United States v. Miller

• Decision Date: 03 September 2021
• Docket Number: No. 20-2857,20-2857
• Citation: 11 F.4th 944
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Levi Farren MILLER, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

11 F.4th 944

UNITED STATES of America, Plaintiff - Appellee

v.Levi Farren MILLER, Defendant - Appellant

No. 20-2857

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2021

Filed: September 3, 2021

Counsel who presented argument on behalf of the appellant and appeared on the brief was Mark C. Meyer, of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Emily K. Nydle, AUSA, of Cedar Rapids, IA.

Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.

SMITH, Chief Judge.

Levi Farren Miller entered a conditional guilty plea to possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He now appeals, arguing that the district court¹ made three reversible errors. First, Miller asserts that the district court erroneously denied his motion to suppress. Second, he argues that the National Firearms Act is unconstitutional. Third, he challenges the court's application of several sentencing enhancements. We affirm.

I. Background

A. Underlying Facts

Miller possessed a short-barreled shotgun in a house in Waterloo, Iowa. The house consisted of two stories with each floor leased as apartments. Both floors had outside access. One evening, Miller's downstairs neighbor Takeela Latham called law enforcement about an incident with Miller involving a firearm. According to Latham, Miller had placed a suitcase on her back porch. Latham did not want the suitcase there and had her friend Jarrell Cole ("Jarrell") help her move it to Miller's truck. Miller then came down a set of outside stairs and walked towards the back of the house where vehicles were parked. Latham alleged that Miller carried a shotgun and yelled profanities. Latham also claimed that Miller had pointed the shotgun at her and Jarrell.

Waterloo Police Officer Alexander Bovy responded to the call. But when he arrived at the residence, he did not see anyone. A second officer arrived at the residence soon afterwards. The officers then knocked on the back door of the residence. Latham's minor daughter opened the door. She told the officers that her mother had left the residence with some friends to get food. The girl's aunt was also inside the residence. When Officer Bovy asked if the aunt had heard people yelling, the aunt claimed she had not heard anything.

Next, the officers knocked on a neighbor's door. Emmitt Johnson answered and "initially denied knowledge of an altercation, stating he had only recently arrived at his residence." United States v. Miller (Miller II ), No. 6:19-cr-02031-LTS-MAR-1, 2019 WL 7212306, at *2 (N.D. Iowa Dec. 27, 2019). But Johnson eventually explained that he had heard Miller arguing with his wife, Sarabeth Miller ("Sarabeth"), though he had not seen anyone else outside.

The officers made contact with Miller after knocking on his apartment door. Sarabeth and Michele Randall resided in the apartment with Miller. All three told the officers that they went outside in response to a loud noise in the back. Miller and Sarabeth said that Miller carried a large knife when they went downstairs. They also said that they observed Latham arguing with someone. They denied that there was a firearm in the house. Based on his concern regarding the presence of a firearm, Officer Bovy asked Miller if he could search his residence. Miller denied the request. The officers’ supervisor instructed them to obtain a search warrant for the suspected firearm.

Before the officers obtained a search warrant, they conducted a non-consensual protective sweep of the residence. Officer Bovy took Sarabeth to the Waterloo Police Department to give a statement. Officer Steven Thomas interviewed the other witnesses—Latham, Jarrell, Chelsea Cole ("Chelsea"), and Kayla Borntreger—also at the police station. With the exception of Sarabeth, these witnesses all recalled Miller holding a shotgun with a brown stock outside his residence while repeating profanities. Throughout her interview, Latham alleged that Miller had pointed the shotgun at her and Jarrell. During his interview, Jarrell stated that Miller held the "shotgun in a position of readiness to fire" and " ‘pointed’ the shotgun[,] but [Jarrell] did not state whether [Miller] pointed the shotgun at any individual." Id. at *4. Notably, Borntreger stated that Miller did not point the weapon at anyone. She did, however, indicate that Miller "[w]as carrying the shotgun in a manner that would allow him to shoot quickly if necessary." Id. at *5.

After all of the witnesses provided statements, Officer Bovy, consulting with Officer Thomas, drafted an application for a warrant to search Miller's residence for the shotgun that Miller allegedly used to assault Latham. After obtaining the warrant, the officers conducted a search and discovered "a pump action shotgun with a black barrel and brown wood stock and foregrip propped against the door frame inside the kitchen. A T-shirt was covering part of the barrel, and the butt of the gun was in a pan filled with cat food." Id. at *6 (citation omitted). The shotgun's barrel was 17 ?ths inches long. Law enforcement arrested Miller.

