United States v. Eric Michelle Hunter , 770 F.3d 740 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2452
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Eric Michelle Hunter
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: June 12, 2014
Filed: October 28, 2014
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Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
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LOKEN, Circuit Judge.
Following numerous controlled buys of various controlled substances, wiretap
surveillance, and a warrant search of an apartment leased by Eric Michelle Hunter and
Rikki Gilow, an indictment charged Hunter, Gilow, and Jerry Harvey with numerous
federal offenses. Gilow and Harvey pleaded guilty. After a three-day trial, the jury
convicted Hunter of conspiracy to distribute controlled substances; five counts of
aiding and abetting distribution of controlled substances; one count of possession
with intent to distribute heroin and a designer drug; two counts of being a felon in
possession of a firearm; one count of attempted witness tampering; and two counts
of aiding and abetting the use and carrying of a firearm during and in relation to a
drug trafficking offense in violation of 18 U.S.C. § 924(c). The district court1
sentenced Hunter to consecutive sentences of 60 months and life in prison for the
§ 924(c) convictions, see 18 U.S.C. § 924(c)(1)(A)(i), (C)(ii), and (D)(ii), and to two
concurrent life terms and eight concurrent 240-month terms for the remaining
offenses. Hunter appeals. We affirm.
I.
Hunter first argues the district court erred in denying his motion to suppress
evidence found during the July 2012 warrant search of his apartment. The warrant
application was accompanied by an affidavit averring that a trained narcotics dog had
“alerted to the presence of a controlled substance at the threshold” of Hunter’s second
floor apartment. Hunter’s motion to suppress argued that the dog sniff violated the
Fourth Amendment as subsequently construed by the Supreme Court in Florida v.
Jardines, 133 S. Ct. 1409, 1417-18 (2013) (“use of trained police dogs to investigate
the home and its immediate surroundings is a ‘search’ within the meaning of the
Fourth Amendment”). The district court, adopting the Report and Recommendation
of United States Magistrate Judge Franklin Noel, rejected this contention, concluding
that, even if the dog sniff was unlawful and the warrant affidavit failed to establish
probable cause without that evidence, contraband seized during the warrant search
was admissible under the good faith exception to the exclusionary rule adopted in
United States v. Leon, 468 U.S. 897, 922-23 (1984). Hunter argues on appeal that his
motion to suppress should have been granted based on the unconstitutional dog sniff.
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
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We need not decide whether the dog sniff violated the Fourth Amendment as
construed in Jardines because suppression of the evidence seized during the warrant
search is foreclosed by our recent decision in United States v. Davis, 760 F.3d 901,
903-04 (8th Cir. 2014). “Evidence obtained during a search conducted in reasonable
reliance on binding precedent is not subject to the [Fourth Amendment] exclusionary
rule.” Davis v. United States, 131 S. Ct. 2419, 2429 (2011). When the police dog
sniffed outside the door to Hunter’s apartment from a common hallway, binding
Eighth Circuit precedent had established that a “sniff of the apartment door frame
from a common hallway did not constitute a search subject to the Fourth
Amendment.” United States v. Scott, 610 F.3d 1009, 1015-16 (8th Cir. 2010), cert.
denied, 131 S. Ct. 964 (2011); see United States v. McGrane, 746 F.2d 632, 634-35
(8th Cir. 1984), citing United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977).
Because the officers in obtaining and executing the warrant reasonably relied on
binding precedent confirmed in Scott, “the exclusionary rule did not apply to preclude
use of [the drug dog’s] evidence in the search warrant application,” and Hunter’s
motion to suppress was properly denied. Davis, 760 F.3d at 905.
II.
Hunter next claims he was denied a fair trial because of prosecutorial
misconduct during examination of government witnesses and closing argument. To
obtain relief on this ground, Hunter must show “(1) the prosecutor’s remarks or
conduct were improper, and (2) the remarks or conduct affected the defendant’s
substantial rights so as to deprive him of a fair trial.” United States v. New, 491 F.3d
369, 377 (8th Cir. 2007). We determine whether the challenged conduct “deprived
the defendant of a fair trial by examining the cumulative effect of the misconduct, the
strength of the properly admitted evidence of the defendant’s guilt, and any curative
actions taken by the trial judge.” Id.
