may please the court donovan cross was convicted in the northern district of ohio before district judge mark bennett being a prohibited person in possession of a firearm and ammunition his case is factually quite memorable it involved or surrounded the discovery of a firearm and some ammunition that fell out of a laundry basket you know home in sioux city iowa his appeal raises various issues at the  stages of his case at the district court level first with respect to the denial of his motion to suppress evidence specifically the firearm and ammunition second with respect to his conviction and a jury trial and then third with respect to his sentence of one hundred  statutory maximum subject any questions that the court has i intend to proceed somewhat chronologically starting with the denial the motion to suppress moving to trial related issues and then to the extent there is time to the sentencing related issues  mr cross mood to suppress the evidence used against him before trial on the basis that there was not a valid consent for an entry into a home that he shared with his grandmother in sioux city iowa the district court denied that motion to suppress on two bases first the district judge found that donovan crossed his grandmother a woman named andrea krause gave officers consent for the entry into the home that directly led to discovery of the firearm and and then second the district district court found that mr cross's girlfriend a woman names of fifa nagual provide a consent for the entry into the home starting first with the district court's conclusion that the grandmother  provided consent for the entry to give a little bit of background necessary to resolve that issue this case started with a nine one one call from andrea cross to the sioux city police on june fourth two thousand and sixteen andrea krause reported that donovan the appellant and his girlfriend sophia were in an argument in a sounded physical injury reported that she did not know the last name of sophia the girlfriend she said that she was going to leave the home and that in order to resolve the dispute between mr cross and sophia officers could enter through the front door andrea left the home to city police arrived at the scene initially remained outside of the home this is a home that was rented by injury across she was the only one who was on the lease for the home she's the one who paid the ordinary expenses for the home as well they called for mr cross and sophia to leave the home sophia initial left the home she went right back in when she saw police and she eventually came out at that point she was safe a police call for mr cross to come out of the home he eventually did he happened to be for the most part naked when he came out of the home and he was placed under i thought how can ok he went he took the police in with him to get dressed he did and then he got dressed they saw where he got dressed they saw parts of the i guess second floor at that point and then she has maybe even invites the police to go with her to get her belongings as she was she wanted to move out right by she mean what happened was around midnight and in the picture at that point correct graham was not at the sea and the only and the the the only entry or everything that the police officer accompanying her to get her belongings did was consistent with that  little little different than that the police actually invited her to go inside the home to get her belongings but yes she took police up on that invitation you can't do that i am saying she can't do that in this in my view is a unique case as compared to the cases cited both forget whether she had she had any authority actually or a parent who invite in to invite them in for a broader search what case would say that someone says i'm living there and i want to move down there and i want to go get my stuff church so you've got a case it's even close to saying that that limited consent is for some reason unconstitutional as you can imagine there's a million different fact patterns i don't have one precisely on point for the point that you're raising when i'm asking  and the third party can set a fuse are often difficult but this seems to me be very complex or have ago i'm not used to being i'm not unaccustomed to be disagreed with but the way i read illinois versus rodriguez which is kind of  cardinal case on the issue of whether a third party has a parent authority to authorize police to enter a home is that it must be reasonable from the perspective of the officer to believe that the third party has a reasonable expectation of privacy must be reasonable for police to believe that that person has some authority over the property that they're going to be entered going to be entering into and i think you have to look at minnesota versus olson the supreme court's opinion from one nine hundred ninety on the score this is the case that deals with whether an overnight guest a social guest has a reasonable expectation of privacy in a home such that he or she can have standing to complain of a search there the supreme court and olson talks about the present in the area of mr cross's home once sophia had exited the home and she was safe and she wasn't going back into the home she was not under arrest but she was with a police officer at that time and once mr cross was under arrest the community caretaking aspect of this is over is it understandable that sophia may want to go back into the home and get her belongings yes but that doesn't necessarily mean that law enforcement has to be a party to that entry into the home whether it's limited or or more broad and with minnesota versus olson i do think that there's a distinction between a regular overnight guest social guest and a home and someone like sophia there was something close to that we had testimony if you look at page fifty eight of the suppression hearing transcript for andrea cross said she had told sophia to leave the home before she told other people to leave the home before but she had basically been ignored so in my view when we're looking at what society would deem to be reasonable in the context of this case it's not my view that society would find this type of entry reasonable and write and record about whether  where the court says and this is the case again dealing with the parent authority there may be circumstances in which an individual gives an explicit assertion that he or she resides on a particular just a particular piece of property that they've been there they've been staying there but there are circumstances in which law enforcement should ask more questions to determine that person's connection to the home in my view this is such a case when you look at the nine one one call from andrea cross the grandmother this is an individual who the prosecution has relied upon the fact that she stayed in the home for a few days in the past but it's very odd that of the nine one one call andrea cross says well i don't