United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1169
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Marcellus J. Watson, *
*
Defendant - Appellant. *
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Submitted: June 16, 2011
Filed: August 16, 2011
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Before BYE and MELLOY, Circuit Judges, and SMITH CAMP,1 District Judge.
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MELLOY, Circuit Judge.
Marcellus Watson was convicted of being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 48 months'
imprisonment followed by three years' supervised release. Watson challenges his
conviction and his sentence. He argues that the district court2 erred in denying his
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, sitting by designation.
2
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
motions to exclude certain evidence at trial and in calculating the applicable guideline
range at sentencing. For the reasons stated below, we affirm.
I.
On July 25, 2009, law enforcement officers Jeff Saylor and Jayme Getty were
dispatched to Watson's residence in St. Robert, Missouri, based on a report that he was
in possession of a firearm. Upon arrival, they encountered Sabrina Williams, who was
walking away from the residence. Williams told the officers that Watson had shot at
her, but later changed her story to say that he had fired a pistol into the air. Williams
also showed the officers a multimedia text message from Watson on her cell phone.
The message was a picture of a handgun with the word "BITCH" written under the
picture. Saylor and Getty subsequently made contact with Watson and escorted him
out of the residence. When they checked Watson for weapons, they found a gun
holster on his right hip. Watson was transported to the local police station for
questioning, which was videotaped. Afterwards, Watson agreed to return to his
residence with Saylor and Getty, an excursion that was also videotaped. He directed
the officers to a closet, where they found a 9mm handgun loaded with two rounds of
ammunition. The officers also found an empty 9mm casing near the rear door of the
residence.
On February 3, 2010, Watson was charged by a one-count indictment with
being a felon in possession of a firearm and ammunition in violation of 18 U.S.C.
§ 922(g)(1). A two-day jury trial commenced on September 20, 2010. Prior to trial,
Watson filed two motions seeking to exclude certain evidence. The district court
denied Watson's first motion, which sought to prohibit Saylor and Getty from
testifying about the gun holster they observed on Watson's person and the text
message they observed on Williams's cell phone. The district court also denied
Watson's second motion insofar as it sought to exclude two videotaped interviews in
which Saylor and Getty asked Watson about Williams's allegations that he had
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threatened her by shooting at her or firing into the air. Additionally, during trial,
Watson objected to the introduction into evidence of a "penitentiary packet" from the
state of Oklahoma. The penitentiary packet contained two booking photographs of
Watson and two fingerprint cards, which the government used to prove Watson's
status as a felon. The district court overruled Watson's objection.
On September 21, 2010, the jury found Watson guilty. His sentencing took
place on January 7, 2011. The Pre-Sentence Investigation Report ("PSR") placed
Watson in criminal history category III, resulting in a sentencing guideline range of
forty-one to fifty-one months. The criminal history score was the result of the
assessment of four criminal history points. Watson objected that he should have been
assessed only three criminal history points, placing him in criminal history category
II. Specifically, Watson objected to the PSR's assessment of one criminal history
point under U.S.S.G. § 4A1.1(e) for his 1994 Oklahoma conviction for possession of
a firearm while committing a felony. Watson argued that the conviction should not
have yielded any criminal history points because it was not a "crime of violence" as
defined in U.S.S.G. § 4B1.2(a). The district court overruled Watson's objection,
adopted the PSR's guideline calculations, and imposed a guideline sentence of forty-
eight months' imprisonment followed by three years' supervised release.
II.
A. Evidentiary Rulings
"We review a district court's evidentiary rulings for clear abuse of discretion,
reversing only when an improper evidentiary ruling affected the defendant's
substantial rights or had more than a slight influence on the verdict." United States
v. Shields, 497 F.3d 789, 792 (8th Cir. 2007). We review Confrontation Clause
objections to the admission of evidence de novo. United States v. Dale, 614 F.3d 942,
955 (8th Cir. 2010).
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(i) Testimony of Law Enforcement Officers
Watson argues that the district court erred in allowing officers Saylor and Getty
to testify that they observed a photograph of a handgun on Williams's cell phone and
a handgun holster on Watson's person. Watson contends that allowing this testimony
deprived him of his constitutional right to confrontation because the officers did not
seize and preserve as evidence the holster or the cell phone picture, and without these
exhibits to use at trial, he could not effectively cross-examine the officers. According
to Watson, the object that Saylor and Getty observed on his person was a cell phone
case for his BlackBerry phone, and not a gun holster, and the photo the officers
observed on Williams's cell phone was not a photo of the handgun that was later
recovered from Watson's residence.
