U.S. v. Kirk

• Decision Date: 19 June 2008
• Docket Number: No. 07-3215.,07-3215.
• Citation: 528 F.3d 1102
• Parties: UNITED STATES of America, Appellee, v. Alexander KIRK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

528 F.3d 1102

UNITED STATES of America, Appellee, v. Alexander KIRK, Appellant.

No. 07-3215.

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2008.

Filed: June 19, 2008.

Murray W. Bell, argued, Davenport, IA, for appellant.

Shannon Leigh Olson, argued, Melisa Zaehringer, Special AUSA, on the brief, Des Moines, IA, for appellee.

Before GRUENDER, BALDOCK,¹ and BENTON, Circuit Judges.

BALDOCK, Circuit Judge.

A grand jury issued a five count indictment charging Defendant Alexander Kirk with: (1) distributing marijuana, on or about February 10, 2006, in violation of 21 U.S.C. § 841(a)(1); (2) using a firearm during and in relation to a drug trafficking crime, on or about February 10, 2006, in violation of 18 U.S.C. § 924(c); (3) possessing marijuana with the intent to distribute on or about April 8, 2006, in violation of 21 U.S.C. § 941(a)(1); (4) possessing a firearm in furtherance of a drug trafficking crime, on or about April 8, 2006, in violation of 18 U.S.C. § 924(c); and (5) being a felon in possession of a firearm, on or about February 10, 2006, in violation of 18 U.S.C. § 922(g)(1). The petit jury found Kirk guilty on all counts. On appeal, Defendant Kirk raises two points of error. First, Kirk contends the district court erred in denying his pretrial motion to separate his trial on Counts One and Two from his trial on Counts Three and Four. Second, Kirk argues the Government presented insufficient evidence at trial to support his convictions on Counts One and Two.² We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We affirm Kirk's conviction on Count I, reverse Kirk's conviction on Count II, and remand for resentencing.

I.

On April 8, 2006, Matthew Carillo contacted the Davenport Police Department to report a robbery. Officer Jonathan Tatum responded to his call. On Tatum's arrival at the scene, Carillo indicated that Nicholas Piles was the perpetrator of the robbery. Tatum obtained a physical description of Piles from Carillo. Carillo was also able to give Tatum several leads as to Piles' possible whereabouts. In addition to giving Tatum the address of several residences Piles frequented, Carillo described two vehicles in which Piles sometimes traveled. One of these vehicles was a red conversion van with gold striping, gold spoked tires, and tinted windows. Carillo mistakenly informed Tatum that this van belonged to Defendant Alexander Kirk. But the van actually belonged to Kirk's associate Darnell Mosley. Officer Tatum relayed the information he obtained from Carillo over police radio.

Meanwhile, unaware of the reported robbery, Mosley drove his van to pick up Defendant Kirk at his girlfriend's home. They made a few stops before driving to meet Mosley's cousin, James Hill. Hill had arranged for Mosley to sell him marijuana. When Mosley and Kirk reached Hill's location, Mosley parked his van alongside a curb and Hall entered the backseat of the vehicle. Shortly thereafter, Officers Aric Robinson and Nathan Kelling happened upon Mosley's van. After noting that the van matched the description provided by Carillo, the officers reported their discovery. They then approached the van to determine if Piles, the robbery suspect, was inside.

Officer Robinson walked up to the driver's side of the vehicle, while Officer Kelling stationed himself at the front passenger side of the van. Mosley and Kirk spoke to the officers through the van's lowered front windows. A few minutes later, Officers Jonathan Tatum and Brian Butt also arrived on the scene. Officer Tatum took Officer Robinson's place at the driver's side window, while Officer Butt went to the rear passenger side of the van. Because Officer Kelling was in training at the time, Officer Robinson repositioned himself behind Officer Kelling, at the front passenger side of the van.

Officer Tatum proceeded to question Mosley concerning his knowledge of Piles, the robbery suspect. During the course of this conversation, Tatum noticed that Defendant Kirk was sliding down in his seat and reaching downward with his right hand. Tatum asked what Kirk was doing, but Kirk did not respond. When Tatum inquired a second time, Officer Kelling put his head through the front passenger side window, noticed a handgun situated in the right passenger door pocket, and alerted the other officers to its presence. Kelling then opened the van's front passenger door and removed the gun.

Subsequently, the officers removed Kirk, Mosley, and Hill from the van and placed them in handcuffs. Patdown searches uncovered a bag containing sixteen grams of marijuana and a package of "Philly blunt cigars" on Mosley, and a small manual scale on Hill.³ Mosley and Hill indicated that these items belonged to them. Officers also conducted a patdown search of Defendant Kirk. In Kirk's pockets, officers discovered three small bags, which contained a total of twenty-nine grams of marijuana, and $1,460 in predominantly small bills.

