Category: 4th Amendment

Fish scares away burglar

If you live near a lake, or know someone who does, you may have have come across the talking bass that hangs on the wall known as Billy Bass. While this wall mount has been know to annoy people, this may be the first time it has scared someone. The police in Minnesota believe the talking fish scared away a would be burglar. You can read the story here.

The would be burglar should still be careful. Even though he/she may not have taken anything, the crime may have already occurred. Minnesota Statute Section 609.582 defines Burglary. Burglary in the first degree, which is what the Bill Bass allegation is if this was a dwelling and the homeowner or another person was inside the house somewhere, is outlined in Subdivision 1: “Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to a payment of a fine of not more than $35,000, or both if: (a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building; (b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or (c) the burglar assaults a person within the building or on the building’s appurtenant property.

If you have been charged with a crime, call the Flanagan Law Office at 651-200-3484 for a free consultation

Woman makes sexual advances toward airline passenger

Recently a woman flying from Baltimore to Salt Lake City, Utah had a few too many drinks before boarding a plane. The woman allegedly asked the man seated next to her for sex. The woman became belligerent and abusive when the man turned her down. The plane made an emergency landing at the Minneapolis/St. Paul International airport where she was turned over to airport police. A passenger with a cell phone captured the scene on video. You can read about the incident and watch the video by clicking here.

With Spring break around the corner and people looking to escape the winter, it is important for airline passengers to remember that being disruptive on a plane may result in federal charges. Federal law makes it illegal to interfere with the flight crew. Assaulting a crew member is governed by 49 U.S.C. § 46504.

Actions that do not amount to a physical assault may still result in significant civil penalties. Such actions may be offensive or disruptive behavior, blocking a flight attendant from walking down the aisle, failing to return to your seat, or a variety of matters. Disruptive behavior is covered under 14 C.F.R. §§ 91.11, 121.580, 135.120.

The safest way to avoid criminal charges while on a plane is to obey the crew member’s instructions. Do not raise your voice at a crew member, or make threats. Ask to speak to the flight attendant in charge if you believe that the crew member you are dealing with is in the wrong. Finally, unless rendering aid, never touch a crew member. If you believe that you were treated unfairly, or the crew was out of line, wait until the end of the flight and you may then file a complaint against the crew member with the airline, or at this site with the Department of Transportation’s Aviation Consumer Protection Division.

Here are a few of penalties disruptive passengers expose themselves to:

Assault. Assaulting a crew member is punishable by up to 20 years’ imprisonment, and a fine of up to $250,000. If a dangerous weapon is used, the defendant can be imprisoned for life. 18 U.S.C. § 3571, 49 U.S.C. § 46504.

Interference. The maximum civil penalty for interfering with a crew member is a fine of up to $25,000. 49 U.S.C. § 46318.

Search warrant needed before searching cell phone contents

The Minnesota Court of Appeals finds that we do have an expectation of privacy for the contents of our cell phones.  This requires law enforcement to obtain a search warrant before looking at our cell phone’s contents.

Click here to read the case in its entirety.

State v Barajas (Minnesota Court of Appeals, 07-23-2012, A11-0983, Clay Co)

The Police went to a vacant apartment and found Defendant trespassing on the property.  After search, Police found methamphetamine in the apartment, a cell phone on the kitchen counter and two cell phones on the defendant’s person.   Police took the cell phones and looked at the photographs on the cell phone without first obtaining a search warrant.  After finding the photographs, law enforcement then decided to seek a signed consent to search, a waiver of the search warrant requirement.

At the trial, the prosecution was allowed to introduce photographs taken from the cell phones.  The photographs showed defendant with a lot of money. Defendant was convicted and sent to prison for First Degree possession with intent to sell.

Defendant appealed the decision.  The Court of Appeals decided that Defendant has an expectation of privacy in the contents of the phone.   This does not end the analysis as to whether a search warrant is required.  The Court then considers whether that expectation of privacy is recognized as reasonable by society. The Court analyzes that while the Defendant did not have an expectation of privacy as to himself since he was a trespasser, he still had an expectation of privacy in the concealed contents of the phone.  In other words, the discovery of the telephones does not need a search warrant, but in order to look at the telephone’s contents, a warrant is required.  The Court says a cell phone that conceals its contents is consistent with constitutionally protected containers. Therefore, the police were required to get a search warrant to get the photographs.

The Court then discussed the Consent to search element.  Consent to search is an exception to the warrant requirement. The State argued and the trial court found that the unlawful search of the telephone without a warrant was cured by the consent the Defendant signed. The Appellate court disagreed with the trial court and found that the consent was not freely and voluntarily given in these circumstances.

This is all great news for making the sure the government does not invade our privacy without their actions being reviewed and not allowing the government to violate our 4th amendment Rights.  However, it was not enough for Defendant Barajas to have his conviction overturned, as the Court found there was enough other evidence to convict him.


Knowledge that you are carrying a gun into a public place required before a conviction

Most people assume that in order to commit a crime the person must have knowledge that their act is criminal.  This criminal intent is known as mens rea in Latin.  Without such knowledge, the crime is essentially strict liability.  Do the act, even if you had no idea that you were committing a criminal act, and you are guilty.    While this does not seem fair, our legislature to show they are tough on crime has created several crimes where knowledge of a certain element is not required for a conviction.  In the Minnesota Supreme Court case of State v. Ndikum, The Court noted that such statutes that do not require criminal intent are disfavored.  Furthermore, where a statute does not specifically exclude criminal intent, then the State is required to prove knowledge of the criminal act with proof beyond a reasonable doubt before a Defendant may be convicted.  Read below for a summary of this case and click here to read the entire opinion.

State v Ndikum (SUP CT, 07-11-2012, A10-1728, Hennepin Co)

Possession of Pistol, Elements, Knowing Possession, MS 624.714

Defendant is an attorney who lawfully purchased a pistol. As instructed, he only carried the pistol between office and home. However, one day he went to court and the pistol was in his briefcase.

At trial, the Defendant said he didn’t know the pistol was in the briefcase.  The Defendant asked for a jury instruction that required the State to prove he had knowledge that the gun was in his briefcase when he brought the brief case to court.

The Trial court granted the jury instruction on the felony count, but refused to give the instruction on the gross misdemeanor count.  After jury deliberations, the Defendant was found not guilty on the felony, but guilty on the gross misdemeanor count.

On appeal, the court of appeals reversed the conviction and the State appealed the reversal to the State Supreme Court.  The Minnesota Supreme Court affirmed the  reversal of conviction. In their Opinion, the Minnesota Supreme Court notes that offenses that do not require no mens rea are disfavored.   (As a side note, Mens Rea means “guilty mind” Latin.  In more common language, As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and willfulness.) In making its decision, The Minnesota Supreme Court also notes that when a statute is silent as to mens rea, as the statute is here, that is not enough to not require mens rea as an element for the State to prove beyond a reasonable doubt at trial.

Marijuana grow using electricity from the grid results in thermal imaging search and a Federal conviction

In 2001, the United States Supreme Court decided Kyllo v. United States, 533 U.S. 27 (2001). In this case, the Court ruled that a search warrant is needed before the government can use thermal imaging to see inside our homes. Apparently, Mr. McIntyre, in the case below, must have thought that meant they can not ever use thermal imaging to look inside our homes. In this case, increased electricity use led to probable cause to grant a Search Warrant allowing for the use of thermal imaging. Perhaps Mr. McIntyre should have used solar panels to generate his electricity?

United States Court of Appeals
FOR THE EIGHTH CIRCUIT___________No. 10-3111
United States of America,
Appellee, Appeal from the United States
v. District Court for the District of Nebraska.
David McIntyre,
Submitted: March 18, 2011
Filed: July 27, 2011
Before SMITH, BRIGHT, and SHEPHERD, Circuit Judges.
SMITH, Circuit Judge.

David McIntyre conditionally pleaded guilty to knowingly and intentionally manufacturing and attempting to manufacture 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1), reserving the right to appeal the district court’s denial of his motion to suppress. On appeal, McIntyre argues that the district court erroneously failed to suppress (1) a county attorney subpoena, (2) thermal imaging search warrants, and (3) a search warrant of his residence. We affirm.

Background On December 8, 2008, Nebraska State Patrol (NSP) Investigator Jason Sears and Nebraska State Trooper Lueders contacted McIntyre outside of his residence in Fremont, Nebraska, investigating a missing-person case. McIntyre had purchased from a person of interest in that case a trailer, which might have been used to dispose of a vehicle. Investigator Sears questioned McIntyre about the trailer, and McIntyre invited the officers into his residence while he looked for the trailer’s title. As Investigator Sears walked by the vehicle parked in the driveway, he noticed a pen tube in the ashtray, which he thought was a “tooter” used to ingest controlled substances.

While inside the residence, Investigator Sears smelled a strong odor of raw marijuana, resulting in symptoms that he described as an allergic reaction to the odor. Investigator Sears also noted that McIntyre was visibly nervous when talking about the trailer, and McIntyre’s hands shook as he handed the trailer title papers to Investigator Sears. McIntyre said that the trailer was loaded with wood and was either at his cabin in Crofton, Nebraska, or at Mark Narke’s residence. McIntyre stated that he only visited his cabin one
or two weekends per month. McIntyre called Narke and told him to take the trailer to Narke’s residence in Santee, Nebraska, and unload the wood. He told Narke to have the trailer at the residence before NSP officers arrived.
Inspector Sears overheard the telephone conversation between McIntyre and Narke. Later that day, Investigator Sears and Trooper Lueders drove to Narke’s residence and inspected the trailer. It was empty. Narke declared his ignorance of anything being loaded on the trailer. With Narke’s permission, the officers inspected the trailer and the buildings on the property and found nothing unusual.