The Supreme Court has recognized that "Confrontation Clause questions will
arise" when trial court restrictions on the scope of cross-examination "effectively
emasculate the right of cross-examination itself." Delaware v. Fensterer, 474 U.S.
15, 19 (1985) (per curiam) (internal quotation marks and alteration omitted). Thus,
the Confrontation Clause is violated where, "although some cross-examination of a
prosecution witness was allowed, the trial court did not permit defense counsel to
expose to the jury the facts from which jurors, as the sole triers of fact and credibility,
could appropriately draw inferences relating to the reliability of the witness." Id.
(internal quotation marks omitted). No such Confrontation Clause violation occurred
here, however, "for the trial court did not limit the scope or nature of defense counsel's
cross-examination in any way." Id. "[T]he cross-examiner is . . . permitted to delve
into the witness' story to test the witness' perceptions and memory," and is "allowed
to impeach, i.e., discredit, the witness." Id. at 20 (quoting Davis v. Alaska, 415 U.S.
308, 316 (1974)). It does not follow that the right to cross-examine is denied when
a witness testifying about his observations fails to produce as exhibits the objects
about which he is testifying.
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"[T]he Confrontation Clause is generally satisfied when the defense is given a
full and fair opportunity to probe and expose these infirmities through
cross-examination, thereby calling to the attention of the factfinder the reasons for
giving scant weight to the witness' testimony." Fensterer, 474 U.S. at 22. At trial,
Watson was provided with this opportunity, and he took advantage of it. Defense
counsel questioned both officers about their failure to seize or photograph the holster
and the cell phone. Additionally, defense counsel elicited testimony from officer
Saylor that Watson told him the holster was a BlackBerry case. Defense counsel also
questioned Saylor at some length regarding his failure to check whether the handgun
recovered inside Watson's residence actually fit in the holster he had observed.
Finally, defense counsel interrogated Saylor about the limits of his ability to identify
similarities between the handgun in the cell phone picture and the one recovered from
Watson's residence. Indeed, on appeal, Watson concedes that he was permitted to put
before the jury evidence that, if believed, would have discredited the officers'
testimony about the holster and cell phone photograph.
"The main and essential purpose of confrontation is to secure for the opponent
the opportunity of cross-examination." Id. at 19–20 (internal quotation marks
omitted). "[T]he Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish." Id. Because Watson had an opportunity
to effectively cross-examine both officers, we hold that the admission into evidence
of Saylor's and Getty's testimony did not offend the Confrontation Clause.
(ii) Video Recordings
Next, Watson contends that the district court erred in admitting into evidence
portions of videotaped interviews in which officers informed Watson that Williams
had alleged that he shot at her. Watson contends that this evidence was irrelevant and
prejudicial and, therefore, was inadmissible pursuant to Federal Rules of Evidence
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401, 402, and 403. Watson's argument is without merit. "The trial court has broad
discretion in determining the relevancy and admissibility of evidence." United States
v. Zierke, 618 F.3d 755, 759 (8th Cir. 2010). In this case, Williams's statements to
officers that Watson had fired a gun were highly relevant to the task of proving that
Watson "possess[ed] . . . [a] firearm or ammunition" in violation of 18 U.S.C.
§ 922(g)(1). Moreover, "[u]nder Rule 403, great deference is given to a district court's
balancing of the relative value of a piece of evidence and its prejudicial effect."
Zierke, 618 F.3d at 759. We cannot say that the district court abused its discretion in
determining that the challenged evidence was relevant and more probative than
prejudicial. In any event, the evidence of Watson's guilt was overwhelming. The
government's evidence at trial included video recordings showing Watson making
incriminating statements during a custodial interrogation about his having fired a gun
and leading police officers to a closet in his residence where he pointed out the
handgun at issue in this case. In light of the overwhelming evidence against Watson,
we are convinced that any error in admitting the challenged portions of the videotapes
would have been harmless. See United States v. Spires, 628 F.3d 1049, 1053 (8th Cir.
2011).
