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 an d
wea pons charges after a jury trial. He appeals hi s convictionon four principal grounds: illegal search and seiz ure, violation of his right to counsel, failure o f the District Court to conduct a hearing to examin e whet her improper jury contact occurred, and imprope r admis sionof his prior record in light of the Suprem e Court’s de cision in Old Chief v. United States , ___ U.S.

___, 1 17 S.Ct. 644 (1997). We affirm the convictions

. There was an Old Chief error, but we think it wa s harmless.-2- I.

On August 6, 1996, police in Brooklyn Center , Minne sota, received a 911 call from an apartment i n Broo klynCenter. The caller identified herself a s Lachonda Williams and said she was being heldagainst her will. When the police arrived at the apartment, the y were met at the door by Jerry Lee Cunningham, th e defe ndant, who attempted to prevent the police fro m enteri ng the apartment. At trial, one of the officer s testif iedthat he could hear a woman crying inside th e apar tment. The police explained that it was necessar y for them t o enter the apartment to investigate the call. The defendant refused to permit the officers to enter the apar tment, and he was arrested for obstructing lega l process.

Once inside, the police observed a woman, late r identifiedas Sheila Hatchett, sitting in a chair on top of another woman, later identified as Ms. Williams, wh o was h olding a young child. Ms. Williams got out fro m underneath Ms. Hatchett, and the police took Ms. Williams into a rea r bedroom to interview her. Ms. Williams told the po lice that Mr. Cunningham, who is her father, ha d assaulted her because he believed she had stolen $5,00 0 in cash from him. Ms. Williams also told the police that she h ad seen a large amount of crack cocaine in th e apartment that day. She told the police that th e defenda nt supplied drugs to Ms. Hatchett, that he ha d sold drugs at a bar in North Minneapolis, and that h e carried weapons when he did so. While interviewing Ms

. Will iams in the bedroom, the police observed rollin g papers and currency. Ms. Williams told the police tha t-3-

she ha d heard Ms. Hatchett tell the defendant that th e police had been called, and that Ms. Hatchett had move d the crack cocaine and guns from the apartment to her car. Ms. Wi lliams identified the car for the police, and i t
was impounded and towed to the police department. Th e police later obtained a warrant and searched the car , finding 14 2 grams of crack cocaine, 22.8 grams of powder cocaine, and three handguns.

Later, at the police station, Mr. Cunningham wa s informed of his Miranda rightsThere 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.
-4- before being interviewed by a detective. Shortly afte r the interview began, the defendant told the detectiv e that he wanted to contact an attorney. The detectiv e placed several calls for the defendant in an effort t o locate his attorney. According to the detective, th e defendant made a series of arguably incriminatin g state ments to the persons on the telephone and to th e det ective himself, who had remained in the room. Th e 1 detective testified that the defendant said, among other things, that he could “do five to seven years standing on his h ead”; that if there was any “heat” to be taken h e would take it; that he and another person were the las t
on es to use the car; and that, because the street s weren’t sa fe, he always carried a gun. In addition, the dete ctive testified that when he responded to th e de fendant’s statement that he could do five to seve n years stan ding on his head by saying that he must not be famil iar with federal sentencing practices related t o drug and weapons charges, the defendant said, “Oh yeah , the guns in the car.”

The police later searched the apartment pursuant t o a warrant. This search led to the seizure of ammunition, several items of drug paraphernalia with crac k and powder
coca ine residue, and documents linking the defendant t o the car and the apartment.

A jury convicted the defendant of possession o f-5-

cocai ne base with intent to distribute (Count I) i n viol ationof 21 U.S.C. § 841(b)(1)(A), conspiracy t o possess with intent to distribute cocaine bas e (Count II) in vi olation of 21 U.S.C. § 846, being a felon i n posse ssionof a firearm (Count IV) in violation of 1 8 U.S.C. § 922(g)(1), and possession of a firearm with a n obliterate d serial number (Count VII) in violation of 18 U.S .C. § 922(k). The jury could not reach a verdict o n another felon-in-possession-of--6-

a-firearm count and two other counts alleging possession of a fi rearm with an obliterated serial number, and th e Dist rict Court declared a mistrial as to those counts

. The C ourt sentenced Mr. Cunningham to 360 months o n Counts I and II (the bottom of the Guidelines range), 120 months on Count IV, and 60 months on Count VI I, all terms to run con currently. The Court also ordered five years’ supe rvisedrelease and a special assessment of $400

. This appeal follows.