On January 9, 2009, at 7:00 a.m., Investigator Sears and Cedar County Sheriff Larry Koranda drove past McIntyre’s Crofton residence to determine whether there was a garage at the residence, and, if so, whether the garage could hold a pickup truck—an object in the missing-person investigation. They saw an Oldsmobile backed up to a garage door. When they returned to
the residence at 1:00 p.m., the Oldsmobile was gone. The officers viewed the garage. Investigator Sears noticed a hanging shingle on the garage, a small hose protruding from under the garage door, and a strong odor of raw marijuana near the garage. Again, the odor of the marijuana caused
Investigator Sears to suffer symptoms that he described as an allergic reaction.

Subsequently, Investigator Sears retrieved McIntyre’s arrest record and found two prior drug-related arrests from 1981 and 2003. Based upon the smell of raw marijuana and McIntyre’s criminal history, Investigator Sears decided to obtain and examine McIntyre’s electricity usage records. He called the Cedar-Knox Public Power District and asked General Manager Daniel Leise for the electricity usage records for the Crofton residence. Leise informed Investigator Sears that he needed a subpoena to obtain the records. NSP Investigator Douglas Kelley contacted the Knox County Attorney and obtained a county attorney’s subpoena for electricity usage records for the Crofton residence. After Investigator Sears presented Leise with the subpoena, Leise gave Investigator Sears a single sheet of electrical usage for the past three years. The document showed a huge spike in electrical usage for November 2008. This apparent spike, however, was later shown to be inaccurate because the reported number actually reflected usage for November and December 2008. Leise told Investigator Sears that the usage seemed higher than that of neighboring properties and informed Investigator Sears that if further records were needed, Leise could obtain them. Investigator Sears made no further requests. On January 14, 2009, Investigator Kelley applied for a thermal imaging warrant for the Crofton residence and submitted an affidavit in support of the warrant. In the search-warrant affidavit, Investigator Kelley cited Investigator Sears’s allergic reaction to the smell of raw marijuana at both of McIntyre’s residences, McIntyre’s drug arrest history, the electrical usage record, the “tooter” observed in McIntyre’s truck at the Fremont residence, and information about the use of thermal imaging in locating marijuana-growing operations.

A Knox County judge issued the thermal imaging warrant the same day. That evening, Investigator Kelley executed the warrant. The warrant was returned to the court with a recording of thermal imagery showing more electrical usage in the garage than in the living areas of the Crofton residence.

On January 15, 2009, Investigator Kelley sought and obtained a second thermal imaging warrant for the Crofton residence. According to Investigator Kelley, he obtained the second warrant to compare readings from other residences in the area. Investigator Kelley testified that he told the issuing Knox County judge that he intended to obtain information from nearby homes for comparison purposes but did not include that information in the affidavit. This warrant was executed and returned with a recording of thermal imagery showing that greater heat was generated in the living areas in the neighboring residences than their accompanying garages.

Based on the information set forth in the thermal imaging search-warrant affidavits and the thermal imagery obtained as a result of the warrants, on January 16, 2009, Investigator Kelley sought and obtained a search warrant for the Crofton residence. In executing the warrant, officers discovered a marijuana-growing operation and seized it. That same day, a search warrant was also issued for McIntyre’s Fremont residence, but officers found no evidence of illegality.

Discussion On appeal, McIntyre asserts that the district court erred by not suppressing (1) the county attorney subpoena, (2) thermal imaging search warrants, and (3) a search warrant of his Crofton residence.
“On appeal of a motion to suppress, we review the district court’s legal
conclusions de novo and factual findings for clear error.” United States v. Frasher,632 F.3d 450, 453 (8th Cir. 2011).
County Attorney Subpoena McIntyre argues that the district court erred in not suppressing the subpoena duces tecum by which the NSP received electricity usage records for the Crofton residence. According to McIntyre, he had an expectation of privacy in those records because they contained intimate details about the interior of his home. Consequent, he maintains that investigators should have obtained these records via a search warrant. Additionally, McIntyre contends that he has a state statutorily-protected
privacy interest in the electrical usage at his residence.
Reasonable Expectation of Privacy “The touchstone of Fourth Amendmen
t analysis is whether a person has a constitutionally protected reasonable expectation of privacy.” California v. Ciraolo, 476 U.S. 207, 211 (1986) (quotation and citation omitted). The Supreme Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. United States v. Miller, 425 U.S. 435, 443 (1976) (holding that bank depositor has nolegitimate expectation of privacy in copies
of checks and deposit slips retained by his bank); cf. Couch v. United States, 409 U.S. 322, 335 (1973) (“[T]here can be little expectation of privacy where records are handed to an accountant, knowing that mandatory disclosure of much of the information therein is required in an income tax
return.”); Smith v. Maryland, 442 U.S. 735, 744 (1979) (holding that “[w]hen [defendant] used his phone, [he] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business”).

Here, Investigator Sears served the Cedar-Knox Public Power District—a third party—with the county attorney subpoena. “Because it is well-settled that ‘the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities[,]’ [McIntyre’s] claim[] fail[s].” United States v. Hamilton, 434 F. Supp. 2d 974, 979 (D. Or. 2006) (holding defendant lacked reasonable expectation of privacy in his utility records, meaning law enforcement officer did not need probable cause to obtain records because information contained in the records was voluntarily revealed by defendant to utility company, a
third-party recipient) (quoting Miller, 425 U.S. at 443). But McIntyre
argues that power records are different. He relies on Kyllo v. United
States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) for the
proposition that a person has a reasonable expectation of privacy in his
power records because the information from the records is legally indistinguishable from the power information protected by the Fourth
Amendment in Kyllo. Id. at 980. We reject McIntyre’s argument and conclude that [t]he manner in which the information was obtained in Kyllo
(a thermal-imaging device), however, bears no resemblance to obtaining
power data from a third party by way of [a county attorney] subpoena.
Crucial to the Kyllo holding was the intrusion on the home by
“sense-enhancing technology . . . not in general public use.” Id. at 34, 121 S. Ct. 2038. Thus, while the information obtained may be similar, the means to obtaining the information is legally significant and defeats [McIntyre’s] argument. Instead, Smith v. Maryland, a case in the Miller line, is on point. There the court held that “[w]hen [defendant] used his phone, [he] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business” and therefore did not have an objectively reasonable expectation of privacy.

Section 25-1273 provides: When the discovery rules promulgated by the Supreme Court authorize discovery from a nonparty without a deposition, a subpoena shall be issued by the clerk of the court before whom the action is pending upon request of a party. An attorney as an officer of the court may also issue and sign such a subpoena on behalf of a court in which the attorney is authorized to practice. The subpoena shall be served in the time and manner required by the discovery rules. Such discovery rules shall not expectation of privacy in that information. Smith, 442 U.S. at 744, 99 S. Ct. 2577. Similarly, when [McIntyre] used power in his home, he voluntarily conveyed that information to [Cedar-Knox Public Power District]. As a result, he had no reasonable expectation of privacy in his power records. Id.;
see also United States v. Porco, 842 F. Supp. 1393, 1398 (D. Wyo. 1994)
(rejecting defendants’ argument that “they had an expectation of privacy in the records of their electrical usage kept by Rural Electric because Rural Electric would not voluntarily disclose a person’s electric usage” because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by the third party to government authorities, even if the information is revealed to the third party confidentially and on the assumption that it will be used only for limited
purposes”); Samson v. State, 919 P.2d 171, 173 (Alaska Ct. App. 1996) (finding no reasonable expectation of privacy in power consumption utility records).
State Statutorily-Protected Privacy Interest Additionally, McIntyre argues that he has a statutorily-protected privacy interest in his electrical usage at his Crofton residence under Nebraska Revised Statute § 70-101. According to McIntyre, authorities also “breached the very process [they] cited
as authority in [their] efforts to obtain the records”—Nebraska Revised Statute § 25-1273. He argues that the government failed to demonstrate that any of the discovery rules authorized discovery from a nonparty in this case, as required by § 25-1273.

And, he contends that, while the subpoena claims that Nebraska Rule of Civil Discovery 34A grants the issuing county attorney the “authority” to issue it, the rule applies to civil cases, not criminal cases. Here, Knox County Attorney John Thomas issued the subpoena duces tecum, under the purported authority of § 25-1273, commanding Cedar-Knox Public Power
District to provide “[a] true and complete copy of all electricity usage records and reports” for the Crofton residence. (Emphasis added.) McIntyre argues that he has a statutorily-protected interest in these usage records under § 70-101, which provides: Notwithstanding any other provision of law regarding confidentiality of records, every district or corporation organized under Chapter 70 shall, upon request, furnish to any county attorney, any authorized attorney as defined in section 42-347, or the Department of Health and Human Services a utility service subscriber’s name, social security number, and mailing and residence addresses only for the purposes of establishing and collecting child, spousal, and medical support and of conducting reviews under sections 43-512.12 to 43-512.18.
Such information shall be used for no other purpose. An action may be filed in district court to enforce this section. For purposes of this section, utility service shall mean electrical, gas, water, telephone, garbage disposal, or waste disposal service. (Emphasis added.) As the district court explained, McIntyre’s “argument that § 70-101 provides an expectation of privacy by restricting the dissemination to the county attorney of utility subscriber information is deficient because that statute relates only to identifying information and not to usage records.” United States v. McIntyre, 683 F. Supp. 2d, 438 U.S. 154 (1978).
1020, 1026 (D. Neb. 2010) (emphasis added). Therefore, we conclude that McIntyre’s Fourth Amendment rights were not violated by law enforcement’s use of the subpoena, and a search warrant was unnecessary to obtain the usage records.

