U.S. v. Turner

• Citation: 553 F.3d 1337
• Decision Date: 26 January 2009
• Docket Number: No. 07-1318.,07-1318.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel J. TURNER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

553 F.3d 1337

UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel J. TURNER, Defendant-Appellant.

No. 07-1318.

United States Court of Appeals, Tenth Circuit.

January 26, 2009.

Peter R. Bornstein of Denver, CO, for Defendant-Appellant.

Martha A. Paluch, Assistant United States Attorney (Troy A. Eid, United States Attorney, with her on the brief), Denver, CO, for Plaintiff-Appellee.

Before HARTZ, HOLLOWAY and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Nathaniel J. Turner appeals his conviction for possession of ammunition by a previously convicted felon in violation of 18 U.S.C. § § 922(g)(1) and 924(a). Mr. Turner argues that the district court erred by: (1) denying his motion to suppress, (2) failing to instruct the jury properly on the law of possession, and (3) limiting his ability to cross-examine a key witness on a specific matter. We affirm.

I.

At approximately 2:00 p.m. on July 20, 2006, Aurora Police Department ("APD") narcotics investigators began undercover surveillance on Mr. Turner's residence in southeast Denver, Colorado. They targeted Mr. Turner, a convicted felon, because of suspected narcotics trafficking.¹ About thirty minutes into the surveillance operation, Mr. Turner emerged from his residence, entered a blue Trans Am, and drove to the parking lot of a Wal-Mart store. He exited the Trans Am, retrieved roof panels from the back seat of the vehicle, and closed the vehicle's roof. He then reentered the Trans Am, waited a few seconds, and drove to a nearby McDonald's restaurant.

Once in the McDonald's parking lot, Mr. Turner sat alone in the vehicle for five to ten minutes until a blue Isuzu Rodeo arrived and parked immediately next to him. A man later determined to be Rodney Rucker exited the Rodeo and entered the Trans Am through the front passenger door. He carried a white plastic bag similar to a grocery sack. After approximately five minutes, Mr. Rucker exited the Trans Am without the white plastic bag, reentered his own vehicle, and drove away. Mr. Turner left the parking lot a minute or two later. Because the investigators believed that a drug transaction had taken place and that the white plastic bag contained contraband, they continued to follow Mr. Turner.

Mr. Turner stopped at a gas station, entered and appeared to purchase a drink, returned to the Trans Am, and drove away. He soon began to drive erratically — speeding, weaving between traffic, going through red lights, and making abrupt turns. The APD investigators knew that Mr. Turner had a suspended Colorado driver's license, and they continued to follow him as he drove across Denver.

During this pursuit, lead APD Investigator Jason Klingler contacted the Denver Police Department ("DPD") and requested assistance from marked patrol units. At approximately 4:00 pm, Mr. Turner parked at a strip club. He exited the Trans Am and was immediately approached by uniformed DPD officers. The DPD officers ordered Mr. Turner to stop, placed him in handcuffs, conducted a pat-down search of his person, and questioned him about the ownership of the Trans Am. Mr. Turner stated that the Trans Am was not his, and that he did not know who owned it.² The DPD officers arrested Mr. Turner for driving with a suspended license, a misdemeanor offense carrying a minimum penalty of five days imprisonment. See Colo. Rev.Stat. § 42-2-138. Under DPD policy, they had discretion to issue Mr. Turner a summons or to seek jail time for his offense.

The APD investigators searched the Trans Am and found a white plastic Wal-Mart bag in the back of the car behind the two front seats. The bag contained a box of Winchester .38 caliber ammunition. The bag also contained a Wal-Mart receipt time-stamped during the time frame of the APD's surveillance of Mr. Turner that day.

Following the discovery of the ammunition, Investigator Klingler phoned the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") and was told that authorities would file a federal complaint against Mr. Turner for possession of the ammunition. DPD decided that it would not charge Mr. Turner with driving under suspension in light of the forthcoming federal complaint. Accordingly, they transferred custody of Mr. Turner to APD, which took him to the Aurora Municipal Jail to await the federal charge. Three and a half hours later, APD received a faxed copy of the federal complaint and arrest warrant against Mr. Turner for possession of the .38 caliber ammunition.

