United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 97-1720MN

_____________

United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the District of

* Minnesota.

Jerry Lee Cunningham, *

*

Appellant. *

___________

Submitted: October 21, 1997

Filed: January 13, 1998

___________

Before RICHARD S. ARNOLD, Chief Judge, LOKEN and

HANSEN, Circuit Judges.

___________

RICHARD S. ARNOLD, Chief Judge.

Jerry Lee Cunningham was convicted of drug and

weapons charges after a jury trial. He appeals his

conviction on four principal grounds: illegal search and

seizure, violation of his right to counsel, failure of

the District Court to conduct a hearing to examine

whether improper jury contact occurred, and improper

admission of his prior record in light of the Supreme

Court’s decision in Old Chief v. United States, ___ U.S.

___, 117 S.Ct. 644 (1997). We affirm the convictions.

There was an Old Chief error, but we think it was

harmless.
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I.

On August 6, 1996, police in Brooklyn Center,

Minnesota, received a 911 call from an apartment in

Brooklyn Center. The caller identified herself as

Lachonda Williams and said she was being held against her

will. When the police arrived at the apartment, they

were met at the door by Jerry Lee Cunningham, the

defendant, who attempted to prevent the police from

entering the apartment. At trial, one of the officers

testified that he could hear a woman crying inside the

apartment. The police explained that it was necessary

for them to enter the apartment to investigate the call.

The defendant refused to permit the officers to enter the

apartment, and he was arrested for obstructing legal

process.

Once inside, the police observed a woman, later

identified as Sheila Hatchett, sitting in a chair on top

of another woman, later identified as Ms. Williams, who

was holding a young child. Ms. Williams got out from

underneath Ms. Hatchett, and the police took Ms. Williams

into a rear bedroom to interview her. Ms. Williams told

the police that Mr. Cunningham, who is her father, had

assaulted her because he believed she had stolen $5,000

in cash from him. Ms. Williams also told the police that

she had seen a large amount of crack cocaine in the

apartment that day. She told the police that the

defendant supplied drugs to Ms. Hatchett, that he had

sold drugs at a bar in North Minneapolis, and that he

carried weapons when he did so. While interviewing Ms.

Williams in the bedroom, the police observed rolling

papers and currency. Ms. Williams told the police that
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she had heard Ms. Hatchett tell the defendant that the

police had been called, and that Ms. Hatchett had moved

the crack cocaine and guns from the apartment to her car.

Ms. Williams identified the car for the police, and it

was impounded and towed to the police department. The

police later obtained a warrant and searched the car,

finding 142 grams of crack cocaine, 22.8 grams of powder

cocaine, and three handguns.

Later, at the police station, Mr. Cunningham was

informed of his Miranda rights
 There is no evidence that Mr. Cunningham asked for privacy while making 1

the calls. According to the detective, there was no private telephone available, but

defendant would have been given a private place in which to meet with his lawyer if

he had reached the lawyer by phone.

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before being interviewed by a detective. Shortly after

the interview began, the defendant told the detective

that he wanted to contact an attorney. The detective

placed several calls for the defendant in an effort to

locate his attorney. According to the detective, the

defendant made a series of arguably incriminating

statements to the persons on the telephone and to the

detective himself, who had remained in the room. The

1

detective testified that the defendant said, among other

things, that he could “do five to seven years standing on

his head”; that if there was any “heat” to be taken he

would take it; that he and another person were the last

ones to use the car; and that, because the streets

weren’t safe, he always carried a gun. In addition, the

detective testified that when he responded to the

defendant’s statement that he could do five to seven

years standing on his head by saying that he must not be

familiar with federal sentencing practices related to

drug and weapons charges, the defendant said, “Oh yeah,

the guns in the car.” 

The police later searched the apartment pursuant to

a warrant. This search led to the seizure of ammunition,

several items of drug paraphernalia with crack and powder

cocaine residue, and documents linking the defendant to

the car and the apartment.

A jury convicted the defendant of possession of
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cocaine base with intent to distribute (Count I) in

violation of 21 U.S.C. § 841(b)(1)(A), conspiracy to

possess with intent to distribute cocaine base (Count II)

in violation of 21 U.S.C. § 846, being a felon in

possession of a firearm (Count IV) in violation of 18

U.S.C. § 922(g)(1), and possession of a firearm with an

obliterated serial number (Count VII) in violation of 18

U.S.C. § 922(k). The jury could not reach a verdict on

another felon-in-possession-of-
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a-firearm count and two other counts alleging possession

of a firearm with an obliterated serial number, and the

District Court declared a mistrial as to those counts.