even know her last name in my view that's something that should have spawned additional inquiry into sophia's connection to the home and whether she had the authority requisite authority to authorize the entry into the home with law enforcement the extent of the inquiry that i can see in the record is in defense exhibit c one from the motion to suppress hearing this is the video from the squad car with the brief interaction between officer pollyannaish sioux city police department and mr krause where ask mr cross if sophia lives in the home mr process something like no but and then there's some further questioning by mr or officer ja enough and ultimately the answer is ambiguous and that's the extent of the inquiry that was done into sophie was going to the officer should have continued in his questioning yes that is my position early on you said this is the unique case and i wrote down why but i guess you've been answering my question since is unique factually or legally or both both respect to the motion to suppress such unique factually because we're dealing with a firearm that fell laundry basket unusual and memorable it's unique legally in that none of the cases as i said that the parties cited in the briefing in my view deal with the issue where there's reliable evidence to believe that the party granted consent was an on your argument at all it does because as i said the district court relied on those two rulings for denying the motion to suppress in my view district judge bennett committed clear error by making the factual finding the injury a cross consent the extent there was any was not limited to resolving the dispute between sophia and mr cross this was not the we had never entered hearing before the magistrate judge magistrate judge c j williams he didn't include anything in his report and recommendation making  finding that injury across had provided open ended consent for entry into her home this was something that district judge bennett decided on in my view you can't you can't look at the evidence  regarding nine one one call in the record and come to the conclusion that injury across is permission for a law enforcement to enter was open ended it's a matter of drawing a line somewhere in my view it's clear that she meant to resolve the ongoing physical disturbance between sophia and mr cross law enforcement could enter the front door it takes another step to come to the conclusion as district judge bennett did that it also included after everyone was safe after mr prosser been landlord right versus the tenants right now that sort of thing or the third party is right and your argument is they have to do more than they did but our question is how to write the opinion how much was enough how much was enough or could have been i don't know how much is enough i guess is the easy answer but there should have been more and more if you look at exhibit c one there's just not enough in this record i see i'm allowing running low on time with the panels permission overs or in the rain or my time for rebuttal thank you for watching the clock i don't want to be critical of the first attorney but had your inexperience to join in i don't know if you've ever been caught short call was specifically to addressed or to resolve disturbance the question then becomes what was the disturbance because we had the first understand where the disturbance was this wasn't a simple quarrel where you can separate two individuals put handcuffs or i apologize  the nine one one call was about resolving a disturbance and when it comes to this case the question then becomes what was the disturbance this was in a simple argument between two people where you separate them they cool down of the spine resolving disturbance for relies on what the actual disturbance was here it was a physical domestic assault and it's also pollyanna for the sioux city police department testified on page thirty five the suppression hearing when it comes to domestic assault officers do three things first is to insure the safety of the victim second to reassure the victim to she has options and third to help the victim get to the next step in this particular case it wasn't just about putting handcuffs on the defendant and the disturbance is resolved now we have determined what would happen sophia because the information  and heard in his discussion with her is that within a five day period there were two separate domestic assaults the first of which occur during on may thirty first twenty sixteen that one result in a very visible eye injury that in governments exhibit that was presented at the suppression hearing is a very visible injury her or i was extremely bruised the whatever i was bloodshot red she was shaking she was crying she was still very much to dramatize from what happened that day but that assault girl may thirty first five days later we now have a second one sobs no we can't just pack up and leave part of our responsibility to ensure her safety so they made arrangements with sophia to severe work when you go because you can't live here anymore and in no point do you say oh i don't live here i actually live a few blocks away never identified another residence and said she says i'll go live with my mom who lives in kingsley i was thirty minutes away there was no vehicle at the house that she could have just driven back and forth on her own and earlier in the day off was observed sophia for the first time a they had no prior knowledge of or they had no knowledge actually has a she belongs in a different residence in sioux city or that she's from a different part of town or different part of the state this is her first exposure she's running outside the house after screaming and th i was in the shower the whole time but he was completely dry and that's critical because later on after the else was mind the search warrant they secure the residence of pain a search warrant and then seize the incriminating evidence officer one of them approaches the defendant afterwards and possession and then the defender responds while not in possession because it's not physically on me and of course it's not physically on him because he was naked with a hand towel then the officer told him well you can if you're in possession it means you can't be in your bedroom and i mean the defend says that's not my bedroom my bedroom is the one across the hall and that room your honor as i also want to testify at a couch potato and stereo equipment so it's not typically used the bedroom and there are only two other bedrooms in the house one belonged to the grandmother one belong there was also actual toward a record of not have any further questions on this particular issue i'll move on to the to the next issue at hand this was the admission of the jail call at trial and just a court found that this was more probative than prejudicial it's admission is a no brainer primarily because this phone call was a phone call in which the defendant was trying