United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2622
___________________________
United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Brian Trotter,
lllllllllllllllllllll Defendant - Appellant.
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: January 18, 2013
Filed: July 17, 2013
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
____________
COLLOTON, Circuit Judge.
Brian Trotter was charged with unlawful possession of a firearm as a
previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Trotter pleaded not
guilty, and the case proceeded to trial. At the close of the government’s case, Trotter
moved for a judgment of acquittal, contending that the government had adduced
insufficient evidence of identity and venue. The district court1 denied the motion, and
the jury convicted Trotter. The court sentenced Trotter to 110 months’ imprisonment.
Trotter appeals, and we affirm.
I.
Clay Nolte, a senior special agent of the Bureau of Alcohol, Tobacco, Firearms
and Explosives, was investigating armed drug dealers in Omaha, Nebraska, during
February and March of 2011. Nolte learned from a confidential informant that a
methamphetamine dealer named Brian Trotter wanted to purchase guns. Nolte ran
a background check on Trotter and discovered that he was a convicted felon who was
prohibited from possessing firearms. Nolte spoke to Trotter over the phone, and they
arranged to meet at an apartment building on March 7, 2011. At the meeting, Nolte
showed Trotter four firearms, and Trotter paid for two of them with a combination of
cash and methamphetamine. After Nolte handed Trotter the guns, other officers
entered the apartment and arrested Trotter.
During his testimony at trial, Nolte identified the guns that he sold to Trotter,
stated that they were still in the same condition, and said that he had tested the guns
to ensure they could fire live rounds. A different agent with specialized training in
firearms testified that the guns were not produced in Nebraska, so they must have
moved in interstate commerce.
Trotter stipulated that he previously had been convicted of a felony. The
stipulation—agreed to by “the plaintiff, United States of America, and the defendant,
Brian Trotter”—was read into evidence. After reading the stipulation, the
government rested its case.
1
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
-2-
Trotter moved for a judgment of acquittal. He argued that there was
insufficient evidence of identity, because no witness identified the Brian Trotter in
the courtroom as the same Brian Trotter who purchased the guns on March 7. He also
maintained that there was no evidence establishing that venue was proper—that is,
that the crime occurred in the District of Nebraska. The district court denied the
motion as to venue, but reserved judgment as to identity. Trotter presented no
evidence and rested his case. The jury convicted Trotter, and the district court denied
Trotter’s motion for judgment of acquittal. Before sentencing, Trotter moved for a
new trial, again contending that the evidence was insufficient to support his
conviction. The court denied the motion.
At sentencing, the district court determined that Trotter’s base offense level
was 24, based on two prior felony convictions for crimes of violence: (1) assault by
a confined person, and (2) possession of a short-barreled shotgun. See USSG
§ 2K2.1(a)(2). The court also found that during the instant offense, Trotter possessed
the firearms in connection with another felony—possession with intent to distribute
methamphetamine—and therefore applied a four-level enhancement pursuant to
USSG § 2K2.1(b)(6)(B). The court sentenced Trotter within the advisory guideline
range to 110 months’ imprisonment. Trotter appeals, arguing that the district court
committed multiple errors.
II.
Trotter’s lead argument is that the court erred by denying his motion for
judgment of acquittal because there was insufficient evidence to establish identity.
Trotter contends that none of the testimony about “Brian Trotter” gave the jury a
sufficient basis to conclude that the Brian Trotter in the courtroom was the same
Brian Trotter who possessed the firearms. We review the denial of a motion for
acquittal de novo, reversing only if no reasonable jury could have found Trotter guilty
beyond a reasonable doubt. United States v. Winn, 628 F.3d 432, 439 (8th Cir. 2010).
-3-
There was sufficient evidence to support the jury’s finding that the defendant
was the person who committed the offense. “Courtroom identification is not
necessary when the evidence is sufficient to permit the inference that the defendant
on trial is the person who committed the acts charged.” United States v. Hyles, 521
F.3d 946, 955 (8th Cir. 2008) (internal quotation and alteration omitted). Although
much of the testimony established only that a “Brian Trotter” possessed the weapons,
the prosecution linked some evidence to the defendant in the courtroom. The
government introduced the testimony of the arresting officer, who answered
affirmatively that his “responsibility [was] to take down the defendant,” T. Tr. 61
(emphasis added), and that he arrested “Mr. Brian Trotter.” T. Tr. 62. At trial, the
government read into evidence a stipulation between the United States and “the
defendant, Brian Trotter.” T. Tr. 212. Because there was only one defendant on trial,
the jury reasonably could have inferred that “the defendant” named Brian Trotter
whom the officer arrested was the same “defendant” named Brian Trotter who
appeared at the trial and executed the stipulation. See United States v. Green, 757
F.2d 116, 119 (7th Cir. 1985).
Trotter also argues that there was insufficient evidence to establish that the
crime occurred in the District of Nebraska. The government must prove venue by a
preponderance of the evidence. United States v. Rivera-Mendoza, 682 F.3d 730, 733
(8th Cir. 2012). One officer testified that the sting operation occurred “here in the
Omaha area.” T. Tr. 21. Another officer was asked, “where in Omaha is the
apartment,” and replied that it was “in the area of I-80 and 72nd Street exit.” T. Tr.
121. That evidence was sufficient to permit an inference that the crime occurred in
the District of Nebraska. We therefore conclude that the district court did not err in
denying Trotter’s motion for judgment of acquittal. For essentially the same reasons,
there was no miscarriage of justice, and the court did not abuse its discretion in
denying Trotter’s motion for new trial.
-4-
Trotter’s three remaining arguments are without merit. First, he argues that the
district court abused its discretion by admitting the firearms into evidence. “Where
a . . . physical object is offered as evidence in a criminal prosecution, an adequate
foundation for the admission of that object requires testimony first, that such object
is the same object which was involved in the alleged incident, and that the condition
of that object is substantially unchanged.” United States v. Robinson, 617 F.3d 984,
990 (8th Cir. 2010) (internal quotation omitted). Agent Nolte established that the
weapons introduced at trial were the same as those he handed to Trotter in the
undercover transaction. Nolte also testified that the condition of the guns at trial was
the same as their condition on March 7. That testimony established a foundation for
the admission of the firearms, so the court did not abuse its discretion.
Next, Trotter argues that the district court committed procedural error at
sentencing when it found that he previously had been convicted of two crimes of
violence—assault by a confined person and possession of a short-barreled shotgun.
See USSG § 2K2.1(a)(2). Trotter argues that possession of a short-barreled shotgun
is not a crime of violence, but this contention is foreclosed by circuit precedent.
United States v. Allegree, 175 F.3d 648, 651 (8th Cir. 1999). The district court
correctly calculated Trotter’s base offense level.
Finally, Trotter says the court erred at sentencing by finding, for purposes of
USSG § 2K2.1(b)(6)(B), that he possessed the guns in connection with another
felony—namely, possession with intent to distribute methamphetamine. He argues
that the government failed to prove at trial that the substance he brought to the
apartment on March 7 was methamphetamine. Whatever the evidence at trial, the
government introduced at sentencing a laboratory report that supported the district
court’s finding that Trotter gave Nolte methamphetamine in exchange for the
firearms. Trotter offers no reason to doubt the accuracy of the report, so we see no
clear error in the district court’s determination.
-5-
* * *
The judgment of the district court is affirmed.
______________________________
-6-