The Court sentenced Mr. Cunningham to 360 months on

Counts I and II (the bottom of the Guidelines range), 120

months on Count IV, and 60 months on Count VII, all terms

to run concurrently. The Court also ordered five years’

supervised release and a special assessment of $400.

This appeal follows.

II.

The Fourth Amendment protects citizens from

unreasonable searches and seizures. Mr. Cunningham

argues that this right was violated when the police

entered all of the rooms of the apartment and observed

the rolling papers and currency in the rear bedroom.

This evidence led, at least in part, to the impoundment

and search of the car, which in turn supported the

warrant police obtained to search the apartment.

Defendant argues that the evidence seized should be

suppressed because its discovery was the result of a

Fourth Amendment violation.

Although we review the facts supporting a District

Court’s denial of a motion to suppress for clear error,

we review de novo the legal conclusions that are based

upon those facts. See United States v. Ornelas, ___ U.S.

___, ___, 116 S.Ct. 1657, 1663 (1996); United States v.

Williams, 981 F.2d 1003, 1005 (8th Cir. 1992). When

applying this standard, we give deference to the fact

finder, who had an opportunity to observe the demeanor

and credibility of the witnesses. United States v.
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Wallraff, 705 F.2d 980, 987 (8th Cir. 1983).

A warrantless search may be justified by exigent

circumstances, which exist where the safety of law

enforcement officers or others is threatened. Warden v.

Hayden, 387 U.S. 294, 298-99 (1967). The defendant

acknowledges that the police had a right to enter the

apartment to investigate the 911 call but argues that

there was no basis for entering every room of the

apartment, since he had already been arrested,
 The Hon. John M. Mason, United States Magistrate Judge for the District 2

of Minnesota.

 The Hon. Richard H. Kyle, United States District Judge for the District of 3

Minnesota.

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and no other danger was present. The Supreme Court has

said, however, that the Fourth Amendment permits a

properly limited protective sweep in connection with an

in-home arrest if an officer reasonably believes that the

area to be swept harbors an individual posing a danger to

those at the arrest scene. Maryland v. Baie, 494 U.S.

325, 337 (1990). The officer’s belief must be based on

specific and articulable facts. Id. Following Mr.

Cunningham’s arrest, the police identified Ms. Williams as

the 911 caller and walked through the apartment to

identify any threat to themselves or Ms. Williams. The

Magistrate Judge, finding that the officers had grounds to

2

conduct a cursory inspection of the apartment for any

additional suspects who might have been restraining Ms.

Williams against her will, held that the search of the

apartment did not violate defendant’s Fourth Amendment

rights because the officers had a legitimate reason to be

where they were. We believe this conclusion, adopted by

the District Court, was correct. The officers’ protective

3

sweep of the apartment was not unreasonable and did not

violate the Fourth Amendment.

Mr. Cunningham also argues that the search of the car

and the apartment violated his Fourth Amendment rights.

Both searches were conducted pursuant to warrants, and

there was ample evidence to support the warrants. In

addition to the testimony of the officers who sought the

warrants, there was Ms. Williams’s statement that she had

seen a large amount of cocaine inside the apartment, and
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that it had been moved, along with the currency and guns,

to the car. The defendant argues the police had little

more than a suspicion that the car contained evidence

related to a crime and should not have relied on Ms.

Williams’s statement without corroborating it because she

was motivated to retaliate against her father for

assaulting her. This argument is without merit. Although

police officers must remain alert to the possibility that

a witness is not telling the truth,
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we believe it was reasonable for the officers to rely on

her statements.

III.

Mr. Cunningham next argues that testimony heard by the

jury about statements he made to the detective while they

were attempting to contact defendant’s attorney violated

his right to counsel. For the reasons that follow, this

argument is also without merit.

The crux of the argument is that Robert Dirks, the

detective who interviewed the defendant, prodded the

defendant into incriminating himself after he had invoked

his Miranda right to counsel. Mr. Dirks did this,

according to the defendant, by dialing the telephone for

the defendant, by remaining in the booking room with him

while he spoke to several people in an effort to locate

his attorney’s telephone number, and by saying several

things to the defendant between the calls. The defendant

relies on Rhode Island v. Innis, 446 U.S. 291 (1980),

which held that, in addition to express questioning,

interrogation means “any words or actions on the part of

the police (other than those normally attendant to arrest

and custody) that the police should know are reasonably

likely to elicit an incriminating response from the

suspect.” Id. at 301 (footnotes omitted).

