United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3387
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Craig Leslie Anderson, *
*
Defendant - Appellant. *
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Submitted: October 18, 2011
Filed: March 16, 2012
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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MELLOY, Circuit Judge.
A jury found Defendant-Appellant Craig Leslie Anderson guilty of being a
felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). In calculating the advisory Guidelines range, the district court1 applied an
enhancement based upon perjury. The district court then applied a traditional
departure based upon an overstated criminal history. The court also granted a
1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
downward variance from the adjusted advisory Guidelines range and imposed a
sentence of 45 months' imprisonment.
Anderson appeals, challenging the denial of a suppression motion. He also
argues his trial was infected with prosecutorial misconduct, the evidence was
insufficient to support his conviction, his advisory Guidelines range was erroneously
enhanced for perjury, and his overall sentence is substantively unreasonable. We
affirm.
I.
Anderson was convicted in Minnesota state court of a felony offense for
making terroristic threats. After serving a term of state incarceration, he was released
subject to parole and was assigned to a state parole agent. The state's conditions of
release prohibited possession of a firearm or dangerous weapon and also required that
he "submit at any time to an unannounced visit and/or search of [his] person, vehicle,
or premises by [his parole agent or her designee]." Although federal law prohibited
his possession of ammunition, the conditions of release given to Anderson by
Minnesota did not specifically state that he could not possess ammunition.
A few months after Anderson's release from state incarceration, he was stopped
by an officer for speeding and for "suspicious driving behavior." According to the
officer, Anderson claimed to be hunting. The officer relayed information concerning
the stop to Anderson's parole officer. The parole officer then secured an arrest
warrant for Anderson. In the affidavit to support the warrant, the parole officer
relayed the officer's information. In addition, she described a report of Anderson
talking at a bar about paperwork related to his family's home and stating that if he did
not receive the paperwork, he was going to show up armed and go out "in a blaze of
glory."
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Execution of the arrest warrant occurred at a motel room Anderson was renting
as his residence. After his arrest, Anderson initially denied consent to search his
room. Police officers and the parole officer then discussed conducting a search
pursuant to the search provisions of Anderson's state conditions of release. Before
conducting such a search, however, an officer reported that Anderson had changed
his mind and granted consent. Officers again spoke to Anderson, and Anderson
stated, "As long as I get to see my arrest warrant, you can go ahead and search.
There's no weapons in there." The officer who conducted the resulting search later
testified that he was searching for items that "would be of an illegal nature, or parole
violation, firearms, anything related to firearms and so on." In conducting the search,
the officer found five shotgun shells in a blaze orange hunting vest that was hanging
in a closet. The officer stated it was unnecessary to open a pocket of the vest to
identify the shells and that it would have been impossible for anyone handling the
vest to not recognize that it held shells.
At a parole revocation hearing a few weeks after the search, Anderson
answered the following questions:
Q. So what about the shotgun ammunition that was found in your—
A. It's a red herring, because when I got out of prison all of my
things were in storage, and I had all of my cold weather gear in
one box, my—my boots, my long underwear, all—basically what
it was, is all of my duck hunting stuff which I'd had for—you
know, had for forever, and in that box happened to be a vest with
my—my orange vest, and it had some shotgun shells in it which
had been left over, I might add, when the—when the police had
originally come to our house in this raid back in 2005 claiming
that I was a felon in possession of a firearm, wrongfully so. They
confiscated everything except those five shells in my vest, and the
vest just went into a box.
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When I pulled it out when I was in the motel room there, there
they were, and I didn't think anything about it. I knew it wasn't
illegal. It wasn't a—it wasn't a violation of my probation. It
wasn't anything. It was just a—it's just a red herring. It's—
Q. So you're saying that the shotgun shells were in your coat in the
box?
