United States v. Battle
| Decision Date | 22 December 2014 |
| Docket Number | No. 13–3134.,13–3134. |
| Citation | 774 F.3d 504 |
| Parties | UNITED STATES of America, Plaintiff–Appellee v. Delvonn BATTLE, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Anne M. Laverty, argued, Cedar Rapids, IA (David E. Mullin, on the brief), for Appellant.
Justin A. Lightfoot, AUSA, argued, Cedar Rapids, IA, for Appellee.
Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
Delvonn Battle was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced him to 120 months imprisonment. Battle challenges his conviction and sentence. For the reasons set forth below, we affirm.
We recount the evidence in the light most favorable to the jury's verdict. United States v. Stevens, 439 F.3d 983, 986 (8th Cir.2006). On January 13, 2012, two Waterloo, Iowa police officers, Michael Girsch and Spencer Gann, were conducting surveillance on an apartment complex where they suspected a subject with an outstanding warrant was hiding. The officers saw several individuals getting into a parked vehicle behind the complex. As the vehicle exited the complex, the officers noticed its rear license plate was not properly lit and initiated a traffic stop. The officers observed that the vehicle, which was moving 10 to 15 miles per hour, stopped slowly, taking approximately 20 seconds to come to a complete stop.
There were three individuals in the vehicle: the driver, Ryan Marshall; the front seat passenger, Battle; and a back right passenger, Darrel Hardy. Their identification cards showed that all three men were from Des Moines, Iowa. Officer Girsch asked Marshall to exit the vehicle so he could show him the lighting problem. Officer Gann talked to Battle and Hardy, who both remained in the car. The officers noticed inconsistencies among the three mens' accounts as to why they were in Waterloo and what stops they had made during their trip.
A third officer, Officer Bose, arrived on the scene with a drug detection dog. Based on the vehicle's slow stop and the occupants' inconsistent accounts, the officers became suspicious and asked Battle and Hardy to exit the vehicle so they could conduct a dog sniff. When Hardy exited the vehicle, he fled from the scene. Officer Gann immediately pursued on foot and Officer Girsch followed shortly after, leaving Officer Bose at the vehicle with Marshall and Battle. Hardy ran about 35 yards before being apprehended. The pursuing officers did not observe him discarding anything while he was running and did not find any contraband when they retraced his steps in the snow. The officers arrested Hardy and searched the vehicle, where they found a Ruger 9–millimeter handgun that contained a loaded magazine under the front passenger seat. The gun's barrel was pointed toward the back seat. Debris and tubing connected to the seat's electric controls blocked access to the gun from the back seat. The officers photographed the gun's position before removing it. They arrested Marshall and Battle and transported all three men to the police station.
Officer Gann interviewed Battle at the police station. During that interview, Battle stated he did not have family in Waterloo, though he had said at the scene that he did. Battle also told Officer Gann the trio had just arrived in Des Moines when they were pulled over and had only made one stop, in Dike, Iowa. He did not admit they had stopped at the apartment complex where officers first observed their vehicle. Battle denied possessing the firearm or knowing it was in the vehicle. Police initially suspected the gun had been placed by the back seat passenger and charged only Marshall and Hardy with possession.
Further investigation implicated Battle's possession of the gun. The photographs from the scene showing the gun's position under the seat indicated it had been placed there from the front. The photographs also led officers to believe the gun could not have been pushed under the front seat from the rear seat area because of how the debris was positioned and because the tubing under the front seat blocked access to the handgun from the rear. Recordings of Hardy's prison phone conversations included discussions with Marshall about the firearm and “DV,” a nickname Battle uses, and with both Marshall and Battle about how Hardy would handle his charges. When an investigator interviewed Battle on January 21, 2012, he denied talking to Hardy on the phone while he was in prison and denied using the nickname “DV.” Shortly after the Waterloo incident, Hardy agreed to testify against Marshall and Battle in exchange for his charges being dropped. The state filed charges against Marshall and Battle for being felons in possession of a firearm. Marshall was convicted in state court, but the state charges against Battle were dropped in favor of federal charges. In December 2012, investigators interviewed another man, Lonnie Williams, who told them that Battle, who he knew only as “DV,” was the shooter in a December 4, 2011 shooting Williams witnessed in a Des Moines gas station parking lot. In January 2013, Waterloo police received a lab report matching the Waterloo firearm to casings from the 2011 Des Moines shooting. Battle was federally charged with being a felon in possession of a firearm.
