United States v. Jerry Cunningham

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________

No. 97-1720MN
_____________

United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court
* for the District of
* Minnesota.
Jerry Lee Cunningham, *
*
Appellant. *
___________

Submitted: October 21, 1997
Filed: January 13, 1998
___________

Before RICHARD S. ARNOLD, Chief Judge, LOKEN and
HANSEN, Circuit Judges.
___________

RICHARD S. ARNOLD, Chief Judge.

Jerry Lee Cunningham was convicted of drug and
weapons charges after a jury trial. He appeals his
conviction on four principal grounds: illegal search and
seizure, violation of his right to counsel, failure of
the District Court to conduct a hearing to examine
whether improper jury contact occurred, and improper
admission of his prior record in light of the Supreme
Court’s decision in Old Chief v. United States, ___ U.S.
___, 117 S.Ct. 644 (1997). We affirm the convictions.
There was an Old Chief error, but we think it was
harmless.
 I.

On August 6, 1996, police in Brooklyn Center,
Minnesota, received a 911 call from an apartment in
Brooklyn Center. The caller identified herself as
Lachonda Williams and said she was being held against her
will. When the police arrived at the apartment, they
were met at the door by Jerry Lee Cunningham, the
defendant, who attempted to prevent the police from
entering the apartment. At trial, one of the officers
testified that he could hear a woman crying inside the
apartment. The police explained that it was necessary
for them to enter the apartment to investigate the call.
The defendant refused to permit the officers to enter the
apartment, and he was arrested for obstructing legal
process.

Once inside, the police observed a woman, later
identified as Sheila Hatchett, sitting in a chair on top
of another woman, later identified as Ms. Williams, who
was holding a young child. Ms. Williams got out from
underneath Ms. Hatchett, and the police took Ms. Williams
into a rear bedroom to interview her. Ms. Williams told
the police that Mr. Cunningham, who is her father, had
assaulted her because he believed she had stolen $5,000
in cash from him. Ms. Williams also told the police that
she had seen a large amount of crack cocaine in the
apartment that day. She told the police that the
defendant supplied drugs to Ms. Hatchett, that he had
sold drugs at a bar in North Minneapolis, and that he
carried weapons when he did so. While interviewing Ms.
Williams in the bedroom, the police observed rolling
papers and currency. Ms. Williams told the police that

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she had heard Ms. Hatchett tell the defendant that the
police had been called, and that Ms. Hatchett had moved
the crack cocaine and guns from the apartment to her car.
Ms. Williams identified the car for the police, and it
was impounded and towed to the police department. The
police later obtained a warrant and searched the car,
finding 142 grams of crack cocaine, 22.8 grams of powder
cocaine, and three handguns.

Later, at the police station, Mr. Cunningham was
informed of his Miranda rights

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before being interviewed by a detective. Shortly after
the interview began, the defendant told the detective
that he wanted to contact an attorney. The detective
placed several calls for the defendant in an effort to
locate his attorney. According to the detective, the
defendant made a series of arguably incriminating
statements to the persons on the telephone and to the
detective himself, who had remained in the room.1 The
detective testified that the defendant said, among other
things, that he could “do five to seven years standing on
his head”; that if there was any “heat” to be taken he
would take it; that he and another person were the last
ones to use the car; and that, because the streets
weren’t safe, he always carried a gun. In addition, the
detective testified that when he responded to the
defendant’s statement that he could do five to seven
years standing on his head by saying that he must not be
familiar with federal sentencing practices related to
drug and weapons charges, the defendant said, “Oh yeah,
the guns in the car.”

The police later searched the apartment pursuant to
a warrant. This search led to the seizure of ammunition,
several items of drug paraphernalia with crack and powder
cocaine residue, and documents linking the defendant to
the car and the apartment.

A jury convicted the defendant of possession of

1
There is no evidence that Mr. Cunningham asked for privacy while making
the calls. According to the detective, there was no private telephone available, but
defendant would have been given a private place in which to meet with his lawyer if
he had reached the lawyer by phone.
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cocaine base with intent to distribute (Count I) in
violation of 21 U.S.C. § 841(b)(1)(A), conspiracy to
possess with intent to distribute cocaine base (Count II)
in violation of 21 U.S.C. § 846, being a felon in
possession of a firearm (Count IV) in violation of 18
U.S.C. § 922(g)(1), and possession of a firearm with an
obliterated serial number (Count VII) in violation of 18
U.S.C. § 922(k). The jury could not reach a verdict on
another felon-in-possession-of-

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a-firearm count and two other counts alleging possession
of a firearm with an obliterated serial number, and the
District Court declared a mistrial as to those counts.
The Court sentenced Mr. Cunningham to 360 months on
Counts I and II (the bottom of the Guidelines range), 120
months on Count IV, and 60 months on Count VII, all terms
to run concurrently. The Court also ordered five years’
supervised release and a special assessment of $400.
This appeal follows.

