United States v. Leffler

• Decision Date: 19 November 2019
• Docket Number: No. 18-5087,18-5087
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Kevin Dewayne LEFFLER, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

942 F.3d 1192

UNITED STATES of America, Plaintiff - Appellee,

v.Kevin Dewayne LEFFLER, Defendant - Appellant.

No. 18-5087

United States Court of Appeals, Tenth Circuit.

FILED November 19, 2019

Submitted on the briefs:^*

Virginia L. Grady, Federal Public Defender, and Meredith B. Esser, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

R. Trent Shores, United States Attorney, and Christopher J. Nassar, Assistant United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, BALDOCK, and EID, Circuit Judges.

BALDOCK, Circuit Judge.

A jury found Defendant–Appellant Kevin Dewayne Leffler guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) ; possessing a short-barreled shotgun in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(B)(i) ; possessing with the intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) ; and possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). Defendant only appeals his conviction for possession of a short-barreled shotgun in furtherance of a drug-trafficking crime, arguing the Government presented insufficient evidence for the jury to find him guilty of this offense. Because Defendant waived his only asserted ground for appeal, we decline to address the merits of his claim. Therefore, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Shortly before midnight on January 5, 2018, Tulsa Police Officer Ashley Kite ran the license plates on several vehicles parked at the Tudor House Inn, a location known for criminal activity based upon her experience. One of the vehicles, a blue Ford Escape, had been reported stolen. Officer Kite notified other officers about the stolen Escape, and they surveilled the vehicle for about fifteen minutes before the Escape moved to an adjacent Arby’s parking lot where a disabled truck was parked. Tulsa Police Officer Johnson saw the driver of the Escape exit the vehicle and walk to the front of the disabled truck, which had its hood raised and blocked the officers’ line of sight. Officer Johnson observed people walking back and forth between the Escape and the disabled truck and looking in the hood of the disabled truck. The officers approached the vehicles, ordered the driver and passenger of the Escape to put their hands in the air, and detained them. The officers also found and detained a third occupant of the Escape who had not exited the vehicle.

During a search of the immediate area, Officer Kite found a loaded pistol on the ground in front of the disabled truck. The driver of the Escape, later identified as Defendant, informed the officers he owned the pistol and had dropped it there when the officers approached. After the officers arrested Defendant, they conducted an inventory search of the Escape. In the cargo area of the Escape, the officers found a duffel bag containing numerous assorted gun magazines (some were loaded; most were empty), ammunition, and two disabled grenades. Next to the duffel bag, the officers discovered a Ziploc baggie containing approximately 42 grams of methamphetamine (approximately 160–170 dosage units); a set of digital scales; and numerous small plastic baggies. The officers also found five long guns, including a Mossberg 12-gauge shotgun that had been modified into a short-barreled shotgun, in the cargo area of the vehicle. Defendant told the officers everything in the Escape belonged to him.

A federal grand jury subsequently indicted Defendant on six charges involving guns and drugs. The case proceeded to trial, where the Government presented six witnesses, including the responding officers; three Alcohol, Tobacco, and Firearms ("ATF") agents; and a forensic scientist with the Tulsa Police Department. At the close of the Government’s case, Defendant moved for a judgment of acquittal. Specifically, as to the short-barreled shotgun and three other firearms, Defendant argued the evidence was insufficient because the Government presented no evidence these firearms were operable. Defendant also made a general motion for a judgment of acquittal as to the other two firearms discovered during the search of the Escape and the drug-related counts. The district court denied Defendant’s motion, finding, when viewing the evidence in the light most favorable to the Government, a rational trier of fact could find every element of the crimes charged beyond a reasonable doubt. The defense then rested without presenting any additional evidence.

Following deliberation, the jury found Defendant guilty of, inter alia , possessing a short-barreled shotgun in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(B)(i). The jury acquitted Defendant on Count Four, which charged him with possessing a firearm with an altered or obliterated serial number. Thereafter, the district court sentenced Defendant to 171 months’ imprisonment. This timely appeal followed.

