United States v. Ganter

• Decision Date: 01 July 2021
• Docket Number: No. 19-3385,19-3385
• Citation: 3 F.4th 1002
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dionandre GANTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

3 F.4th 1002

UNITED STATES of America, Plaintiff-Appellee,

v.Dionandre GANTER, Defendant-Appellant.

No. 19-3385

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2021

Filed: July 1, 2021

David Kelly, Lee's Summit, MO, argued, for defendant-appellant.

J. Benton Hurst, Asst. U.S. Atty., Kansas City, MO, argued (Timothy A. Garrison, U.S. Atty., on the brief), for plaintiff-appellee.

Before LOKEN, GRASZ, and KOBES, Circuit Judges.

LOKEN, Circuit Judge.

A jury convicted Dionandre Ganter of being a Felon in Possession of a Firearm (Count One) and Receipt of a Firearm While Under Indictment (Count Two) in violation of 18 U.S.C. §§ 922(g), 922(n). The district court¹ sentenced him to 120 months imprisonment on Count One and a consecutive 60 months on Count Two. Ganter appeals arguing (i) there was insufficient evidence he possessed a firearm; (ii) the district court violated his constitutional right to self-representation when it coerced him into waiving that right by denying a last-minute trial continuance of "at least a few months"; (iii) the district court erred during jury selection in striking for cause the only two African American prospective jurors; and (iv) the district court imposed a substantively unreasonable sentence. We affirm.

I. Sufficiency of the Evidence

We review the sufficiency of the evidence de novo , viewing the evidence and credibility determinations in the light most favorable to the jury's verdict and reversing only if no reasonable jury could have found the defendant guilty. United States v. Thibeaux, 784 F.3d 1221, 1223-25 (8th Cir. 2015).

Kansas City Police Officer Daniel Ambrose testified that on March 22, 2017, a dispatcher reported a "shots fired" call at a specific address involving a black male wearing a dark shirt and khakis with an injured arm who possessed a firearm, a black male with unknown clothing, and a black female with a white shirt. Arriving in the area, Officer Ambrose saw a black man, later identified as Ganter, with a bandaged arm wearing jeans and no shirt and carrying a firearm three blocks from the reported address. Watching until backup arrived, Officer Ambrose saw Ganter place the firearm in a flower pot, an observation confirmed by Ambrose's dash camera video. Ambrose saw no other individual approach the flower pot.

When backup arrived, Ambrose told Sergeant Jeffrey Duer there is a black handgun in the flower pot. Ambrose proceeded to take Ganter into custody, while Duer watched the flower pot. The dash camera recorded Ambrose telling Ganter he saw Ganter drop a gun in the flower pot and the officers will find it. Ganter replied: "If you can find it, you can find that one. If you think you can find it, find it." A third officer, Adison Waterman, testified he retrieved the firearm from the flower pot and photographed it, following evidence retrieval protocol, but did not test it for fingerprints. Waterman testified that Government Exhibit 1 was the firearm he recovered from the flower pot, the specific Smith & Wesson firearm the indictment charged Ganter with unlawfully possessing. Officer Ambrose testified that Exhibit 1 is "consistent with the firearm [he] saw the defendant place in the flowerpot."

After Ganter's arrest, Detective Frank Rorabaugh collected and listened to Ganter's taped jail calls, which were admitted into evidence and played for the jury. In one call, Ganter says "they caught me with one of those pistols," "I'm a felon with a gun," and "I got caught with a gun." At the close of the prosecution's case, the district court denied Ganter's motion for judgment of acquittal. Ganter introduced no evidence, relying on cross-examination of the police officers and the lack of fingerprint evidence to cast reasonable doubt on the government's case.

On appeal, Ganter argues there was insufficient evidence he possessed the firearm found in the flower pot because the government's evidence failed to establish that the firearm Officer Ambrose testified he saw in Ganter's possession was the same firearm recovered by Officer Waterman from the flower pot, the specific firearm Ganter was charged with unlawfully possessing. Therefore, he argues, the government must rely on a theory of constructive possession, which fails because mere proximity is insufficient. We disagree.

We have consistently upheld felon-in-possession convictions where the jury credited an officer's testimony that he saw the defendant possess the firearm. E.g., United States v. Shepherd, 284 F.3d 965, 968 (8th Cir. 2002). Moreover, "there is sufficient evidence ... where a gun was immediately recovered from the location where the defendant was observed dropping something." United States v. Nickelous, 916 F.3d 721, 724 (8th Cir. 2019). Here, Ambrose testified he saw Ganter place in the flower pot a firearm that matched the description of the firearm officers found in an immediate search of the flower pot, which was the firearm charged in the indictment. The officers’ testimony combined with the dash camera video and audio recordings and Ganter's statements in the taped jail call provide overwhelming evidence that Ganter actually as well as constructively possessed the firearm in the flower pot. The district court did not err in denying Ganter judgment of acquittal.

