United States v. Hemsher

• Citation: 893 F.3d 525
• Decision Date: 20 June 2018
• Docket Number: No. 17-2189,17-2189
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Nicholas Ryan HEMSHER, Defendant–Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

893 F.3d 525

UNITED STATES of America, Plaintiff–Appellee

v.Nicholas Ryan HEMSHER, Defendant–Appellant

No. 17-2189

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2018

Filed: June 20, 2018

Rehearing and Rehearing En Banc Denied August 3, 2018

Counsel who presented argument on behalf of the appellant and appeared on the brief was Justin L. Bell, of Pierre, SD.

Counsel who presented argument on behalf of the appellee was Kevin Koliner, AUSA, of Sioux Falls, SD. The following attorney appeared on the appellee brief; Tamara P. Nash, Special AUSA, of Sioux Falls, SD.

Before GRUENDER, BEAM, and KELLY, Circuit Judges.

BEAM, Circuit Judge.

Nicholas Hemsher appeals following a jury conviction on firearms-related charges. He challenges the sufficiency of the evidence, the district court's¹ ruling on hearsay objections, and aspects of the court's sentencing calculation. We affirm.

I. BACKGROUND

"We recite the facts in the light most favorable to the jury's verdict." United States v. Daniel, 887 F.3d 350, 353 (8th Cir. 2018) (quoting United States v. Payne-Owens, 845 F.3d 868, 870 n.2 (8th Cir. 2017) ).

In June 2016, Hemsher and three co-defendants were indicted by a federal grand jury on firearm theft and possession charges. Hemsher was charged with possession of stolen firearms in violation of 18 U.S.C. § 922(j) and being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). The investigation leading to these indictments involved the gathering of information by law enforcement over a few-day period in February 2016.

In that month, Jack Hulscher reported to police that his home had been burglarized and that two gun safes, several guns, and ammunition were missing from the residence. After investigating, a Sioux Falls police officer determined that the safes were carried out of the home. The officer questioned Jack's son, Robert Hulscher, an initial co-defendant in this matter, who claimed at the time that he left the house around 11:30 a.m. and drove around the city for a couple hours. Robert Hulscher denied any involvement with the taking of the safes or the guns. A few days after the theft, officers returned to the Hulscher residence in response to a family dispute. When officers arrived they separated the parties. Jack Hulscher testified that the dispute began when Robert told him he might know where the stolen guns were. Jack Hulscher claimed that Robert said, "he knew a guy with a crew that did that kind of stuff," concerning the firearms. Separately, Robert Hulscher told officers that he took the safes that had been reported missing. His father believed that Robert was under the influence at the time of this questioning and Robert's statements were totally inconsistent with his previous denial. A detective then spoke to Robert a third time the day after the family dispute and Robert denied taking the guns as he did during his first questioning.

Around that time, a sheriff deputy arrested Nicolas Wingler, also an initial co-defendant, on an outstanding warrant. Wingler was in possession of a controlled substance and marijuana at the time. When interviewed, Wingler told detectives that there were about eight firearms in his apartment. Following Wingler's arrest, officers began surveillance of the apartment until a search warrant could be obtained with the information Wingler provided during the interview. During surveillance, the detectives observed a silver Camry parked in the driveway that left with two occupants. The Camry returned at 10:30 p.m. and the driver, identified as Hemsher, exited the vehicle and unsuccessfully attempted to enter Wingler's apartment.

Officers followed the Camry when it left the complex and briefly lost sight of the car, but noted that when they located the Camry again, they observed an unknown male walking near the location of Hemsher's tattoo parlor. A marked police car then pulled over the Camry. Hemsher was the driver and sole occupant at the time officers stopped the vehicle. Officers arrested Hemsher on an outstanding warrant and took him into custody, impounding the Camry for a later search. When the Camry was later searched, a detective found a gun on the floor of the driver's seat as well as ammunition in the trunk. Hemsher's girlfriend owned the Camry.

Detectives executed a search warrant at Wingler's home and at the time they did so they encountered Matthew Marshall, a third initial co-defendant, in the apartment house. Marshall had dropped a large black bag containing six firearms wrapped in a blanket outside Wingler's apartment. One additional firearm was located in Wingler's apartment.

