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United States v. Daniel

United States Court of Appeals, Eighth Circuit

April 4, 2018

United States of America Plaintiff- Appellee
v.
Mikeem Daniel Defendant-Appellant

          Submitted: December 15, 2017

          Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau

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

          SMITH, Chief Judge.

         Mikeem Daniel appeals after a jury convicted him of (1) aiding and abetting the interference with commerce by robbery, and (2) aiding and abetting the possession of a firearm in furtherance of a crime of violence. He challenges the sufficiency of the evidence supporting the convictions. Daniel also argues that the district court[1] erred in denying a motion to suppress and in its jury instructions. We affirm.

         I. Background

         "We recite the facts in the light most favorable to the jury's verdict." United States v. Payne-Owens, 845 F.3d 868, 870 n.2 (8th Cir. 2017) (quoting United States v. Stevens, 439 F.3d 983, 986 (8th Cir. 2006)). After St. Joe's General Store in Perryville, Missouri, had closed, clerk Angela Corse worked to prepare the store for the next day. The back door was unlocked and propped opened for cleaning. As Corse faced away from that door, someone entered the store behind her, wrapped his arm around her, and pressed a gun to her back. The unknown male asked for money and pushed Corse toward the cash registers, where he made her pull cash from the drawer. Corse never saw the man's face but believed he was African American based on the appearance of his hand when he took the cash. The man then grabbed Corse's wallet off the counter and pushed Corse to the rear of the store. He shoved her aside and pointed a gun at her before running out the back door.

         As the man fled from the store, Corse saw a white Suburban driving slowly on the road parallel to the back of the store. The vehicle's brake lights illuminated, and the man went towards the Suburban. Once Corse realized where he was going, she shut and locked the door and immediately called 911. Corse reported that she had been robbed at gunpoint and that the suspect had left in a white Suburban driven by someone else. She also described the individual's clothing, race, and the color of the gun she had seen pointed at her-silver. The dispatcher immediately relayed this information to Perryville and Perry County law enforcement.

          Perry County Sheriff's Deputy Rusty Farrar responded to the call reporting an armed robbery at St. Joe's General Store. Farrar heard the description of a white Suburban and immediately headed towards the store. After only a couple of blocks, he noticed a white Suburban driving in the opposite direction in the oncoming lane. Farrar activated his lights and sirens and pursued. The Suburban pulled over, and Farrar called for backup. Two officers soon arrived. Peering into the vehicle, the officers observed a woman's wallet behind the driver's seat. The officers identified Daniel as the driver of the Suburban. Darion Gipson was the passenger. Daniel initially argued with Farrar over the traffic stop, but he ultimately consented to a search of the vehicle.

         The search revealed that the women's wallet behind the driver's seat was Corse's. Near the wallet, the officers found a hoodie similar to the one worn by the person who attacked Corse. Gipson had on no jacket or sweatshirt. The searching officer found a loaded black 9mm pistol in the space underneath the front seat cupholder. Gipson had $349 in cash in his pocket-the precise amount a later audit revealed was taken from the store's cash register. The officers never found a silver gun.

         Daniel went to trial, and the jury convicted him of aiding and abetting the interference with commerce by robbery, in violation of 18 U.S.C. §§ 2 and 1951, and aiding and abetting the possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii). On appeal, Daniel argues that the district court erroneously denied a pretrial motion to suppress evidence obtained in the traffic stop. He also challenges the sufficiency of the evidence as to both convictions. Finally, Daniel contends that the jury instructions were erroneous.

          II. Discussion

         A. Motion to Suppress

         We first address the district court's denial of the motion to suppress. "We review the denial of a motion to suppress de novo but the underlying factual determinations for clear error, giving due weight to inferences drawn by law enforcement officials." United States v. Mosley, 878 F.3d 246, 251 (8th Cir. 2017) (quoting United States v. Hurd, 785 F.3d 311, 314 (8th Cir. 2015)).

         Daniel argues that Farrar did not have reasonable suspicion to stop the suburban. "An officer may conduct a Fourth Amendment stop to investigate a crime only if the officer has a reasonable suspicion that that person had committed or was committing a crime." United States v. Juvenile TK, 134 F.3d 899, 902 (8th Cir. 1998) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). "[T]he likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 274 (2002) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). In justifying the stop, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21. "[T]he facts [are] judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?" Id. at 21-22 (quotations omitted). "[D]ue weight must be given, not to [the officer's] inchoate and unparticularized suspicion or 'hunch, ' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Id. at 27 (citation omitted). When a traffic stop is based on a radio dispatch, factors such as "the temporal and geographic proximity of the car to the scene of the crime, [a] matching description of the vehicle, and the time of the stop" are highly relevant to a finding of a reasonable suspicion. Juvenile TK, 134 F.3d at 903.

          The district court found the following facts in denying Daniel's motion to suppress. Farrar heard dispatch report an armed robbery at the St. Joe's General Store and that the suspect was in a white Suburban. Farrar immediately started driving towards the store, then saw a white Suburban driving in the oncoming lane on the highway. He passed it, made a U-Turn, and stopped the Suburban. The stop occurred within minutes of the dispatch. Farrar admitted that the vehicle had committed no traffic violation; rather, the stop "was just based on the radio dispatch." Transcript of Hearing on Motion to Suppress at 87, United States v. Daniel, No. 1:16-cr-00006-SNLJ-1 (E.D. Mo. Mar. 24, 2016), ECF No. 54. As the district court noted, all this occurred late at night when there was very little traffic on the roadway. Based on the evidence presented at the suppression hearing, these factual findings are not clearly erroneous. Mosley, 878 F.3d at 251.

         These facts support reasonable suspicion. Considering "the temporal and geographic proximity of the car to the scene of the crime, the matching description of the vehicle, and the time of the stop, " Juvenile TK, 134 F.3d at 903, we hold that an officer in Farrar's position would have reasonable suspicion to justify stopping the Suburban. See id. at 901-04 (holding reasonable suspicion existed for a Terry stop two blocks away from the reported crime and five to seven minutes after dispatch identified a gray vehicle engaging in criminal activity in the early morning hours); United States v. Farnell, 701 F.3d 256, 258-59 (8th Cir. 2012) (holding reasonable suspicion existed for a Terry stop an hour after dispatch described robbery suspect's vehicle as a white van and the suspect as a heavy white male wearing certain clothing, and an officer observed a white van whose driver was a heavy white male wearing different clothing, and who held up his hand to conceal his face).

         On appeal, Daniel points out that when cross-examined, Farrar admitted that as he made the U-turn, he heard on the police radio traffic "of the vehicle possibly headed towards the square in Perryville"-the opposite direction from the way the Suburban was heading. Transcript of Hearing on Motion to Suppress at 89. Farrar stopped the Suburban anyway. Our conclusion is unchanged by the radio report's vehicle direction information. An officer exercising "reasonable ...


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