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A. During the second day of trial, Officer Steven Stoler of the Burnsville
Police Department described controlled purchases he had made while working
undercover for the Dakota County Task Force. When he made one drug purchase
from Gilow, Stoler testified, “Whitney Serie . . . and I believe there was either one or
two kids in the car” with Gilow. The prosecutor asked a further question about
“persons selling drugs bringing other people with them, including children.” Defense
counsel objected and, after a discussion off the record, the district court announced,
“I have sustained an objection to any reference to children.”
Later that same day, while testifying to an undercover drug purchase from
Hunter, Special Agent Almgren testified: “As we approached the Ford Explorer,
[Hunter] told me to wait and he said, ‘while she gets the kids out.’ At that time, the
driver, who I recognized as Whitney Serie, removed two small children from the back
of the Ford Explorer.” Defense counsel objected; before the court ruled, the
prosecutor said, “If we can confine your testimony to Serie, the defendant and
Gilow.” Testimony proceeded, and the district court took up defense counsel’s
motion for a mistrial after the court dismissed the jury for the day. Counsel argued
that two different witnesses had prejudiced Hunter’s defense by making inflammatory
references to children being present at the scene of drug deals. The district court
denied a mistrial, explaining that testimony as to “who was present at the time of the
transaction” was relevant, neither prosecutor had purposefully elicited testimony
contrary to the court’s ruling regarding children, and the agents’ testimony was not
so inflammatory “as to prejudice Mr. Hunter’s right to a fair trial.” The court
instructed the prosecutors “not to make any mention during closing arguments or any
further proceedings . . . of children.” No such references were made.
On appeal, Hunter argues that the prosecutors committed prejudicial
misconduct when they “continued to push the presence of children forward after
being told not to” by the district court. Like the district court, we conclude there was
neither misconduct nor prejudice. The questions sought to elicit relevant testimony
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about who was present at sales of controlled substances. If a jury views taking
children along to illegal drug transactions as prejudicial, that is not unfair prejudice.
See United States v. Hester, 140 F.3d 753, 759 (8th Cir. 1998). The district court
nonetheless took prompt action to avoid undue prejudice by instructing government
witnesses not to mention children when describing undercover drug purchases. The
subsequent questioning of both agents did not violate that ruling. The substantial
evidence of Hunter’s guilt is relevant in deciding whether these limited references to
children had a seriously prejudicial effect that denied Hunter a fair trial. See United
States v. Hernandez, 779 F.2d 456, 461 (8th Cir. 1985). There was no abuse of
discretion in denying his mistrial motion. Cf. United States v. Davidson, 122 F.3d
531, 537-38 (8th Cir.), cert. denied, 522 U.S. 1034 (1997).
B. Hunter argues the prosecutor prejudicially demeaned Hunter by referring
to him during closing argument as a “big dog.” In describing the roles of Gilow and
Hunter in the alleged conspiracy, the prosecutor argued:
Because there is this evolution of this case where for awhile it is maybe
just Rikki Gilow just selling some drugs, right? But then the case -- the
case gets more serious, the big dogs come around. Special Agent
Almgren, the big dog about selling guns, and this is when we see
defendant really kind of coming out of the shadows. It’s time for the big
dogs to meet. And that’s when, later on in this investigation, you can
really see who defendant is and what his role is.
As Hunter did not object to this argument and did not move for a mistrial, we review
this contention, if at all, for plain error. See United States v. Green, 560 F.3d 853,
859 (8th Cir.), cert. denied, 558 U.S. 879 (2009). We find no plain error here. The
prosecutor used the phrase “big dogs” to assert that Almgren was meeting a high-
ranking member of the alleged conspiracy “about selling guns,” an inference
supported by the evidence. Use of the phrase “big dogs” was not improper, much less
plainly so, as there is no indication the jury understood the term as injecting social
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status or race into the case, as Hunter suggests on appeal. See United States v.
