United States v. Turner

• Citation: 61 F.4th 866
• Docket Number: 20-12364
• Decision Date: 01 March 2023
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jessie James TURNER, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

61 F.4th 866

UNITED STATES of America, Plaintiff-Appellee,
v.
Jessie James TURNER, Jr., Defendant-Appellant.

No. 20-12364

United States Court of Appeals, Eleventh Circuit

Filed: March 1, 2023

61 F.4th 867

Appeal from the United States District Court for the Southern District of Alabama, D.C. Docket No. 2:18-cr-00336-TFM-MU-1

Scott Alan Gray, George A. Martin, Jr., U.S. Attorney's Office, U.S. Attorney Service - Southern District of Alabama, U.S. Attorney's Office, Mobile, AL, Oliver McDonald, U.S. Department of Justice, Civil Division, Washington, DC, for Plaintiff-Appellee.

Neil Stewart Hanley, Hanley Law Firm, Mobile, AL, for Defendant-Appellant.

Before Rosenbaum, Tjoflat, Circuit Judges, and Moody,^* District Judge.

Tjoflat, Circuit Judge:

This appeal concerns a felon-in-possession-of-firearms prosecution under 18 U.S.C. § 922(g)(1).¹ Jessie James Turner, Jr., a convicted felon, was indicted for possessing three firearms on November 8, 2018.² Aware that he was a convicted felon and could not lawfully possess the firearms, Turner sought to avoid conviction by asserting three affirmative defenses to the charge: he was insane at the time of the offense;³ he possessed the firearms in the exercise of public authority on behalf

61 F.4th 868

of a law enforcement agency;⁴ and law enforcement officers entrapped him into possessing the firearms.⁵ At trial, the Government, in its case in chief, pursued an unorthodox strategy. It undertook to rebut Turner's three affirmative defenses by establishing that they lacked a factual foundation. Its strategy was successful. The jury found Turner guilty as charged, and the District Court sentenced him to a prison term of ten years.

Turner appeals his conviction. He raises one issue. It involves the expert opinion testimony the Government presented in its case in chief over his objection to disprove his allegation that he was insane when he committed the § 922(g)(1) offense. Rule 704(b) of the Federal Rules of Evidence precludes an expert witness in a criminal case from "stat[ing] an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element . . . of a defense."⁶ Notwithstanding this preclusion, the District Court permitted the Government's expert witness, a forensic psychologist, to opine over Turner's objection that at the time Turner possessed the firearms, he understood that the possession was unlawful.

We agree with Turner that the District Court abused its discretion in overruling his objection and admitting the testimony. That said, we must determine whether, under Rule 52(a) of the Federal Rules of Criminal Procedure, the error is harmless because it "d[id] not affect [Turner's] substantial rights."⁷ Specifically, can we " 'say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the [jury's] judgment was not substantially swayed by the error,' and therefore [Turner's] 'substantial rights were not affected[?]' " United States v. Hornaday, 392 F.3d 1306, 1316 (11th Cir. 2004) (citing Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 1248, 90 L.Ed. 1557 (1946)). After pondering what took place before the jury in this way, we conclude that the answer is yes. Turner's conviction is therefore affirmed.

We organize our discussion as follows. Part I portrays the testimony and other evidence relating to the charged § 922(g)(1) offense and Turner's affirmative defenses. Part II covers, with respect to those defenses, the parties' closing arguments and the District Court's instructions to the jury. Part III.A. addresses the inadmissibility under Rule 704(b) of the forensic psychologist's opinion concerning Turner's state of mind in possessing the firearms. Part III.B. explains why the admission of the opinion in evidence constituted harmless error. Part IV concludes.

61 F.4th 869

I.

Jessie James Turner, Jr., is a chronic alcoholic and a convicted felon, having served a prison term for illegal possession of a firearm in violation of state law in 1999. Turner's insanity defense was based essentially on the pressures of everyday living. Some of the pressures were self-induced, like his alcoholism, and some were caused by events beyond his control. Turner's alleged insanity manifested itself in the hallucinations he suffered on November 8, 2018, which caused him to fire an AR-15 rifle at some imaginary men who were trying to enter his residence and kill him.

Turner's exercise-of-public-authority and entrapment defenses stemmed from his need to avoid prosecution for possessing a firearm, a .40 caliber Smith & Wesson pistol, as a convicted felon on July 20, 2018, in violation of federal law. Turner alleged that two law enforcement officers, Special Agent Thomas Nevin of the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and Detective Willie Calhoun of the Selma, Alabama, Police Department ("SPD"), operating in tandem, promised that he would not be prosecuted for the July 20 possession if he purchased stolen firearms on the street and assisted in the prosecution of the sellers.