II.

The Fourth Amendment protects citizens from
unreasonable searches and seizures. Mr. Cunningham
argues that this right was violated when the police
entered all of the rooms of the apartment and observed
the rolling papers and currency in the rear bedroom.
This evidence led, at least in part, to the impoundment
and search of the car, which in turn supported the
warrant police obtained to search the apartment.
Defendant argues that the evidence seized should be
suppressed because its discovery was the result of a
Fourth Amendment violation.

Although we review the facts supporting a District
Court’s denial of a motion to suppress for clear error,
we review de novo the legal conclusions that are based
upon those facts. See United States v. Ornelas, ___ U.S.
___, ___, 116 S.Ct. 1657, 1663 (1996); United States v.
Williams, 981 F.2d 1003, 1005 (8th Cir. 1992). When
applying this standard, we give deference to the fact
finder, who had an opportunity to observe the demeanor
and credibility of the witnesses. United States v.

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Wallraff, 705 F.2d 980, 987 (8th Cir. 1983).

A warrantless search may be justified by exigent
circumstances, which exist where the safety of law
enforcement officers or others is threatened. Warden v.
Hayden, 387 U.S. 294, 298-99 (1967). The defendant
acknowledges that the police had a right to enter the
apartment to investigate the 911 call but argues that
there was no basis for entering every room of the
apartment, since he had already been arrested,

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and no other danger was present. The Supreme Court has
said, however, that the Fourth Amendment permits a
properly limited protective sweep in connection with an
in-home arrest if an officer reasonably believes that the
area to be swept harbors an individual posing a danger to
those at the arrest scene. Maryland v. Baie, 494 U.S.
325, 337 (1990). The officer’s belief must be based on
specific and articulable facts. Id. Following Mr.
Cunningham’s arrest, the police identified Ms. Williams as
the 911 caller and walked through the apartment to
identify any threat to themselves or Ms. Williams. The
Magistrate Judge,2 finding that the officers had grounds to
conduct a cursory inspection of the apartment for any
additional suspects who might have been restraining Ms.
Williams against her will, held that the search of the
apartment did not violate defendant’s Fourth Amendment
rights because the officers had a legitimate reason to be
where they were. We believe this conclusion, adopted by
the District Court,3 was correct. The officers’ protective
sweep of the apartment was not unreasonable and did not
violate the Fourth Amendment.

Mr. Cunningham also argues that the search of the car
and the apartment violated his Fourth Amendment rights.
Both searches were conducted pursuant to warrants, and
there was ample evidence to support the warrants. In
addition to the testimony of the officers who sought the
warrants, there was Ms. Williams’s statement that she had
seen a large amount of cocaine inside the apartment, and

2
The Hon. John M. Mason, United States Magistrate Judge for the District
of Minnesota.
3
The Hon. Richard H. Kyle, United States District Judge for the District of
Minnesota.
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that it had been moved, along with the currency and guns,
to the car. The defendant argues the police had little
more than a suspicion that the car contained evidence
related to a crime and should not have relied on Ms.
Williams’s statement without corroborating it because she
was motivated to retaliate against her father for
assaulting her. This argument is without merit. Although
police officers must remain alert to the possibility that
a witness is not telling the truth,

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we believe it was reasonable for the officers to rely on
her statements.

III.

Mr. Cunningham next argues that testimony heard by the
jury about statements he made to the detective while they
were attempting to contact defendant’s attorney violated
his right to counsel. For the reasons that follow, this
argument is also without merit.

The crux of the argument is that Robert Dirks, the
detective who interviewed the defendant, prodded the
defendant into incriminating himself after he had invoked
his Miranda right to counsel. Mr. Dirks did this,
according to the defendant, by dialing the telephone for
the defendant, by remaining in the booking room with him
while he spoke to several people in an effort to locate
his attorney’s telephone number, and by saying several
things to the defendant between the calls. The defendant
relies on Rhode Island v. Innis, 446 U.S. 291 (1980),
which held that, in addition to express questioning,
interrogation means “any words or actions on the part of
the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably
likely to elicit an incriminating response from the
suspect.” Id. at 301 (footnotes omitted).