II.

The Fourth Amendment protects citizens fro m unr easonable searches and seizures. Mr. Cunningha m argue s that this right was violated when the polic e entere dall of the rooms of the apartment and observe d th e rolling papers and currency in the rear bedroom

. This ev idence led, at least in part, to the impoundmen t
an dsearch of the car, which in turn supported th e warrant police obtained to search the apartment

. Defe ndant argues that the evidence seized should b e
su ppressedbecause its discovery was the result of a Fourth Amendment violation.
Although we review the facts supporting a Distric t Court’s denial of a motion to suppress for clear error , we rev iew de novo the legal conclusions that are base d upon those facts. See United States v. Ornel as , ___ U.S.

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

. Will iams , 981 F.2d 1003, 1005 (8th Cir. 1992). Whe n applyin g this standard, we give deference to the fac t find er, who had an opportunity to observe the demeano r and c redibility of the witnesses. United States v

.-7-

Wallraff , 705 F.2d 980, 987 (8th Cir. 1983).

A warrantless search may be justified by exigen t circ umstances, which exist where the safety of la w enforcemen t officers or others is threatened. Warden v. Hayde n , 387 U.S. 294, 298-99 (1967). The defendan t ackno wledges that the police had a right to enter th e apartme nt to investigate the 911 call but argues tha t there was no basis for entering every room of th e 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.
-8- and no ot her danger was present. The Supreme Court ha s said, however, that the Fourth Amendment permits a proper lylimited protective sweep in connection with a n in-home arrest if an officer reasonably believes that the area to be swep t 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 o n spe cific and articulable facts. Id . Following Mr

. Cunningham’s arrest, the police identified Ms. Wil liams as the 91 1 caller and walked through the apartment t o identify any threat to themselves or Ms. Williams. Th e Magistrate Judge, finding that the officers had grounds t o 2 condu ct a cursory inspection of the apartment for any additi onal suspects who might have been restraining Ms

. Williams against her will, held that the search of th e apartment did not violate defendant’s Fourth Amendmen t rights because the officers had a legitimate reason to be wh ere they were. We believe this conclusion, adopted by the District Court, was correct. The officers’ protectiv e 3 sweep of the apartment was not unreasonable and did no t violate the Fourth Amendment.
Mr. Cunningham also argue s that the search of the car and th e apartment violated his Fourth Amendment rights

. Both s earches were conducted pursuant to warrants, an d there wa s ample evidence to support the warrants. I n ad ditionto the testimony of the officers who sought th e warrants, there was Ms. Williams’s statement that she had
se ena large amount of cocaine inside the apartment, an d-9-

that it had bee n moved, along with the currency and guns, to th e car. The defendant argues the police had littl e more than a suspicion that the car contained evidenc e relatedto a crime and should not have relied on Ms

. Williams’s stat ement without corroborating it because she
was mo tivated to retaliate against her father fo r assaulting her. This argument is without merit. Although police officers must remain alert to the possibility that a witness is not telling the truth,-10-

we believe it was reasonable for the officers to rely o n her statements.

III.

Mr. Cunningham next argues that testimony heard by th e jury about stat ements he made to the detective while they
we re attempting to contact defendant’s attorney violate d his right to counsel. For the reasons that follow, thi s argument is also without merit.

The crux of the argument is that Robert Dirks, th e dete ctive who interviewed the defendant, prodded th e defendant into incriminating himself after he had invoked his M iranda right to counsel. Mr. Dirks did this , acco rding to the defendant, by dialing the telephone fo r th e defendant, by remaining in the booking room with hi m while he spoke to several people in an effort to locat e his at torney’s telephone number, and by saying severa l things to the d efendant between the calls. The defendant relies o n Rhode Island v. Innis , 446 U.S. 291 (1980) , which held that, in addition to express questioning , in terrogationmeans “any words or actions on the part o f the police (oth er than those normally attendant to arrest and cus tody) that the police should know are reasonabl y likelyto elicit an incriminating response from th e suspect.” Id . at 301 (footnotes omitted).

