United States v. Shores

Decision Date23 January 2013
Docket NumberNo. 12–1089.,12–1089.
Citation700 F.3d 366
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Mark Edwin SHORES, Defendant–Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

700 F.3d 366

UNITED STATES of America, Plaintiff–Appellee,
v.
Mark Edwin SHORES, Defendant–Appellant.

No. 12–1089.

United States Court of Appeals,
Eighth Circuit.

Submitted: Sept. 21, 2012.
Filed: Nov. 26, 2012.

Rehearing and Rehearing En Banc Denied Jan. 23, 2013.


[700 F.3d 369]


Sean Matthew Vicente, FPD, argued, St. Louis, MO, for appellant.

Cristian Matthew Stevens, Assistant United States Attorney, argued, Thomas S. Rea, Assistant United States Attorney, Sayler Anne Ault Fleming, Assistant United States Attorney, on the brief, St. Louis, MO, for appellee.


Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.

GRUENDER, Circuit Judge.

A jury found Mark Shores guilty of six counts related to firearms and possession of controlled substances with intent to distribute. After finding Shores was an armed career criminal under 18 U.S.C. § 924(e)(1), the district court 1 sentenced Shores to 322 months' imprisonment. Shores appeals his convictions and sentence, and we affirm.

I. Background

On September 16, 2009, law enforcement officers executed a search warrant at 3714 Melba Place in St. Louis. Four adults, including Mark Shores, were present in the home at the time. Officers seized 4.48 grams of cocaine base (crack), 2.38 grams of heroin, $2,740 in cash, and a variety of drug-related items including a coffee

[700 F.3d 370]

grinder and scales covered with heroin residue. The results of this search led to a federal arrest warrant, which officers executed at the same address on September 9, 2010. At the time of the arrest, Shores's wife consented to a search of the premises. Officers recovered a revolver and an additional 5.84 grams of heroin. Shores was charged with, and a jury found him guilty of, two counts of possessing heroin with intent to distribute, one count of possessing crack with intent to distribute, maintaining a drug-involved premises, being a felon in possession of a firearm, and possessing a firearm in furtherance of a drug trafficking crime.

The district court sentenced Shores to concurrent 240–month sentences for each of the drug-related offenses. Shores received another concurrent sentence of 262 months for being an armed career criminal in possession of a firearm. A mandatory consecutive term of 60 months' imprisonment was added pursuant to 18 U.S.C. § 924(c) because the possession of the firearm was in furtherance of a drug trafficking crime. In total, Shores received a sentence of 322 months' imprisonment.

II. DiscussionA. Alleged 404(b) evidence

Shores first argues reversal is warranted because the district court admitted evidence in violation of Federal Rule of Evidence 404(b), which allows evidence of uncharged crimes, wrongs, or acts to be admitted for certain limited purposes, but only if the prosecution provides notice in advance of trial of its intent to use such evidence. During the trial Detective Anthony Boettigheimer—one of the officers who executed the search warrant at 3714 Melba Place on September 16, 2009—testified that on September 15, 2009, he had witnessed Shores participating in a hand-to-hand narcotics transaction outside of the same residence. Shores did not object to the admission of this evidence until just prior to closing arguments, when he argued that this testimony did not fall within one of the permissible Rule 404(b) purposes but instead was being introduced as substantive evidence of Shores's propensity to engage in drug trafficking activities. Shores further argued that even if the testimony was admissible under Rule 404(b), the Government had failed to provide the requisite notice of its intent to use such evidence in advance of trial. The Government concedes it did not provide notice of this testimony.

Although we ordinarily review a district court's decision to admit evidence for abuse of discretion, where a party has failed to make a timely objection, we will review only for plain error. United States v. Elbert, 561 F.3d 771, 775 (8th Cir.2009). Shores did not make a timely objection because he did not object “at the earliest possible opportunity after the ground of objection be[came] apparent.” United States v. Carter, 270 F.3d 731, 735 (8th Cir.2001) (quoting Terrell v. Poland, 744 F.2d 637, 638–39 (8th Cir.1984)). Therefore we review the admission of this testimony for plain error. United States v. Simons, 614 F.3d 475, 479 (8th Cir.2010).