A. No. They were in a blaze orange vest where they belonged.
Q. In a box?
A. No.
Q. Okay.
A. They're—they're in the shell compartment . . . .
Before trial, Anderson moved to suppress the fruits of the search. The district
court denied the motion on two separate grounds: (1) reasonable officers would have
interpreted Anderson's consent as authorization for a general search, and (2) even if
the consent authorized merely a search for weapons, "a search through clothing
hanging in a closet would be within the scope of such consent."2
Also prior to trial, the court and the parties discussed the possibility of asking
Anderson about prior state charges that the state had brought against him but
subsequently dropped. The charges alleged financial fraud by Anderson involving
his misuse of a power of attorney regarding his elderly parents. It was not known at
the time of this pre-trial discussion whether Anderson would testify, and the district
2
Overruling Anderson's objections and adopting the Report and
Recommendation of Franklin L. Noel, United States Magistrate Judge for the District
of Minnesota.
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court instructed that, if Anderson chose to testify, the government should request a
sidebar before asking any questions regarding the topic of fraud charges.
Anderson elected to testify at his trial. He asserted that he had no knowledge
that the shells were in the vest. Anderson also testified that there were two blaze
orange vests and one brown vest. The searching officer, however, testified that there
was only one vest, it was blaze orange, and it held the ammunition. The government
introduced Anderson's inconsistent testimony from the parole revocation hearing into
evidence at trial without objection.
On cross examination, the government asked Anderson about the financial
fraud charges without first requesting a sidebar. The Court then called the attorneys
to the bench and stated that it did not remember admitting evidence of prior
convictions or accusations. Neither attorney reminded the court at that time of its pre-
trial instruction to the government to request a sidebar in advance of broaching the
topic, and defense counsel made no objection prior to the court's sua sponte sidebar.
The court determined that the government could ask Anderson what he was
accused of doing. The government did so, and Anderson became angry, demanded
an apology from the Assistant United States Attorney, and terminated his testimony.
It was near the end of the day, so, after admonishing Anderson, the court dismissed
the jury for the day.
The following morning, counsel and the court discussed how to handle the
situation. The court asked defense counsel if she desired a curative instruction.
Defense counsel declined, stating, "I did have a chance to talk to [the government].
At this point, instead of highlighting it, we're going to move on. He is going to ask
one additional question and we will leave it at that." Testimony resumed that
morning with the following unrebutted brief exchange before moving on to other
topics:
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Q. Mr. Anderson, when we left off yesterday, I was asking you a
question about financial fraud. Sir, how was that matter
resolved?
A. First of all, I would like to apologize to you and to the jury
because it's a very emotional issue for me.
I was exonerated and the charges were dismissed.
The jury later returned a verdict of guilty. At sentencing, the district court
pointed to Anderson's trial testimony denying knowledge of the ammunition and to
Anderson's testimony under oath at his state parole-revocation hearing. As quoted
above, Anderson in that earlier testimony admitted that he saw the ammunition when
unpacking the box. The court also pointed to the searching officer's testimony that
it would have been impossible for anyone not to recognize that the vest held
ammunition. Concluding that Anderson had perjured himself at trial, the district
court applied a two-level enhancement to Anderson's offense level pursuant to United
States Sentencing Guidelines § 3C1.1, resulting in an adjusted advisory Guidelines
range of 84–105 months. The court then determined that a traditional departure was
appropriate based on overstated criminal history pursuant to U.S.S.G. § 4A1.3(b), and
adjusted the advisory Guidelines range downward to 77–96 months. Finally, the
court granted a variance and imposed a sentence of 45 months' incarceration.
In the statement of reasons for the sentence, the district court explained:
Because I granted Mr. Anderson's motion for a downward departure
under § 4A1.3(b), the starting point and the initial benchmark here is
77–96 months. After considering each of the § 3553(a) factors, I believe
that this range is greater than necessary to serve the purposes of
sentencing and that a sentence of 45 months is warranted in this case.