to convince sophia the take the blame for the gun and he was trying to guilt her in just a core recognizes that this was concedes that this conversation was about the gun there's no question this conversation was about the gun but even if a piece of evidence has more than one interpretation that does not make it prejudicial or unfairly prejudicial w there was a limited aspect of it no point in the government's case in chief and no point in the government's opening statement or even in its closing statement was there any reference to defendant being arrested in handcuffs or in jail is phone call that point it was just a conversation between two individuals and the defense objection is that you can insinuate because the call was recorded that the defendant was in jail but that's not true that's it and the district will recognize it's a very bold assertion that offends an objection for three grounds because a crude language and then the defendant spoke in a frantic tome the crude language in reference to his phone call was simply one with the use of the f word once that itself does not rise to unfair unfair prejudice that would phone call played back to back at the hearing the reason it was presented at trial is five and five be well because it's a longer conversation these are excerpts of that conversation the defense never objected that this was two separate calls that correct it was just one phone call your honor it was presented as five and five be just because it's spliced the conversation so that you're out i would argue that there was no abuse of discretion regarding this admission this phone call regards to the trial itself the sufficiency of the the defendant was in the house for a long period of time during the perimeter at which time he struck himself naked was excluded the government had to rely on evidence of what was found in the bedroom that the better had men's clothing mail in documents a defined its name on it that they had the defendant's grown grandmother testified at that's the defense room that there were times when she would try to go in and he would kick around that he had control of that room the holster that fits the gun was found in the bathroom next to the  card and mail with his name and in the room that he had done about his own bedroom the studio had a single round of ammunition consistent with the ammunition found in the gun and of course the conversation with  testified that this dependence d n a matched all fifteen d n a markers that this shows that this defendant was a major profile contributor and that it is more likely that if you're matching on all fifteen you had direct contact with this gun and the defense's expert testifies that there's just no absolutes you don't know if it's direct you don't know if it's secondary transference but when i asked him at cross examination whether it was possible that this could have been direct contact is one word answer was absolutely based upon the evidence i was presented at trial there was more than sufficient to show that the defendant was a prohibited by law and in possession of a firearm because the government also presented evidence that the gun had travelers and commerce so and so was the ammunition and that the court can can conduct an inquiry broad in scope and can consider information that is largely unlimited in this case or to jail calls one of which was the one that was presented at the suppression hearing in which the defendant essentially was verbal abuse of his grandmother and told her that the only way we're going to beat this is if you do exist testify exactly the way i want you to and trying to control control that type of testimony magistrate judge t j williams and his opinion say that this was a pretty blatant attempt by the defendant to manipulate the testimony of his own grandmother that was presented to the court's consideration and there was also the phone call those that took place after the trial in which the defendant was having argument and doesn't go to the reliability of a grand jury transcript which is a transcript of an individual placed under oath subject to penalty of perjury so it's admission was appropriate we then look at the guidelines and this is a bit of an unusual case for honors because the defendant had a terroristic threats conviction or rising out of nebraska and he also had a controlled substance conviction out of state of iowa both of which were under consideration by this court at the time and have been resolved to the that one qualified as a controlled substance violation the other did not but then this court ruled the pledge of united states that the defendant's prior conviction for terroristic threats in nebraska does qualify as a crime of violence therefore his base offense level should have been twenty four to  been for obstruction i category five his guideline would be in one ten to one twenty so then the question becomes was it substantively reasonable for sentence to be at the statutory maximum one twenty and the district court found that this defendant has a history of assaulting women know a lot from my arguing issues that you didn't address yes he did and i'm in my limited time i'm going to focus on the mission of the jail call at trial this was exhibit five a in exhibit fi be referenced by mr alexander the problem with the government's argument as to the probative value of this jail call is that the probative value is ambiguous there were two reasonable explanations for what was going on in that phone call it was reasonable to conclude as mr krause would argue that the phone call was about him encouraging sophie to provide information about as to whose gun that actually was also reasonable i agree that the call could be interpreted as an attempt to convince sophia to take the rap for the gun the problem by admitting that the particular piece of evidence is it required the jury to speculate as to what exactly was going on in the phone call if there was a more innocent explanation than of course mr cross was prejudiced for that very reason i would take issue with the argument that it wasn't obvious that the call was a jail call you can hear jail noises in the background how many other circumstances are there in which calls are recorded and mr cross makes a reference to the possibility they could serve the rest of his life in prison clearly any reasonable juror would conclude that was a jail call and it forced mr cross be in a position where the jury knew that he was detained pending trial that mission of this particular jail call was not harmless did no hear the jury did no any reasonable jury would know from the nature of that call from what was said in that call from the jail noises in the background there was no express reference to it being a j  all that's correct i see my time is up i simply asked the court to reverse the district court well thank you for the argument and the briefs and the case is now submitted submitted more taken under consideration