In subpart A, we set out what was disclosed in the Government's case in chief. We focus in particular on Turner's interactions with Agent Nevin and Detective Calhoun, and on what the forensic psychologist had to say about Turner's sanity on November 8, 2018, when he committed the § 922(g) offense. Subpart B sets out Turner's version of his interactions with Agent Nevin and Detective Calhoun and the manifestation of his alleged insanity on November 8.

A.

On the night of July 20, 2018, a task force created by the ATF and the SPD was conducting a "proactive, saturation detail" in the city. Agent Nevin and Detective Calhoun were among those involved.⁸ They were riding in Calhoun's patrol car.⁹

Calhoun observed a Nissan Titan pickup truck commit a traffic violation, and he pulled it over. The Titan had five occupants. Turner owned the vehicle but was not the driver. He was a passenger, riding in the front seat. When Calhoun got to the car, he observed the presence of open beverage containers and ordered everyone to step out. Turner, who was intoxicated, resisted. So, Calhoun and Nevin seized him and put him on the ground in handcuffs. Turner had a .40 caliber Smith & Wesson pistol on his person, and Calhoun removed it. Once Turner was subdued, Agent Nevin questioned him with Calhoun standing by.¹⁰ The exchange was recorded.

Turner was aware that Nevin was an ATF agent and that Nevin could quickly determine that he was a convicted felon and arrest him for possessing a firearm. Hence, without any prompting, Turner volunteered: "I'm a convicted felon. And I know I wasn't supposed to have it on me.

61 F.4th 870

But y'all got me with it."¹¹ To encourage Nevin to "wash this shit on the gun charge," Turner offered to help the police solve "three murders and . . . at least five shootings."

Turner: I guarantee I'm going to clear these murders up, because I've got three murders that nobody cleared up. . . .

Nevin: Is the reason you're talking to me right now, the only reason, so you can get out of custody right now? Is that the only reason you're talking to me?

Turner: Well, actually, I was waiting for a reward to come out on these other cases. But they ain't posted no reward yet. I actually was waiting for the reward to come through and then I was going to go and tell you. . . . I'll get you these motherfuckers copping out to these murders. I will get them motherfuckers on tape copping out to the murders. . . . Are you gonna take me for a bullshit ass gun charge when I can get you—I can get you some murder cases solved? Come on, man. Think about what are your options on that. It'd be better to get them goddamn three—four murder cases that I can solve, four shooting cases I can solve, for a fucking gun charge.¹²

Turner understood that the police would need evidence in order to charge someone with a murder. He could obtain it. "I can get the information. But I've got to go talk to these motherfuckers on tape to get everything on tape and you've got the case, you going to solve the fucking case. You're going to . . . man, come on man."

After Agent Nevin questioned Turner, he confiscated Turner's pistol and released him.¹³ In light of Turner's willingness to help the SPD in its murder investigations, Calhoun gave Turner his cell phone number and obtained Turner's number. From the next day, July 21, through October 27, 2018, Turner sent Calhoun twenty-six text messages; Calhoun sent Turner fourteen.¹⁴ Turner phoned Calhoun thirty-three times; he answered seven of the calls.¹⁵ Calhoun called Turner three times.¹⁶ None of the text messages in the record¹⁷ mentioned the murders and shootings Turner referred

61 F.4th 871

to in his conversation with Agent Nevin on July 20. Calhoun testified that he could not recall the content of the phone calls.

One of Turner's text messages related to firearms. On July 25, Turner sent Calhoun photos of guns, several pistols, and an automatic rifle. Calhoun forwarded the photos to Agent Nevin. Nevin acknowledged receiving the photos but did not authorize Turner to purchase any of the firearms on behalf of the ATF. Calhoun testified that he did not "communicate" Agent Nevin's messages in response to the photos to Turner.

A month later, on September 26, Turner texted Calhoun asking him if he had a "device" that he could "hook to" his phone so he could "record what's being talked about."¹⁸ Calhoun's replies were: "You can use the recorder on your phone" and "I'll see what I can find." Calhoun made no attempt to find a device because he was not going to use Turner as an SPD confidential informant.¹⁹

Also in September, around the time these text messages were exchanged, an SPD officer was murdered. Calhoun asked Turner to come to the Alabama Law Enforcement Agency ("ALEA") office where officers of several law enforcement agencies were gathered in response. Calhoun...