We also reject McIntyre’s argument that the subpoena was deficient because it was not served in compliance with § 25-1273 or Nebraska Rule of Civil Discovery 34A. As the district court explained, “[regardless of these issues, the county attorney has subpoena power, under the circumstances present here, pursuant to Neb. Rev. Stat.§ 86-2,112.” Id. at 1033. Section 86-2, 112 states that “any county attorney may. . . require the production of records . . .
which constitute or contain evidence relevant or material to the investigation or enforcement of the laws of this state when it reasonably appears that such action is necessary and proper.” And, even if state law was violated,
“state law violations do not necessarily offend the Federal Constitution.”
United States v. Burtton, 599 F.3d 823, 828 (8th Cir. 2010) (quotation and citation omitted). “Thus, when a federal court must decide whether to exclude evidence obtained through an arrest, search, or seizure by state
officers, the appropriate inquiry is whether the arrest, search, or seizure violated the Federal Constitution, not whether the arrest, search, or seizure violated state law.” Id. (quotation and citation omitted). For the reasons set forth supra in Part A.1, we hold that no Fourth Amendment violation occurred.
Thermal Imaging Search Warrants McIntyre also argues that the district court erred in denying his motion to suppress the thermal imaging search warrants and request for a Franks hearing because the one-page utility record that Investigator Sears received and referenced in his supporting affidavit contained false information, as it improperly combined electrical usage for November and December 2008 and referred to that sum as only electrical usage for November 2008. According to McIntyre, this fact alone should
have entitled him to a Franks hearing to determine the search warrant’s veracity. He also asserts that Investigator Kelley falsely indicated in his supporting affidavit that he had obtained “records” and “reports” regarding McIntyre’s utility usage when, in fact, he had only obtained a one-page report.
McIntyre contends that this false information constitutes a misrepresentation that should have entitled him to a Franks hearing. According to McIntyre, once the false information is omitted from the affidavit, the remaining portions of the affidavit do not establish probable cause. “We review the denial of a Franks hearing for abuse of discretion.” United States v. Kattaria
, 553 F.3d 1171, 1177 (8th Cir. 2009) (en banc) (per curiam). To obtain relief under Franks, “a defendant must first demonstrate that the law enforcement official deliberately or recklessly included a false statement, or omitted a truthful statement from his warrant affidavit.” United States v. Carpenter, 422 F.3d 738, 745 (8th Cir. 2005) (citation omitted). Next, the defendant must show that the affidavit would not establish probable cause if the allegedly false information is ignored or the omitted information is supplemented. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001).
Allegations of negligence or innocent mistake will not suffice to demonstrate reckless or deliberate falsehood. Franks, 438 U.S. at 171, 98 S. Ct. 2674; United States v. Davis, 471 F.3d 938, 946 (8th Cir. 2006). Recklessness, however, may be “inferred from the fact of omission of information from an affidavit . . . when the material omitted would have been ‘clearly critical’ to the finding of probable cause.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) (citation omitted). United States v. Mashek, 606 F.3d 922, 928 (8th Cir. 2010) (emphasis added). In determining if “an affiant’s statements were made with reckless disregard for the truth,” the test “is whether, after viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” United States v. Butler, 594 F.3d 955, 961 (8th Cir. 2010). “A showing of deliberate or reckless falsehood is not lightly met.” Id. (quotation and citation omitted). Here, the alleged falsehoods “do not meet the ‘substantial preliminary showing’ required by Franks.” United States v. Crissler, 539 F.3d 831, 834 (8th Cir. 2008). First, as to the utility record’s inaccurate accounting of the November 2008 usage, there is no evidence to support a finding that Investigator Sears and Investigator Kelley had reason to believe or knew that the report that Cedar-Knox Public Power District provided to them erroneously combined November 2008 and December 2008 usage. McIntyre has failed to show that the investigators “had obvious reasons to
doubt the accuracy of the information” that the public utility company provided to them. Butler, 594 F.3d at 961. Second, as to Investigator Kelley’s reference to “reports” and records” in the affidavit when, in fact, he only had a one-page report, to the extent that this statement is inaccurate, there is no evidence that Investigator Kelley deliberately or recklessly made the statement or that the statement was material. See Mashek, 606 F.3d at 928.
The number of documents or pages in the utility usage report mattered little to the merit of the affidavit. Furthermore, the one-page report that the Cedar-Knox Public Power District provided was a summation of over three years
of kilowatt usage. Therefore, we hold that the district court did not err in failing to grant McIntyre’s request for a Franks hearing and accordingly need not address whether the remaining portions of the supporting affidavit would support a probable cause finding. United States v. Curry, 911 F.2d 72, 76 (8th Cir. 1990) (“We need not address this second issue because, with respect to both alleged falsehoods, [the defendant’s] offers of proof were insufficient to meet the first Franksrequirement.”).
Crofton Residence Search Warrant Finally, McIntyre argues that the search
warrant for his Crofton residence is “fruit of the poisonous tree” stemming from the county attorney subpoena and thermal imaging warrants. According to McIntyre, “[t]he affidavit and resulting search warrant
for the Crofton residence was the culmination of the subpoena for electrical records and the thermal warrants. Removing or excising either of the proceeding [sic] investigative tools defeats the crescendo of probable cause established by the previous warrants and/or subpoena.” McIntyre’s assertion that the district court erred by declining to suppress the search warrant of his Crofton residence is based on his arguments that the district court should have suppressed the county attorney subpoena and thermal imaging search warrants. Because we have already rejected these arguments, see supra Parts
A–B, his “‘fruit of the poisonous tree’ argument fails.” See United States v. Martinez, 462 F.3d 903, 910 (8th Cir. 2006). And, our independent review
of the record confirms that the search warrant for the Crofton residence was supported by probable cause. “Our role is to ensure that the evidence as a whole provides a substantial basis for finding probable cause to support the issuance of the search warrant” for [McIntyre’s] residence. United States v. Terry, 305 F.3d 818, 822 (8th Cir. 2002). “Whether probable cause . . . has been established is determined by considering the totality of the circumstances, and resolution of the question by an issuing judge ‘should
be paid great deference by reviewing courts.'” United States v. Grant,
490 F.3d 627, 631 (8th Cir. 2007), cert. denied, ___U.S. ___, 128 S. Ct.
1704, 170 L. Ed. 2d 516 (2008) (quoting Illinois v. Gates, 462 U.S. 213,
236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). “When the affidavit supporting the search warrant sets forth facts sufficient to create a fair probability that evidence of a crime will be found in the place to be searched, probable cause exists.” Terry, 305 F.3d at 822. “Accordingly,
we examine the sufficiency of a search-warrant affidavit using a ‘common sense’ and not a ‘hypertechnical’ approach.” Grant, 490 F.3d at 632 (quoting United States v. Solomon, 432 F.3d 824, 827 (8th Cir.2005)). United States v. McArthur, 573 F.3d 608, 613 (8th Cir. 2009). Here, considering the totality of the circumstances, probable cause existed to issue the search warrant for the Crofton residence. First, the supporting affidavit set forth Investigator Sears’s encounter with McIntyre on December 8, 2008, at the
Fremont residence where Investigator Sears saw a pen tube—a “tooter” believed to be used to ingest controlled substances—in the ash tray of McIntyre’s vehicle. While at the Fremont residence, Investigator
Sears observed McIntyre’s unusual and extremely nervous behavior and smelled raw marijuana at the residence. Second, the affidavit reported that on January 9, 2009, Investigator Sears smelled a strong odor of raw marijuana outside the garage of the Crofton residence and saw a small hose
coming out from under the garage door. Third, the affidavit recounts Investigator Kelley’s discovery of McIntyre’s previous drug arrests. Fourth, the affidavit explains that Investigator Sears obtained the electricity usage records for the Crofton residence, which was “unusually high for [a] person that lived at the residence continuously.” Finally, the affidavit recounts Investigator Kelley’s knowledge, from training and experience, that “thermal imagery i[s] an investigative tool used by law enforcement to assist in the detection of indoor marijuana grow operations, whereas grow operations produce large amounts of heat from the grow lights.” The affidavit then
explains that the two thermal imagery readings of the Crofton residence showed, respectively, a higher heat signature emanating from the garage
area than from the living quarters of the home and from comparable residences in McIntyre’s neighborhood.
Accordingly, we affirm the judgment of the district court.

Is carrying a gun on private property reasonable suspicion for a stop and search?

Carrying a gun in a private yard is not suspicion of criminal activity and does not give police a reason to stop or search you.

Read below to see how our Constitution limits the ability for law enforcement to search you and how probable cause to believe that you are committing a crime, which allow for a stop and search, is determined.

