U.S. v. Fleck, 04-1820.

• Decision Date: 29 June 2005
• Docket Number: No. 04-1820.,No. 04-1929.,No. 04-1928.,04-1820.,04-1928.,04-1929.
• Citation: 413 F.3d 883
• Parties: UNITED STATES of America, Appellee, v. Ken R. FLECK, Appellant. United States of America, Appellee-Cross Appellant, v. Robert G. Fleck, Jr., Appellant-Cross Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

413 F.3d 883

UNITED STATES of America, Appellee, v. Ken R. FLECK, Appellant.

United States of America, Appellee-Cross Appellant, v. Robert G. Fleck, Jr., Appellant-Cross Appellee.

No. 04-1820.

No. 04-1928.

No. 04-1929.

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2004.

Filed: June 29, 2005.

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A. Michael Bianchi, argued, Omaha, NE, for appellant, Ken R. Fleck.

Phillip G. Wright, argued, Omaha, NE, for appellant/cross-appellee, Robert G. Fleck, Jr.

Michael D. Wellman, argued, Asst. U.S. Atty., Omaha, NE, for appellee/cross-appellant, U.S.

Before SMITH, BEAM, and BENTON, Circuit Judges.

BEAM, Circuit Judge.

Ken and Robert Fleck were each convicted following a jury trial of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Both Ken and Robert Fleck appeal (1) the district court's decision to allow trial testimony regarding another alleged crime, (2) the district court's application of the sentencing guidelines to find that they possessed nine firearms, and (3) their resulting sentences based on the constitutionality of the sentencing guidelines. In addition, Ken appeals the district court's finding that he committed the instant offense less than two years after being released from prison, and Robert appeals the district court's denial of his motion to suppress. The government cross-appeals the district court's finding that Robert's prior conviction for a commercial burglary did not constitute a crime of violence under United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a). After review, we affirm the Flecks' convictions, but remand both of their cases for resentencing.

I. BACKGROUND

On November 7, 2002, at around 4:30 p.m., Officers Kuiken and Sinnott of the Omaha Police Department responded to a disturbance involving personal property at a house owned by Robert and Ken Fleck, and their sister, in Omaha, Nebraska. Eldon Byers told police that he believed his property-items that had been stolen from him a year earlier-was at the Flecks' residence.¹ When the officers arrived at the house, Ken or Robert answered the door. The officers explained they had a report that stolen property was in the home and asked if they might look around. The officers were invited in by Ken or Robert. The Flecks, their sister, and two other people were in the house. Once inside, the officers looked only in the vicinity of the living room and dining room but stopped once they saw what could have been some of Byers' property in the dining room. They planned to obtain permission for a full-house search or to get a warrant. They left the house briefly to await the arrival of burglary detectives Cardenas and Perna, who were en route. The detectives arrived some twenty to thirty minutes later. Before departing for the house, Detective Perna had checked police records and had discovered that both Flecks had previously been convicted of felonies. When the detectives arrived, they told Officer Kuiken about the Flecks' prior felony convictions. Officer Kuiken and the detectives re-entered the house. Around the same time, two more officers arrived at the scene. One of those officers stayed in the cruiser, and the other spoke with Sinnott on the front porch.

Once inside, Detective Cardenas told the Flecks that in order to continue the investigation, the officers would need permission to search the house. Ken spoke up and said he would sign a search consent form, and did so in the living room. Officer Sinnott and another officer stayed with the five people in the living room while the other officers and detectives commenced the search. While searching, Officer Kuiken and Detective Perna came across a bedroom that was padlocked. They returned to the living room and asked whose bedroom it was. Robert said that the bedroom was both his and Ken's. Ken agreed. Robert then said he had the key and gave it to Detective Perna. Detective Perna and Officer Kuiken unlocked the bedroom and searched it. On the bed they found boxes bearing Byers' initials filled with property Byers had previously described as having been taken in the theft. In the closet, they found several shotguns and rifles. Officer Kuiken returned to the living room and asked the Fleck brothers who owned the guns. The two responded that the guns belonged to both of them. Ken and Robert were then arrested and transported to the Omaha Central Police Headquarters. At no time were the Flecks given their Miranda warnings. While being booked, Robert asked why he and Ken were being arrested for possessing guns they had inherited from their father.