B. Procedural History

When presented with these facts, a grand jury indicted Miller with possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and possession of a National Firearms Act short-barreled shotgun not registered to possessor, in violation of 26 U.S.C. § 5861(d).

Miller filed several motions, including a motion to suppress, a request for a Franks² hearing, a motion to dismiss both counts of the indictment, and a second motion to dismiss. The magistrate judge held a single evidentiary hearing on the motions on October 7, 2019. Although the magistrate judge was "somewhat on the fence about [Miller's] entitlement to [a Franks ] hearing," he decided to "take up all the evidence" in the interest of "judicial economy." Mot. Hr'g Tr. at 2, United States v. Miller , No. 6:19-cr-02031-LTS-MAR-1 (N.D. Iowa 2020), ECF No. 63. He asked if either party had any issue with proceeding in that manner. Miller did not object.

After receiving the parties’ post-hearing briefs, the magistrate judge issued a report and recommendation (R & R) recommending that the district court deny all of Miller's motions. The district court adopted the R & R and denied all of Miller's motions based on the following rationales.

1. Franks Issues

In its R & R, the magistrate judge concluded that Miller "failed to satisfy his burden to show he was entitled to a Franks hearing." United States v. Miller (Miller I ), No. 6:19-cr-02031-LTS-MAR-1, 2019 WL 8112464, at *13 (N.D. Iowa Nov. 15, 2019). It also explained that Miller "incorrectly interpreted" his decision to "take up all the evidence at the October hearing" to mean that Miller satisfied the burden of showing that he was entitled to a Franks hearing. Id. at *7. In its order, the district court explained that "any procedural error" in holding a Franks hearing, without first determining whether Miller was entitled to it, was harmless, and Miller was not entitled to Franks relief. Miller II , 2019 WL 7212306, at *10.

Miller made two relevant Franks arguments. First, Miller argued that Officer Bovy intentionally or recklessly omitted Borntreger's statement that Miller "did not point the shotgun at anyone because [Miller] could not see her or the other witnesses, as they all watched [Miller] from inside ... Latham's porch." Id. at *5. According to Miller, Borntreger's statements were material to the probable-cause analysis, as they contradicted Latham's accusation that Miller pointed a gun at her.

According to the court, "[t]he record [did] not show [that] Officer Bovy must have entertained serious doubts as to the truthfulness of the affidavit or had obvious reasons to doubt the accuracy of the information he reported" when "multiple witnesses stat[ed] [Miller] was angry and cursing while carrying a shotgun."

Miller I , 2019 WL 8112464, at *10. Moreover, "Borntreger may not have seen [Miller] ‘point’ the shotgun, but what she saw was at least consistent with displaying a firearm in a threatening manner," which is also criminalized under Iowa law. Id. (citing Iowa Code § 708.1(2)(c) ).

The court also concluded that the "omission of ... Borntreger's statement ... was not clearly critical to the issuing judge's finding of probable cause. Even if Officer Bovy had included her statement, the issuing judge would still have had testimony from multiple eyewitnesses that [Miller] was angry and cursing while carrying a shotgun." Id. at *12. And "[e]ven if ... Borntreger did not see [Miller] point the shotgun [at Latham and Jarrell], Officer Thomas could reasonably conclude her statement supported the assertion that [Miller] carried the shotgun in a threatening manner." Id.

Second, Miller "argue[d] that Officer Bovy acted with reckless disregard for the truth when he omitted Officer Bovy's encounters with [Latham's daughter], the [daughter's] aunt, and ... Johnson." Id. at *10. Again, the court concluded that "nothing in the record indicate[d] Officer Bovy must have entertained serious doubts about the truthfulness of his statements or had any obvious reasons to doubt the accuracy of the information he wrote in the affidavit." Id. It reasoned, "Although the aunt denied having heard people yelling and ... Johnson was hesitant to acknowledge he was aware of a verbal altercation near his residence, these events were not obvious reasons for Officer Bovy to doubt the accuracy of the information he put in his application" because "Officer Bovy testified that, in his experience, he sometimes has difficulty persuading witnesses to provide him information." Id. at *11.

These alleged omissions were also not clearly critical to the issuing judge's finding of probable cause because "[n]one of the omissions ha[d] any bearing on the witnesses’ consistent statements that Miller came to the back of the house in response to Latham and [Jarrell]...