There is disagreement on the question of whether Mr.
Cunningham made an unequivocal request to speak to an
attorney. He argues, and the Magistrate Judge found, that
he did. The government disputes this finding, arguing
that, at most, what the defendant said to the detective
was that he had requested an attorney earlier. We need
not decide whether the defendant made an unequivocal

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request for an attorney. We know that the detective
attempted to assist Mr. Cunningham in locating an
attorney, so we will assume, for purposes of analysis,
that Mr. Cunningham’s request was sufficient to invoke the
right to counsel.

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 The central issue is whether Detective Dirks’s
statements to the defendant amounted to impermissible
interrogation following a request for an attorney by a
defendant in custody. The detective made several
statements to the defendant while they sought to locate
the defendant’s attorney. The defendant specifically
cites two statements by the detective as evidence that he
was trying to engage the defendant in conversation after
he had invoked his right to counsel. The first is the
detective’s statement, made immediately before the
defendant reached Ms. Hatchett in an effort to get the
attorney’s telephone number, that the detective wanted to
interview her. The detective testified that the
defendant, in the course of telling Ms. Hatchett that the
detective wanted to interview her, told Ms. Hatchett that
she was not in trouble, that Mr. Dirks was “cool,” and
that she should get an attorney and come in to see Mr.
Dirks. Mr. Dirks testified that the defendant also said
to Ms. Hatchett during this telephone call that he could
“do five to seven years standing on his head,” that he
would “take the heat,” and that he and “Hassan” were the
last ones to have the car.

Mr. Dirks’s second statement was made while the two
were waiting for the attorney to call back. The defendant
said his daughter had stolen money from him and that he
was going to “do” her and make big headlines. He also
repeated his earlier comment about being able to “do five
to seven years standing on his head.” Mr. Dirks responded
to this statement by saying that the defendant had
obviously not been through the federal system, because
five to seven years would not be consistent with the
penalties for weapons and drug violations. The defendant
responded, “Oh yeah, the guns in the car.” Mr. Dirks, who
testified to all of the incriminating statements cited,

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testified that he had not yet told the defendant about the
guns having been found during the search of the car
earlier that day.

We do not believe it is reasonable to infer that Mr.
Dirks made these two statements because he knew they would
likely prod the defendant into incriminating himself.
Further, we find nothing in the record to suggest that
Detective Dirks should have known that his statements were
reasonably likely to elicit an incriminating

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response from Mr. Cunningham. In the first statement, Mr.
Dirks simply asked the defendant to pass along a message
to Ms. Hatchett. In the second statement, Mr. Dirks was
responding to something the defendant had said. The
defendant’s statements were not the product of police
interrogation. Mr. Cunningham initiated the conversation,
and his statements were volunteered. The detective merely
listened to him, and nothing prohibits the use of the
defendant’s statements against him.

IV.

Defendant’s next argument is that the District Court
abused its discretion by refusing to conduct a hearing
into possible improper jury contact and by preventing the
defense from conducting its own investigation into the
alleged improper contact. Shortly after the jury began
its deliberations, defendant’s counsel was approached by
a man in the hallway outside the courtroom who asked
whether he was involved in the trial. Counsel said that
he was one of the attorneys, and the man asked him whether
the jury had reached a verdict. Counsel told the man that
the jury had just begun deliberating, and the man said he
was the husband of one of the jurors and was there to pick
her up. The lawyer told the man he could not discuss the
case further and reported the incident to the District
Court. Counsel for the government informed the Court that
the same man had earlier approached one of the police
officers who testified, introduced himself as the husband
of one of the jurors, and told the officer that he knew
the officer’s father.

The defendant asked the District Court to hold an
immediate hearing to examine whether any contact with a
juror had occurred. Under Remmer v. United States, 347

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U.S. 227 (1954), a district court may hold a hearing to
determine whether any private communication, contact, or
tampering with a juror has occurred in a criminal case
and, if so, whether such incident has prejudiced the
defendant. Improper contact with a juror about a matter
pending before the jury is presumptively prejudicial. Id.
at 229. The District Court refused to hold a hearing, but
instructed the jurors that they were not

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to discuss the case with others, including family members.
Following the verdict, defendant renewed his request for
a Remmer hearing. The District Court again denied the
request for a hearing, but allowed the defendant to submit
written motions.