At the trial of Hemsher and co-defendant Hulscher, Wingler and Marshall, who had pled guilty, testified as cooperating witnesses. Wingler testified that he knew Hemsher was in possession of firearms, that Hemsher wanted Wingler to sell them, and that the two texted regarding the number for sale. Wingler also testified that Hemsher had the guns laid out in the back of his tattoo shop and Wingler took them from there back to his apartment. Wingler testified he knew they were stolen because Hemsher told Wingler a "buddy" stole them from his dad. Wingler additionally testified that he told Hemsher that Hemsher could come to his apartment to check on the guns and the two exchanged phone calls and text messages concerning how much to charge and what Wingler would receive in exchange for coordinating their sale.

Marshall testified that he observed guns at the tattoo shop and, later, in Wingler's living room closet. Marshall said he knew Wingler was going to sell the firearms and that Marshall moved the guns from the bed to the black bag Marshall had with him when the officers executed the warrant. When Hemsher came to Wingler's apartment to check on the guns, it was Marshall who encountered Hemsher. Marshall testified that when he arrived, Hemsher demanded his money or his firearms, which Marshall interpreted to mean that the firearms in the apartment belonged to Hemsher. During the visit someone knocked on the door and Marshall stated that Hemsher pointed a gun at Marshall's head until the person knocking left. Hemsher then left the apartment after demanding that Marshall either deliver the firearms or have Wingler contact him.

The government also called Hemsher's then-girlfriend to the stand. She testified she owned the Camry and that Hemsher had the Camry all day on February 22, 2016—the relevant day in this investigation. She testified she never saw anything illegal in her car that day.

All eight firearms recovered by law enforcement were received in evidence; the seven retrieved from Wingler's apartment and the one from the Camry. Jack Hulscher identified them as the guns stolen from his home. Wingler also testified that the firearms were the ones he received from Hemsher. Marshall additionally testified that they were the firearms he observed in Wingler's apartment.

Hemsher questioned his then-girlfriend and additional witnesses, all of whom testified either that they saw nothing illegal in the Camry on the day in question, or that they never saw Hemsher with a gun. Each witness testified to communicating with Hemsher after his arrest via phone or jail-approved text messaging. Hemsher informed one of the witnesses that Wingler had spoken to the police about the case and that Hemsher thought he was a "rat" and a "snitch" for doing so.

Co-defendant Robert Hulscher was acquitted on all counts. Hemsher was convicted on two counts: possessing a stolen firearm and being a felon in possession of a firearm. The district court enhanced Hemsher's sentence for the possession of eight firearms and additionally for possessing those firearms in connection with another felony offense given the evidence that Hemsher was trying to traffic them. Finally, the court also increased Hemsher's sentence for his obstructive conduct, as there was evidence that he told one of his witnesses to testify that she did not see anything illegal from the dates of February 20 through February 22, 2016, and additional evidence of obstruction in text messages sent by Hemsher from jail. The resulting Guidelines range was 120 to 150 months and the court imposed concurrent sentences at the bottom of the range—120 months on each count.

II. DISCUSSION

A. Sufficiency and Trial Objection

This court reviews sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the verdict, giving it the benefit of all reasonable inferences. United States v. Bart, 888 F.3d 374, 377-78 (8th Cir. 2018). Reversal is warranted only if no reasonable juror could find the defendant guilty beyond a reasonable doubt. Id. at 378. The general standard is that absent extraordinary circumstances, the reviewing court does not weigh the evidence or evaluate witness credibility when making sufficiency of the evidence determinations. United States v. Crenshaw, 359 F.3d 977, 988 (8th Cir. 2004). Such extraordinary circumstances arise when the reviewing court determines no reasonable person could believe the testimony offered. Id. ("Although ordinarily witness credibility is left completely to the jury and is beyond appellate review, we must reverse a conviction if no reasonable person could believe the incriminating testimony.") (quoting United States v. Watson, 952 F.2d 982, 988 (8th Cir. 1991) ).

On appeal Hemsher argues this case presents an extraordinary circumstance allowing this court to review credibility determinations. According to Hemsher, although normally a cooperating witness's testimony is not rendered insubstantial just because of its self-interest, here, there were two self-interested witnesses whose testimony was so full of material inconsistencies that there was no way the jury could rely on their testimony. Hemsher points out the many inconsistencies of Wingler and Marshall throughout their questioning by officers, and claims the accounts of Wingler and Marshall presented at trial were "impossible" in...