Mr. Turner made several unsolicited statements following his arrest. He initially asked Investigator Klingler why he was being arrested. The investigator advised Mr. Turner that he was driving without a license and had ammunition in his vehicle. Mr. Turner responded, "I've been scared" and "I needed to protect myself." He stated that he knew APD had been following him, and that he had been receiving medical treatment for paranoia. He told Investigator Klingler, "I should be angry that you caught me and that I'm going back to the pen for who knows how long, but I'm looking at you right now like you are my guardian angel."

The Motion to Suppress

Before trial, Mr. Turner sought to suppress the .38 caliber ammunition and his post-arrest statements. He did not challenge the legality of the initial traffic stop, but instead argued that the officers lacked probable cause to arrest him and to search the Trans Am. He also argued that his post-arrest statements were the fruits of an illegal arrest.

Following a lengthy suppression hearing, the district court entered an order denying Mr. Turner's motion. It found that DPD had probable cause to arrest Mr. Turner, concluding that the officers had reason to believe (1) that a drug transaction had occurred, and that (2) Mr. Turner was driving under suspension in a possibly stolen vehicle. The court determined that whether DPD policy permitted the officers to arrest Mr. Turner for driving under suspension was irrelevant because the officers had authority to arrest him pursuant to Colo.Rev.Stat. § 16-3-102(1)(b) ("A peace officer may arrest a person when ... [a]ny crime has been or is being committed by such person in his presence...."). Moreover, under Whren v. United States, 517 U.S. 806, 815, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), Fourth Amendment search and seizure protections do not turn on local law enforcement policies. Consequently, the court concluded that the officers lawfully searched the passenger compartment of the Trans Am incident to a valid arrest, and that Mr. Turner's post-arrest statements did not qualify as fruits of an illegal seizure.

The Motion in Limine

Four days before trial, the government learned that defense counsel intended to impeach Mr. Rucker, a key witness, with an ATF Seized Asset Claim form he had signed. The ATF form contradicted Mr. Rucker's testimony that he had purchased the ammunition for Mr. Turner at Mr. Turner's request. The form stated that Mr. Rucker owned the .38 caliber ammunition and wanted the bullets to be returned or discarded. Thus, defense counsel sought to use the form to show that Mr. Rucker purchased the .38 caliber ammunition for himself — not Mr. Turner — and that Mr. Rucker inadvertently left the ammunition in the Trans Am following Mr. Turner's purchase of a bag of marijuana.³ Mr. Turner's attorney admitted to assisting in the completion and submission of the form.

The government filed a motion in limine seeking to exclude the ATF form and all associated testimony. Mr. Rucker and defense counsel disputed the circumstances surrounding the creation of the form. The government asserted Mr. Rucker claimed that he signed the form because of pressure by defense counsel. Defense counsel did not dispute the government's claim that the form was in defense counsel's handwriting, but contended it reflected statements made to him by Mr. Rucker. Rec., vol. IV at 45. The government argued that admission of the form would create a serious risk of mistrial because defense counsel would make his own credibility a central issue at trial. Defense counsel responded that he would avoid this conflict by not challenging Mr. Rucker's version of the events surrounding the creation of the form.

The district court granted the government's in limine motion on the morning of trial. See id. at 5. The court found that if defense counsel were allowed to question Mr. Rucker about the ATF form, counsel would inevitably interject his credibility as an issue at trial. The court noted that "the circumstances giving rise to this issue were instigated and constructed by defense counsel." Id. at 6. Moreover, the court held that any probative value of Mr. Rucker's impeachment would be substantially outweighed by the danger of confusion of the issues and misleading of the jury under Rule 403 of the Federal Rules of Evidence. Defense counsel did not seek to withdraw from representation or request appointment of replacement counsel to facilitate the cross-examination of Mr. Rucker regarding the ATF form.

The Jury Instruction Regarding Possession

The district court instructed the jury on the law of possession, modeling its instructions after the Tenth Circuit Pattern Instructions. See Tenth Circuit Pattern Criminal Jury Instruction 1.31, Actual or Constructive Possession (2006). The court gave the following possession instruction:

The law recognizes two kinds of possession: actual and constructive possession. A person who knowingly has direct physical control over an object or thing, at a given time, is then in actual possession of it.

A person who, although not in actual possession, knowingly has the power at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it.

More than one person can be in possession of an object if each knows of its presence and has the power to control it. A defendant has joint possession of an object when two or more persons...