814 N.W.2d 716 (2012)
STATE of Minnesota, Respondent,
THENG YANG, Appellant.
No. A11-1008.
Court of Appeals of Minnesota.
June 18, 2012.
Lori Swanson, Attorney General, St. Paul, MN; and John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, MN, for respondent.
Jodie L. Carlson, Assistant Public Defender, St. Paul, MN; and Tara Reese Duginske, Special Assistant Public Defender, Briggs and Morgan, P.A., Minneapolis, MN, for appellant.
Considered and decided by RODENBERG, Presiding Judge; HALBROOKS, Judge; and ROSS, Judge.

ROSS, Judge.
A 911 operator received a report that an Asian male, who was wearing red pants at a specific St. Paul residence, had a gun. Police arrived and saw an Asian male with red pants in the front yard. They handcuffed the male, Theng Yang, asked him about the gun, and retrieved a handgun from his coat pocket. The district court convicted Yang of unlawful possession of a firearm by an ineligible person because a prior conviction made it a felony for him to possess a firearm anywhere. In this appeal from the denial of Yang’s pretrial motion to suppress evidence, we must decide whether the officers’ stop violated Yang’s constitutional right to be free of unreasonable police seizures. We hold that the officers’ actions violated Yang’s constitutional rights because they had no reason to suspect that his conduct met the restrictive elements of Minnesota’s handgun law.
On a November 2010 afternoon, Officers Michael McNeill and Seth Wilson were patrolling the St. Paul Frogtown neighborhood when a police dispatcher relayed a 911 report that an Asian male wearing red pants had a gun at a particular residential address in their area. The officers recognized the address, associating it with drugs and arrests.
Officers McNeill and Wilson, and others, arrived and saw four or five men of Asian descent entering the front yard from the porch, one of the men wearing red pants. The officers immediately took cover behind their squad cars, drew their handguns, and ordered the men to the ground. Officer Wilson handcuffed the man wearing red pants, Theng Yang, and asked him where the gun was. Yang told him that it was in his coat pocket. Officer Wilson found a handgun there. We assume that the officers at some point learned that the home was Yang’s, but the record is silent about it.
[ 814 N.W.2d 718 ]

Because he was previously convicted of a felony, Yang could not lawfully possess any firearm anywhere, so the state charged him with unlawful firearm possession. See Minn.Stat. §§ 624.713, subds. 1(2), 2(b), 609.11, subd. 5(b) (2010). Yang moved the district court to suppress evidence of the gun, arguing that the detaining police officers lacked a reasonable, articulable suspicion that he was involved in criminal activity. The district court denied the motion, deeming the stop to have been justified.

Yang waived his right to a jury and the state submitted the case to the district court judge in a stipulated-facts trial. See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980); Minn. R.Crim. P. 26.01, subd. 4. The district court found Yang guilty and convicted him of unlawful firearm possession. It sentenced him to 60 months in prison over his motion for a downward dispositional sentencing departure. Yang appeals, challenging the denial of his motion to suppress and the denial of his sentencing motion.
Did the officers’ investigatory stop violate Yang’s Fourth Amendment right to be free of unreasonable searches and seizures?
Yang challenges the denial of his motion to suppress evidence of the firearm, arguing that the stop violated his Fourth Amendment rights because the police officers did not have a reasonable, articulable suspicion that criminal activity was afoot. Where, as here, the district court denies a motion to suppress on undisputed facts, we independently consider whether those facts support the decision. See State v. Timberlake, 744 N.W.2d 390, 393 (Minn.2008).
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A warrantless seizure is unreasonable unless it falls into a recognized exception. State v. Flowers, 734 N.W.2d 239, 248 (Minn.2007). The Supreme Court has recognized that warrantless, investigatory seizures that are limited in scope, duration, and purpose are reasonable if supported by circumstances that create an objectively reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). And when circumstances exist to create an objectively reasonable concern for officer safety, the officer engaged in a valid stop may also conduct a brief pat-down search for weapons. Id.
The moment when the constitutionally significant seizure occurred here is not in dispute. The seizure occurred once the officers drew their guns and ordered Yang and his companions to the ground. See Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979) (noting that a seizure occurs when an officer “accosts an individual and restrains his freedom to walk away”) (quotation omitted). Yang recognizes that this initial seizure was not an arrest requiring probable cause and that it was justified if the circumstances preceding it meet Terry’s lesser investigatory stop standard.

The state argues that the officers justifiably detained Yang on their suspicion that Yang was violating Minnesota’s statute generally prohibiting a person from carrying a handgun in a public place. The relevant statute criminalizes public handgun possession without a permit: “A person… who carries, holds, or possesses a pistol … on or about the person’s clothes or the person … in a public place, as
[ 814 N.W.2d 719 ]

defined in section 624.7181, subdivision 1, paragraph (c), without first having obtained a permit to carry the pistol is guilty of a [crime].” Minn.Stat. § 624.714, subd. 1a (2010) (emphasis added). The parties’ dispute focuses on whether Yang’s front yard is “a public place.”
Asserting that a person not otherwise prohibited may lawfully carry a firearm on any private residential property regardless of whether that person holds a handgun-carry permit (because a residential yard is not a “public place”), Yang contends that the officers lacked justification for the seizure because they knew his yard was private property. Under these circumstances, argues Yang, the Terry standard was not met. The state counters by asserting that Minnesota law prohibits any person who lacks a handgun-carry permit from possessing a firearm anywhere outside his home or business, even on his own residential property (because a yard is a “public place”), so police may detain a person with a firearm in a private yard to determine whether he possesses a permit. Under these circumstances, argues the state, the Terry standard was met.
We look to the statute to determine whether the district court and the parties have accurately framed its meaning. Statutory interpretation is a question of law, which we review de novo. State v. Larsen, 650 N.W.2d 144, 147 (Minn.2002). We think that both Yang’s and the state’s arguments hang on flawed analyses of the statutory definition of “public place.” We consider each argument.
“Public Place”
Yang and the state come to different interpretations of “public place,” each focusing largely on how the statute describes what is not a public place and then arguing for a different, purportedly necessary, negative inference. Section 624.714, subdivision 1a, prohibits only carrying a handgun “in a public place, as defined in section 624.7181, subdivision 1, paragraph (c).” The parties emphasize and argue from the following negative language of section 624.7181, subdivision 1(c): “`Public place’… does not include: a person’s dwelling house or premises, the place of business owned or managed by the person, or land possessed by the person.” (Emphasis added.). Yang’s attorney focused at oral argument on the indefinite article in the first clause of this passage — “a person’s dwelling house or premises” — and would have us infer that this must mean any person’s dwelling or premises. Under this theory, a large exclusion from the universe of “public places” is every private yard that adjoins some person’s house, not merely the yard adjoining the house of the person carrying the handgun. Accordingly, argues Yang, even though police may not have known the yard was Yang’s, they had no reason to stop him and inquire about the gun because they knew he was standing in a yard that of course belonged to some person.
We cannot accept Yang’s interpretation of the exclusion because the interpretation arises unreasonably from the phrase, “a person’s dwelling house or premises,” ignoring the remainder of the provision, which also excludes “land possessed by the person.” It is contextually evident that when the exclusion refers to “a person’s dwelling house or premises,” it cannot mean any person’s house or premises, as Yang urges; it instead refers to the house or premises of the person whose handgun possession is at issue, just as it expressly refers to the land of “the person” whose handgun possession is at issue. In other words, for the exclusion to apply, the person referred to in section 624.714, subdivision 1a, who possesses the handgun, must be the same person referred to in
[ 814 N.W.2d 720 ]

section 624.7181, subdivision 1(c), who possesses the property.
We also cannot accept the state’s interpretation of the exclusion. The state asserted at oral argument that the officers reasonably investigated the handgun report by seizing persons in the residential yard because the exclusion’s reference to “land possessed by the person” regards only rural, agricultural land, not residential land. As with Yang’s argument, the state’s argument fails under the plain wording of the statute. Nothing in the language of the exclusion supports the state’s constrained definition of land. “Land” appears in the statute with no categorical qualification. And the statute expressly also excludes the person’s “dwelling house or premises.” If the legislature wanted a narrower exclusion based on the nature or location of the “land possessed by the person” it would have drafted the statute in that fashion. “[C]ourts cannot supply that which the legislature purposely omits or inadvertently overlooks.” Wallace v. Comm’r of Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971).
But rejecting the parties’ reasoning about what is not a public place does not answer whether Yang’s front yard is a public place. For that, we look to the statutory language of what is a public place, and that language is plain:
“Public place” means property owned, leased, or controlled by a governmental unit and private property that is regularly and frequently open to or made available for use by the public in sufficient numbers to give clear notice of the property’s current dedication to public use.
Minn.Stat. § 624.7181, subd. 1(c). So a “public place” comes in two forms: (1) property that is governmentally owned, leased, or controlled, and (2) private property that has been dedicated to the public for its use. Land dedication to the public may occur by statute or by common law, but, like governmental land, dedicated private land is in the nature of publicly useable space, not in the nature of a person’s front yard. See, e.g., Minn.Stat. § 462.358, subd. 2b (2010) (authorizing municipal subdivision regulations to require that certain developable land be “dedicated to the public… for public use as streets, roads, sewers, electric, gas, and water facilities, storm water drainage and holding areas or ponds and similar utilities and improvements, parks, recreational facilities, … playgrounds, trails, wetlands, or open space”); see also Wojahn v. Johnson, 297 N.W.2d 298, 306-07 (Minn.1980) (discussing similarities between statutory and common-law dedication as both demonstrating the landowner’s intent “to have his land appropriated and devoted to a public use, and an acceptance of that use by the public”).
Focusing on that part of the statute that defines what is a public place rather than on the definition of what is not, it is easy to conclude that Yang’s residential front yard does not fit either statutory category of a “public place.” Neither party contends that a reasonable officer would have perceived Yang’s yard to be governmental property or a space dedicated to and accepted by the public for public use. Rather than yield to the temptation to define a public place by negative inference from what the statute says is not a public place, as the parties’ arguments suggest, we decide this issue without resolving the question of whether the yard is one of the excluded places. It is enough that it is not one of the included places.
We recognize that the statute leaves a substantial gap between the included and excluded classes of property, describing
[ 814 N.W.2d 721 ]

