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United States v. Gilliam

United States Court of Appeals, Eighth Circuit

August 20, 2019

United States of America Plaintiff-Appellee
v.
Rico V. Gilliam Defendant-Appellant

          Submitted: April 17, 2019

          Appeal from United States District Court for the Western District of Missouri - Kansas City.

          Before SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.

          Smith, Chief Judge.

         Rico Gilliam was convicted by a jury on two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and sentenced to two consecutive 90-month imprisonment terms. On appeal, he argues four points: that he was charged with multiplicitous crimes in error, that prejudicial hearsay was admitted at trial, that his criminal history category was miscalculated, and that a prior Missouri second-degree robbery conviction should not have counted as a crime of violence when calculating his Guidelines base offense level. Finding no error, we affirm the district court.[1]

         I. Background

         On October 17, 2014, near midnight, Harding "Pops" Jeffrey called Gilliam to his residence. Jeffrey called Gilliam because he was concerned for his own safety following the angry departure-and likely return-of an intoxicated Joe Scrivo. Carla Offield was also present at Jeffrey's apartment. Scrivo returned and began arguing with Gilliam. Gilliam drew a .40 caliber Glock Model 23 from his waistband and fired three times. The third shot hit Scrivo in the leg. Scrivo left, reported the incident to the police, and told them that Gilliam shot him.

         After shooting Scrivo, Gilliam fled Jeffrey's residence but left the gun there. Witness accounts differ, but apparently Gilliam either threw the gun on the couch or handed it to Jeffrey before he left. Afterward, Jeffrey picked up the shell casings he could find and then took the gun to Donna Bailey's apartment, known by acquaintances as "the funny farm."[2] Trial Tr., Vol I., at 60, United States v. Gilliam, No. 4:15-cr-00354-BP (W.D. Mo. May 22, 2018), ECF No. 78. Police investigating the disturbance at Jeffrey's residence found a .40 caliber shell casing that had been fired from the gun.

         On November 6, 2014, a confidential informant relayed to Kansas City, Missouri Police Detective Brandon Bray that Gilliam, now with an outstanding arrest warrant, was staying at Bailey's apartment. Detective Bray began watching the apartment and confirmed Gilliam's presence. Detective Bray knocked at the apartment door and spoke to Bailey. Bailey acknowledged that Gilliam was inside the apartment and that he had a gun. Detective Bray then instructed everyone to leave. Gilliam refused. Because of Gilliam's refusal, Detective Bray called for tactical backup and directed that a downstairs apartment be evacuated for occupant safety. The apartment's occupants reported to Detective Bray that Gilliam had a gun. About 30 minutes later, Gilliam voluntarily came out of the apartment and surrendered. He was unarmed and coated with drywall and insulation.

         Bailey consented to a search of her apartment. Once inside, law enforcement observed a hole in the ceiling in one room, next to the attic access. It appeared as though someone had fallen through the ceiling. Officers observed a pile of clothes coated in drywall dust beneath the hole. Bailey told officers the ceiling had no hole before she left the apartment. In the attic, officers found a handgun-the same handgun used to shoot Scrivo-underneath some insulation.

         After his arrest, Gilliam admitted to shooting Scrivo at Jeffrey's house but denied possessing the handgun after he gave it to Jeffrey. Gilliam was charged with two counts of being a felon in possession of a firearm for the shooting at Jeffrey's house and for possessing the weapon again at Bailey's apartment. While in prison awaiting trial, Gilliam spoke to April Calvillo. The call was recorded. Gilliam instructed Calvillo to write a letter to the prosecutor explaining that she hid the gun in the attic at Bailey's apartment two days before Gilliam's arrest. Calvillo did as directed.

         At trial, Detective Bray testified on direct examination about evacuating the neighbors below Bailey's apartment as a precaution in case of gunfire in the building. Without a question from the prosecution, Detective Bray volunteered that he "was also advised by people inside that place that [Gilliam] had a gun possibly on him." Trial Tr., Vol. II, at 14, United States v. Gilliam, No. 4:15-cr-354-BP (W.D. Mo. May 22, 2018), ECF No. 79. Gilliam objected to the hearsay. The court overruled Gilliam's objection. The court agreed with Gilliam that the response was hearsay, but it determined the statement was unintentional and not so prejudicial that an instruction to the jury to disregard it was necessary.

         At the conclusion of trial, the jury found Gilliam guilty of both counts. At sentencing, after hearing objections, the district court adopted the presentence investigation report (PSR) and its recommended total offense level of 30. This calculation was based in part on Gilliam having two prior crime-of-violence ...


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