Counsel for the defendant submitted an affidavit
recounting the events involving the juror’s husband and
citing several grounds in support of his motion for a
hearing or new trial. Defendant argued that a juror’s
spouse who is aggressive enough to approach and initiate
a conversation with a government witness could have had
undue and extraneous contact with his juror wife during
the two to two-and-a-half-hour drive the couple made twice
a day to and from the courthouse. He also argued that,
since the juror’s spouse claimed to have known the
government witness’s father, it was likely that the juror
herself knew the same person, and this could have tainted
the juror’s perception of the officer’s testimony to the
prejudice of the defendant or, perhaps, meant that the
juror had concealed this fact during voir dire. Finally,
defendant argued that the presence of the juror’s spouse
in and around the courtroom may have imparted a sense of
urgency to the juror to reach a decision quickly.

The District Court, finding the defendant had not
established that there had been any improper contact with
the jury, held that the defendant was not entitled to a
hearing or a new trial. The Court wrote that the
defendant’s allegations were “mere speculation” and that
no evidence had been produced that showed that “any
improper contact [had] occurred with any juror.” United
States v. Jerry Lee Cunningham, No. 3-96-105, Mem. and
Order at 5 (D. Minn., Dec. 30, 1996). We review a
district court’s denial of a Remmer hearing and a motion

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for a new trial for abuse of discretion. United States v.
Caldwell, 83 F.3d 954, 955 (8th Cir. 1996). Here,
defendant has not established whether any contact even
occurred, much less whether the alleged contact was in any
way improper, and he has offered no credible evidence that
the District Court abused its discretion in denying the
motion for a hearing or a new trial.

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 V.

Mr. Cunningham also argues that the District Court
abused its discretion when it permitted the government to
introduce evidence of the nature of three prior felonies
after he had offered to stipulate to his status as a felon
for purposes of the felon-in-possession-of-a-firearm
count. Citing then-current law, the Court denied the
defendant’s motion in limine that sought to require the
government to accept the stipulation and to prevent it
from introducing evidence of defendant’s convictions for
attempted murder, armed robbery, and burglary. At trial,
the government offered certified copies of each
conviction. After defendant was convicted, the Supreme
Court decided Old Chief v. United States, ___ U.S. ___,
117 S.Ct. 644 (1997). Old Chief held that a district
court abuses its discretion when it rejects a defendant’s
offer to stipulate his status as a felon under a Section
922(g)(1) offense and instead admits the full record of a
prior judgment of conviction, if evidence concerning the
name or nature of the prior conviction increases the risk
of a verdict tainted by improper considerations. Id. at
647. The government does not dispute that the District
Court abused its discretion by admitting evidence of Mr.
Cunningham’s prior felony convictions (though the Court’s
action was, at the time, fully consistent with our cases).
The government does argue, however, that the error was
harmless, and this Court has held that harmless-error
analysis is appropriate where a district court has abused
its discretion in violation of Old Chief. See United
States v. Horsman, 114 F.3d 822, 827 (8th Cir. 1997). The
issue we must decide, therefore, is whether the error was
harmless.

We recently held in United States v. Blake, 107 F.3d

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651 (8th Cir. 1997), that reversal is required if it
cannot be concluded that the jury may not have been
substantially swayed by the improperly admitted evidence.
Id. at 653. The government asserts that the evidence
against Mr. Cunningham was overwhelming. We have read the
entire transcript of the trial. The evidence was very
strong. Crack and powder cocaine and three semiautomatic
weapons with obliterated serial numbers were found

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in the car. Drug paraphernalia containing cocaine residue
were found in the apartment. Currency, ammunition, and
documents linked Mr. Cunningham to the apartment and the
car. There was Ms. Williams’s testimony. There were the
defendant’s own incriminating statements. And Mr.
Cunningham’s fingerprint (but no one else’s) was found on
one of the bags of crack cocaine. It is our opinion that
the Old Chief error was harmless.

VI.

Oral argument in this case was heard on October 21,
1997. On December 18, 1997, Mr. Cunningham filed a motion
requesting leave to file a supplemental brief. He asks us
to direct his counsel to brief two new issues, neither of
which has previously been raised, either below or in this
Court, or to grant him leave to brief them pro se. He
also moves us to hold this appeal in abeyance for the time
it will take for the two new issues to be briefed by both
sides. These motions are denied. This case has been
fully briefed and argued. The time for filing briefs is
long past. We have already allowed the filing of one set
of supplemental briefs (raising the Old Chief issue). Our
action is without prejudice to Mr. Cunningham’s right to
file a petition for post-conviction relief under 28 U.S.C.
§ 2255.

Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

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