Th ere is disagreement on the question of whether Mr

. Cunni nghammade an unequivocal request to speak to a n attorney. He argues, and the Magistrate Judge fou nd, that he did. The government disputes this finding, arguin g that, at most, what the defendant said to the detectiv e
was t hat he had requested an attorney earlier. We nee d not de cide whether the defendant made an unequivoca l-11-

request for an attorney. We know that the detectiv e attemp tedto assist Mr. Cunningham in locating a n at torney, so we will assume, for purposes of analysis , that Mr. Cunningham’s request was sufficient to invoke the right to counsel.-12-

The central issue is whether Detective Dirks’ s state ments to the defendant amounted to impermissibl e in terrogationfollowing a request for an attorney by a defend ant in custody. The detective made severa l stateme nts to the defendant while they sought to locat e the d efendant’s attorney. The defendant specificall y cites two state ments by the detective as evidence that he
was trying to engage the defendant in conversation afte r he had invoked his right to counsel. The first is th e detective’s statement, made immediately before th e defendant reached Ms. Hatchett in an effort to get th e attorney’s tele phone number, that the detective wanted to interv iewher. The detective testified that th e defendant, in t he course of telling Ms. Hatchett that the detective wante d to interview her, told Ms. Hatchett that she was not in trouble, that Mr. Dirks was “cool,” an d th at she should get an attorney and come in to see Mr

. Di rks. Mr. Dirks testified that the defendant also sai d to Ms. Hatchett during this telephone call that he coul d “do five to seven years standing on his head,” that h e would“take the heat,” and that he and “Hassan” were th e last ones to have the car.

Mr. D irks’s second statement was made while the tw o were waiting for the attorney to call back. The d efendant said his daughter had stolen money from him and that h e wa s going to “do” her and make big headlines. He als o repeated his ea rlier comment about being able to “do five to seven years standing on his head.” Mr. Dirks r esponded to thi s statement by saying that the defendant ha d obviou slynot been through the federal system, becaus e five to seven years would not be consistent with th e penalties for w eapons and drug violations. The defendant responded, “Oh yeah, the guns in the car.” Mr. Di rks, who testif iedto all of the incriminating statements cited ,-13-

testified that he had not yet told the defendant a bout the guns h aving been found during the search of the ca r earlier that day.

We do not believe it is reasonable to infer that Mr

. Dirks made these two statements because he knew th ey would likel yprod the defendant into incriminating himself

. Further, we find nothing in the record to suggest tha t Detective Dirks should have known that his stateme nts were reasonably likely to elicit an incriminating-14-

response from Mr. Cunningham. In the first statem ent, Mr. Di rks simply asked the defendant to pass along a messag e to Ms. Hatchett. In the second statement, Mr. Dirks wa s responding to something the defendant had said. Th e defend ant’s statements were not the product of polic e interrogation. Mr. Cunningham initiated the conve rsation, and his statements were volunteered. The detectiv e merely listened to him, and nothing prohibits the use of th e defendant’s statements against him.

IV.

Def endant’s next argument is that the District Cour t ab usedits discretion by refusing to conduct a hearin g into possible i mproper jury contact and by preventing the defens e from conducting its own investigation into th e alleged improper contact. Shortly after the jury bega n it s deliberations, defendant’s counsel was approached by a man i n the hallway outside the courtroom who aske d whether he was involved in the trial. Counsel said tha t 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 ju st begun deliberating, and the man said he was the husband of one of the jurors and was there to pick her up. The la wyer told the man he could not discuss the
ca se further and reported the incident to the Distric t Court. Counsel for the government informed the Co urt that the same man had earlier approached one of the polic e officers who te stified, introduced himself as the husband of one of the jurors, and told the officer that he kne w the officer’s father.

The defendant asked the District Court to hold a n immedia te hearing to examine whether any contact with a juror had occurred. Under Remmer v. United States , 34 7-15-

U.S. 227 (1954), a district court may hold a hearing t o de termine whether any private communication, contact, o r tampering with a juror has occurred in a criminal cas e and, if so, whether such incident has prejudiced th e de fendant. Improper contact with a juror about a matte r pending before the jury is presumptively prejudici al. Id

. at 229. The District Court refused to hold a hear ing, but instructed the jurors that they were not-16-

to discuss the case with others, including family members. Follow ing the verdict, defendant renewed his request fo r a Remmer hearing. The District Court again denied th e request for a hearing, but allowed the defendant t o submit written motions.

