U.S. v. Gill
| Decision Date | 24 January 2008 |
| Docket Number | No. 06-3212.,06-3212. |
| Citation | 513 F.3d 836 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Stephen GILL and Barbara Anne Riley, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael J. Rovell, argued, Chicago, IL (Alyssa E. Griffin and J. Stephen Walker, on the brief), for defendants-appellants.
Matthew G. Whitaker, U.S. Attorney, argued, Des Moines, IA (Andrew H. Kahl, AUSA, on the brief), for plaintiff-appellee.
Before RILEY, HANSEN, and MELLOY, Circuit Judges.
This case arises from a traffic stop conducted by Iowa State Trooper Kenneth Haas on February 28, 2004, during which Trooper Haas uncovered more than 975 pounds of marijuana and a loaded handgun. Based on these events, a grand jury returned an indictment charging Stephen Gill, the driver of the truck, and Barbara Anne Riley, the owner of the truck and the front seat passenger, with possession with intent to distribute 100 kilograms or more of marijuana (Count 1), a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and charging Gill with carrying a firearm during and in relation to a drug trafficking crime (Count 2), a violation of 18 U.S.C. § 924(c). After the district court denied their motion to suppress, both defendants entered conditional pleas of guilty to Count 1, reserving the right to challenge the search that uncovered the evidence against them. Gill proceeded to trial on Count 2 and was found guilty. On appeal, Gill and Riley allege the district court erred in denying their motion to suppress and in declining to reopen the suppression hearing record to allow admission of polygraph evidence. We also consider issues related to Gill's trial on Count 2, including 1) whether the district court erred in allowing certain trial testimony by a Drug Enforcement Administration agent; 2) whether the district court erred in declining to include a jury instruction Gill requested; 3) whether the district court erred in instructing the jury as to the elements of the firearm offense with which Gill was charged and whether any such error requires reversal; and 4) whether sufficient evidence supported Gill's § 924(c) conviction. For the reasons stated below, we affirm the judgment of the district court.
Trooper Haas testified regarding the events surrounding the traffic stop at two evidentiary hearings on the defendants' motion to suppress.1 A videotape of the encounter between Trooper Haas and the defendants was admitted into evidence. Trooper Haas testified that the tape had not been edited or altered and that it was an accurate depiction of the events occurring during the traffic stop.
Based on Trooper Haas's testimony and the video recording of the traffic stop, Trooper Haas stopped a white Chevy pickup truck driving east on Interstate 80 at approximately 4;00 p.m. on February 28, 2004. Trooper Haas stopped the truck because it lacked a front license plate and it appeared to have excessive window tinting, both violations of Iowa law. Gill was driving the truck, which was registered to Riley, the passenger. The truck carried a California license plate, and Trooper Haas knew California is a drug-source state.
Trooper Haas approached the truck and asked Gill for his license, registration, and proof of insurance. As Gill opened his wallet, Trooper Haas noticed Gill was shaking. Gill, who is a bail bondsman and fugitive apprehension agent, attempted to display a badge in his wallet as he responded to Trooper Haas's request. Trooper Haas found it unusual that a driver with a badge would be shaking during an encounter with a law enforcement officer. After determining that Riley was the owner of the truck, Trooper Haas requested her license. Trooper Haas asked Gill to step back to the patrol car.
After Trooper Haas and Gill returned to the patrol car, Trooper Haas ran driver's license and criminal history checks on Gill and Riley. While running these routine checks, Trooper Haas engaged Gill in conversation and observed Gill's continued nervous demeanor. Upon questioning, Gill stated that he and Riley, his wife, were traveling from California to Ohio to visit Gill's children and inform them that their grandmother, Gill's mother, was critically ill. Gill said they wanted to pass on this information in person, rather than over the phone. Trooper Haas found this explanation unusual. During this conversation, Gill's criminal history check came back, indicating that Gill had a prior drug arrest. Trooper Haas asked about Gill's criminal history, and Gill denied having any prior arrests. Trooper Haas also asked Gill about the straps and wires he noticed on top of the truck's opaque fiberglass bedcover. Trooper Haas was familiar with the bedcover's features and knew that the bedcover has its own latching and locking system. Trooper Haas identified the extra straps and wires as excessive and out of place.