Mr. Anderson's crime is among the least serious felon-in-possession
offenses that I have seen. Mr. Anderson possessed old hunting
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ammunition that appears to have been inadvertently overlooked when
law-enforcement officers confiscated his firearms and ammunition in
2005. There is no evidence that Mr. Anderson could have used, or
intended to use, the ammunition. I am not aware of any evidence that
Mr. Anderson possessed a gun or any hunting gear. Although I believe
that the jury was correct in finding that Mr. Anderson knowingly
possessed the ammunition, under the circumstances of this case, Mr.
Anderson's possession can fairly be described as inadvertent.
I also believe Mr. Anderson when he says that he did not know that his
possession of the ammunition was illegal. Ordinarily, I would not find
this a particularly compelling reason to vary from the Guidelines. Under
the circumstances of this case, however, I think it deserves some
consideration. The State of Minnesota specifically warns felony-level
probationers that they may not possess firearms, but the State does not
warn that they may not possess ammunition. There are logical reasons
for this that have to do with the difference between state and federal law
as well as the difference between criminal laws versus conditions of
probation. But these types of distinctions may be difficult for a
layperson to appreciate. It would be easy for the State to simply warn
probationers that, in addition to firearms, they are also not allowed to
possess ammunition, and it is understandable that a layperson could be
misled by the State's failure to do so.
None of this is to say that Mr. Anderson did not commit a crime or that
the State is at fault for his crime. But I do believe that, if Mr. Anderson
had known that he could not possess ammunition, he may not be in the
situation that he is in today. For these reasons, I believe that the
Guidelines range in this case is too high to serve the purposes of
sentencing and that a downward variance is warranted.
II.
Anderson first challenges the denial of his suppression motion, arguing in
broad strokes that the search of his room was constitutionally unreasonable. "In
considering the denial of a motion to suppress, we review the district court's factual
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findings for clear error and its legal conclusions de novo." United States v. Kelley,
652 F.3d 915, 917 (8th Cir. 2011). Anderson appears to allege that the search was
unreasonable because it was an abuse of the search provisions of his state conditions
of release. We need not address any such issue. The district court determined the
search was a valid consent search and expressly declined to decide whether the
consent provisions governing his parole separately justified the search.
To the extent Anderson challenges any aspect of the consent determination, we
reject his challenge.3 Even assuming a reasonable officer would have interpreted the
consent as limited in scope to a search for firearms, the search was within the scope
of such consent. United States v. Dinwiddie, 618 F.3d 821, 831 (8th Cir. 2010) ("The
scope of consent for a search is limited to what a reasonable person would have
understood by the exchange between the investigating officer and the person to be
searched."). Firearms easily could be located in clothing hanging in a closet,
particularly in outerwear such as a coat, jacket, or vest, and most particularly in a
blaze orange hunting vest. See United States v. Lopez-Mendoza, 601 F.3d 861, 867
(8th Cir. 2010) ("The scope of a search is generally defined by its expressed object
. . . ."). Further, the testimony supports the conclusion that the searching officer
identified the ammunition without delving into spaces, pockets, or containers smaller
than might hold a firearm.
Anderson next argues his trial was infected with prosecutorial misconduct
because the government ignored the court's pre-trial instruction to request a sidebar
before asking about state charges alleging financial fraud. Anderson argues this
misconduct was prejudicial because it elicited an emotional outburst from him in
3
Anderson makes reference to a substantial "SWAT"-type police presence at
the execution of the arrest warrant as if to suggest his consent might have been
involuntary. He does not develop any such argument, however, and the record as
presented on appeal would not support such an argument.
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front of the jury and because the subject matter at issue—financial fraud—detracted
from his credibility.
Anderson concedes that our review of his prosecutorial misconduct claim is
limited to review for plain error.4 We may grant relief pursuant to the plain error
standard only when we find an error that is "clear under current law," prejudicial, and
"seriously affects the fairness, integrity, or public reputation of judicial proceedings."