Macklin, 104 F.3d 1046, 1049-50 & n.5 (8th Cir.), cert. denied, 522 U.S. 891 (1997).
C. Finally, Hunter argues his trial defense was improperly disparaged when
the prosecutor stated during closing argument, “Perhaps defendant’s only real defense
here could be an argument about the integrity of [the government’s physical] evidence
of those drugs” purchased by the undercover agents. The district court overruled
defense counsel’s cryptic objection, “improper argument.” The prosecutor then
responded to Hunter’s theory that the drugs had been contaminated by poor handling
at a local government forensic laboratory.
On appeal, Hunter argues the government’s comment on his “only real
defense” clearly disparaged any other theory put forward by the defense. We
disagree. Read in context, the statement merely asserted that Hunter’s “only real
defense” to the physical drug evidence was to question its integrity, not that he only
had one “real defense” to all charges. In any event, a prosecutor may comment on the
strength or credibility of the defense case. See United States v. Frokjer, 415 F.3d
865, 874 (8th Cir. 2005); United States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1995).
The district court did not abuse its broad discretion to control closing arguments
when it overruled Hunter’s unfocused objection.
III.
Hunter argues that, in imposing three life sentences, the district court violated
his Sixth Amendment right to trial by jury as construed in Alleyne v. United States,
133 S. Ct. 2151, 2155 (2013), which extended the Court’s prior decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000), to include facts that increase a mandatory
minimum sentence established by statute. Hunter argues that Alleyne invalidated two
aspects of his sentence. First, he challenges the determination that he is a career
offender based on two qualifying prior felony convictions; that determination
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increased his advisory guidelines range to life in prison for the drug conspiracy and
possession with intent to distribute offenses. See U.S.S.G. § 4B1.1(c)(2). Second,
he challenges the mandatory life sentence imposed because his second felon-in-
possession offense involved a machine gun. See 18 U.S.C. § 924(c)(1)(C)(ii).
This contention is foreclosed by our prior decisions. First, in United States v.
Alvarez, 320 F.3d 765, 767 (8th Cir. 2003), we held that the Supreme Court in
Apprendi did not overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998),
and therefore district courts may continue to impose career offender enhancements
without having a jury determine the fact of prior convictions. Second, in United
States v. Abrahamson, we upheld a post-Alleyne challenge to an enhanced mandatory
minimum statutory sentence, concluding that “Alleyne left intact the rule that
enhancements based on the fact of a prior conviction are an exception to the general
rule that facts increasing the prescribed range of penalties must be presented to a
jury.” 731 F.3d 751, 752 (8th Cir. 2013), cert. denied, 134 S. Ct. 1565 (2014). Thus,
at least in this circuit, Almendarez-Torres remains controlling precedent.
IV.
Prior to trial, some weeks after the district court appointed new counsel at
Hunter’s request, Hunter complained that new attorney Thomas Plunkett was not
willing to pursue issues Hunter wanted pursued. The court then permitted Hunter to
proceed pro se, with Plunkett serving as stand-by counsel. On the morning of trial,
Hunter announced he wished to end pro se status and have Plunkett represent him at
trial. The court agreed after questioning Hunter at length to make certain he
understood the consequences of this decision. Plunkett then served as appointed
counsel at trial and sentencing, and has continued to represent Hunter on appeal.
With the appeal pending, Hunter filed a motion for appointment of new
counsel, complaining that Plunkett was refusing to order the sentencing transcript and
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raise meritorious sentencing issues on appeal. We denied the motion, and Plunkett
filed his Brief of Appellant. Hunter then filed a motion to reconsider, arguing he
needed new appellate counsel so he could raise issues of ineffective assistance by
attorney Plunkett. We denied that motion. After the government filed its appeal
brief, Hunter filed a Motion for Leave To File a Pro Se Supplemental Brief raising
numerous issues and, two months later, a pleading entitled Supplementary
Memorandum Proposed Findings of Fact and Conclusions of Law. Those motions
remain pending.
