United States v. Becerra

• Decision Date: 07 May 2020
• Docket Number: No. 18-2777,18-2777
• Citation: 958 F.3d 725
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Erik BECERRA, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

958 F.3d 725

UNITED STATES of America, Plaintiff - Appellee

v.Erik BECERRA, Defendant - Appellant

No. 18-2777

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2019

Filed: May 7, 2020

Craig Raymond Baune, Assistant U.S. Attorney, Michael L. Cheever, Assistant U.S. Attorney, Bradley M. Endicott, Assistant U.S. Attorney, Lindsey E. Middlecamp, U.S. Attorney's Office, Saint Paul, MN, for Plaintiff-Appellee.

Erik Becerra, Grove, MN, Pro Se.

Manvir Kaur Atwal, Assistant Federal Public Defender, Federal Public Defender's Office, Minneapolis, MN, for Defendant-Appellant.

Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.

STRAS, Circuit Judge.

Erik Becerra was charged as a felon in possession of a firearm and ammunition. He thinks the district court should have let him testify that he intended to hand the gun over to his probation officer. Whether this so-called innocent-possessor defense is available has long been an open question. We now join a number of other courts in declining to recognize it. Because none of his other challenges have merit either, we affirm.

I.

Becerra’s probation officer was worried. A seven-time felon, Becerra had left "rambling" voicemail messages for her that did not "make any sense." He also told a police officer who had arrested him for driving under the influence that he was "dirty." She suspected that he was back on methamphetamine.

Based on her concerns, she requested an "apprehension and detention order," which authorized Becerra’s arrest. But before she could deliver it, he showed up at her office wearing a coat with an ominous-looking bulge in the front pocket. While he waited in the lobby, she called 9-1-1. The police officers who responded to the call decided to arrest him.

Becerra was cooperative with the officers and held nothing back. He told them that he had ammunition in his pocket and a gun in a red Dodge Avenger parked outside. He was telling the truth. They soon discovered .45-caliber ammunition in his pocket and a black semiautomatic handgun under the driver’s seat of the car.

These discoveries led to two federal felon-in-possession charges, one for the gun and the other for the ammunition. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). After a jury found him guilty of both counts, the district court¹ entered judgment and imposed an 80-month, within-Guidelines-range sentence.

Becerra has held nothing back on appeal either, raising an array of challenges to his convictions and sentence. His main focus is on the district court’s evidentiary rulings, starting with what it let in: (1) the handgun and the ammunition, and (2) his incriminating statements. Then there is what it kept out: testimony explaining why he possessed the handgun. The challenges to his sentence run the gamut from procedural to substantive.

II.

We begin with Becerra’s challenges to what came in during trial. In reviewing the district court’s denial of his motion to suppress the physical evidence and his incriminating statements, the standard is clear error for any factual findings and de novo for conclusions of law. United States v. Muhlenbruch , 634 F.3d 987, 995 (8th Cir. 2011).

A.

The first challenge is to the physical evidence used to convict Becerra: the handgun and the ammunition. His theory is that they were inadmissible as "fruit[s]" of an illegal arrest and detention. Segura v. United States , 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Without a warrant, he says, the officers should never have been able to arrest him in the first place.

Even though a warrant is typically required for an arrest, there are exceptions. One is when there is probable cause to believe that an individual is committing a crime in the officer’s presence. See Atwater v. City of Lago Vista , 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ; United States v. Robinson , 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Here, as long as there was a "substantial chance" that Becerra had a firearm on him, the officers could arrest him. District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 586, 199 L.Ed.2d 453 (2018) (citation omitted) (explaining the probable-cause standard).

There was more than enough evidence for them to conclude that he did. Once they arrived, the first probation officer they saw appeared "extremely nervous." She told them that Becerra "more than likely ha[d] a gun on him." See United States v. Wright , 145 F.3d 972, 975 (8th Cir. 1998) (explaining that the statements of a reliable informant can be enough for probable cause). And the officers themselves could see the large bulge in his front coat pocket. See Illinois v. Gates , 462 U.S. 213, 242, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Moreover, the officers were not entering the situation blind. The dispatcher shared the facts from the 9-1-1 call with them, including that Becerra had a lengthy criminal history and could have had drugs in his system. From their experience, these facts made it more likely that he had a gun, and the officers could reasonably conclude, based on these circumstances, that probable cause existed. At that point, warrant or not, they could arrest him.²

B.