United States v. Delgado, 653 F.3d 729, 735 (8th Cir. 2011). Here, even assuming
an error that is clear under current law, we cannot say with any certainty that the
events that unfolded in front of the jury caused prejudice to Anderson. Although the
government's question elicited an emotional outburst from Anderson and informed
the jury that Anderson had been accused of financial fraud, Anderson ultimately
apologized to the jury and was permitted to state without rebuttal that he was
"exonerated" and that the charges were dismissed. This overall scenario of arguable
overreaching by the government could just as easily have caused the jury to form an
unfavorable view of the prosecution as a negative view of the defendant. The word
exonerated suggests that Anderson was vindicated as to the referenced matter and that
he did not merely escape conviction on a technicality. In any event, even if we could
conclude with confidence that the episode harmed rather than helped Anderson,
4
Anderson arguably waived the right to challenge the government's actions at
all when his counsel declined a curative instruction and agreed to permit the follow-
up question and answer on the subsequent morning of trial. As we noted recently,
"The Supreme Court has distinguished between a right that is inadvertently left
unasserted and one that is intentionally relinquished or abandoned, noting that the
latter constitutes a waiver that extinguishes a claim altogether. 'While forfeited
claims are subject to appellate review under the plain error standard, waived claims
are unreviewable on appeal.'" United States v. Jones, 662 F.3d 1018, 1027 (8th Cir.
2011) (quoting United States v. Booker, 576 F.3d 506, 511 (8th Cir. 2009) (other
citations omitted)). We elect not to treat the issue as waived in this instance given the
court's sua sponte side bar, the after-the-fact nature of Anderson's consent to a course
of action, and Anderson's own reaction to the questions on the first day of trial.
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nothing about the alleged error can be seen as affecting "the fairness, integrity or
public reputation of judicial proceedings" themselves. Id.
Anderson next challenges the sufficiency of the evidence to support his
conviction. "'We review a challenge to the sufficiency of the evidence deferentially
. . . and affirm if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.'" United States v. Augustine, 663 F.3d 367,
373 (8th Cir. 2011) (quoting United States v. Goodyke, 639 F.3d 869, 872 (8th Cir.
2011)). Anderson challenges only the sufficiency of the evidence to prove that he
knowingly possessed the ammunition. Testimony from the searching officer at trial
as well as Anderson's testimony under oath at his parole hearing sufficiently support
the jury's determination that Anderson knowingly possessed the ammunition. The
searching officer stated anyone handling the vest had to have known it held
ammunition, Anderson admitting handling the vest, he admitting seeing the
ammunition, and he even stated the ammunition was in the "shell compartment" of
the vest. The jury was not required to accept Anderson's conflicting testimony at trial
in which he denied knowledge and attempted to explain his statements from the
revocation hearing. To the extent Anderson asserts he was unaware that the
possession of ammunition was illegal, his assertions are immaterial to proof of the
elements of the offense.
Anderson next challenges application of the perjury enhancement to determine
his advisory Guidelines range. We review factual findings at sentencing only for
clear error and interpretation of the Guidelines de novo. Augustine, 663 F.3d at 374.
Here, the district court's factual finding of perjury involved no error. Anderson made
conflicting statements under oath at his parole revocation hearing and at trial
regarding his knowledge that the ammunition was in the orange vest. The district
court's credibility determination is "virtually unreviewable," United States v. Garcia,
512 F.3d 1004, 1006 (8th Cir. 2008), and the finding that Anderson perjured himself
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at trial is supported by the court's credibility assessment. Further, the searching
officer's testimony was consistent with the district court's finding.
Finally, Anderson challenges the overall sentence he received as substantively
unreasonable. We review the "'substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard . . . , tak[ing] into account the totality of the
circumstances, including the extent of any variance from the Guidelines range.'"
United States v. Hill, 552 F.3d 686, 690 (8th Cir. 2009) (alterations in original)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Here, the district court
carefully considered the § 3553(a) factors (including the advisory Guidelines range
that already reflected a traditional departure) and provided a detailed and compelling
explanation for why it believed the variance granted was appropriate in Anderson's
case. We find no abuse of discretion.
We affirm the judgment of the district court.
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