Ken and Robert were initially held in the Douglas County, Nebraska jail on state charges. When the case became federal, Special Agent Rush of the Bureau of Alcohol, Tobacco, Firearms, and Explosives transported the two to federal custody. During transport, the Flecks asked Agent Rush what federal charges they were facing. Agent Rush explained that they faced federal charges of being felons in possession of firearms. Ken protested that they were just hunting rifles, and not assault rifles or pistols. Robert said the two had planned to take the guns to their sister's house because they knew they weren't supposed to have them.

The Flecks moved to suppress all statements made and evidence obtained as a result of the search. The district court suppressed only the Flecks' non-Mirandized statements made during the search following the discovery of the guns. Ken moved in limine to exclude any testimony regarding alleged insurance fraud, but the district court denied the motion. At sentencing, the district court found that the Flecks unlawfully possessed nine guns. This finding increased the base offense level from twenty, U.S.S.G. § 2K2.1(a)(4), to twenty-four, U.S.S.G. § 2K2.1(b)(1). The jury's verdict, however, supported a base offense level increase to only twenty-two under U.S.S.G. § 2K2.1(b)(1) for the involvement of three to seven firearms. The Flecks were each sentenced to sixty-three months' imprisonment plus three years supervised release.

II. DISCUSSION

A. Evidence of Other Crimes

Before trial, the district court overruled Ken's motion in limine seeking to exclude testimony regarding alleged insurance fraud. At issue was the officers' testimony relating why they were investigating the Fleck home. The court also overruled Robert's motion for mistrial after that testimony was allowed at trial. The court held that such testimony was relevant "in the context of why [the police] [were] doing the investigation, . . . they have to show the basis for their investigation, other than a general statement of we are here to investigate a theft." Trial Tr. at 11. The court also stated that "with respect to continuity, it seems to me that the government has the right to have testimony about why they are there. And if that includes insurance fraud, then it includes insurance fraud." Id. at 9. Both Flecks argue that Federal Rules of Evidence 403 and 404(b) preclude the use of such testimony because they were not on trial for insurance fraud, the testimony was unfairly prejudicial, and it was impermissible character evidence.

At trial, the matter came up in a narrative answer from Detective Perna. He was answering the prosecutor's question of whether Detective Perna had "occasion on that date to become involved in some goings on at 48th and Saratoga?" Id. at 101. The detective launched into an explanation of the alleged insurance fraud, and there was no objection or motion to strike. Later, the prosecution asked Byers "whether or not [he knew] a theft claim was filed with an insurance carrier as a result of this break in?" Id. at 231. Both Flecks objected on grounds of hearsay, foundation, and relevance. Id. The court overruled the relevance objection since "this has been brought into issue," and did not rule on the hearsay or foundation objections. Id. Byers then testified regarding the insurance claim. During discussion outside the presence of the jury, Ken's counsel asserted that "[a] lot of this, Judge, is why I didn't want all this insurance fraud stuff brought up, because I don't think it necessarily has anything to do with this [prosecution]." Id. at 340. The court agreed. "I'm not sure how it has anything to do with anything either. It seems we are now trying a stolen property case and that's not what we're here for." Id. But the court stated, "So many doors have been opened along the way that we are in it and there is nothing we can do about it." Id. at 341.

We review a district court's rulings on a motion in limine, Countrywide Services Corp. v. SIA Insurance Co., Ltd., 235 F.3d 390, 394 (8th Cir.2000), a motion for mistrial, United States v. Lacey, 219 F.3d 779, 782 (8th Cir.2000), and the admission of evidence, United States v. Kenyon, 397 F.3d 1071, 1079 (8th Cir.2005), for abuse of discretion.

We agree that the district court abused its discretion in allowing testimony at trial regarding the Flecks' alleged insurance fraud. It was wholly irrelevant to the charges at issue.

One of the exceptions to the general rule that evidence of other crimes committed by a defendant is inadmissible is when the proof provides the context in which the charged crime occurred—"the res gestae." United States v. Moore, 735 F.2d 289, 292 (8th Cir.1984). "A jury is entitled to know the circumstances and background of a criminal charge. It cannot be expected to make its decision in a void-without knowledge of the time, place, and circumstances of the acts which form the basis of the charge." Id.

But this case is wholly different from Moore where other crimes evidence was permitted. "In those cases in which we have approved the use of other crimes evidence as an integral part of the context of the crime charged, the other crime evidence was closely or inextricably intertwined with the charged crime." United...