United States Court of Appeals

For the Eighth Circuit

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No. 22-2539

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United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Darnell Andre Dunn,

lllllllllllllllllllllDefendant - Appellant.

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Appeal from United States District Court 

for the District of Minnesota

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 Submitted: May 11, 2023

Filed: August 9, 2023

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Before SMITH, Chief Judge, COLLOTON and BENTON, Circuit Judges. 

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COLLOTON, Circuit Judge.

A jury convicted Darnell Dunn of unlawful possession of a firearm as a felon. 

See 18 U.S.C. § 922(g)(1). The district court* determined that Dunn had three prior

convictions for a “violent felony,” and sentenced him to the statutory minimum

*The Honorable Michael J. Davis, United States District Judge for the District

of Minnesota. 
sentence of 180 months’ imprisonment. See 18 U.S.C. § 924(e). Dunn asserts error

during trial and at sentencing, but we affirm the judgment. 

I.

Dunn was apprehended and charged after a shooting in St. Paul, Minnesota. 

Early one morning, Brittney Jones left a friend’s house to drive home. A dark sport

utility vehicle suddenly drove in front of Jones and pulled over to the side of the road. 

The occupants of the SUV then began to fire a gun at Jones’s car. 

Jones drove away and fled on foot. She hid in a bush and called the police. 

Officer Dustin Sweeney responded to the area of the shooting. 

Sweeney saw a black SUV driving without headlights. He stopped the vehicle

and found three people inside. Dunn was in the front passenger seat and identified

himself as “Andre Jones England.” Due to a mix-up in communication from the

dispatcher, however, Sweeney thought the suspect vehicle bore Nebraska license

plates, so he released the SUV carrying Dunn when the plates did not match the

description. Sweeney later discovered the mistake, but could not locate information

about a person named “Andre Jones England.” 

The next night, Sweeney was on patrol and entered a gas station in St. Paul. 

He saw a car parked halfway out of a designated space and blocking traffic. Two men

sat in the car; the passenger appeared to be the man from the black SUV who

identified himself as “Andre Jones England” the night before. 

Sweeney walked to the passenger side of the car and directed the passenger to

get out of the vehicle. The occupants initially refused to comply, but the passenger

eventually exited the vehicle. A second officer observed that the passenger “was also

sliding his bottom along the seat to try to conceal the firearm that he was sitting on.” 

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The firearm, a .40 caliber semiautomatic handgun, fell to the floor of the car. A crime

scene investigator later determined that the firearm was the same gun that fired shots

at Jones the night before. 

The passenger was identified as Dunn, and the driver was Dunn’s cousin, Justin

Lindsey. Both were convicted felons. A grand jury charged both men with unlawful

possession of a firearm as a felon. See 18 U.S.C. § 922(g)(1). 

Lindsey pleaded guilty. At his plea hearing, Lindsey testified that he owned

the firearm, but did not know that the gun had been used in a shooting on the night

before his arrest. Lindsey claimed that he purchased the gun on the morning of his

arrest “from a person [he knew] through a person.” Lindsey said that Dunn did not

know the gun was in the car, and that he “threw the gun to Dunn and told him to put

it into the glove compartment” during the encounter with Officer Sweeney. 

Lindsey was unavailable to testify at Dunn’s trial, but Dunn sought to introduce

Lindsey’s testimony from the plea hearing to show that he, Dunn, did not knowingly

possess a firearm in Lindsey’s car. The district court ruled that Lindsey’s testimony

was inadmissible hearsay and excluded it. 

At trial, the government theorized that the shooting at Brittney Jones was a

“gang shooting” at which Dunn was present, and cross-examined Dunn about his

membership in the Crips street gang. The prosecution suggested that the shooter in

the black SUV mistook Jones for a rival gang member, because she was operating a

rental car in the early morning hours in the “heart” of gang territory. Dunn denied

that he was a member of the Crips, and denied any involvement in the shooting at

Jones. The government, however, introduced a post from Dunn’s Facebook account

in which Dunn identified himself as a Crips gang member. 

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The jury found Dunn guilty of the firearm charge. At sentencing, the district

court determined that Dunn was an armed career criminal under 18 U.S.C. § 924(e),

because he had sustained three previous convictions for a violent felony. The court

then sentenced Dunn to 180 months’ imprisonment. 