There is disagreement on the question of whether Mr.

Cunningham made an unequivocal request to speak to an

attorney. He argues, and the Magistrate Judge found, that

he did. The government disputes this finding, arguing

that, at most, what the defendant said to the detective

was that he had requested an attorney earlier. We need

not decide whether the defendant made an unequivocal
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request for an attorney. We know that the detective

attempted to assist Mr. Cunningham in locating an

attorney, so we will assume, for purposes of analysis,

that Mr. Cunningham’s request was sufficient to invoke the

right to counsel.
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The central issue is whether Detective Dirks’s

statements to the defendant amounted to impermissible

interrogation following a request for an attorney by a

defendant in custody. The detective made several

statements to the defendant while they sought to locate

the defendant’s attorney. The defendant specifically

cites two statements by the detective as evidence that he

was trying to engage the defendant in conversation after

he had invoked his right to counsel. The first is the

detective’s statement, made immediately before the

defendant reached Ms. Hatchett in an effort to get the

attorney’s telephone number, that the detective wanted to

interview her. The detective testified that the

defendant, in the course of telling Ms. Hatchett that the

detective wanted to interview her, told Ms. Hatchett that

she was not in trouble, that Mr. Dirks was “cool,” and

that she should get an attorney and come in to see Mr.

Dirks. Mr. Dirks testified that the defendant also said

to Ms. Hatchett during this telephone call that he could

“do five to seven years standing on his head,” that he

would “take the heat,” and that he and “Hassan” were the

last ones to have the car.

Mr. Dirks’s second statement was made while the two

were waiting for the attorney to call back. The defendant

said his daughter had stolen money from him and that he

was going to “do” her and make big headlines. He also

repeated his earlier comment about being able to “do five

to seven years standing on his head.” Mr. Dirks responded

to this statement by saying that the defendant had

obviously not been through the federal system, because

five to seven years would not be consistent with the

penalties for weapons and drug violations. The defendant

responded, “Oh yeah, the guns in the car.” Mr. Dirks, who

testified to all of the incriminating statements cited,
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testified that he had not yet told the defendant about the

guns having been found during the search of the car

earlier that day.

We do not believe it is reasonable to infer that Mr.

Dirks made these two statements because he knew they would

likely prod the defendant into incriminating himself.

Further, we find nothing in the record to suggest that

Detective Dirks should have known that his statements were

reasonably likely to elicit an incriminating
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response from Mr. Cunningham. In the first statement, Mr.

Dirks simply asked the defendant to pass along a message

to Ms. Hatchett. In the second statement, Mr. Dirks was

responding to something the defendant had said. The

defendant’s statements were not the product of police

interrogation. Mr. Cunningham initiated the conversation,

and his statements were volunteered. The detective merely

listened to him, and nothing prohibits the use of the

defendant’s statements against him.

IV.

Defendant’s next argument is that the District Court

abused its discretion by refusing to conduct a hearing

into possible improper jury contact and by preventing the

defense from conducting its own investigation into the

alleged improper contact. Shortly after the jury began

its deliberations, defendant’s counsel was approached by

a man in the hallway outside the courtroom who asked

whether he was involved in the trial. Counsel said that

he was one of the attorneys, and the man asked him whether

the jury had reached a verdict. Counsel told the man that

the jury had just begun deliberating, and the man said he

was the husband of one of the jurors and was there to pick

her up. The lawyer told the man he could not discuss the

case further and reported the incident to the District

Court. Counsel for the government informed the Court that

the same man had earlier approached one of the police

officers who testified, introduced himself as the husband

of one of the jurors, and told the officer that he knew

the officer’s father.

The defendant asked the District Court to hold an

immediate hearing to examine whether any contact with a

juror had occurred. Under Remmer v. United States, 347
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U.S. 227 (1954), a district court may hold a hearing to

determine whether any private communication, contact, or

tampering with a juror has occurred in a criminal case

and, if so, whether such incident has prejudiced the

defendant. Improper contact with a juror about a matter

pending before the jury is presumptively prejudicial. Id.

at 229. The District Court refused to hold a hearing, but

instructed the jurors that they were not
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to discuss the case with others, including family members.

Following the verdict, defendant renewed his request for

a Remmer hearing. The District Court again denied the

request for a hearing, but allowed the defendant to submit

written motions.

