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United States v. Eason

United States Court of Appeals, Eighth Circuit

July 14, 2016

United States of America Plaintiff- Appellee
Marcus Lamont Eason Defendant-Appellant

          Submitted: December 15, 2015

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before MURPHY, BENTON, and KELLY, Circuit Judges.

          KELLY, Circuit Judge.

         After a jury trial, Marcus Lamont Eason was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count 1), and of being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1), and 3147(1) (Count 2). Eason appeals, challenging the district court's exclusion of evidence he attempted to introduce at trial, the sufficiency of the evidence for his conviction on Count 2, and the application of the Armed Career Criminal Act (ACCA) at sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm in part and reverse in part.

         I. Background

         On June 16, 2012, in North Little Rock, Arkansas, Eason was involved in a domestic incident with his then-girlfriend, Sheila Noble. Noble's mother reported the disturbance to the police, and then called again to report that Eason was "shooting up" behind her house. Radio dispatch gave officers a description of the person suspected of firing the shots, and relayed that the suspect's name was Marcus Eason. Police Sergeant Terry Kuykendall heard the dispatch and soon spotted Eason walking and carrying a black t-shirt in his left hand. According to Kuykendall, it looked like Eason had something concealed in the shirt. Kuykendall stated he had no difficulty identifying Eason from 50–60 yards away. While making a U-turn, Kuykendall saw Eason drop an item to the ground.

         Kuykendall stopped Eason, patted him down, and waited for backup. After backup arrived, Kuykendall searched the area where he believed Eason had thrown something and found a .45-caliber pistol lying on the ground in the path where Eason had been walking. Later, Kuykendall also found two .45-caliber shell casings in the area of the reported shooting, which he deemed to be from a gun like the one he had recovered. Eason was indicted on one count of possession of a firearm as a felon, was arraigned in federal court, and on December 18, 2012, was released on conditions to the supervision of the United States Probation Office pending trial.

         On April 9, 2013, while on pretrial release, Eason was involved in an incident at the residence of Hiawatha Williams, also in North Little Rock. At that time, Eason was engaged to Williams's daughter, Erica Davis, and he and Davis had a dispute. When Williams saw that Eason had a firearm, he ran next door and borrowed a .380 pistol. Williams returned to his home and fired a warning shot, which hit the ceiling immediately above him on the front porch. According to Williams, Eason then left the residence. As Williams returned to his bedroom, he heard a shot fired. Although he did not see the shooter, Williams believed it was Eason. Later, during the investigation, Detective Gibbons of the North Little Rock Police found a 9-millimeter bullet in Williams's bedroom closet and a spent shell casing nearby. A superseding indictment was filed, adding Count 2: possession of ammunition as a felon. On April 16, 2013, Eason was ordered to be detained pending trial.

         The jury returned guilty verdicts on both counts – Count 1, for possession of the .45-caliber pistol that Officer Kuykendall retrieved, and Count 2, for possession of the 9-millimeter ammunition found in Williams's closet. At sentencing, the court determined that Eason had at least three prior convictions for a violent felony or serious drug offense, or both, and therefore was subject to sentencing as an armed career criminal. At an offense level of 34, and a criminal history category VI, Eason's advisory Guidelines range was 262-327 months. The district court imposed a sentence of 300 months. Eason timely appealed.

         II. Discussion

         1. Dash Camera Video

         Eason's first argument is that the district court erred in excluding evidence of a dash camera video from Officer Kuykendall's squad car. At trial, Sergeant Kuykendall testified on cross examination that his patrol car did not have a dash camera. At that point, Eason's counsel requested a bench conference, and informed the court that, through a Freedom of Information Act (FOIA) request, she had obtained a dash camera video for June 16, 2012, which showed "an officer who looks like [Kuykendall]" in the footage.[1] Defense counsel told the court the video was "not relevant to this case in that it's not about this case, but it would show that he does have a dash camera." The government did not object to the defense questioning Kuykendall about the video, but expressed concern about the video being played for the jury. The court concluded that the defense had "a good faith basis to impeach" Kuykendall with the video and allowed Eason to question him about it. At that point, the court did not permit the video to be played for the jury, but said "we'll just call him back tomorrow." When cross examination resumed, Kuykendall testified that he did not "remember exactly" whether he had a dash camera in his patrol car on the night of Eason's arrest. After his testimony concluded, Officer Kuykendall was told he was subject to recall as a witness.

         Two days later, the parties revisited the issue of the dash camera video with the court outside the presence of the jury. Apparently, in the interim, counsel for Eason watched the video in full for the first time. This time, she informed the court that she had "discovered that there was evidence directly relevant to the investigation in this case" on the video, because it showed Officer Kuykendall returning to the scene of Eason's arrest. The government objected to use of the video because the defense had not provided it to the government prior to trial, which the government regarded as a violation of its request for reciprocal discovery under Federal Rule of Criminal Procedure 16. The court sustained the objection, reiterating that the defense could use the video as impeachment through questioning, but could not play it in front of the jury.

         On appeal, Eason argues that the district court erred in excluding the dash camera video at two separate times: when the district court prevented the defense from showing the video to the jury (1) during the initial re-cross examination of Kuykendall, and (2) when the defense attempted to re-call Kuykendall as a witness to impeach him with the video. We analyze each instance in turn, reviewing ...

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