II.

A.

Dunn first argues that the district court erred by excluding testimony from

Lindsey’s plea hearing that exculpated Dunn. Lindsey invoked his right under the

Fifth Amendment to avoid testifying at Dunn’s trial, so he was “unavailable” as a

witness. See Fed. R. Evid. 804(a)(1). Dunn argues that Lindsey’s testimony from the

plea hearing was admissible under the rules of evidence either as “former testimony”

or as a “statement against interest.” We review the district court’s ruling for abuse

of discretion. United States v. Johnson, 108 F.3d 919, 922 (8th Cir. 1997). 

Rule 804(b)(1) provides that an unavailable witness’s testimony from a prior

hearing is not excluded by the rule against hearsay if the party against whom the

testimony is offered had “an opportunity and similar motive to develop [the

testimony] by direct, cross-, or redirect examination.” The government’s motive at

the plea hearing, however, was only to establish a factual basis for Lindsey’s guilty

plea, and to ensure that the plea that was knowing and voluntary. See Fed. R. Crim.

P. 11(b). The government had no motive to develop Lindsey’s testimony about

whether Dunn knowingly possessed the firearm, because Dunn’s involvement was

immaterial to the validity of Lindsey’s guilty plea. See United States v. Preciado, 336

F.3d 739, 746 (8th Cir. 2003). The district court correctly declined to admit

Lindsey’s testimony from his plea hearing under Rule 804(b)(1). 

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Rule 804(b)(3) provides that a “statement against interest” is not excluded by

the rule against hearsay. A statement in a criminal case qualifies as one against

interest if (a) a reasonable person would have made the statement only if he believed

it to be true, because the statement exposed the person to criminal liability, and (b)

the statement is supported by corroborating circumstances that clearly indicate its

trustworthiness. Only those portions of a declarant’s statement that tend to expose

him to criminal liability are admissible under the rule. Williamson v. United States,

512 U.S. 594, 599-600 (1994).

The district court explained that once Lindsey decided to plead guilty, Dunn’s

culpability for possessing a firearm did not affect Lindsey’s criminal liability. 

Lindsey’s statements tending to exculpate Dunn were thus not against Lindsey’s

penal interest. The district court also did not err in concluding that Lindsey’s

statements about Dunn were neither corroborated nor trustworthy. As the court

observed, Lindsey had a “clear motivation to lie to exonerate” his cousin. Lindsey’s

credibility suffered when he could not identify the person from whom he supposedly

purchased the gun on the morning of the arrest: “like I told you, I bought the gun

through a person that I knew, through . . . a mutual person that I knew.” The district

court did not abuse its discretion in declining to admit Lindsey’s prior statements

under Rule 804(b)(3). 

Dunn also contends that the district court should have admitted Lindsey’s

statements under Federal Rule of Evidence 807, the “residual exception” to the rule

against hearsay. The district court did not err, however, in concluding that Lindsey’s

statements lacked the “sufficient guarantees of trustworthiness” required by the rule. 

As discussed, Lindsey’s statements were not supported by corroborating

circumstances indicating their trustworthiness, and there were sound reasons to doubt

his credibility. The court properly declined to admit the evidence under Rule 807. 

See United States v. Jackson, 335 F.3d 170, 179 (2d Cir. 2003). 

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B.

Dunn next contends that the district court abused its discretion in allowing the

government to cross-examine Dunn about his membership in the Crips gang. The

parties dispute whether Dunn properly objected, but we will assume for sake of

analysis that the issue is not forfeited, and thus review for abuse of discretion. Dunn

argues that the gang evidence was proof of “other crimes, wrongs, or acts” for which

the government was required to provide advance notice. See Fed. R. Evid. 404(b)(3). 

The district court properly determined that the disputed gang evidence was

intrinsic to the crime charged, and thus not governed by Rule 404(b). See United

States v. Battle, 774 F.3d 504, 511 (8th Cir. 2014). Intrinsic evidence “tends logically

to prove any element of the crime charged,” and is “admissible as an integral part of

the immediate context of the crime charged.” United States v. Jackson, 913 F.3d 789,

792 (8th Cir. 2019) (internal quotation omitted).

