U.S. v. Tate

• Decision Date: 13 April 2011
• Docket Number: No. 09–2974.,09–2974.
• Parties: UNITED STATES of America, Appellee,v.Donald Ray TATE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

633 F.3d 624

UNITED STATES of America, Appellee,

v.Donald Ray TATE, Appellant.

No. 09–2974.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2010.Filed: March 1, 2011.Rehearing Denied April 13, 2011.

Richard House Kyle, Jr., argued, Minneapolis, MN, for appellant.Lisa D. Kirkpatrick, AUSA, argued, St. Paul, MN, for appellee.Before RILEY, Chief Judge, JOHN R. GIBSON ¹ and MURPHY, Circuit Judges.RILEY, Chief Judge.

Donald Ray Tate appeals his conviction, after a jury trial, for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Tate argues there is insufficient evidence to support his conviction and, in the alternative, he is entitled to a new trial because the government withheld material impeachment evidence. Tate also challenges his mandatory minimum fifteen-year prison sentence. We affirm.

I. BACKGROUNDA. Facts²

In the early hours of October 4, 2007, the St. Paul Police Department (SPPD) received a report of an assault at the Luxor Lounge. The police often had received calls to investigate reports of gunshots, public urination and sex, illegal narcotics, and theft at the Luxor bar. SPPD officers repeatedly chastised the Luxor's security staff for failing to wand patrons with a handheld metal detector or to check their identification.

Six or seven police officers responded to the October 4 assault report. When the officers arrived, they found an agitated crowd of twenty or thirty people standing outside. The officers went inside the Luxor, where they found a man who had been hit with a beer bottle.

Several uniformed officers escorted the victim outside to a waiting ambulance. A plainclothes officer, Officer Adam Siegfried, walked ten yards behind them. Siegfried was training one of the uniformed officers and attempting to monitor his actions incognito.

As Officer Siegfried left the Luxor, he immediately noticed Tate. Tate “was out of place,” and acting “really weird.” Officer Siegfried saw Tate standing by himself, “staring intently at the officers” instead of the raucous crowd. As soon as the officers turned away from Tate and toward the waiting ambulance, Tate ran into an adjacent alley. No one else ran away from the bar.

Officer Siegfried watched Tate run 30 to 40 yards to a residence at the end of the alleyway. The alleyway was well lit, because the residence's owner had installed a motion-detecting light. Officer Siegfried never lost sight of Tate, who stopped behind the residence's garage. Tate was standing approximately 55 yards from Officer Siegfried's vantage-point.

Officer Siegfried saw Tate kneel down next to a residential garbage can and place something near it. Tate “went down on his right knee,” moved “his left shoulder” up and down with “his left arm tilting,” “definitely placing something around the garbage can.” Although the garbage can obscured approximately 75% of Tate's body from Officer Siegfried's view, Officer Siegfried's vantage-point was otherwise unobstructed. After “approximately five to six seconds” on his knee, Tate stood up and walked back toward the Luxor.

Officer Siegfried was certain Tate had placed something near the garbage can. Officer Siegfried asked Officer Franklin Judge to detain Tate. Officer Judge intercepted Tate before Tate returned to the Luxor.

Officer Siegfried immediately walked to the garbage can. Behind the garbage can—between the can and the residence's garage—Officer Siegfried saw a brown jersey glove, also known as a “brownie.” Officer Siegfried knelt down and saw the brown handle of a handgun protruding from underneath the brownie.

Officer Siegfried was not surprised to find a handgun under the brownie. In Officer Siegfried's experience, “people that would normally carry brownies carry them for a reason.” Officer Siegfried “usually” finds handguns near brownies, because people who carry brownies “don't want to transfer their identifiers, whether it be fingerprints or DNA, to a particular weapon.”

Subsequent forensic analysis revealed the handgun was a loaded Smith and Wesson, model 66, .357 revolver. The firearm was stolen and bore the description “Minnesota State Patrol.”

No identifiable fingerprints were found on either the firearm or the brownie. An expert witness testified at Tate's trial that it would have been somewhat unusual to find identifiable fingerprints because of how firearms are designed and handled.

A DNA expert testified a DNA mixture was found on the firearm, but Tate's DNA was not present in this mixture. At least three commingled DNA profiles were found on the brownie. While 74% of African–Americans, 83% of Native Americans, 81% of Hispanics, and 77% of Caucasians could be excluded from the commingled DNA profiles, Tate's DNA could not be excluded from the mix.