Trooper Haas asked Gill to remain in the patrol car While he returned to the truck to speak with Riley. Trooper Haas explained Iowa's window-tint law to Riley and inquired about the nature of her trip. Riley explained they were traveling to Iowa. This response differed from Gill's earlier statement that they were headed to Ohio. Trooper Haas repeated "Iowa" back to Riley, and she reconfirmed that Iowa was their destination. Riley specified the couple was going to Brunswick, Iowa, and confirmed that destination when Trooper Haas inquired.
Trooper Haas asked about the purpose of their travels, and Riley stated she and Gill were visiting Gill's children. When questioned by Trooper Haas as to whether there was a family problem, Riley stated that Gill's mother, was recently diagnosed with cancer and given two weeks to live. Unlike Gill, Riley did not say the purpose of the trip was to share this news with the children. Trooper Haas noted that Gill and Riley provided inconsistent statements as to the number of their children and grandchildren. Trooper Haas noticed Riley displayed signs of nervousness.
After speaking with Riley, Trooper Haas returned to the patrol car to complete the warning citation. Gill remained in the patrol car as Trooper Haas completed the paperwork. Trooper Haas gave Gill the warning citation and answered Gill's questions about the paperwork. Gill signed the citation and returned to the truck.
Trooper Haas asked Riley to return to the patrol car to complete her processing and return her paperwork. Trooper Haas received the criminal history report on Riley indicating she had prior arrests for possessing a concealed weapon and possessing drugs with the intent to distribute, and he asked Riley if she had ever been arrested. Initially, Riley denied having ever been arrested, but then she corrected her response and stated she had been arrested "a long, long time ago." Riley denied the arrest was for carrying a weapon and stated there were no weapons in the truck. Trooper Haas informed Riley she was free to leave and asked if she had any questions. Riley responded that she did not.
As Riley was walking back to her truck, about twenty minutes after Trooper Haas initiated the traffic stop, Trooper Haas asked if he could ask Riley a few more questions. Riley did not respond to the request, but she was attentive to it. Trooper Haas asked Riley whether there were firearms in the vehicle and whether there was marijuana, methamphetamine, or heroin in the vehicle. In response to each question, Riley emphatically shook her head from side to side and stated "no." Trooper Haas asked for consent to search the truck. In response, Riley asked why the trooper would need to search the vehicle. Trooper Haas told Riley he wanted to search because of Riley's history with weapons and drugs.
Trooper Haas asked a second time if he could search the truck, and, this time, Riley looked at Gill and asked, "Why is he asking me?" Trooper Haas clarified that he was asking Riley, not Gill, and Riley again asked the trooper why he was asking her. Trooper Haas informed Riley he wanted to search the truck because he believed she possessed illegal guns or drugs. Riley told the trooper she was sober and denied having any contraband in the truck. Trooper Haas asked if Gill had anything illegal in the truck, and Riley responded that he did not.
At this point, Trooper Haas resumed his discussion with Riley about the number of children and grandchildren the defendants have and their destination. Riley again stated they were heading to Iowa, a continued inconsistency with Gill's comments. Trooper Haas requested that both Riley and Gill sit in the patrol car; Trooper Haas stated he was going to contact a drug-detecting dog unit.
In the patrol car, Trooper Haas told the defendants he wanted to make sure there were no guns, drugs, or bombs in the truck. He also informed the defendants about the inconsistencies in their responses to his inquiries about their travel plans. Trooper Haas told Riley that consenting or refusing the search of the truck was up to her. Gill interjected, Because the truck belonged to Riley, Trooper Haas again stated the consent decision was Riley's; Trooper Haas explained the consent form to Riley.
Gill then mentioned, for the first time, that there was a weapon and a bulletproof vest in the truck, commenting that he was supposed to "pick up a guy" on the way back from visiting the kids. He further explained that the gun was registered and that Riley was unaware of the weapon. Trooper Haas continued to focus on Riley, making sure she understood the consent form. Riley signed the form, consenting to the search of her truck. When Riley signed, just under six minutes had elapsed since Trooper Haas told Riley she was "free to go."2
Riley and Gill remained in the patrol car, and Trooper Haas searched the truck. The search uncovered eighty-two packages of...
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