A search of Mosley's van failed to reveal any recent sign of marijuana use. But officers did find a small yellow pill with a bird emblem on the van's front console, an operable cell phone, and a small bag of marijuana underneath the front passenger seat, in which Defendant Kirk had been seated.⁴ Closer examination of the firearm taken from the van's passenger door pocket, revealed it to be a Phoenix Raven .25 caliber semi-automatic handgun. Lab tests showed that the small yellow pill officers found on the van's front console contained ecstasy.

After reading Kirk his Miranda rights, Officer Kelling interviewed him at the scene. Kirk stated that the handgun and marijuana found in his pockets belonged to him. When Sergeant Kevin Smull, a police supervisor, arrived at the scene, he also spoke with Defendant Kirk. During this short conversation, Kirk reaffirmed what he had told Officer Kelling and further specified that he carried the gun for protection. Officers then transported Kirk to the police station for further interrogation.

At the station, Detectives Errol Walker and Gilbert Proehl were assigned to question Defendant Kirk. They gave Kirk a printed copy of his Miranda rights, which he signed. Next, the officers elicited information from Kirk concerning his acquisition of the handgun, which turned out to be stolen. Kirk explained that he acquired the handgun around February 10, 2006, at approximately 6:00 p.m., from a white male of approximately eighteen to twenty years of age. In response to a series of questions posed by the detectives, Kirk stated that this man weighed around two hundred pounds, stood about six feet tall, had brown hair and a mustache. Although Kirk did not know the man's name, he had seen him several times around a liquor store on Washington Street. Indeed, the area between this liquor store and a vacuum cleaner shop is where Defendant Kirk described obtaining the gun. As far as the transaction itself, Kirk observed that it was easy to obtain a gun off the street and admitted to trading one ounce of marijuana for the handgun. Kirk explained that he wanted a gun for protection because there was a rumor that he was a law enforcement "snitch."

According to the officers, Defendant Kirk appeared relaxed throughout the interview. He admitted the three bags of marijuana officers found in his pockets belonged to him and, indeed, explained that he acquired the marijuana from Piles, the robbery suspect. Kirk, however, consistently denied intending to sell any drugs. Instead, he insisted the marijuana was for his own personal use. As to the large amount of cash found on his person, Kirk admitted that he was not employed, but explained that the money came from the sale of stocks and bonds, which were a gift from his grandparents.

The version of events Kirk presented to a fellow inmate, however, substantially differed from what he told police. Earnest Henry, Kirk's prison mate, testified at trial that Kirk told him that he was on his way to sell one ounce of marijuana when police surrounded the van in which he was riding. Henry also testified that Kirk stated he was not using marijuana at the time of his arrest; rather, his drug of choice was ecstasy. According to Henry, Kirk had intended to use the gun in the van for protection, but not because of a dangerous rumor that he was a "snitch." To the contrary, Henry testified that Kirk carried a handgun because his $40,000 drug debt and reputation for making money caused him to fear retribution or robbery. Evidence at trial demonstrated that Kirk had previous experience trafficking drugs, as he had a 2005 conviction for possessing marijuana with the intent to distribute.⁵ After a two-day trial, the petit jury convicted Defendant Kirk on all counts.

II.

We first consider Kirk's claim that the district court erred in denying his Motion to Sever his trial on Counts One and Two from his trial on Counts Three and Four. Because we reverse Kirk's conviction on Count Two on other grounds, Kirk cannot establish prejudice in regard to Count Two. See infra Part III.A. We, therefore, limit our severance analysis to the appropriateness of conducting a joint trial on Counts One, Three, and Four.

As Defendant Kirk's counsel acknowledged at oral argument, Kirk failed to renew his motion for separate trials at the close of the Government's case or at the close of all the evidence.⁶ Consequently, we review only for plain error. See United States v. Carter, 481 F.3d 601, 605-06 (8th Cir.2007); United States v. Frank, 354 F.3d 910, 920 (8th Cir.2004). To succeed under this standard a defendant must demonstrate that the trial court abused its discretion, thus prejudicing a defendant's substantial rights to such a degree that we discern an extraordinary reason to reverse. See Frank, 354 F.3d at 920.

Fed.R.Crim.P. 8(a) permits the Government to charge multiple counts in a single indictment, provided the offenses charged are (1) of the same or similar character, (2) are based on the...