United States v. Bull

8 F.4th 762

UNITED STATES of America, Plaintiff - Appellee

v.Jami Walking BULL, also known as Jaime Walking Bull, also known as Jamie Walking Bull, Defendant - Appellant

No. 20-2378

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2021

Filed: August 10, 2021

Benjamin Patterson, Assistant U.S. Attorney, U.S. Attorney's Office, Rapid City, SD, for Plaintiff-Appellee.

John Stephen Rusch, Rensch Law Office, Rapid City, SD, for Defendant-Appellant.

Jami Walking Bull, Thompson, SD, Pro Se.

Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.

SMITH, Chief Judge.

A jury convicted Jami Walking Bull of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Walking Bull appeals his conviction. He challenges several of the district court's¹ rulings and argues that there was insufficient evidence to support the jury's finding that he knew he was a prohibited person within the meaning of 18 U.S.C. § 922(g)(1). We affirm.

I. Background

In April 2019, a Rapid City Police officer was dispatched to a bowling alley following a report of an intoxicated person. On the scene, she encountered Walking Bull, who appeared to be intoxicated and was leaning against a building. While speaking with Walking Bull, the officer performed a records check and learned that there was an active warrant for his arrest. She placed him under arrest and discovered a handgun in his pocket.

The government charged Walking Bull with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Walking Bull had a prior felony conviction in South Dakota for possession of methamphetamine. Walking Bull pleaded guilty to that offense in 2002 and, at his initial sentencing, received a suspended imposition of sentence with credit for time served, plus three years of probation. When his probation was revoked in 2003, the state trial court resentenced him to 4 years’ imprisonment, to be suspended on the condition that he serve 180 days in jail, plus an additional 4 years of probation. Walking Bull's probation was revoked again in 2008. The state trial court resentenced him to 4 years’ imprisonment, with one year suspended and a credit of 356 days.

Walking Bull's federal trial for the firearm charge was scheduled for October 24, 2019. The district court ordered the parties to provide the court with expert notices and reports by September 13, 2019, and copies of trial exhibits by September 27, 2019.

At the pretrial conference, on October 4, 2019, the government stated that it had provided the defense with all the discovery it had in its possession. On October 14, 2019, the government requested Walking Bull's recorded phone calls from jail.

The government copied and sent the recordings to the defense on October 17, 2019. Of the 19 calls, the government identified two that it might offer at trial: (1) Exhibit 9, which it would offer only if Walking Bull testified; and (2) Exhibit 10, a call from October 13, 2019, during which Walking Bull said, "I f**ked up, f**ked up, hope I beat it, though." Mot. Hr'g Tr. at 7, United States v. Walking Bull , No. 5:19-cr-50067-JLV-1 (D.S.D. 2019), ECF No. 122.

On October 22, 2019, Walking Bull filed a motion in limine to exclude the jail calls. He argued that the government violated its discovery obligations under Federal Rule of Criminal Procedure 16 and that the late disclosure prejudiced his defense. The district court denied the motion. It gave two reasons for its ruling: (1) there was no Rule 16 violation because there was no late disclosure and (2) Walking Bull was not prejudiced because the disclosure occurred "a full week before trial," the "relevant portion[ ] [was] less than a minute," and the defense did not identify any evidence that it needed to defend against the call but could not access due to the time limitation.² Id. at 11–12.

On October 22, Walking Bull also filed a notice ("expert notice") stating his intent to call Alecia Fuller as an expert witness. Ms. Fuller is an attorney and public defender in South Dakota. The expert notice stated, in relevant part, that Fuller would testify about "South Dakota state law relevant to government exhibits: ... Said exhibits contain numerous references to South Dakota Codified Law. [Fuller] will explain the content and force of South Dakota statutes as they pertain to the allegation against Mr. Walking Bull." Def.’s Expert Witness Notice at 1, United States v. Walking Bull , No. 5:19-cr-50067-JLV-1 (D.S.D. 2019), ECF No. 54 (emphasis omitted). Walking Bull argued that Fuller's testimony was necessary to show that Walking Bull did not know that he had been convicted of a crime punishable by more than a year of imprisonment, as required for a conviction under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). United States v. Rehaif , ––– U.S. ––––, 139 S. Ct. 2191, 2200, 204 L.Ed.2d 594 (2019).³ The district court denied the expert request, explaining:

We're not going to have a lawyer get on the stand and start explaining the law. ... When a law is at issue, that's a matter for the Court. ... I will not have a witness on the stand testifying as to her interpretation of what a statute in the State of South Dakota says.