Counsel for the defendant submitted an affidavi t
recoun ting the events involving the juror’s husband an d citing s everal grounds in support of his motion for a hearing or new trial. Defendant argued that a juror’ s spou se who is aggressive enough to approach and initiat e
a conve rsation with a government witness could have ha d undue a nd extraneous contact with his juror wife durin g the two to two-and-a-half-hour drive the couple ma de twice
a day to and from the courthouse. He also argued that , since the juror’s spouse claimed to have known th e government witn ess’s father, it was likely that the juror herself knew th e same person, and this could have tainted the juror’s perception of the officer’s testimony to th e pr ejudice of the defendant or, perhaps, meant that th e juror had conce aled this fact during voir dire. Finally, defe ndant argued that the presence of the juror’s spous e inand around the courtroom may have imparted a sense o f urgency to the juror to reach a decision quickly.

The District Court, finding the defendant had no t established tha t there had been any improper contact with the j ury, held that the defendant was not entitled to a heari ng or a new trial. The Court wrote that th e de fendant’s allegations were “mere speculation” and tha t
no evidence had been produced that showed that “ any impr oper contact [had] occurred with anyjuror.” Unite d St ates v. Jerry Lee Cunningham , No. 3-96-105, Mem. an d Order at 5 (D. Minn., Dec. 30, 1996). We review a di strict court’s denial of a Remmer hearing and a motio n-17-

for a new trial for abuse of discretion. United S tates v. Caldw ell , 83 F.3d 954, 955 (8th Cir. 1996). Here , defend ant has not established whether any contact eve n occurred, much less whether the alleged contact wa s in any way improper, and he has offered no credible evide nce that the Dis trict Court abused its discretion in denying th e motion for a hearing or a new trial.-18--19- V.

Mr. Cunningham also argues that the District Cour t abused its disc retion when it permitted the government to intr oduce evidence of the nature of three prior felonie s after he had offered to stipulate to his status as a felon for purposes of the felon-in-possession-of-a-firear m count

. Citing then-current law, the Court denied th e defenda nt’s motion in limine that sought to require th e go vernment to accept the stipulation and to prevent i t fr omintroducing evidence of defendant’s convictions fo r attempted murde r, armed robbery, and burglary. At trial, the g overnment offered certified copies of eac h convic tion. After defendant was convicted, the Suprem e Court decided Old Chief v. United States , ___ U.S. ___ , 117 S .Ct. 644 (1997). Old Chief held that a distric t court abuses it s discretion when it rejects a defendant’s offer to stipulate his status as a felon under a Sectio n 922(g)(1) offen se and instead admits the full record of a prior judgment of conviction, if evidence concerning th e name or nature of the prior conviction increases the risk of a verdict tainted by improper considerations. Id . a t 647. The government does not dispute that the Distric t Cour t abused its discretion by admitting evidence of Mr

. Cunningham’s pr ior felony convictions (though the Court’s action was, at the time, fully consistent with our cases). Th e government does argue, however, that the error wa s harmle ss, and this Court has held that harmless-erro r analysis is app ropriate where a district court has abused its disc retion in violation of Old Chief . See Unite d States v. Horsman , 114 F.3d 822, 827 (8th Cir. 199 7). The issue we must d ecide, therefore, is whether the error was harmless.

We recently held in United States v. Blake , 107 F.3 d-20-

651 (8t h Cir. 1997), that reversal is required if i t cannot be concluded that the jury may not have bee n substantially s wayed by the improperly admitted evidence. Id

. at 6 53. The government asserts that the evidenc e against Mr. Cunningham was overwhelming. We have read the entire transcript of the trial. The evidence was ver y strong. Crack and powder cocaine and three semiautomatic weapons with obliterated serial numbers were found-21-

in the car. Drug paraphernalia containing cocaine residue
were f ound in the apartment. Currency, ammunition, an d docu ments linked Mr. Cunningham to the apartment and th e car. There was Ms. Williams’s testimony. There were the de fendant’s own incriminating statements. And Mr

. Cunningham’s fi ngerprint (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 c ounsel to brief two new issues, neither of which has previ ously been raised, either below or in this Court, or to grant him leave to brief them pro se . H e also moves us to hold this appeal in abeyance for the time it will take fo r the two new issues to be briefed by both sides

. These motions are denied. This case has bee n fullybriefed and argued. The time for filing briefs i s long past. We have already allowed the filing of one set of supplemental briefs (raising the Old Chief issu e). Our acti onis without prejudice to Mr. Cunningham’s right t o file a petition for post-conviction relief under 2 8 U.S.C. § 2255.

Affirmed.

A true copy.

Attest:

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