U.S. v. Gettel

• Decision Date: 24 January 2007
• Docket Number: No. 06-2045.,06-2045.
• Citation: 474 F.3d 1081
• Parties: UNITED STATES of America, Appellee, v. Richard William GETTEL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

474 F.3d 1081

UNITED STATES of America, Appellee, v. Richard William GETTEL, Appellant.

No. 06-2045.

United States Court of Appeals, Eighth Circuit.

Submitted: October 17, 2006.

Filed: January 24, 2007.

Katherine Menendez, argued, Minneapolis, MN, for appellant.

Robert M. Lewis, argued, Asst. U.S. Atty., Minneapolis, MN, for appellee.

Richard William Gettel, Pekin, IL, pro se.

Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.

BOWMAN, Circuit Judge.

A jury found Richard William Gettel guilty of possessing a stolen firearm, see 18 U.S.C. § 922(j) (2000), and aiding and abetting a felon in possession of a firearm, see id. §§ 2 and 922(g)(1). Gettel appeals, arguing that the District Court¹ erred by (1) failing to suppress evidence seized pursuant to a stale search warrant, (2) admitting character evidence to show criminal propensity, and (3) admitting hearsay testimony. We affirm the judgment of the District Court.

I.

On October 9, 2002, several guns, including a nine-millimeter handgun, were stolen from Joseph Reineke's house. Reineke had shown the guns to Seth Greiner the weekend prior to the burglary. Sometime in October 2002, Richard Gettel and Troy Foote met Greiner in another individual's driveway. Greiner opened his car's trunk, removed the handgun, and handed it to Gettel, stating, "[W]e're even now," to which Gettel responded, "[Y]eah, we're even." Trial Tr. at 45. Greiner also stated that the gun was "hot." Id. That same day, after purchasing ammunition and taking turns firing the handgun, Gettel and Foote drove to Woody Saltzman's home. Gettel gave the handgun to Saltzman in exchange for eighty dollars. In March 2003, police recovered the handgun from Saltzman. On July 19, 2005, Gettel was indicted for possessing a stolen firearm and aiding and abetting a felon (Foote) in possession of a firearm.

During pretrial proceedings, Gettel challenged the admissibility of evidence seized during the execution of a search warrant unrelated to this case. On March 20, 2003, police obtained a warrant to search Gettel's residence for a Nintendo 64 game system, video games, and a car stereo that had been reported stolen on January 25, 2003. The affidavit in support of the warrant contained the following statements. The owner, Peter Graphenteen, had first noticed that the Nintendo and games were missing during the first ten days of January but did not initially report them stolen because he believed that his brother had borrowed them. Graphenteen noticed that the stereo had been stolen on January 25 and made the report to police. Graphenteen was an acquaintance of Gettel's and suspected that Gettel had committed the burglary. Previously, on January 17, 2003, Foote's girlfriend, Sandra Kasper, had told police that Gettel had given her a game that matched one reported stolen. This game was turned over to police on February 26, 2003. On March 20, 2003, Kasper's daughter stated that she believed Gettel had given her mother the game in January. On February 25, 2003, Foote had told police that Gettel stated that Gettel had taken a Nintendo 64, video games, and a car stereo from a house and car matching the description of Graphenteen's residence and vehicle. Foote also stated that he had played a Nintendo 64 while at Gettel's house. Foote also had observed video games at Gettel's house matching the description of those reported stolen. Gettel had been incarcerated from January 9 to January 11; January 27 to January 28; and February 8 through the date that the warrant was issued. As a result, Gettel would have not have been incarcerated when the burglary allegedly occurred but would have been incarcerated during a substantial amount of time after that and before the warrant was issued. Finally, Gettel and Foote had been involved in several burglaries in the same area during 2002 and 2003.

Police executed the warrant on March 21, 2003, the day after it was issued. The search yielded a .22-caliber rifle found in plain view, which was later introduced at the trial of the present case as other-acts evidence. Gettel moved to suppress the rifle as the fruit of an unlawful search, alleging that the information in the affidavit was stale because nearly two months had passed between the burglary and the issuance of the warrant. The District Court denied the motion, adopting the Report and Recommendation of the Magistrate Judge.²

Gettel also challenged the introduction of the rifle as impermissible evidence of a bad act offered to show propensity to commit a criminal act. The District Court initially allowed the government to introduce the rifle on the basis that it was offered to prove (1) Gettel knowingly possessed the handgun and knew that it was stolen, (2) Gettel intended to possess the handgun, and (3) Gettel and Foote had a common scheme or plan to steal guns.