(iii) Oklahoma Penitentiary Packet
Watson argues that the district court erred in admitting the government's Exhibit
14—the Oklahoma penitentiary packet—because the exhibit was not self-
authenticating and, therefore, the admission of the exhibit without calling the
custodian of the records to testify violated Watson's right to confront witnesses against
him.3 Pursuant to Federal Rule of Evidence 902, "[e]xtrinsic evidence of authenticity
3
Watson appears to concede that if the records contained in the penitentiary
packet are self-authenticating, then the Confrontation Clause is not implicated. We
agree. See United States v. Weiland, 420 F.3d 1062, 1076–77 (9th Cir. 2005)
(concluding that both the documents in an Oklahoma "penitentiary packet" and the
certifications by the records custodian and the Secretary of State were non-testimonial
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as a condition precedent to admissibility is not required with respect to . . . [a] copy
of an official record or report or entry therein, or of a document authorized by law to
be recorded or filed and actually recorded or filed in a public office, including data
compilations in any form, certified as correct by the custodian or other person
authorized to make the certification . . . ." Fed. R. Evid. 902(4); see also United States
v. McIntosh, 200 F.3d 1168, 1169 (8th Cir. 2000) (per curiam) ("When an authorized
person certifies facts in public records, the records are admissible under Federal Rules
of Evidence 803(8) and 902(4).").
Here, the penitentiary packet was authenticated by a certificate which stated:
I, KEVIN E. MOORE, hereby certify: I am the coordinator of the
Offender Records Unit of the Oklahoma Department of
Corrections, the agency having jurisdiction over all adult
corrections facilities of the state of Oklahoma; that in my legal
custody as such officer are the original files and records of
persons heretofore committed to the Department of Corrections;
that the 1) fingerprint card, 2) photograph, and 3) commitment
documents attached are copies of the original records of persons
heretofore committed to the said Department of Corrections, and
who served a term of incarceration/supervision therein; that I have
compared the foregoing and attached copies with their respective
originals now on file in my office and each thereof contains and
is a full, true, and correct copy from its said original.
Watson contends that this certificate is "so vague, internally contradictory, and
confusing" that the exhibit failed to be self-authenticating. Specifically, Watson
in nature, and that admission of these non-testimonial records did not violate the
Confrontation Clause "because the hearsay exception for public records and their
certifying documents is firmly rooted"); see also White v. Illinois, 502 U.S. 346, 356
(1992) ("[W]here proffered hearsay has sufficient guarantees of reliability to come
within a firmly rooted exception to the hearsay rule, the Confrontation Clause is
satisfied.").
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argues that the certificate is inadequate because it fails to identify that the attached
records relate to Marcellus J. Watson and because it purports to certify the authenticity
of one fingerprint card and one photograph of Watson when, in fact, two fingerprint
cards and two photographs were attached.
Watson's arguments are specious. The photographs of Watson and his
fingerprint cards fall within the self-authentication provisions of Rule 902. As an
initial matter, the Secretary of State of the State of Oklahoma certified under seal,
pursuant to Rule 902(2), that Moore was authorized to execute the certificate and that
Moore's signature was genuine. Further, pursuant to Rule 902(4), the records were
certified as correct by Moore, who also stated that he was the legal custodian of the
records and that he had compared the certified copies to their originals. "This suffices
to establish that the records were what they purported to be, fulfilling the purpose of
our inquiry into the authentication of the documents in the 'penitentiary packet.'"
United States v. Weiland, 420 F.3d 1062, 1073 (9th Cir. 2005); Fed. R. Evid. 901(a)
("The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.").
The records themselves identified Watson by name, date of birth, and Social
Security number. There is no reason that the certificate needed to reproduce the
information contained within the records whose authenticity it established. Further,
the certificate was sufficient to authenticate both fingerprint cards and both
photographs contained in the penitentiary packet even though the certificate refers to
the "fingerprint card" and "photograph" in the singular. The certificate made clear that
Moore was certifying all of the documents to which the certificate was attached, and
the insignificant discrepancy between the certificate's description and the actual
contents of the packet was not so great as to give a reasonable person any doubt as to
the authenticity of the exhibit. Rule 902 does not require more than the government
provided here. Cf. United States v. Aikins, 946 F.2d 608, 614 (9th Cir. 1990)
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(explaining that Rule 902 relies on "the probable trustworthiness of the public officer's
statement," and its concern is to avoid "the great inconvenience that would be caused
to public business if public officers had to be called to court to verify in person every
fact they certify").