II.

Defendant argues the Government presented insufficient evidence to convict him of possessing a short-barreled shotgun in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(B)(i). We generally review challenges to the sufficiency of the evidence de novo to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Serrato , 742 F.3d 461, 472 (10th Cir. 2014). But here the Government argues Defendant failed to preserve his challenge because he does not raise the same argument on appeal as he did in moving for a judgment of acquittal before the district court. The Government further contends Defendant waived his insufficient-evidence claim altogether because he did not argue for plain error in his opening brief. We agree.

A.

Before turning to the argument Defendant presents on appeal, we pause to discuss some general principles of forfeiture and waiver. Generally, "a federal appellate court does not consider an issue not passed upon below." Singleton v. Wulff , 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). When a party fails to raise an argument below, we typically treat the argument as forfeited. Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128 (10th Cir. 2011). And when an appellant raises a forfeited argument on appeal, we will reverse only if the appellant can satisfy our rigorous plain-error test. See United States v. Kearn , 863 F.3d 1299, 1305 (10th Cir. 2017). By contrast, when a party intentionally relinquishes or abandons an argument in the district court, "we usually deem it waived and refuse to consider it." Richison , 634 F.3d at 1127. These rules apply not only when a litigant raises a new argument on appeal but also when "a litigant changes to a new theory on appeal that falls under the same general category as an argument presented at trial." See United States v. Nelson , 868 F.3d 885, 891 n.4 (10th Cir. 2017) (quoting Lyons v. Jefferson Bank & Tr. , 994 F.2d 716, 722 (10th Cir. 1993) ).

To avoid us treating a claim as forfeited or waived, an appellant’s opening brief must "cite the precise references in the record where the issue was raised and ruled on" in the district court. See 10th Cir. R. 28.1(A). If an appellant fails to satisfy this requirement, we may assume the appellant did not preserve the issue for appeal and refuse to review the alleged error. Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1540 n.3 (10th Cir. 1996). Although we may independently review the record to determine whether the appellant raised an issue below, we have warned that "all counsel should understand the potentially serious consequences that could result from noncompliance with the applicable rules of appellate procedure." See United States v. Williamson , 53 F.3d 1500, 1514 n.7 (10th Cir. 1995).

When an appellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinarily deem the issue waived (rather than merely forfeited) and decline to review the issue at all—for plain error or otherwise. Richison , 634 F.3d at 1130–31. Under such circumstances, "the failure to argue for plain error and its application on appeal ... surely marks the end of the road for an argument ... not first presented to the district court." United States v. Lamirand , 669 F.3d 1091, 1100 n.7 (10th Cir. 2012) ; see also United States v. Wright , 848 F.3d 1274, 1281 (10th Cir. 2017) ("[W]e have repeatedly declined to consider arguments under the plain-error standard when the defendant fails to argue plain error."). As we explain below, our application of these general principles and other precedents to Defendant’s argument on appeal leads us to decline to address his insufficient-evidence claim.

B.

On appeal, Defendant challenges the sufficiency of the evidence to support his conviction for possession of a short-barreled shotgun in furtherance of a drug-trafficking crime. Specifically, he argues the Government failed to establish the requisite nexus between the short-barreled shotgun and drug trafficking for the jury to find he possessed the weapon in furtherance of a drug-trafficking crime. The first problem with Defendant’s argument is it comes too late.

"The Rules of Criminal Procedure do not allow a defendant to wait until appeal" to challenge the sufficiency of the evidence. United States v. Goode , 483 F.3d 676, 680 (10th Cir. 2007). Rather, a defendant must present claims of insufficient evidence in the first instance to the district court through a motion for a judgment of acquittal. Id. at 680–81 ; cf. Fed. R. Crim. P. 29. "When a defendant challenges in district court the sufficiency of the evidence on specific grounds, ‘all grounds not specified in the motion are waived.’ " Goode , 483 F.3d at 681 (quoting United States v. Kimler , 335 F.3d 1132, 1141 (10th Cir. 20...