B. Prior Proceedings

In February 2008, a grand jury returned an indictment charging Tate with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The grand jury alleged Tate had at least three prior convictions for “a violent felony or a serious drug offense” as set forth in 18 U.S.C. § 924(e)(2)(A) and (B). Accordingly, Tate was subject to the fifteen-year mandatory minimum sentence for armed career criminals set forth in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

In December 2008, the district court ³ presided over a three-day jury trial. The jury found Tate guilty. At the close of the government's case-in-chief, Tate moved for a judgment of acquittal under Fed.R.Crim.P. 29, arguing the government had adduced insufficient evidence to prove he knowingly possessed the firearm. The district court denied Tate's Rule 29 motion.

In February 2009, Tate moved for a new trial under Fed.R.Crim.P. 33. Tate alleged the government failed to disclose material impeachment evidence, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 153–55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Tate asserted the government should have apprised him before trial that Officer Siegfried was involved in an altercation while off-duty and attending a SPPD holiday party in January 2008. In July 2009, after holding a hearing and reviewing the disputed evidence and Officer Siegfried's personnel file in camera, the district court denied Tate's Rule 33 motion.

In August 2009, the district court sentenced Tate to fifteen years imprisonment. The court held Tate was subject to ACCA's fifteen-year mandatory minimum because Tate had at least three predicate convictions for violent felonies or serious drug offenses. Tate appeals his conviction and sentence.

II. DISCUSSION

Tate argues (1) there was insufficient evidence to support his § 922(g)(1) conviction, and the district court erred in denying his Rule 29 motion; (2) the government failed to disclose Officer Siegfried's altercation before Tate's trial, and the district court erred in denying Tate's Rule 33 motion; and (3) Tate did not have at least three predicate convictions for violent felonies or serious drug offenses, and the district court erred in holding Tate was subject to ACCA's fifteen-year mandatory minimum sentence.

A. Rule 29 Motion: Sufficiency of the Evidence

1. Standard of Review

Although we review the district court's denial of a motion for judgment of acquittal de novo, United States v. Rush–Richardson, 574 F.3d 906, 909 (8th Cir.2009), the underlying standard of review is deferential to the jury's verdict. “We reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Morales, 445 F.3d 1081, 1084 (8th Cir.2006) (internal marks omitted). We must “view the evidence in the light most favorable to the guilty verdict, granting all reasonable inferences that are supported by that evidence.” United States v. Milk, 447 F.3d 593, 598 (8th Cir.2006). “A conviction may be based on circumstantial as well as direct evidence. The evidence need not exclude every reasonable hypothesis except guilt.” United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992) (citations omitted). “The standard for reviewing a claim of insufficient evidence is strict, and a jury's guilty verdict should not be overturned lightly.” United States v. Pizano, 421 F.3d 707, 719 (8th Cir.2005).

2. Analysis

The district court did not err in denying Tate's Rule 29 motion for judgment of acquittal. The evidence in the record supports the jury's verdict.

To sustain a § 922(g)(1) conviction, the government was required to prove “(1) a prior felony conviction; (2) knowing possession of a firearm; and (3) an interstate nexus.” United States v. Jones, 266 F.3d 804, 813 (8th Cir.2001). Tate stipulated to the first and third elements. The disputed issue was whether Tate possessed the firearm that Officer Siegfried found next to the garbage can.

On appeal, Tate maintains the evidence the government adduced at his trial was too speculative to support a reasonable inference that he possessed the firearm. Tate stresses his fingerprints and DNA were not found on the firearm. Tate also emphasizes no one testified to seeing Tate with a firearm. Further, one of Tate's friends, Vernisha Henderson, testified Tate never left the Luxor's parking lot before his arrest. Henderson and Tate's younger sister, Dominique Tate (Dominique), also testified (1) the Luxor's security staff used their metal detecting wands on entering bar patrons, and (2) Tate had entered the bar on the night in question. Finally, Tate opines there are good reasons why the jury should have disbelieved Officer Siegfried's testimony that he could see Tate place something near the garbage can from Officer Siegfried's vantage-point.

The jury—as the “final arbiter” of witness credibility—was free to believe Officer Siegfried and disbelieve Henderson and Dominique. See United States v. Wilder, 597 F.3d 936, 944 (8th Cir.2010) (“final arbiter”); United States v. Aguilar–Portillo, 334 F.3d 744, 747 (8th Cir.2003...