, denying his motion for judgment of acquittal, refusing to instruct the jury on his defense of coercion and enhancing his sentence pursuant to Sentencing

466 F.3d 640

Guidelines §§ 2K2.1(b)(5) and 3C1.2.³ For the following reasons, we affirm.

I. BACKGROUND

On April 14, 2004, a resident of Lebanon, Missouri, reported that a Chevrolet Trailblazer had been stolen. In addition, numerous items were stolen from a safe in a separate residence in Lebanon, including a nine-millimeter handgun and two fully loaded magazine clips. At some point on April 16, 2004, a resident of Crocker, Missouri, reported that eight rifles had been stolen from his home. That same day, Missouri State Highway Patrol Trooper Jason Glendenning observed the stolen Trailblazer parked in a right-of-way. As Glendenning drove towards the vehicle, the Trailblazer pulled out of the right-of-way and rapidly accelerated. A brief high-speed chase ensued at speeds in excess of ninety miles per hour over approximately four miles of county roads. The chase ended when the Trailblazer drove through a ditch, struck an embankment, traveled briefly on westbound Interstate-44 and spun out on the eastbound shoulder of Interstate-44.

Glendenning approached the Trailblazer on foot with his weapon drawn and ordered the driver out of the vehicle. Harper exited the Trailblazer. Glendenning immediately handcuffed Harper and escorted him to the median for safety reasons, where he was assisted by several off-duty officers who had witnessed the incident. According to Glendenning, Harper was conscious and did not initially seem to have suffered any injuries. Shortly thereafter, however, Harper appeared to have a seizure and Glendenning called an ambulance. After Glendenning escorted Harper to the median, he returned to secure the vehicle and observed numerous firearms inside the Trailblazer. In the ambulance, Harper was conscious, sitting upright and talking to ambulance personnel about his condition. Glendenning entered the ambulance and advised Harper of his Miranda rights. Harper told Glendenning he understood those rights. Glendenning asked two questions: whether the Trailblazer was stolen and whether the firearms inside the vehicle were stolen. Harper answered both questions affirmatively. Glendenning seized numerous items from the Trailblazer that had been reported stolen, including eight rifles, a nine-millimeter handgun and two magazine clips that contained seventeen rounds of ammunition.

At approximately 7:00 p.m., Harper was taken by ambulance to a hospital. At the hospital, Harper told Missouri State Highway Patrol Sergeant Richard Fredendall that he wanted to make a statement and that he had been set up by a Laclede County deputy sheriff. Following Harper's release from the hospital, Fredendall took him to the Laclede County Sheriff's Department and informed Glendenning that Harper wanted to make a statement. At approximately 11:00 p.m., Glendenning and Missouri State Highway Patrol Trooper Bryan Arnold interviewed Harper. Glendenning first asked Harper if he remembered his Miranda rights. Harper stated that he remembered being advised of those rights and wanted to explain why he was in possession of the stolen vehicle. Harper then told the officers that he was driving the Trailblazer at the direction of Laclede County Deputy Sheriff John Young.

On July 23, 2004, a grand jury returned a two-count indictment against Harper

466 F.3d 641

charging him with being a felon in possession of firearms and possessing stolen firearms, in violation of 18 U.S.C. §§ 922(g) and (j) respectively. Harper moved the district court to suppress all statements he made on April 16, arguing that the statements were in violation of his Fifth Amendment right to remain silent and his Sixth Amendment right to counsel because his waiver of his Miranda rights was not knowing or voluntary. At the suppression hearing, Harper testified that he was unconscious following the accident, gained consciousness only after he was in the ambulance and did not remember being advised of his Miranda rights. Glendenning, Fredendall and Arnold testified on behalf of the government. The magistrate judge determined that the testimony of Glendenning and Arnold established that Glendenning advised Harper of his Miranda rights in the ambulance and that the weight of the evidence supported a finding that Harper did not suffer an injury that impaired his mental capacity to knowingly and voluntarily waive his those rights. The magistrate judge further determined it was not necessary for a second Miranda warning to be given at the sheriff's department because the interview occurred within hours of Glendenning advising Harper of his Miranda rights, Harper acknowledged that Glendenning had previously advised him of those rights, there was no interruption in his custody status and Harper intentionally initiated the interview. Adopting the report and recommendation of the magistrate judge, the district court denied Harper's motion to suppress.

Harper proceeded to trial on June 27, 2005. Following the court's voir dire, defense counsel began to question the members of the jury panel on their understanding of an indictment as follows:

Ladies and Gentlemen, in a criminal case the first pleading that is filed is an indictment. Is there anybody who does not understand that an indictment is nothing more than an accusation? Or, to state it differently, is there anybody here who feels that an indictment is an evidence of something? Is there anybody here who would kind of assume where there's smoke, there's fire, and if they filed an indictment there must be something to it? And it's okay if you feel that way. Now is the time to be honest with us.

(T. Tr. at 102-03.) One panel member answered affirmatively. Defense counsel asked the panel member's name and began to further question the potential juror on the topic. However, the district court promptly interrupted, stating: "No, wait a minute. I'm going to stop this. Now, there is probable cause or an indictment wouldn't be returned. I'm not going to let you ask any further questions on that. Go to your next question." (Id. at 103.) Following completion of defense counsel's voir dire, the district court stated:

I apologize for cutting [counsel] off on the questioning about the indictment. Now, an indictment is merely a formal legal proceeding but it's based upon probable cause that the crimes have been committed and somehow the defendant is involved with it, but it's no indication of an individual's guilt at all. Now, responding to that, can you still be a fair and impartial juror?

(Id. at 106.) The district court directed the last question to the panel member who said he believed an indictment to be evidence. In response, the gentleman stated "No. I'm kind of suspicious." (Id.) Harper's attorney did not object to either of the district court's above statements regarding probable cause. When defense counsel subsequently challenged the potential juror for cause, the district court excused him from the panel.

466 F.3d 642

Following jury selection and prior to commencement of trial, the district court instructed the impaneled jury that:

[The] charges are set forth in what is called an indictment. You should understand that an indictment is simply an accusation. It is not evidence of anything. The defendant has pleaded not guilty, and is presumed to be innocent unless and until proved guilty beyond a reasonable doubt. It will be your duty to decide from the evidence whether the defendant is guilty or not guilty of the crime charged.

(J.A. at 70.) In its final instructions to the jury, the district court further instructed the jury as follows:

As I told you at the beginning of the trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against him. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each essential element of the crime charged.

(J.A. at 83.)

At trial, Harper, the only defense witness, did not deny possession of the firearms. Rather, he testified that his possession was the result of coercion. According to Harper, Deputy Young asked him if he would be a cooperating informant, but Harper refused Young's request and told his probation officer, who said that she would talk to Young. Harper testified that Young then arrested him, drove him to an abandoned car lot, put a gun to his head and told Harper that he did not know who he was messing with. (T. Tr. at 212.) Young then told Harper that he would give him a break only because he was his ex-brother-in-law but that Harper had to do two favors for Young, one of which was driving the Trailblazer. Harper testified that following the incident in the car lot Young called Harper's sister's cell phone to...