At trial, the government also offered Foote's testimony that he and Gettel had stolen the rifle weeks after obtaining the stolen handgun. Gettel renewed his objection to introduction of evidence concerning the rifle, adding that the prejudicial nature of Foote's testimony merited exclusion of the testimony and of the rifle itself. The government responded that the evidence was being offered to prove (1) that Gettel knowingly possessed the handgun and (2) that he knew it was stolen. The District Court overruled Gettel's objection. The District Court instructed the jury that it could only consider this evidence for non-propensity purposes.

A significant portion of Gettel's defense focused on Foote's alleged incentive to implicate Gettel. Gettel's defense theory was that Foote acquired the handgun from Greiner and sold it to Saltzman and that Foote was now lying and implicating Gettel in order to protect himself. Gettel cross-examined Foote regarding a statement Foote made to state police on January 22, 2003, while incarcerated for suspicion of burglary. The cross-examination showed that Foote initiated the conversation with police and offered incriminating information about Gettel with the hope of avoiding imprisonment on state charges. Gettel also disputed the evolution of Foote's story since 2003, as Foote had originally told police that he did not know where Gettel obtained the handgun but then testified at trial that Gettel had obtained it from Greiner. Foote also had originally denied knowing the origin of the rifle but testified regarding its theft at trial. Gettel also highlighted Foote's federal plea agreement as evidence that he had a motive to testify favorably for the government.

In response to the attack on Foote's credibility, the government offered the testimony of federal ATF Agent Burton Rutter, who testified about Foote's statement to him, which Foote made on July 15, 2003. Rutter's testimony regarding Foote's statement essentially matched Foote's trial testimony, including that Gettel had acquired the handgun from Greiner and transferred it to Saltzman. Gettel objected on hearsay grounds, and the government responded that the statement was offered to rebut Gettel's charge of fabrication against Foote. The District Court overruled the objection.

Gettel was found guilty on both counts and was sentenced to 235 months of imprisonment. Gettel appeals, challenging the District Court's rulings on the search warrant, other-acts evidence, and hearsay testimony.

II.

Gettel first contends that the search warrant was not supported by probable cause and therefore, the rifle should have been suppressed. Gettel specifically asserts that the information in the search warrant affidavit was stale because the warrant was issued two months after the burglary allegedly occurred. When reviewing the denial of a motion to suppress, we review a district court's conclusions of law de novo and its findings of fact for clear error. United States v. Clayton, 210 F.3d 841, 845 (8th Cir.2000).

A search warrant may only be issued upon a showing of probable cause that evidence or instrumentalities of a crime or contraband will be found in the place to be searched. Walden v. Carmack, 156 F.3d 861, 870 (8th Cir.1998). A probable cause determination is made after considering the totality of the circumstances. United States v. Hernandez Leon, 379 F.3d 1024, 1027 (8th Cir.2004) (citing Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Probable cause must exist at the time the search warrant is issued. United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir.1995), cert. denied, 516 U.S. 871, 116 S.Ct. 193, 133 L.Ed.2d 128 (1995). While a lapse of time between the observations of a witness and the issuance of a search warrant may render probable cause fatally stale, "[t]here is no bright-line test for determining when information is stale." United States v. Maxim, 55 F.3d 394, 397 (8th Cir.), cert. denied, 516 U.S. 903, 116 S.Ct. 265, 133 L.Ed.2d 188 (1995). The passage of time is not necessarily the controlling factor in determining staleness, as other factors, such as "the nature of the criminal activity involved and the kind of property subject to the search," must be considered. Id. (quoting United States v. Rugh, 968 F.2d 750, 754 (8th Cir.1992)).

The District Court correctly held that probable cause existed on the date the search warrant was issued. Although approximately two months had lapsed between the burglary and the issuance of the warrant, several facts supported a finding that the information in the affidavit was not fatally stale. Most notably, the fact that Gettel was incarcerated for a substantial portion of the time between the burglary and the issuance of the warrant showed that Gettel had little time to dispose of the stolen property. When there is little opportunity to dispose of evidence, it is more likely that the information contained in a search warrant affidavit is not stale. See, e.g., United States v. Chapman, 954 F.2d 1352, 1373 (7th Cir.1992) (holding affidavit with thirty-seven-day-old information was not stale where...