If Watson believed the information contained in the penitentiary packet was
incorrect, he "was entitled to present evidence to show the certified state court
document was incorrect." McIntosh, 200 F.3d at 1169. He did not do so, however,
and the fact that rebuttal evidence may exist does not preclude the records from being
self-authenticating. Id.; see also United States v. Bisbee, 245 F.3d 1001, 1007 (8th
Cir. 2001) ("That [the defendant] presented evidence tending to contradict the facts
in the [public documents admitted pursuant to Fed. R. Evid. 902] does not render the
properly admitted evidence inadmissible."). Accordingly, we affirm the district
court's finding that the records contained in the penitentiary packet were admissible
as self-authenticating public records under Rule 902(4).
B. Guidelines Calculation
Finally, Watson argues that the district court erred in assessing one criminal
history point for Watson's Oklahoma conviction for possessing a firearm while
committing a felony.4 Specifically, Watson challenges the district court's
determination that his prior conviction was a "crime of violence" under U.S.S.G.
§ 4A1.1(e). "We review de novo a district court's finding that a prior conviction
constitutes a crime of violence under the Sentencing Guidelines." United States v.
Craig, 630 F.3d 717, 723 (8th Cir. 2011) (internal quotation marks omitted).
4
Absent this criminal history point, Watson's criminal history category would
have been category II rather than category III.
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Section 4A1.1(e) directs the sentencing court to "[a]dd [one criminal history]
point for each prior sentence resulting from a conviction of a crime of violence that
did not receive any points under [§ 4A1.1] (a), (b), or (c)." Section 4A1.1(e) does not
itself define the term "crime of violence," but Application Note 5 of the commentary
to this section states, "For purposes of this guideline, 'crime of violence' has the
meaning given that term in § 4B1.2(a)." Section 4B1.2(a), in turn, provides:
The term 'crime of violence' means any offense under federal or state
law, punishable by imprisonment for a term exceeding one year, that–
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
Here, the offense of conviction provides that, "Any person who, while
committing or attempting to commit a felony, possesses a pistol, shotgun or rifle or
any other offensive weapon in such commission or attempt . . . in addition to the
penalty provided by statute for the felony committed or attempted, upon conviction
shall be guilty of a felony for possessing such weapon or device, which shall be a
separate offense from the felony committed or attempted." 21 Okl. St. § 1287. It is
undisputed that Watson's conviction under 21 Okl. St. § 1287 was for possessing a
pistol while committing the crime of possession of cocaine with intent to distribute,
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which is a felony under 63 Okl. Stat. 2-401(A)(1).5 Therefore, our focus is on the
crime of possessing a firearm while committing a drug trafficking offense.
Because this crime does not involve "the use, attempted use, or threatened use
of physical force against the person of another" and does not constitute "burglary of
a dwelling, arson, . . . extortion, [or the] . . . use of explosives," § 4B1.2(a), we must
decide whether it qualifies under the "residual clause" of § 4B1.2(a)(2). Craig, 630
F.3d at 724. To qualify as a crime of violence under the residual clause, Watson's
prior conviction must (1) "present[] a serious potential risk of physical injury to
another," and (2) be "roughly similar, in kind as well as degree of risk posed," to the
offenses listed in § 4B1.2(a)(2).6 United States v. Boyce, 633 F.3d 708, 711 (8th Cir.
5
This is also clear from the charging document, which we are permitted to
examine under the modified categorical approach. "Under [the categorical] approach,
the sentencing court is 'generally prohibit[ed] . . . from delving into particular facts
disclosed by the record of conviction, thus leaving the court normally to look only to
the fact of conviction and the statutory definition of the prior offense.'" United States
v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011) (quoting Shepard v. United States, 544
U.S. 13, 17 (2005)). However, "[w]hen the law defines an offense by proscribing
several discrete, alternative sets of elements that might be shown as different manners
of committing the offense, we employ the modified categorical approach that permits
examination of a limited class of materials to determine which set of elements the
defendant was found to have violated." United States v. Vincent, 575 F.3d 820, 824
(8th Cir. 2009) (internal quotation marks omitted). "This class of materials includes
the 'charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.'" Id.
(quoting Shepard, 544 U.S. at 16).
6
For present purposes, we treat authority interpreting the term "violent felony"
under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), as applicable
in interpreting the similarly defined term "crime of violence" from U.S.S.G.