narrowly what is a public place and describing narrowly what is not a public place; many properties seem to fit neither class (like, for example, the front yard of a person who is not suspected of carrying a handgun). And there is no apparent overlap between what is said to be a public place and what is said not to be. It would therefore appear that the legislature did not really intend for its list in the negative portion of the definition to be read as a list of exceptions to the positive portion of the definition. We also recognize that, under our reading, the negative portion has little apparent legal significance except in those few (if any) circumstances when some overlap might be found. In any event, the state’s reasonable suspicion argument rests on the theory that Yang was reported to have a handgun in a public place, but he was found in an area that we hold is not a “public place.”
Three cases might, on their surface, seem to suggest a different conclusion. On a closer look, they do not.
The first of these is State v. DeLegge, 390 N.W.2d 10 (Minn.App.1986). In DeLegge, we construed a prior version of the same statute to define “public place” broadly, reasoning that a person could not carry a handgun on any private property where discharging it might harm others, particularly in an urban setting. Id. at 12. But we constructed a definition there only because the statute at the time did not define “public place.” See id. at 11. We were left to provide a judicial definition consistent with perceived legislative intent. Id. at 11-12. After DeLegge was decided, however, by enacting the Personal Protection Act of 2003 the legislature amended the statute into its current form, incorporating expressly the definition of “public place” in section 624.7181. See 2003 Minn. Laws ch. 28, art. 2, § 4 at 274. DeLegge’s “public place” definition therefore does not control.
The second case is State v. Gradishar, where we held that, “[f]or purposes of section 624.7142, … `public place’ shall be defined as: generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not.” 765 N.W.2d 901, 903 (Minn.App.2009). We are convinced that Gradishar also does not apply here because it involved the carrying of a pistol in a public place while under the influence of alcohol, an offense that we held also lacked any statutory definition of “public place” and that called for a broader definition than the one embodied in section 624.7181. Id. at 903-04. And in coming to the broad definition, we expressly recognized that cases involving a person carrying a handgun in a public place under section 624.714, which is the proffered basis for Yang’s detention, would instead trigger the narrow definition of 624.7181. Id. at 904.
The third case, State v. Timberlake, 744 N.W.2d at 391, also does not control here. Applying Fourth Amendment principles, the Timberlake court determined that police officers may briefly detain and frisk a person reported to be carrying a gun in a public place. Id. at 395-96. The officers in that case had detained Timberlake based on a tip that he was carrying a gun while driving from a gas station onto the public road. Id. at 392. Similar to Yang’s argument, Timberlake contended that the officers could not have developed a reasonable suspicion of criminal activity because the tipster never mentioned that Timberlake lacked a permit; so, for all the officers knew, Timberlake might have been carrying the reported gun lawfully. Id. at 394. The supreme court rejected the argument, concluding that police properly
[ 814 N.W.2d 722 ]

conducted a Terry stop to determine whether Timberlake had a carry permit. Id. at 395, 397; see also State v. Hollins, 789 N.W.2d 244, 250 (Minn.App.2010) (following Timberlake and holding that defendant’s possession of a handgun at a nightclub was sufficient to create reasonable suspicion that he carried the gun unlawfully, absent any indication that he held a permit, justifying a Terry detention), review denied (Minn. Dec. 22, 2010).
Again, Timberlake does not help the state here. Timberlake’s holding rests on the supreme court’s reasoning that lacking a handgun permit is not an element of the crime of carrying a gun in a public place; rather, having a permit is a mere exception to the crime. Id. at 396. So police developed reasonable suspicion that Timberlake’s conduct met all the elements of the crime because he was reportedly carrying his handgun in a public place. See id. at 392, 397 (describing report that Timberlake was carrying a gun in a motor vehicle that had entered the public roadway from a gas station). Unlike the fact of a handgun-carrier’s possibly lacking a handgun permit (the factor analyzed in Timberlake), a handgun-carrier’s being in a public place is an element of the crime. See Minn.Stat. § 624.714, subd. 1(a). (“A person … who carries … a pistol … in a public place … is guilty of a [crime].”). And Yang contends that police lacked any reasonable suspicion that he was in a public place, touching on a central statutory element of the only suspected crime the state offered as its basis for the stop.
In sum, the negative implications of the statute’s exclusions do not define a public place, the positive declarations of the statute define public place in a manner that does not include a residential yard, and the factually similar cases are legally distinguished.
Stop Justification
Applying the legislature’s definition of “public place,” we must now decide whether police were justified in seizing Yang. We hold that police lacked reasonable suspicion to seize him. We can surmise that the officers mistakenly understood that the handgun law generally prohibits persons from carrying a handgun in a private residential yard. An officer’s mistaken interpretation of a statute cannot form an objectively reasonable basis for suspecting criminal activity and detaining a person. State v. Anderson, 683 N.W.2d 818, 823-24 (Minn.2004); State v. George, 557 N.W.2d 575, 578-79 (Minn.1997). When the police arrived, Yang was “coming out the front porch into the front yard,” apparently nowhere near governmental property — a sidewalk or street, for example — and the state makes no claim of it. Although it turned out that Yang illegally possessed a firearm anyway because a previous conviction prohibited his possession, this is of no consequence to the stop because police had no reason to know that and because the state has attempted to justify the seizure instead only on the supposed suspected violation of the handgun statute. Similarly, the officers’ awareness that drugs had been found and arrests had occurred previously at the home do not create reasonable suspicion to detain an occupant on a new report that he possesses a handgun.
Because police lacked reasonable suspicion to detain Yang, and because the unconstitutional detention and search produced the evidence that led to his conviction, we reverse his conviction.
Sentencing Departure
Yang also argues that the district court abused its discretion by denying his sentencing motion for a downward dispositional departure. Because we reverse his conviction,
[ 814 N.W.2d 723 ]

we do not reach his sentencing challenge.
Carrying a pistol without a permit in a private yard is not carrying a pistol in a public place under sections 624.714 and 624.7181. Police unconstitutionally detained Yang then found the incriminating evidence on him in his front yard when they unreasonably suspected that his reported and observed conduct constituted the crime of carrying a pistol in a public place.

Be sure you know what is in your bedroom

See the Opinion below for another example of constructive possession. In this case, a young man was convicted of illegally possessing ammunition. The ammunition came from his girlfriend’s grandmother’s house. The Defendant’s girlfriend had removed the ammunition from her grandmother’s home and stored it at the home she shared with Defendant. The Defendant testified that he did not know the ammunition was stored at the home. However, the Court of Appeals Ruled that constructive possession evidence was enough to convict Defendant of the crime.

United States of America, Appellee,
James Hopkins, Appellant.
No. 10-3670.
United States Court of Appeals, Eighth Circuit.
Submitted: May 13, 2011.
Filed: July 1, 2011.
Before RILEY, Chief Judge, SMITH, Circuit Judge, and STROM,1 District Judge.

A jury convicted James Hopkins of being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Hopkins contends the district court2 erred by giving the jury an erroneous instruction on “constructive possession” and challenges the sufficiency of the evidence, arguing the government failed to prove beyond a reasonable doubt Hopkins knowingly possessed ammunition. We affirm.
At trial, the district court instructed the jury in Jury Instruction No. 16 that the only element of the crime charged for the jury to decide, in light of Hopkins’ stipulation of facts, was whether Hopkins knowingly possessed ammunition. Both Hopkins and the government submitted to the district court identical, proposed instructions on the legal definitions of “actual” and “constructive possession” as set forth in the Eighth Circuit Manual of Model Jury Instructions.3 As the instructions on “possession” were identical to each other and to the Eighth Circuit Model, the district court adopted the parties’ suggestions in Jury Instruction No. 18 and submitted it to the jury. The instruction provided in pertinent part:
A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.
A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.
The government presented evidence that the rounds of ammunition in question were recovered from a drawer in a cabinet located in Hopkins’ bedroom during a legal search of his room. In the same cabinet, the searching officer also discovered several venue items recently addressed to Hopkins. Five months after the search, Hopkins agreed to waive his Miranda rights and speak to a reporting officer regarding the discovery of ammunition in his bedroom. Hopkins explained that he and his live-in girlfriend obtained the ammunition from her grandfather’s home while cleaning it out. When Hopkins was asked by the officer why he did not dispose of the ammunition, Hopkins replied, “[w]e didn’t know how to dispose of it.” Hopkins testified at trial he was not aware the ammunition was in the cabinet until after the search of his room.
Hopkins moved for a directed verdict of acquittal both at the close of the government’s case in chief and the close of the case as a whole. The district court denied both motions.
Hopkins first contends that we should reverse his conviction because the district court committed plain error by not including the word “knowingly” in the paragraph defining “constructive possession” in Jury Instruction No. 18, even though such paragraph was identical to Hopkins’ proposed instruction and the Eighth Circuit Model. According to Hopkins, such omission permitted “the jury to render a verdict of guilty on less than all essential elements of the offense.”
Because Hopkins failed to object to Jury Instruction No. 18 at trial pursuant to Federal Rule of Criminal Procedure 30(d), this court is limited to plain error review as defined in Federal Rule of Criminal Procedure 52(b). “Rule 52(b) permits an appellate court to recognize [and correct] a `plain error that affects substantial rights,’ even if the claim of error was `not brought’ to the district court’s `attention.'” United States v. Marcus, ___ U.S. ___, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (quoting Fed. R. Civ. P. 52(b)). An error is considered plain and affecting substantial rights when (1) it is clear or obvious, rather than subject to reasonable dispute; (2) it affects the outcome of the district court proceedings; and (3) it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. (internal quotations and citations omitted). Our evaluation of the instruction on possession in this case “must be made in the context of the entire jury charge.” United States v. Woodward, 315 F.3d 1000, 1004-1005 (8th Cir. 2003) (citations omitted).
The district court’s usage of the Eighth Circuit Model Jury Instruction defining “possession” which does not include the word “knowingly” in the paragraph on “constructive possession” did not constitute plain error. In reviewing the jury charge as a whole, we find the jury was adequately informed of the necessity of finding Hopkins knowingly possessed ammunition in Instruction No. 16 in order to find him guilty of the crime charged.
Hopkins next challenges the sufficiency of the evidence, arguing the government failed to prove beyond a reasonable doubt Hopkins knowingly possessed ammunition. “We review challenges to the sufficiency of evidence de novo.” United States v. Brown, 634 F.3d 435, 438 (8th Cir. 2011) (citation omitted). “We will `reverse[] only if no reasonable jury could have found the defendant guilty.'” Id. (quoting United States v. Clay, 618 F.3d 946, 950 (8th Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1540, 179 L.Ed.2d 309 (2011)). “We must sustain a conviction when the evidence, viewed in a light most favorable to the government, substantially supports the verdict.” Id. at 439.
Hopkins argues he did not know that the ammunition was being stored in a cabinet located in his bedroom prior to the search of his room, and consequently, he should have been acquitted. We disagree.
When the evidence is viewed in a light most favorable to the government, a reasonable jury could find Hopkins knowingly possessed ammunition. Hopkins had dominion over the room where the ammunition was located. The cabinet within Hopkins’ room containing the ammunition also contained several venue items recently addressed to Hopkins. In light of these facts and Hopkins’ explanation to the reporting officer as to why he failed to dispose of the ammunition, the evidence presented at trial established Hopkins had at least joint control of the cabinet where the ammunition was located and was aware prior to the search of his bedroom that the ammunition had been transported to his home in the aftermath of the death of his live-in girlfriend’s grandfather.
For the reasons stated, we affirm the judgment of the district court.

To Quote Abraham Lincoln: “He who represents himself has a fool for a client.”

What happens when a person decides they want to represent themselves in a criminal matter rather than use a lawyer? Most of the time, not good things. Read the opinion below to see how a young man first wanted to represent himself and then decided to change his mind mid stream.

STATE of Minnesota, Respondent, v. Denon Anthony RHOADS, Appellant.
No. A10–1568.
— August 01, 2011
Considered and decided by MINGE, Presiding Judge; PETERSON, Judge; and SCHELLHAS, Judge.
Lori Swanson, Attorney General, St. Paul, MN; and John J. Choi, Ramsey County Attorney, Thomas R, Ragatz, Assistant County Attorney, St. Paul, MN, for respondent.David W. Merchant, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, MN, for appellant.
Appellant challenges his convictions for first- and second-degree burglary under Minn.Stat. § 609.582, subd. 1(c), 2(a)(1) (2008), arguing that (1) there was insufficient evidence to prove he entered the building without consent; (2) his initial waiver of his right to counsel on the second-degree burglary charge was ineffective due to his mental condition and due to the state’s addition of a charge of first-degree burglary after he provided his waiver; (3) his constitutional right to a speedy trial was violated; and (4) he was improperly adjudicated guilty of both first- and second-degree burglary. We conclude that the district court did not abuse its discretion in not inquiring into whether appellant’s mental condition affected his waiver of counsel. Although the district court erred in not obtaining appellant’s waiver of his right to counsel on the additional charge of first-degree burglary, the record clearly and convincingly establishes that it was not prejudicial to construe his prior waiver of counsel to second-degree burglary as a continuing waiver to the first-degree charge. Therefore, we affirm on the waiver-of-counsel question. We further conclude that appellant was not denied a speedy trial, that there was sufficient evidence to support the guilty verdict, but that the second-degree burglary charge was a lesser-included offense of first-degree burglary. Accordingly, we affirm the conviction of first-degree burglary but vacate the conviction of second-degree burglary.
John Ryan was at his apartment when appellant Denon Rhoads, with black tape on his face, entered the building in which the apartment was located, forcefully entered the apartment, and went to the bedroom where Ryan was located. Rhoads accused Ryan of reporting him to the police for an unrelated incident and punched him. Ryan pulled a knife from under his mattress and Rhoads retreated back into the living room. Rhoads then threatened to kill Ryan and a friend who was visiting Ryan before leaving the apartment.
Rhoads was arrested on October 9, 2009, and charged with second-degree burglary under Minn.Stat. § 609.582, subd. 2(a)(1). He was not able to post bail, and a public defender was appointed to represent him. At the time of his first appearance, the prosecutor apparently told Rhoads’s attorney that if Rhoads pleaded guilty to the pending second-degree burglary charge, he would not amend the complaint to add a first-degree burglary charge. The offer was not pursued. At Rhoads’s second appearance, in October 2009, Rhoads discharged his public defender attorney, waived his right to counsel, and proceeded pro se. At the time of his discharge, the public defender gave Rhoads a completed and signed demand for a speedy trial. The district court also appointed advisory counsel at that time. Rhoads did not file the speedy-trial form with the district court or verbally request a speedy trial until February 10, 2010.
During Rhoads’s initial hearings, he complained of not being released on his own recognizance and of not getting all the medications he needed, reaffirmed his desire to represent himself, and complained that he was frustrated with repeated court appearances without a trial. On a couple of occasions he also complained of the lack of legal resources available to him. The record at the early hearings indicates that he had been previously institutionalized for mental illness and that he appeared agitated.
In December 2009, the prosecutor again stated that unless Rhoads pleaded guilty to second-degree burglary, the state would amend the complaint to add a charge of first-degree burglary. Rhoads again declined the offer. The state then amended the complaint to include the first-degree burglary charge. During several continuances of the trial date, the prosecutor continued to offer to drop the first-degree charge in return for a guilty plea to second-degree burglary, and the district court repeatedly made inquiries whether Rhoads wished to have counsel appointed. On April 8, 2010, Rhoads reiterated his waiver of his right to a jury, repeated his determination to represent himself, and a bench trial was held. The district court found him guilty of both burglary counts and sentenced him to 92 months in prison. This appeal follows.
I. Was the evidence sufficient to support the conviction for first-degree burglary?
II. Did Rhoads’s initial waiver of counsel remain valid and does the record clearly and convincingly demonstrate that Rhoads was not prejudiced by the failure to renew his waiver after the first-degree burglary charge was added to the complaint?
III. Was Rhoads denied his right to a speedy trial?
IV. Is second-degree burglary a lesser-included offense of first-degree burglary?
I. Sufficiency of the Evidence
When reviewing a challenge to the sufficiency of the evidence, we conduct a thorough analysis to determine whether the factfinder reasonably could find the defendant guilty of the charged offense based on the facts in the record and the legitimate inferences that can be drawn from those facts. State v. Chambers, 589 N.W.2d 466, 477 (Minn.1999). In doing so, we view the evidence in the light most favorable to the verdict and assume that the factfinder believed the evidence supporting the guilty verdict and disbelieved any evidence to the contrary. Id. This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980).
To support a conviction of first-degree burglary, the state must prove beyond a reasonable doubt that the defendant (1) entered a building; (2) without consent; and (3) assaulted a person within the building. Minn.Stat. § 609.582, subd. 1(c). “Whoever enters a building while open to the general public does so with consent except when consent was expressly withdrawn before entry.” Minn.Stat. § 609.581, subd. 4 (2008).
At trial, Ryan testified that Rhoads did not have consent to enter the apartment. Ryan stated that when a friend stepped out of his apartment, he asked her to prop open both the door to his apartment and the outside common entrance of the apartment building so he would not have to let her back into the building. However, the apartment door was not propped open all the way, and Rhoads kicked it open when he entered. Rhoads himself testified, “I’m not denying the fact that I broke in, that I didn’t ask him.” Although Ryan’s apartment door was ajar and anyone could have entered his apartment by simply pushing on the door, the fact that his door was cracked open did not constitute an invitation to enter or consent to Rhoads’s entry.
Ryan further testified that Rhoads was there because Ryan had reported him to the police and Rhoads wanted retribution. Rhoads’s approach belies any innocent intentions in entering the apartment. Rhoads went to the apartment with black tape on his face—an apparent attempt to disguise his identity. The black tape supports the conclusion that Rhoads was there for malevolent reasons. Finally, Rhoads did not contest that he had a grudge against Ryan and assaulted him while in the apartment. Assuming that the district court believed the evidence in support of the conviction, Ryan’s testimony alone is sufficient for the conviction. See State v. Miles, 585 N.W.2d 368, 373 (Minn.1998) (stating that “a conviction may rest on the testimony of a single credible witness”).
II. Waiver of the Right to Counsel
The United States and Minnesota Constitutions guarantee a criminal defendant the right to the assistance of counsel. U.S. Const. amends. VI, XIV, § 1; Minn. Const. art. I, § 6. Criminal defendants also have a “corollary constitutional right to choose to represent themselves in their own trial.” State v. Worthy, 583 N.W.2d 270, 279 (Minn.1998) (citing Faretta v. California, 422 U .S. 806, 819820, 95 S.Ct. 2525, 2533 (1975)). The right to an attorney can be waived if the waiver is “competent and intelligent.” Id. at 275 (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023 (1938), overruled on other grounds, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981)). This court reviews a defendant’s waiver of his right to counsel to determine whether the “record supports a determination that [the defendant] knowingly, voluntarily, and intelligently waived his right to counsel.” State v. Garibaldi, 726 N.W.2d 823, 829 (Minn.App.2007). We will only reverse the finding of a valid waiver if it is clearly erroneous. State v. Jones, 772 N.W.2d 496, 504 (Minn.2009) (citation omitted). If the waiver is inadequate, we remand for a new trial. Garibaldi, 726 N.W.2d at 831.
Before accepting a waiver of counsel in a felony or gross misdemeanor case,
the [district] court must advise the defendant of the following: (a) nature of the charges; (b) all offenses included within the charges; (c) range of allowable punishments; ․ and (f) all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel.
Minn. R.Crim. P. 5.04, subd. 1(4); see also Jones, 772 N.W.2d at 504 (articulating criminal-procedure rule); Minn.Stat. § 611.19 (2008) (requiring a written waiver unless the defendant refuses to sign one); State v. Diaz, 878 A.2d 1078, 1086 (Conn.2005) (concluding that the defendant’s waiver of counsel was invalid when the district court failed to inform him of the range of permissible punishment).
In October 2009, Rhoads completed and signed a petition to proceed pro se. The petition stated that he was charged with second-degree burglary and faced a minimum sentence of 32 months in prison, with a maximum of ten years.1 Rhoads also had an extended colloquy with the district court judge before affirming his decision to discharge his public defender and to represent himself.
At the December 2009 hearing, the prosecutor said that the state would amend the complaint to add first-degree burglary unless Rhoads pleaded guilty to the second-degree charge. The prosecutor also noted that this was the same offer he had made to the public defender before Rhoads discharged his counsel. Rhoads rejected the plea bargain and reaffirmed his desire to continue pro se. The first-degree burglary charge was then added to the complaint. With the added charge, and using the then-assumed criminal-history score of four, his minimum presumptive sentence on the first-degree burglary charge was 75 months, with a maximum of 20 years.2 Minn. Sent. Guidelines IV (2008). Rhoads was not informed on the record of the increased range of possible punishments attached to the enhanced charge.
Rhoads does not contest the efficacy of his initial waiver of the right to counsel. But he argues that the waiver was no longer valid because his behavior and statements signaled that his mental health was deteriorating, and because lack of any warnings by the district court of the risk of a substantially greater sentence with the first-degree burglary charge meant his waiver was no longer knowing or intelligent. We address each argument in turn.
A. Mental Health Conditions
Rhoads argues that his mental health deteriorated throughout the proceedings and required further inquiry into the validity of his waiver. At the outset of the proceedings, Rhoads indicated that he had Attention Deficit Hyperactivity Disorder (ADHD), had been diagnosed with bipolar disorder, and was seeing a psychiatrist. Rhoads was removed from two hearings after being “agitated,” and he claimed that while he was in jail awaiting trial, he was not getting all of his medication. It also appears he had been assigned to the mental-health ward. However, in pretrial hearings, he also stated that his current condition was stable, that he was fully capable of representing himself, and that he had attended several colleges and earned the equivalent of a bachelor’s degree. It is also apparent that he had been in Ramsey County District Court numerous times on criminal charges, was familiar with the system, and is an educated person.
This court gives great deference to the district court on credibility determinations. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992), aff’d, 508 U.S. 366, 113 S.Ct. 2130 (1993). Here, the district court judge checked with the jail and was told that Rhoads was receiving all of his medication. The only medication that Rhoads specifically claimed he was denied was also not included in his medication list in the record. The district court decided that he was not deprived of needed medication. While Rhoads was removed from two pretrial hearings for brief outbursts, the record does not show a deteriorating mental state as the pretrial hearings progressed. Rhoads also conducted himself competently throughout his trial. Ultimately, standby defense counsel was appointed for Rhoads and attended the trial. Standby counsel did not raise any competency question. Under the circumstances of this case, we conclude that the district court did not clearly abuse its discretion in continuing to permit Rhoads to represent himself and not sua sponte ordering an evaluation.
B. Heightened Charge
Reported Minnesota decisions have not considered the question of whether a pro se defendant’s initial waiver of counsel continues to be effective if the complaint is amended to add new charges that carry greater penalties. The Ninth Circuit stated that “[t]he essential inquiry is whether circumstances have sufficiently changed since the date of the [waiver of counsel] that the defendant can no longer be considered to have knowingly and intelligently waived the right to counsel.” United States v. Hantzis, 625 F.3d 575, 581 (9th Cir.2010); see also Davis v. United States, 226 F.2d 834, 840 (8th Cir.1955) (noting that the waiver of counsel at a guilty plea remains valid at sentencing when “nothing happened in the meantime, such as an unreasonable lapse of time, ․ new charges brought, a request from the defendant, or similar circumstances” (emphasis added)).
In this case, after Rhoads initially waived counsel, the prosecutor amended the complaint, adding the first-degree-burglary charge that roughly doubled the minimum presumptive and statutory-maximum sentences. There is nothing in the record indicating that Rhoads was informed of the substantial increase in the range of punishment associated with the new first-degree-burglary charge.3 The apparent reason for the rule requirement that the district court advise a defendant who plans to represent himself of the range of punishment is to call attention to the sobering consequences of a criminal conviction and the prudence of representing one’s self. We conclude that this additional charge, and associated increase in the range of punishment, sufficiently changed the circumstances so that Rhoads’s original waiver of counsel could no longer be considered knowing and intelligent. At that time, the district court had a duty to review any of the rule 5.04, subd. 1(4) factors that had changed, which included advising Rhoads of the nature of the added charge and its greater potential penalty and to reaffirm Rhoads’s desire to proceed pro se.