Mot. Hr'g Tr. at 17.⁴

At trial, the government introduced a certified copy of the South Dakota trial court's 2008 sentencing order, titled "Order Revoking Judgment of Conviction and Order Suspending Execution of Sentence and Entry of Judgment of Conviction and Sentence after Probation Violation" ("State Order"). The State Order revoked Walking Bull's suspended sentence and sentenced him to a term of imprisonment. It stated that Walking Bull "previously pled guilty to ... possession of a controlled substance, ... a Class 4 Felony" and "is guilty of possession of a controlled substance, ... a Class 4 Felony." Appellant's Add. at 29, 30 (emphasis omitted). It ordered that Walking Bull "be sentenced to the South Dakota State Penitentiary ... for a period of four (4) years, with one (1) year suspended" and that Walking Bull "be remanded immediately" into custody "for transportation to the South Dakota State Penitentiary." Id. at 30. The State Order also noted that Walking Bull "was informed in open court of the legal maximum time of imprisonment and the estimated minimum period he must serve before being eligible for parole." Id. at 31. After the government introduced the State Order, the district court immediately instructed the jury that, under South Dakota law, "a Class [4] felony is punishable by up to ten years in prison." Trial Tr. vol. 1, at 114, United States v. Walking Bull , No. 5:19-cr-50067-JLV-1 (D.S.D. 2019), ECF No. 123.

The government also introduced Exhibit 10, Walking Bull's recorded jail call from October 13, 2019.

The defense introduced a certified copy of Walking Bull's initial sentencing order from 2002, "Order Suspending Imposition of Sentence," which suspended his sentence and placed him on probation with no prison time.

Before the close of trial, Walking Bull requested the following two jury instructions:

DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 3

You have heard Mr. Walking Bull previously received an Order Suspending Imposition of Sentence under the laws of the state of South Dakota. You are instructed that such a sentence does not constitute conviction of a crime punishable by imprisonment for a term exceeding one year.

DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 4

You have heard Mr. Walking Bull previously received an Order Revoking Judgment of Conviction and Order Suspending Execution of Sentence and Entry of Judgment of Conviction and Sentence after Probation Violation. You are instructed that a person sentenced to the South Dakota State Penitentiary for the first time for a non-violent crime is required to serve one-fourth of the sentence before being eligible for parole or early release.

Def.’s Proposed Jury Instrs. at 2–3, United States v. Walking Bull , No. 5:19-cr-50067-JLV-1 (D.S.D. 2019), ECF No. 65. The district court rejected both, ruling that they were "not relevant to any material issue in the case" and likely to confuse the jury. Trial Tr. vol. 1, at 149.

The jury found Walking Bull guilty of possession of a firearm by a prohibited person under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Walking Bull timely appealed.

II. Discussion

On appeal, Walking Bull argues that the district court abused its discretion when it denied his motion in limine, excluded Fuller's expert testimony, and rejected his proposed jury instructions. He also claims that there was insufficient evidence to support the jury's finding that he knew he was previously convicted of a crime punishable by more than one year of imprisonment. We address each contention in turn.

A. Motion in Limine to Exclude Jail Calls

First, Walking Bull argues that the district court should have granted his motion in limine to exclude the jail calls because the government violated Federal Rule of Criminal Procedure 16 by failing to promptly disclose the calls.⁵ "We review the district court's denial of a motion in limine for abuse of discretion." United States v. Daniels , 932 F.3d 1120, 1123 (8th Cir. 2019).

" Rule 16(a)(1)(B)(i) requires that, upon the defendant's request, the government disclose any relevant written or recorded statement by the defendant if: the statement is within the government's possession, custody, or control; and the attorney for the government knows—or through due diligence could know—that the statement exists." United States v. Hyles , 479 F.3d 958, 967 (8th Cir. 2007) (cleaned up). Sanctions for Rule 16 violations can include "prohibit[ing] that party from introducing the undisclosed evidence." Fed. R. Crim. P. 16(d)(2)(C).

We agree with the district court that no Rule 16 violation occurred. Walking Bull has not pointed to any evidence that the government had in its possession but did not promptly disclose. The government requested the calls from the jail on October 14, 2019, and disclosed them...