II. Right to Self-Representation

Trial was originally set for June 12, 2017. Lisa Nouri was appointed to defend Ganter in September 2017 after the Federal Public Defender's office withdrew because of a conflict of interest. The defense was granted a total of six trial continuances. On October 1, 2018, trial was reset for May 6, 2019 on an Accelerated Trial Date basis. On March 20, 2019, Ganter filed a pro se motion for new counsel, claiming a complete breakdown in communications because Nouri would not file his pro se motions. On April 1, after an ex parte discussion with Ganter and Nouri, Magistrate Judge Lajuana M. Counts denied the motion for new counsel. At the start of a pretrial conference on April 16, three weeks prior to trial, Magistrate Judge Counts asked, "Ms. Nouri, you will be defense counsel?" Nouri responded:

That is correct, Your Honor, except Mr. Ganter has informed me prior to court ... that he has now decided to go pro se. I told him that that was certainly not a wise decision and all the reasons why. But rather than continue, I would just let you question Mr. Ganter with regard to that statement.

Magistrate Judge Counts then asked Ganter if he wanted to represent himself. Ganter said yes. Magistrate Judge Counts stated, "it's your right, and you can go pro se if you want to, but I'm telling you this [trial] is going on the May 6th docket." The court then engaged in a lengthy colloquy, advising Ganter of the advantages and disadvantages of self representation so the court would be "satisfied that you're doing this knowingly and voluntarily." After explaining the many reasons self representation was a bad idea, the court asked:

The Court: So, do you still -- I'm asking one last time -- do you still desire to represent yourself and give up your right to be represented by an attorney?

Ganter: Yes.

The Court: And your decision is entirely voluntarily?

Ganter: Yes.

The Court: All right. All right. The Court finds that you, Mr. Ganter, that you're knowingly and voluntarily waiving your right to counsel. I will, therefore, permit you to represent yourself.

The court appointed Nouri as standby counsel. Moments later, with the court addressing pretrial and trial issues, Ganter requested a continuance "of at least a few months" to prepare for trial. "That would be to look at this whole case, the in and outs." Magistrate Judge Counts, noting the case "has been lingering for a while" with Nouri working on it, denied the oral motion, as it had warned. Ganter responded:

Okay. Well, if that's the case, you might as well just let Ms. Nouri take care of my case then, since, I mean, you're not granting none of my motions for me. Maybe you might grant something for her.

After reiterating that the case would remain on the May 6 trial docket, the district court confirmed that Ganter was now knowingly and voluntarily requesting that Nouri represent him at trial "not [as] standby counsel but as your full counsel." The court then stated, "All right. So, Ms. Nouri, you're back on as trial counsel." Ganter did not appeal this ruling to Judge Bough, and the trial proceeded accordingly.

On appeal, Ganter argues the denial of his oral motion for a continuance unconstitutionally coerced him into relinquishing his right to represent himself at trial. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Ganter likely waived this contention by not appealing the ruling by Magistrate Judge Counts to the district court. See United States v. Kelley, 774 F.3d 434, 438 (8th Cir. 2014). But in any event, it is without merit. The Sixth Amendment "right of self-representation is not ... a license not to comply with relevant rules of procedural and substantive law." Faretta, 422 U.S. at 834 n.46, 95 S.Ct. 2525. A district court has "broad discretion in deciding whether to grant or deny a motion for a trial continuance." United States v. Myers, 503 F.3d 676, 680 (8th Cir. 2007), cert. denied, 552 U.S. 1212, 128 S.Ct. 1295, 170 L.Ed.2d 117 (2008). We have affirmed a district court's denial of a continuance when the pro se defendant "was merely seeking to delay his trial again by filing another continuance." United States v. Joos, 638 F.3d 581, 587 (8th Cir. 2011), cert. denied, 565 U.S. 1184, 132 S.Ct. 1159, 181 L.Ed.2d 1030 (2012) ; see United States v. Ware, 890 F.2d 1008, 1010 (8th Cir. 1989).

Here, trial of the case had been delayed by numerous defense motions for nearly two years. Ganter and his counsel had the discovery materials for over a year. Cf. United States v. Weisman, 858 F.2d 389, 391 (8th Cir. 1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1353, 103 L.Ed.2d 820 (1989). Ganter did not explain why he had not assisted in...