The district court granted the government's pre-trial motion to admit evidence concerning the Des Moines shooting at Battle's trial, holding it was admissible as direct evidence probative of the crime charged and thus not subject to the analysis for admissibility of character evidence under Federal Rule of Evidence 404(b). The government presented ballistics evidence matching the casings from the shooting to the gun found in the vehicle in Waterloo. Both parties presented eyewitness testimony from the shooting. Witnesses testified that the gas station parking lot was very crowded when the shooting occurred. Lonnie Williams, a long-time acquaintance of Battle's who first identified him as the shooter, was driving the car in which the victim was riding. He observed the shooting from 8 to 10 feet away and testified he was 100 percent sure that Battle, or “DV,” was the shooter. An off-duty police officer, Roger Stiles, was working security at the gas station on the night of the shooting and observed the shooter from 20 to 25 feet away. He could not identify him but described him as 5'10? to 6 feet tall with a slender build. Several witnesses testified that Hardy, who is 5'10? and weighed at least 230 pounds, has a considerably heavier build than Battle, who is 5'10? and weighed approximately 165 pounds. Officer Stiles testified that he would not consider someone who is 5'10? and 230–plus pounds to be “slender.” A third eyewitness, Calvin Briggs, a friend of Battle's, testified he did not actually see the shooter but also did not see Battle at the gas station that night. A fourth eyewitness, Anthony Blissett, a relative of both Battle and Hardy, testified he pulled into the gas station, saw the shooting from three to four yards away, and immediately left the station. He identified Hardy as the shooter. Blissett testified that the first time he identified Hardy as the shooter was when an investigator contacted him a day or two before Battle's trial started.
The court also considered and denied several motions Battle made during trial. On the first day of trial, Battle made an oral motion to admit evidence of Hardy's prior convictions and other criminal acts. The government listed Hardy as a potential witness, so both parties presented arguments about admission of the convictions as impeachment evidence under Federal Rule of Evidence 609. Battle also argued the evidence was admissible as “reverse 404(b)” evidence. See Fed.R.Evid. 404(b). He argued the evidence tended to establish that Hardy habitually carries guns and runs from police when confronted, which, Battle argued, could have led the jury to find Hardy was in sole possession of the firearm. Battle submitted a brief detailing the evidence on the second morning of trial, which the court entered into the record but did not consider because of its late submission. The court heard arguments from both sides and ruled that the bulk of the evidence was inadmissible under Rule 404(b). In addition, the court refused Battle's request to grant judicial immunity to Marshall to testify about contraband he claimed he found when retracing Hardy's footsteps the day after the arrest. Finally, the court denied Battle's motion for acquittal.
After a two-day trial, the jury convicted Battle of being a felon in possession of a firearm. The Presentence Report (PSR) placed Battle in criminal history category VI based on his criminal history score of 17. The PSR recommended a total offense level of 29 based on the charged offense and a finding that Battle committed the Des Moines shooting and caused serious bodily injury to that victim. The Guidelines established an imprisonment range of 151 to 188 months, and the PSR recommended the 120–month statutory maximum sentence, pursuant to section 5G1.1(a) of the United States Sentencing Guidelines (USSG). The court found that Battle's base offense level was 20 and applied a four-level enhancement for use of a firearm in connection with the Des Moines shooting, for a total base offense level of 24. See United States Sentencing Commission, Guidelines Manual, § 2K2.1(b)(6)(B). The Guidelines imprisonment range for offense level 24 with criminal history category VI is 100 to 125 months. After considering relevant sentencing factors pursuant to 18 U.S.C. § 3553(a), the district court sentenced Battle to the statutory maximum of 120 months imprisonment and 3 years supervised release.
Battle now appeals the admission of the Des Moines shooting evidence, exclusion of Hardy's prior bad acts evidence, denial of judicial immunity for Marshall, denial of his motion for acquittal, application of the...
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