Even if the officers could arrest him, they still failed to give Miranda warnings before he made two incriminating statements. See Miranda v. Arizona , 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (discussing what warnings are required). While the officers handcuffed him, he announced that he had "something" in his car. One of the officers asked, "what’s in your car?" to which he replied, "a gun." The same officer then asked whether he "had any weapons or anything illegal" on him, which prompted him to admit that "he had bullets in his pocket." The absence of Miranda warnings, according to Becerra, should have kept both statements out.

Generally speaking, statements made during a "custodial interrogation" are inadmissible unless a suspect has been given Miranda warnings first. Id. at 444, 86 S.Ct. 1602. We have no doubt that Becerra was in custody when he made both statements. After all, the officers had just told him that he was under arrest and were placing him in handcuffs at the time. See Orozco v. Texas , 394 U.S. 324, 327, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).

The dispute is over whether the two questions that prompted these statements amounted to interrogation. The first one, "what’s in your car?" did not. It was a "request for clarification" of Becerra’s spontaneous statement that he had "something" in his car. Butzin v. Wood , 886 F.2d 1016, 1018 (8th Cir. 1989). The "something" could have been anything. So asking Becerra to clarify the ambiguity did not require Miranda warnings. Id.

To be sure, even follow-up questions can amount to "interrogation" if their point is to "enhance the defendant’s guilt." Id. (quoting Wayne R. LaFave & Jerold H. Israel, 1 Criminal Procedure § 6.7, at 514 (1984) ); see also United States v. Chipps , 410 F.3d 438, 445 (8th Cir. 2005). But at that moment, the officer had not "expand[ed] the scope" of Becerra’s original statement by asking about something else. 2 Wayne R. LaFave et al., Criminal Procedure § 6.7(d), at 882 (4th ed.). Rather, "what’s in your car?" was clearly designed to identify the "something" that Becerra had mentioned was there. Cf. id (explaining that an officer is free to ask, "did what?" in response to a defendant’s statement that "I did it").

The second question is a different story. By asking about "weapons or anything illegal on his person," the officer expanded the scope of the exchange beyond the subject of Becerra’s original statement with a question that was likely to "elicit an incriminating response." Rhode Island v. Innis , 446 U.S. 291, 302, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). At that point, clarification became interrogation. Even so, Becerra’s answer, "a gun," was admissible for a different reason: the question fell under the public-safety exception. See New York v. Quarles , 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984).

No Miranda warnings were required because "police officers [may] ask questions reasonably prompted by a concern for ... public safety," even when the potential threat is to the officers themselves. Id. at 656, 104 S.Ct. 2626 ; see United States v. Liddell , 517 F.3d 1007, 1009–10 (8th Cir. 2008). When they saw a bulge in Becerra’s pocket, they were justifiably worried about what was in there. Because it could have been a gun or other weapon that would have posed a danger to themselves and others, they could ask about it without the formality of Miranda warnings. See Liddell , 517 F.3d at 1009–10 (explaining that questions like this one reduce the risk that officers will be "injured by the mishandling of unknown firearms or drug paraphernalia"); see also id. at 1010 (noting that the presence of one weapon raises the concern of "additional weapons"). The answer they then received became admissible.

III.

We next address the evidence that the district court kept out over Becerra’s objection: testimony that he had found the gun earlier in the day and was about to hand it over to his probation officer. The evidence was inadmissible, according to the court, because it would have been irrelevant and confusing.

Becerra views his own testimony more charitably. His theory is that it would have revealed that he had an "innocent" motive. For this theory to work, however, an innocent motive must be a defense to a felon-in-possession charge. The D.C. Circuit has said that it is, but other circuits have come out the other way. Compare United States v. Mason , 233 F.3d 619, 623 (D.C. Cir. 2000), with United States v. Gilbert , 430 F.3d 215, 218 (4th Cir. 2005), United States v. Johnson , 459 F.3d 990, 996 (9th Cir. 2006), United States v. Baker , 508 F.3d 1321, 1325 (10th Cir. 2007), and United States v. Vereen , 920 F.3d 1300, 1306 (11th Cir. 2019).

Whether to recognize an innocent-possessor defense presents a question of statutory...