We deny the pending pro se motions. It has long been Eighth Circuit policy
“that when a party is represented by counsel, we will not accept pro se briefs for
filing.” United States v. Payton, 918 F.2d 54, 56 n.2 (8th Cir. 1990), cert. denied, 502
U.S. 948 (1991). As in United States v. Donnell, 596 F.3d 913, 925-26 (8th Cir.
2010), cert. denied, 131 S. Ct. 994 (2011), we see no reason to deviate from that
general rule in this case. Hunter has demonstrated a persistent unwillingness to
accept the advice and assistance of appointed counsel -- except when it suits him.
Now, he submits multi-page pro se filings on appeal, seeking to raise issues of
ineffective assistance of trial and appellate counsel, which we almost never take up
on direct appeal; a complaint that he was improperly sentenced as a career offender
because one of his prior convictions was not a qualifying felony, when his sentence
was dictated by three life sentences, one mandated by statute; and claims of pretrial
and trial error that attorney Plunkett has not raised. Any claim that Hunter was
prejudiced by counsel’s unreasonable refusal to raise an issue on direct appeal may
be asserted as a claim of ineffective assistance of appellate counsel in a post-
conviction motion under 28 U.S.C. § 2255. As in United States v. Moore, 481 F.3d
1113, 1114 n.2 (8th Cir.), cert. denied, 552 U.S. 853 (2007), we decline to consider
these issues further on direct appeal.
The judgment of the district court is affirmed. We deny Hunter’s motions for
leave to file a supplemental pro se brief and a Supplementary Memorandum.
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BRIGHT, Circuit Judge, concurring.
I concur with the majority’s result, but write separately to express my view that
Hunter’s sentence, including his mandatory life sentence, is “out of this world.” This
case is yet “another example of a harsh sentence that is required for a non-violent
crime in what now seems generally recognized as this country’s continuing but
unsuccessful War on Drugs.” Walking Eagle v. United States, 742 F.3d 1079, 1083
n.2 (8th Cir. 2014).
Hunter’s mandatory life sentence stems from his convictions on two counts of
aiding and abetting the use and carrying of a firearm during and in relation to a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1). The second count related
to Hunter arranging a transaction in which his girlfriend sold a detectable amount of
heroin and a firearm to an undercover law enforcement agent. Because the firearm
sold was considered a “machinegun,” Hunter will spend the rest of his living days
behind bars. See 18 U.S.C. § 924(c)(1)(C)(ii).
Today, I join in the litany of criticisms directed towards Congress’s overly
harsh mandatory minimum sentences set forth in 18 U.S.C. § 924(c). See, e.g., United
States v. Smith, 756 F.3d 1179, 1194 (10th Cir. 2014) (Lucero, J., concurring in part,
dissenting in part) (acknowledging “the problems with § 924(c)”); United States v.
Hebert, 131 F.3d 514, 526 (5th Cir. 1997) (DeMoss, J., dissenting in part) (describing
§ 924(c) sentences as having “draconian impacts”); United States v. Angelos, 345 F.
Supp. 2d 1227, 1263 (D. Utah 2004) (describing a sentence mandated under § 924(c)
as “unjust, cruel, and irrational”). “By mandating such high minimum sentences in
18 U.S.C. § 924(c)(1), Congress has removed the carefully circumscribed discretion
granted to district courts in . . . consider[ing] possible mitigating circumstances”
when fashioning a sentence. United States v. Harris, 154 F.3d 1082, 1085 (9th Cir.
1998). Stripping judicial discretion in favor of harsh mandatory sentences often
results in penalties that are not commensurate with the crime.
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Such is the case with Hunter. Through section 924(c), Congress has mandated
that Hunter spend the rest of his life in prison for arranging the sale of drugs and a
gun on two occasions, despite no evidence that he ever used the guns in a violent
manner. His criminal conduct is no doubt serious, but it falls well short of being “‘so
atrocious that society’s interest in deterrence and retribution wholly outweighs any
considerations of reform or rehabilitation of the perpetrator.’” Harmelin v. Michigan,
501 U.S. 957, 1028 (1991) (Stevens, J., dissenting) (quoting Furman v. Georgia, 408
U.S. 238, 307 (1972) (Stewart, J., concurring)). In addition, Hunter is young, only
43 years-old, and his criminal history does not depict a man bent on violence. I
firmly reject the notion that Hunter is unredeemable. The sentence here is ridiculous
in its harshness.