Here, the government was required to prove that Dunn knowingly possessed

a firearm. The indictment alleged that Dunn possessed a gun in the car with Lindsey

at the time of their arrest. But “[p]rior possession of a firearm is directly relevant to

proving later possession of that same weapon because it helps establish ownership or

control of the weapon.” Battle, 774 F.3d at 511. The evidence showed that the gun

seized from Lindsey’s car was the same firearm fired at Brittney Jones one day

earlier. The government’s theory was that Dunn or another person in the black SUV

with Dunn fired at Jones, and the gang evidence explained why they would have done

so. The gang evidence thus tended to make it more likely that Dunn possessed the

firearm the night before. Possession of the same gun the night before was relevant

to Dunn’s knowing possession of the gun in the car with Lindsey. Therefore, the

gang evidence was intrinsic to the crime charged and not subject to Rule 404(b). 

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The district court also properly declined to exclude the gang evidence under

Rule 403 after concluding that the probative value of the evidence was not

substantially outweighed by a danger of unfair prejudice. Evidence of Dunn’s gang

membership was relevant to a disputed issue; its primary effect was not to prejudice

Dunn unfairly by showing association with unsavory characters. See United States

v. Gaines, 859 F.3d 1128, 1131 (8th Cir. 2017). Dunn’s knowledge of the gun was

a disputed issue at trial, and the court was not required to exclude evidence that bore

on that question. 

C.

Dunn also maintains that his conviction under 18 U.S.C. 922(g)(1) is overly

broad and violates his constitutional right to keep and bear arms under the Second

Amendment. Dunn forfeited this argument in the district court, so we review only for

plain error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc). 

Nothing in the Supreme Court’s decision recognizing an individual right to keep and

bear arms “should be taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons.” District of Columbia v. Heller, 554 U.S. 570, 626

(2008). Following New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct.

2122 (2022), this court concluded that the felon-in-possession statute is

constitutional, and there is “no need for felony-by-felony litigation regarding the

constitutionality of § 922(g)(1).” United States v. Jackson, 69 F.4th 495, 502 (8th

Cir. 2023), petition for reh’g filed, No. 22-2870 (8th Cir. July 14, 2023). There is

thus no plain error in applying the statute to Dunn. See also United States v. Voelz,

66 F.4th 1155, 1164 (8th Cir. 2023). 

D.

Dunn raises two challenges to his sentence as an armed career criminal under

18 U.S.C. § 924(e)(1). First, he asserts that he did not have three prior convictions

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for a “violent felony.” He acknowledges two such convictions, but disputes the

district court’s conclusion that his conviction for third-degree assault in 2008 in

Minnesota also counted. Dunn argues that the assault was an “act of juvenile

delinquency” under § 924(e), because he committed the offense as a juvenile. 

The record shows, however, that Dunn was convicted of third-degree assault

in Minnesota state court as an adult. An adult conviction for a violent felony is not

an “act of juvenile delinquency,” even if the offender committed the offense while

under the age of eighteen. United States v. Ronning, 6 F.4th 851, 854 (8th Cir. 2021). 

The district court thus did not err in concluding that Dunn’s conviction for thirddegree assault was a violent felony under § 924(e). 

Dunn argues for the first time on appeal that the district court erred by finding

without a jury that his three violent felonies were “committed on occasions different

from one another.” Under circuit precedent, however, the Sixth Amendment does not

preclude a sentencing judge from determining whether offenses were committed on

“different occasions,” so there was no plain error. United States v. Robinson, 43

F.4th 892, 896 (8th Cir. 2022); United States v. Harris, 794 F.3d 885, 887 (8th Cir.

2015); United States v. Evans, 738 F.3d 935, 936 (8th Cir. 2014) (per curiam). 

Even if there were error, Dunn could not show prejudice. Dunn did not object

to information in the presentence report that he committed a third-degree assault in

December 2007 on a city bus, a robbery in August 2009, and a second-degree assault

in 2012. Those facts are thus admitted. United States v. Menteer, 408 F.3d 445, 446

(8th Cir. 2005) (per curiam). A single factor, especially of time or place, can

decisively differentiate occasions. Wooden v. United States, 142 S. Ct. 1063, 1071

(2022). Even if a jury finding were required, there is no reasonable probability that

a jury would have found that any of these three prior offenses from different years

were committed on the same occasion. There is no plain error warranting relief.

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* * *

The judgment of the district court is affirmed.

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