1

The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska, sitting by designation.

2

The Honorable James E. Gritzner, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2521

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Michael Anthony Dock, *

* [UNPUBLISHED]

Defendant - Appellant. *

___________

Submitted: January 13, 2010

Filed: January 19, 2010

___________

Before MURPHY and BYE, Circuit Judges, and STROM,1

 District Judge.

___________

PER CURIAM.

Michael Dock was convicted of possessing an unregistered sawed off shotgun

in violation of the National Firearms Act. 26 U.S.C. § 5861(d). The district court2

sentenced him to 51 months imprisonment. Dock contends on appeal that the court

erred by denying his motion to dismiss under the Speedy Trial Act and by refusing to
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suppress evidence. He also challenges the sufficiency of the evidence underlying his

conviction. We affirm.

In the context of a Speedy Trial Act claim, we review the district court's

findings of fact for clear error and its legal conclusions de novo. United States v.

Titlbach, 339 F.3d 692, 698 (8th Cir. 2003). The periods of delay Dock complains of

resulted primarily from continuances and other pretrial motions sought by his own

counsel and are excludable under the act. See 18 U.S.C. § 3161; United States v.

Yerkes, 345 F.3d 558, 561 (8th Cir. 2003). The remaining period of delay was caused

by Dock's failure to return to a halfway house and subsequent arrest on state robbery

charges, also excludable under the act. 18 U.S.C. § 3161(h)(1), (3)(A). The district

court did not err by denying Dock's motion for dismissal. 

Dock argues that the district court erred by denying his motion to suppress the

shotgun and his statements to police. Dock asserts that the shotgun was seized as the

result of an illegal stop and that the arresting officers failed to give him a Miranda

warning. On appeal from the denial of a motion to suppress, we review the district

court's factual findings for clear error and its legal conclusions de novo. United States

v. El-Alamin, 574 F.3d 915, 923 (8th Cir. 2009). The record shows that officers

attempted to pull over a vehicle driven by Dock after observing him driving

erratically. Dock refused to pull over and jumped from the vehicle while it was still

moving. A footchase ensued and Dock was apprehended. A passenger who also fled

the vehicle was not caught. After Dock was secured, Officer Michael Demoss

discovered the sawed off shotgun in the front seat of the vehicle. The butt of the gun

was in the driver's footwell, while the barrel pointed over to the passenger's side. 

The district court denied Dock's motion to suppress the shotgun on the basis

that the gun was lawfully seized under the plain view exception to the warrant

requirement. The plain view exception “allows a police officer to seize evidence

without a warrant when (1) the officer did not violate the Fourth Amendment in
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arriving at the place from which the evidence could be plainly viewed, (2) the object’s

incriminating character is immediately apparent, and (3) the officer has a lawful right

of access to the object itself.” United States v. Abumayyaleh, 530 F.3d 641, 648–49

(8th Cir. 2008); see also United States v. Bynum, 508 F.3d 1134, 1137 (8th Cir. 2007)

(“[n]either probable cause nor reasonable suspicion is necessary for an officer to look

through a window (or open door) of a vehicle so long as he or she has a right to be in

close proximity to the vehicle.”). Based on his observation of Dock’s erratic driving,

the hit and run accident, and his attempt to flee, Officer Demoss had a lawful basis for

his presence near the vehicle. Dock left the door of his vehicle open when he fled the

police so Demoss had a clear view of the front seat. The sawed off shotgun’s

incriminating nature was immediately apparent and admissible under the plain view

doctrine. The district court did not err in denying Dock’s motion to suppress. 

We also reject Dock's argument with respect to his Miranda warnings. The two

arresting officers testified that Dock was advised of his Miranda rights before

questioning. The district court credited the officers' testimony, and we defer to the

court's finding on credibility. United States v. Lockett, 393 F.3d 834, 837–38 (8th

Cir. 2005). Given the officers' testimony, the court's finding that Dock received

Miranda warnings before questioning is not clearly erroneous. United States v. Terry,

400 F.3d 575, 579 (8th Cir. 2005). Dock's statements were not obtained in violation

of Miranda.

Finally Dock asserts that there was insufficient evidence to prove that he

possessed the unregistered sawed off shotgun. The scope of our review is quite

limited when considering the sufficiency of the evidence underlying a jury verdict.

We will uphold the verdict if "there is any interpretation of the evidence that could

lead a reasonable minded jury to find the defendant guilty beyond a reasonable doubt."

United States v. Brown, 560 F.3d 754, 769 (8th Cir. 2009).
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The government presented testimony from the arresting officers, who testified

that they discovered the shotgun only minutes after Dock jumped from the vehicle

The jury saw photographs of the position of the gun in the vehicle. The jury also

heard testimony from Dock's cellmate, who testified that Dock had told him that he

knew the shotgun was in the car, that he had used it earlier that night in a robbery, and

that he left it in the car when he fled because it was too heavy to carry. Dock

challenges the credibility of this testimony, arguing that his cellmate was an unreliable

witness. Ultimately, however, the jury appears to have credited the testimony, and it

is not our charge on appeal to second guess the jury's credibility determinations. See,

e.g., United States v. Wesseh, 531 F.3d 633, 637 (8th Cir. 2008); see also United

States v. Bower, 484 F.3d 1021, 1026 (8th Cir. 2007) (we have "repeatedly upheld

jury verdicts based solely on the testimony of co-conspirators and cooperating

witnesses."); United States v. Williams, 512 F.3d 1040, 1044 (8th Cir. 2008)

("[p]ossession may be actual or constructive and need not be exclusive."). There was

sufficient evidence presented for a jury to conclude that Dock possessed the

unregistered sawed off shotgun. 

 

Accordingly, the judgment of the district court is affirmed.

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