Furthermore, Hunter’s life sentence comes at a significant cost. Overly harsh
mandatory minimum sentences “ruin lives of prisoners and often their family
members.” United States v. Hiveley, 61 F.3d 1358, 1363 (8th Cir. 1995) (Bright, J.,
concurring). They strip families of parents, causing children significant emotional
and psychological pain. See Patricia Allard, When the Cost is Too Great: The
Emotional and Psychological Impact on Children of Incarcerating Their Parents for
Drug Offenses, 50 Fam. Ct. Rev. 48, 51-52 (2012). Indeed, mandatory minimum
sentences for drug-related crimes “have had a destabilizing effect on particular
communities, largely poor and of color.” Eric Holder, Attorney General of the United
States, United States Department of Justice, Remarks at the Annual Meeting of the
American Bar Association’s House of Delegates (Aug. 12, 2013), available at
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html.
The economic costs are also extreme. In 2010 alone, taxpayers spent an
astonishing $80 billion on corrections. Melissa S. Kearney et al., The Hamilton
Project: Ten Economic Facts About Crime and Incarceration in the United States 13
( M a y 2 0 1 4 ) , a v a i l a b l e a t
http://www.hamiltonproject.org/files/downloads_and_links/v8_THP_10CrimeFacts.
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pdf. Taking into account Hunter’s average life expectancy, taxpayers will spend over
$850,000 incarcerating him for the rest of his life. See Annual Determination of
Average Cost of Incarceration, 78 Fed. Reg. 16711-02 (Mar. 18, 2013) (stating that
the annual cost of incarceration of a federal inmate in 2011 was $28,893); Sherry L.
Murphy et al., National Center for Health Statistics, National Vital Statistics Reports,
V o l . 6 1 , N o . 4 , a t 3 0 , a v a i l a b l e a t
http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_04.pdf (stating that a man of
Hunter’s age and race is expected to live another 30 years). As I’ve said, “[t]he
public needs to know that unnecessary, harsh and unreasonable drug sentences serve
to waste billions of dollars without doing much good for society.” Hiveley, 61 F.3d
at 1365 (Bright, J., concurring).
We have entered a new era in sentencing. As our Attorney General has
acknowledged, “too many Americans go to too many prisons for far too long, and for
no truly good law enforcement reason.” Eric Holder, Attorney General of the United
States, United States Department of Justice, Remarks at the Annual Meeting of the
American Bar Association’s House of Delegates (Aug. 12, 2013), available at
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. Some
initial steps are being taken to rectify our excessively harsh drug sentencing regime,
as evidenced by reformed federal policies on charging of criminal conduct requiring
mandatory minimum sentences and the United States Sentencing Commission’s
recent decision to permit retroactive reduction of sentences for certain eligible
offenders convicted of drug crimes. See Memorandum from Attorney General Eric
Holder, Jr., on Charging Mandatory Minimum Sentences and Recidivist
Enhancements in Certain Drug Cases (Aug. 12, 2013), available at
http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/ag-memo-
department-policypon-charging-mandatory-minimum-sentences-recidivist-
enhancements-in-certain-drugcases.pdf; Press Release, U.S. Sentencing Commission,
U.S. Sentencing Commission Unanimously Votes to Allow Delayed Retroactive
Reduction in Drug Trafficking Sentences (July 18, 2014), available at
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http://www.ussc.gov/sites/default/files/pdf/news/press-releases-and-news-
advisories/press-releases/20140718_press_release.pdf. But Hunter’s sentence
indicates that there is much more work to be done. We must do better. I say in this
concurring opinion, as I have said in other sentencing opinions that I have written, “Is
anyone out there listening?” United States v. Alatorre, 207 F.3d 1078, 1080 (8th Cir.
2000) (Bright, J., concurring).
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