Counsel for the defendant submitted an affidavit

recounting the events involving the juror’s husband and

citing several grounds in support of his motion for a

hearing or new trial. Defendant argued that a juror’s

spouse who is aggressive enough to approach and initiate

a conversation with a government witness could have had

undue and extraneous contact with his juror wife during

the two to two-and-a-half-hour drive the couple made twice

a day to and from the courthouse. He also argued that,

since the juror’s spouse claimed to have known the

government witness’s father, it was likely that the juror

herself knew the same person, and this could have tainted

the juror’s perception of the officer’s testimony to the

prejudice of the defendant or, perhaps, meant that the

juror had concealed this fact during voir dire. Finally,

defendant argued that the presence of the juror’s spouse

in and around the courtroom may have imparted a sense of

urgency to the juror to reach a decision quickly.

The District Court, finding the defendant had not

established that there had been any improper contact with

the jury, held that the defendant was not entitled to a

hearing or a new trial. The Court wrote that the

defendant’s allegations were “mere speculation” and that

no evidence had been produced that showed that “any

improper contact [had] occurred with any juror.” United

States v. Jerry Lee Cunningham, No. 3-96-105, Mem. and

Order at 5 (D. Minn., Dec. 30, 1996). We review a

district court’s denial of a Remmer hearing and a motion
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for a new trial for abuse of discretion. United States v.

Caldwell, 83 F.3d 954, 955 (8th Cir. 1996). Here,

defendant has not established whether any contact even

occurred, much less whether the alleged contact was in any

way improper, and he has offered no credible evidence that

the District Court abused its discretion in denying the

motion for a hearing or a new trial.
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V.

Mr. Cunningham also argues that the District Court

abused its discretion when it permitted the government to

introduce evidence of the nature of three prior felonies

after he had offered to stipulate to his status as a felon

for purposes of the felon-in-possession-of-a-firearm

count. Citing then-current law, the Court denied the

defendant’s motion in limine that sought to require the

government to accept the stipulation and to prevent it

from introducing evidence of defendant’s convictions for

attempted murder, armed robbery, and burglary. At trial,

the government offered certified copies of each

conviction. After defendant was convicted, the Supreme

Court decided Old Chief v. United States, ___ U.S. ___,

117 S.Ct. 644 (1997). Old Chief held that a district

court abuses its discretion when it rejects a defendant’s

offer to stipulate his status as a felon under a Section

922(g)(1) offense and instead admits the full record of a

prior judgment of conviction, if evidence concerning the

name or nature of the prior conviction increases the risk

of a verdict tainted by improper considerations. Id. at

647. The government does not dispute that the District

Court abused its discretion by admitting evidence of Mr.

Cunningham’s prior felony convictions (though the Court’s

action was, at the time, fully consistent with our cases).

The government does argue, however, that the error was

harmless, and this Court has held that harmless-error

analysis is appropriate where a district court has abused

its discretion in violation of Old Chief. See United

States v. Horsman, 114 F.3d 822, 827 (8th Cir. 1997). The

issue we must decide, therefore, is whether the error was

harmless.

We recently held in United States v. Blake, 107 F.3d
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651 (8th Cir. 1997), that reversal is required if it

cannot be concluded that the jury may not have been

substantially swayed by the improperly admitted evidence.

Id. at 653. The government asserts that the evidence

against Mr. Cunningham was overwhelming. We have read the

entire transcript of the trial. The evidence was very

strong. Crack and powder cocaine and three semiautomatic

weapons with obliterated serial numbers were found
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in the car. Drug paraphernalia containing cocaine residue

were found in the apartment. Currency, ammunition, and

documents linked Mr. Cunningham to the apartment and the

car. There was Ms. Williams’s testimony. There were the

defendant’s own incriminating statements. And Mr.

Cunningham’s fingerprint (but no one else’s) was found on

one of the bags of crack cocaine. It is our opinion that

the Old Chief error was harmless.

VI.

Oral argument in this case was heard on October 21,

1997. On December 18, 1997, Mr. Cunningham filed a motion

requesting leave to file a supplemental brief. He asks us

to direct his counsel to brief two new issues, neither of

which has previously been raised, either below or in this

Court, or to grant him leave to brief them pro se. He

also moves us to hold this appeal in abeyance for the time

it will take for the two new issues to be briefed by both

sides. These motions are denied. This case has been

fully briefed and argued. The time for filing briefs is

long past. We have already allowed the filing of one set

of supplemental briefs (raising the Old Chief issue). Our

action is without prejudice to Mr. Cunningham’s right to

file a petition for post-conviction relief under 28 U.S.C.

§ 2255.

Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT