United States v. Oliver

• Citation: 987 F.3d 794
• Decision Date: 11 February 2021
• Docket Number: No. 19-2209,19-2209
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Shelton OLIVER, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

987 F.3d 794

UNITED STATES of America, Plaintiff - Appellee

v.Shelton OLIVER, Defendant - Appellant

No. 19-2209

United States Court of Appeals, Eighth Circuit.

Submitted: September 23, 2020

Filed: February 11, 2021

John H. Lammers, Assistant U.S. Attorney, Mikala Steenholdt, Special Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Northern District of Iowa, Sioux City, IA, for Plaintiff - Appellee.

Bradley Ryan Hansen, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Southern District of Iowa, Des Moines, IA, for Defendant - Appellant.

Shelton Oliver, Pro Se.

Before KELLY, WOLLMAN, and STRAS, Circuit Judges.

KELLY, Circuit Judge.

In August 2018, a jury convicted Shelton Oliver of five counts of drug-trafficking, and the district court imposed a sentence of 25 years’ imprisonment (300 months). Oliver appeals, alleging the district court erred by denying his motion for a new trial and applying a sentencing enhancement pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851. We affirm Oliver's conviction, but we reverse and remand for resentencing.

I.

Law enforcement officers began investigating Oliver and other drug-trafficking suspects in October 2017 after a man named Ty Olsen died of a multi-drug overdose in Sioux City, Iowa. Officers had information that Oliver sold Olsen heroin shortly before his death. As part of the investigation, law enforcement used a confidential informant named Christopher Hirschauer to buy $50 to $100 worth of heroin from Oliver on four separate occasions. Each of the transactions took place within 1,000 feet of either a park or a school. Oliver was eventually arrested for drug trafficking in March 2018.

In April 2018, Oliver was indicted on one count of conspiracy to distribute heroin and cocaine base, three counts of distributing heroin, and one count of distributing (and aiding and abetting another in distributing) heroin—all within 1,000 feet of a protected location and after having previously been convicted of three felony drug offenses. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846, 851, and 860(a). In July 2018, the government filed a notice pursuant to 21 U.S.C. § 851 seeking an enhanced sentence of mandatory life in prison if Oliver was convicted on any of the counts.¹

The case proceeded to trial in August 2018, and the jury found Oliver guilty on all five counts. Oliver filed two post-trial motions—one requesting a new trial and the other asking the district court to strike the government's § 851 notice. The district court denied both motions. At sentencing in May 2019, the district court found that Oliver had previously been convicted of two serious drug felonies² and sentenced him to the 25-year mandatory minimum sentence pursuant to § 841(b)(1)(A). The court noted that, had it not been for the statutory minimum, it would have "probably found a sentence somewhat lower than that, maybe like 240 [months], to be sufficient."

Oliver appeals, arguing that he is entitled to a new trial or, at a minimum, a new sentencing hearing.

II.

According to Oliver, the cumulative effect of several errors at trial—the admission of certain map exhibits, the submission of an unadmitted exhibit to the jury, the prosecutor's leading questions to a government witness, and the admission of firearm evidence—deprived him of his Sixth Amendment right to a fair trial.

"We review [the] district court's interpretation and application of the rules of evidence de novo," United States v. Hawkins, 796 F.3d 843, 864 (8th Cir. 2015) (cleaned up), and its evidentiary rulings and denial of a motion for a new trial for abuse of discretion. See United States v. Keys, 918 F.3d 982, 985 (8th Cir. 2019) ; United States v. Morris, 817 F.3d 1116, 1121 (8th Cir. 2016). But we will not reverse a conviction if errors were harmless. United States v. Hyles, 479 F.3d 958, 968 (8th Cir. 2007). "An evidentiary error is harmless when, after reviewing the entire record, we determine that the substantial rights of the defendant were unaffected, and that the error did not influence or had only a slight influence on the verdict." United States v. Langley, 549 F.3d 726, 729 (8th Cir. 2008) (cleaned up); see also United States v. Mendoza-Mesa, 421 F.3d 671, 672-73 (8th Cir. 2005) ("As to errors not of constitutional magnitude, the government is required to establish that we do not have ‘grave doubt’ as to whether the error substantially influenced the outcome of the proceedings." (cleaned up)). In the case of cumulative error, this court may reverse "only where the case as a whole presents an image of unfairness resulting in the deprivation of defendant's constitutional rights, even though none of the claimed errors is itself sufficient to require reversal." United States v. Baldenegro-Valdez, 703 F.3d 1117, 1124-25 (8th Cir. 2013) (cleaned up).

A.

Oliver challenges the admission into evidence of a series of maps offered to establish that the controlled buys took place within 1,000 feet of a "protected location." See 21 U.S.C. § 860(a) (subjecting any person who distributes a controlled substance within 1,000 feet of certain protected locations, including schools, colleges, and playgrounds, to heightened penalties); United States v. Gonzalez-Rodriguez, 239 F.3d 948, 953 (8th Cir. 2001) ("[I]n order to obtain a conviction under § 860, [distribution of a controlled substance] within 1000 feet of a school must be charged and proven by the government beyond a reasonable doubt."). Two Sioux City employees—Geographic Information Systems Supervisor Nicholas Bos and Crime Analyst Marie Divis—created the maps to depict the location of each drug transaction relative to nearby parks or schools. Based on statements made by Sergeant Troy Hansen from the Sioux City Police Department, Bos and Divis used mapping software to electronically mark the relevant locations on maps and then noted the distances between them with lines and other labels.

Oliver argues the map exhibits are inadmissible because Bos and Divis's markings (or "tacks") on the maps constitute hearsay. Hearsay is "a statement that ... the declarant does not make while testifying at the current trial or hearing; and ... [that] a party offers in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c). Hearsay is generally inadmissible "unless one of several exceptions applies." United States v. Hemsher, 893 F.3d 525, 533 (8th Cir. 2018) (citing Fed. R. Evid. 802 ). According to Oliver, the markings designating the locations of the parks, schools, and drug transactions "reflect out-of-court statements" made by Sergeant Hansen to Bos and Divis. The government disagrees but does not rely on any hearsay exception. Instead, the government argues that the markings are not hearsay at all because (1) Bos, Divis, and Sergeant Hansen all testified at trial and were subject to cross-examination, and (2) the markings on the maps were generated by computer software, not placed manually.

The fact that Bos, Divis, and Hansen testified at trial does not tell us whether the maps contained hearsay.³ Rather, the question is whether the markings on the maps are statements that "the declarant d[id] not make while testifying at trial." See Fed. R. Evid. 801(c). Indeed, it is undisputed that, before trial, Sergeant Hansen provided the addresses of the controlled drug transactions and the relevant protected locations to Bos and Divis, who then used that information to create the map exhibits. The government also agrees that it used the maps to show that the controlled buys occurred within 1,000 feet or less of a protected location, an element of all five counts that had to be proven beyond a reasonable doubt. Sergeant Hansen's statements regarding where to place the marks were made out-of-court. And they were then offered by the government at trial for the truth of the matter asserted: the locations of the parks, schools, and drug transactions. Cf. United States v. Ricker, 983 F.3d 987, 995 (8th Cir. 2020) (finding that admission of descriptive cover sheets for various exhibits was improper because the cover sheets contained "previously written assertions" by law enforcement that were offered to prove the truth of the matters asserted).

We are not persuaded by the argument that the markings cannot constitute hearsay simply because they are computer-generated. Although "[m]achine-generated records usually do not qualify as ‘statements’ for hearsay purposes," they "can become hearsay when developed with human input." United States v. Juhic, 954 F.3d 1084, 1089 (8th Cir. 2020) (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ). In Juhic, this court determined that computer-generated reports contained impermissible hearsay because "human statements and determinations were used to classify" the relevant files that were referenced in the reports and later offered against the defendant. Id. at 1088-89. Similarly, here, Sergeant Hansen's out-of-court statements regarding the physical locations of the drug transactions were used to produce the relevant points and distances marked on the maps. Bos also testified that he added a legend to each map describing the relevant locations. See id. at 1089 ("The human involvement in this otherwise automated process makes the notations hearsay.").⁴

But even assuming it was error to admit the maps because they contained hearsay, any error was harmless. See United States v. DeMarce, 564 F.3d 989, 997 (8th Cir. 2009) ("[T]his court will not reverse an erroneous evidentiary ruling if the error was harmless." (cleaned up)). "An evidentiary error is harmless when, after reviewing the entire record, this court determines that the substantial rights of the defendant were unaffected, and that the error did not influence or had only a slight influence on the verdict." Id. Here, the maps were not the only evidence that showed the proximity of the drug transactions to a protected location. Rather, the...