Here we find no error, much less plain error, because the testimony referred to charged conduct and therefore was not subject to Rule 404(b). See United States v. Adams, 604 F.3d 596, 599 (8th Cir.2010). The hand-to-hand transaction occurred between Shores and a confidential informant (“CI”) just outside of 3714 Melba Place on September 15, 2009. Count Three of the superseding indictment, “Maintaining a Drug Involved Premises,” charges that “[o]n or about September 16, 2009,” Shores “manage[d] and controll[ed] the premises of 3714 Melba Place ... for the

[700 F.3d 371]

purpose of unlawfully manufacturing, storing, distributing and using a controlled substance.” Counts One and Two charged possession of controlled substances with intent to distribute likewise occurring “[o]n or about September 16, 2009.” The “on or about” language in an indictment “relieves the government of proving that the crime charged occurred on a specific date, so long as it occurred within a reasonable time of the date specified.” United States v. Youngman, 481 F.3d 1015, 1019 (8th Cir.2007) (quoting United States v. Duke, 940 F.2d 1113, 1120 (8th Cir.1991)). Whether a defendant has “maintained” a drug-involved premises is a “fact-intensive issue,” and requires more than a “defendant's mere presence during a police search of a residence.” United States v. Payton, 636 F.3d 1027, 1043 (8th Cir.2011). Shores's participation in this transaction outside of 3714 Melba Place the day before drugs were seized at the residence supports the inference that one of the purposes for which Shores maintained those premises during the relevant time period was the distribution of drugs. See United States v. Holliman, 291 F.3d 498, 502 (8th Cir.2002). Similarly, testimony describing Shores's participation in a hand-to-hand transaction on September 15, 2009 also falls within the conduct charged in the two possession-with-intent-to-distribute charges. Cf. United States v. Williams, 165 F.3d 1193, 1195 (8th Cir.1999) (holding that a witness's description of the defendant giving him methamphetamine in exchange for a car was admissible because it “relates to events occurring around the time period alleged in the superseding indictment” and tended to prove “an element of the offense of possession with intent to deliver methamphetamine”). We conclude that the evidence is part of the charged conduct and therefore not within the ambit of Rule 404(b). See Holliman, 291 F.3d at 501–02.

Moreover, even if the September 15 hand-to-hand transaction was not part of the charged conduct, we conclude that Rule 404(b) would not bar this testimony because it is “sufficiently intertwined” with the charged offenses. United States v. Molina, 172 F.3d 1048, 1055 (8th Cir.1999) (“It is well established that where evidence of another crime is so intertwined with the offense of conviction that proof of one incidentally involves the other or explains the circumstances of the other, it is ... not governed by Rule 404(b).” (internal citation omitted)). In Molina, we upheld the admission of testimony by an officer regarding a controlled buy from the defendant, even though this buy was not included in the charged conduct. The initial controlled buy was intrinsic to the charged conduct because it “provided the police with a portion of the probable cause that allowed the officers to obtain a [search] warrant.” Id. Just as the testimony in Molina explained the source of the probable cause, the testimony regarding the hand-to-hand transaction formed a critical component of the officer's basis for obtaining the warrant to search Shores's residence and therefore was also intrinsic evidence. Thus, the district court did not commit plain error in admitting this evidence.

B. Employment status testimony

Shores next argues the Government violated Federal Rule of Criminal Procedure 16(a)(1)(A), which requires the government to disclose to the defendant upon his request the substance of any “oral statements made by defendant ‘in response to interrogation by any person then known to the defendant to be a government agent.’ ” United States v. Hoelscher, 914 F.2d 1527, 1535 (8th Cir.1990) (quoting United States v. Vitale, 728 F.2d 1090, 1093–94 (8th Cir.1984)). Shores

[700 F.3d 372]

submitted a Rule 16 request, and the Government did turn over materials to him pursuant to this request. Nonetheless, Shores contends that the Government did not comply with its responsibilities under Rule 16 when it failed to disclose a statement Shores made to Detective Boettigheimer during the search of 3714 Melba Place on September 16, 2009. Shores had indicated to Detective Boettigheimer that he was unemployed, and the detective repeated this statement at trial. In response to Shores's objection, the district court told the Government to move on but did not strike the testimony. We review the district court's evidentiary rulings for abuse of discretion. United States v. Shillingstad, 632 F.3d 1031, 1034 (8th Cir.2011). An “abuse of discretion exists only if prior nondisclosure of the evidence prejudiced the substantial rights of the defendant.” United States v. Williams, 902 F.2d 675, 677 (8th Cir.1990). In this context, a defendant's rights are substantially prejudiced if it is “reasonably probable that the result of the trial would have been different” had the evidence been disclosed. United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293, 1301 (8th Cir.1985), vacated on other grounds,478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986).

Shores argues the admission of his statement regarding his lack of employment seriously harmed his...

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