§ 4B1.2(a). See Vinton, 631 F.3d at 484; Craig, 630 F.3d at 723 ("As we have
recognized, the definition of 'crime of violence' in U.S.S.G. § 4B1.2(a) is nearly
identical to the definition of 'violent felony' in 18 U.S.C. § 924(e)(2)(B), and we treat
the two as interchangeable." (internal quotation marks omitted)). But see United
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2011); see also United States v. Begay, 553 U.S. 137, 142–43 (2008). "[A] crime
involves the requisite risk when the risk posed by the crime in question is comparable
to that posed by its closest analog among the enumerated offenses." Sykes v. United
States, 131 S. Ct. 2267, 2273 (2011) (explaining that the crime of vehicle flight from
a law enforcement officer after an order to stop poses risks akin to that of arson and
burglary) (internal quotation marks and alteration omitted).
We conclude that possession of a firearm while committing a drug trafficking
offense presents a serious potential risk of physical injury to another, and that such
risk is similar, in kind as well as degree of risk posed, to the enumerated offenses. We
have previously recognized that "[t]he likelihood of violence greatly increases when
a firearm is present in connection with illegal drug possession." United States v.
Linson, 276 F.3d 1017, 1019 (8th Cir. 2002); see also United States v. Ruiz, 412 F.3d
871, 881 (8th Cir. 2005) ("[T]here is a close and well known connection between
firearms and drugs. Firearms are tools of the drug trade due to the dangers inherent
in that line of work." (internal citation omitted)). The crime of possessing a firearm
while committing a drug trafficking offense will not always result in a violent
confrontation. However, we think that the crime creates a risk of violent confrontation
that is at least as substantial as the risk created by the enumerated crime of burglary.
Accord United States v. Fife, 624 F.3d 441, 447–48 (7th Cir. 2010) ("Given the
well-established connection between violent crime and the illegal drug trade, the
possession of a weapon while dealing cocaine presents a serious potential risk of
physical injury that is certainly similar to, if not substantially greater than, the
enumerated crimes of burglary, arson, extortion, or crimes involving the use of
explosives."); cf. Craig, 630 F.3d at 724 ("[W]hile the crime itself may be
accomplished without violent physical force, the offense may nevertheless be a crime
States v. Ross, 613 F.3d 805, 809–10 (8th Cir. 2010) (noting "that the practice of
interchanging the two provisions cannot be followed universally" because the
Sentencing Guidelines "include binding commentary that is not applicable to
§ 924(e)").
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of violence under the residual clause if it creates a substantial risk of a violent
confrontation and involves purposeful, violent, and aggressive behavior" (internal
quotation marks omitted)); United States v. Hennecke, 590 F.3d 619, 623 (8th Cir.
2010) (holding that stealing from a person is a crime of violence under the residual
clause because it "poses the same risk of violent confrontation with the victim or a
third person as attempted or completed burglary"); United States v. Parks, 620 F.3d
911, 915 (8th Cir. 2010) ("The enumerated crime of burglary can be accomplished
without purposeful violence, but it is a crime of violence because the offender
purposefully and aggressively creates a substantial risk of violent confrontation.").
Watson contends that, under Begay, the prior offense cannot be similar in kind
to the enumerated offenses unless it involves "purposeful, violent, and aggressive
conduct." However, as the Supreme Court recently explained in Sykes, Watson's
position overreads the Court's opinion in Begay. 131 S. Ct. at 2275. "The phrase
'purposeful, violent, and aggressive' has no precise textual link to the residual clause,"
which requires only that the prior offense "otherwise involv[e] conduct that presents
a serious potential risk of physical injury to another." Id. (quoting § 924(e)(2)(B)(ii)).
Thus, provided the felony at issue is not "akin to strict liability, negligence, or
recklessness crimes," it qualifies as a crime of violence under the residual clause if it
is, "as a categorical matter, similar in risk to the listed crimes." Id. at 2275–76. That
is the case here. Like burglary, carrying a firearm while committing a drug trafficking
offense is dangerous because it can end in confrontation leading to violence. See id.
at 2273. "Firearms are the tools of the drug trade providing protection and
intimidation." Linson, 276 F.3d at 1019. When a drug dealer carries a firearm, "that
behavior indicates that he is prepared to use violence if necessary and is ready to enter
into conflict, which in turn creates a danger for those surrounding [him]." Boyce, 633
F.3d at 712 (internal quotation marks omitted).
Possession of a firearm while committing a drug trafficking offense is similar,
in kind as well as degree of risk posed, to the offenses listed in § 4B1.2(a)(2).
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Watson's Oklahoma conviction is a crime of violence under the residual clause of
§ 4B1.2(a)(2). Consequently, the district court did not err in calculating Watson's
criminal history category.
III. Conclusion
Accordingly, we affirm the decision of the district court.
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