The question remains what relief should be granted when a proper waiver is not obtained for the additional charges. The Minnesota Supreme Court has found the initial waiver of counsel valid in circumstances where “the district court failed to follow a particular procedure.” In re G.L.H., 614 N.W.2d 718, 723 (Minn .2000) (citing Worthy, 583 N.W.2d at 27576; State v. Brodie, 532 N.W.2d 557, 557 (Minn.1995)). In those cases, the court considered “ ‘the particular facts and circumstances surrounding [a] case, including the background, experience, and conduct of the accused.’ “ Worthy, 583 N.W.2d at 27576 (quoting Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023). Similarly, we conclude that where the district court does not follow a particular procedure in reviewing changes to the factors in rule 5.04, subd. 1(4), a waiver of counsel can still be valid if the record as a whole clearly and convincingly demonstrates that the accused is not prejudiced by the error. Thus, absent an express reaffirmation of the waiver, we look to the circumstances in the case to determine if the waiver remains valid. Here, four considerations appear relevant.
First, we consider the background and experience of the accused and whether it clearly appears that the accused understands the changed circumstances, including the range of allowable punishment. See, e.g., Schell v. United States, 423 F.2d 101, 10203 (7th Cir.1970) (concluding a waiver of counsel was invalid based on a variety of factors, including the youth and inexperience of the defendant, and the fact that he was sentenced under a different statute, with an increased maximum sentence, than the one he pleaded guilty to).
Here, it appears from the record that Rhoads has a college education, has had significant experience with the criminal-justice system, and demonstrated an understanding of legal concepts in his letters to the judge and comments in court. Also, the very words used to identify the crime convey the relative seriousness of the charges. A “first-degree” offense would presumably involve more prison time than a “second-degree” offense. Rhoads indicated that he was aware of the additional charge. A person with Rhoads’s experience with the criminal-justice system would understand the increased severity of the charge and of the resulting punishment. The prosecutor made an offer to Rhoads that, unless he would plead guilty to the second-degree charge, the state would amend the complaint to add first-degree burglary. After the charge was added, the state renewed the plea offer as one in which the first-degree charge would be dropped for a plea to the second-degree charge. Rhoads acknowledged the new charge on the record and declined the offer again. In this context, Rhoads can be presumed to have understood that the new charge was significantly more serious.
We acknowledge that Rhoads has asserted that his mental condition and lack of proper medication affected his ability to represent himself and that this affected his ability to comprehend the risk of added punishment. However, as discussed above, the record does not show a deteriorating mental state. The district court judge contacted the jail, inquired into his medical records, and found that Rhoads was receiving all of his medication. The district court also patiently proceeded through the pretrial hearings and appointed standby counsel. As already indicated, we defer to the district court on this matter and accordingly do not consider Rhoads’s mental condition or medication.
Second, we evaluate the impact of any changes in charges and penalty in terms of the complexity of the criminal proceeding. If the changed circumstances—such as an additional charge—presented a different type of criminal activity, raised new contested issues, or increased the complexity of the case, the waiver of counsel would not be effective without reviewing the new charges with the accused. However, such a material change in circumstances did not occur here. The elements that the state needed to prove did not substantively change with the new charge. To establish a prima facie case of second-degree burglary, the state must prove that the defendant (1) entered a dwelling; (2) without consent; and (3) with the intent to commit a crime. Minn.Stat. § 609.582, subd. 2(a)(1). For first-degree burglary, instead of proving the intent to commit a crime, the state must prove that the defendant assaulted someone within the building. Id., subd. 1(c). From the outset of this prosecution, the state’s case included clear evidence of an assault. This was sufficient evidence to prove the element of first-degree burglary. In fact, Rhoads did not deny that he assaulted Ryan in his home. This was not part of his defense. Thus, the increased charge had no impact on the prosecution’s case or Rhoads’s defense and therefore this factor weighs in favor of the continued validity of his waiver of counsel.
Third, we take into account the defendant’s access to legal counsel during the criminal proceedings. Rhoads was initially represented by appointed counsel. At his second appearance, Rhoads filled out and signed the petition to proceed pro se, had an extended colloquy with the district court, and was granted his request to discharge his counsel. Several months before trial, Rhoads was also appointed standby counsel who was available at all the subsequent pretrial hearings. When the prosecution first disclosed its intention to add the charge of first-degree burglary if Rhoads did not plead guilty, Rhoads still had appointed counsel. Counsel was available to advise Rhoads, and Rhoads does not claim that he did not have the ability to discuss the proposed amendment with counsel. Later, Rhoads had standby counsel and could have asked about the significance, if any, of the increased charges. Based on the availability of counsel and standby counsel, this factor supports a finding that Rhoads’s original waiver of counsel remained valid.
Finally, we consider the clarity of the defendant’s desire to proceed pro se. Rhoads had seven pretrial hearings after discharging his counsel, at which he repeatedly affirmed his choice to proceed pro se. During several of these, he knew he was facing a first-degree burglary charge. While at times he expressed some concern over his access to legal research materials, he never wavered in his desire to represent himself and told the district court that he was ready for trial. Before his trial began, the district court reaffirmed his choice to proceed pro se. Rhoads’s adamant and repeated statements that he wanted to represent himself support a finding that the original waiver remained valid.4
Because the record supports the conclusion that Rhoads understood and acknowledged the new charge and its reasonable implication of a greater penalty, because the new charge had little impact on the complexity of the case or the state’s evidence, because Rhoads had the benefit of counsel at critical times during the proceedings, and because Rhoads continually affirmed his desire to proceed pro se, we conclude that the record clearly and convincingly establishes that the failure of the district court to advise Rhoads of the greater penalty accompanying the added charge was not a prejudicial violation of Rhoads’s right to counsel.
III. Speedy Trial
The third issue is whether Rhoads was denied his right to a speedy trial as provided by the Minnesota Rules of Criminal Procedure and the United States and Minnesota Constitutions. We address each argument in turn.
A. Minnesota Rules of Criminal Procedure
“The interpretation of the rules of criminal procedure is a question of law subject to de novo review.” Ford v. State, 690 N.W.2d 706, 712 (Minn.2005). The Minnesota Rules of Criminal Procedure states:
A defendant must be tried as soon as possible after entry of a plea other than guilty. On demand of any party the trial must start within 60 days of the demand unless the court finds good cause for a later trial date. The time period begins on the date of the plea other than guilty.
Minn. R.Crim. P. 11.09(b).
When Rhoads chose to proceed pro se, his defense counsel gave him a completed and signed written demand for a speedy trial. However, Rhoads did not file the document with the district court until more than three months later. Before that time, the closest Rhoads came to making a demand for a speedy trial was a January 4, 2010 statement to the district court that “I’m ready to go to trial right now.” Without more, that statement is not clear enough to be construed as an assertion of the right to a speedy trial. Rather, it is a statement that the case can be placed on the docket. Although Rhoads was jailed pending trial and conveyed his wish to be released, he did not request a reduction in bail nor did the district court sua sponte consider questions related to either bail or a speedy trial. We are reluctant to require district court judges to raise pretrial issues for the benefit of a pro se accused. By proceeding pro se, Rhoads accepted the risk posed by his lack of understanding of the rules of criminal procedure. Part of that risk was not realizing that he needed to actually demand a speedy trial to start the criminal-procedure clock running. Rhoads was tried on April 8, 2010, which was within 60 days of his February 10 demand. This trial date complied with that requirement of the rules. Because the “as soon as possible” requirement of the rule leads to the balancing analysis required by the constitutional guarantee, we do not separately consider that language in the rule.
B. Constitutional Guarantee
In addition to the Minnesota Rules of Civil Procedure, the United States and Minnesota Constitutions guarantee a criminal defendant the right to a speedy trial. U.S. Const. amends. VI, XIV, § 1; Minn. Const. art. I, § 6. “A speedy-trial challenge presents a constitutional question subject to de novo review.” State v. Griffin, 760 N.W.2d 336, 339 (Minn.App.2009).
Minnesota follows a four-part balancing test to assess whether the constitutional right to a speedy trial has been violated. State v. Widell, 258 N.W.2d 795, 796 (Minn.1977) (adopting the analysis for speedy-trial violations first articulated in Barker v.. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972)). The court must consider: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the delay prejudiced the defendant. Id. None of the factors are dispositive on their own; they must be considered together with other relevant circumstances. State v. Windish, 590 N.W.2d 311, 315 (Minn.1999) (citing Barker, 407 U .S. at 533, 92 S.Ct. at 2193).
Length of Delay
Any material delay is a “triggering mechanism” that requires further review of whether the speedy-trial claim was violated. Id. A delay of six months is sufficient to trigger further inquiry. State v. Corarito, 268 N.W.2d 79, 80 (Minn.1978). The delay has been measured from the time the police arrested the defendant.5 State v. Cham, 680 N.W.2d 121, 125 (Minn.App.2004) (citing State v. Jones, 392 N.W.2d 224, 235 (Minn.1986)), review denied (Minn. Jul. 20, 2004). Rhoads was arrested on October 9, 2009 and went to trial on April 8, 2010—one day short of a six-month delay. A delay of this length creates the presumption that Rhoads’s right to a speedy trial was violated and triggers further inquiry. However, the length of time does not, as an independent factor, provide strong support for finding a violation.
Reasons for Delay
The primary burden of ensuring a speedy trial is on the court and the prosecutor. Windish, 590 N.W.2d at 316. Where a case has been delayed due to calendar congestion, the delay weighs against the state, but less heavily than if the state deliberately attempted to delay the trial. State v. Friberg, 435 N.W.2d 509, 513 (Minn .1989) (citing Barker, 407 U.S. at 531, 92 S.Ct. at 2192).
At the December 10, 2009 hearing, the case was scheduled for a four-week trial block starting in January 2010. Rhoads’s case was number ten on the trial calendar and the district court did not reach the case during the blocked time period. The district court continued the case and Rhoads made his first formal speedy-trial demand on February 10, 2010. In March, the trial was continued again due to a conflict in the prosecuting attorney’s schedule. Rhoads finally had his day in court on April 8, 2010.
The state argues that part of the delay was caused by Rhoads’s failure to promptly request a speedy trial. The lack of a demand caused the computer system to not prioritize his case and therefore placed it lower on the trial calendar. However, how the court’s computer systems operate is outside a defendant’s control, and this delay is attributable to the state. The delays in this case were mainly due to court congestion and scheduling conflicts with the prosecutor, resulting in this factor weighing in Rhoads’s favor.
Assertion of Right to Speedy Trial
The assertion of the right to a speedy trial does not have to be a formal demand, but can be “any ‘action whatever ․ that could be construed as the assertion of the speedy trial right.’ “ Windish, 590 N.W.2d at 317 (quoting Barker, 407 U.S. at 534, 92 S.Ct. at 2194). A defendant’s assertion of the right “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 53132, 92 S.Ct. at 219293. Further, “the frequency and force of a demand must be considered when weighing this factor and the strength of the demand is likely to reflect the seriousness and extent of the prejudice which has resulted.” Friberg, 435 N.W.2d at 515.
Rhoads did not demand a speedy trial until February 10, 2010–four months after he was arrested. Any earlier statements, including “I’m ready to go to trial right now,” are too vague to constitute a speedy-trial demand. After his speedy-trial demand, Rhoads did persistently assert the right. However, the failure to assert his right for four months weighs against Rhoads.
The United States Supreme Court has indentified three interests that the right to a speedy trial was intended to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) avoiding impairment of the accused’s defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The impairment of a defense is the most serious. Windish, 590 N.W.2d at 318.
The delay in voicing a complaint before February 10, as discussed above, weighs against a finding of prejudice. See Friberg, 435 N .W.2d at 515 (reasoning that defendant’s “minimal effort” in waiting two months to file a speedy-trial demand contributed to a lack of serious prejudice.) And pretrial incarceration alone, while unfortunate, is also not enough to demonstrate prejudice. State v. Stroud, 459 N.W.2d 332, 335 (Minn.App.1990).
Rhoads argues that his incarceration compromised his ability to get necessary medication and treatment. He was removed from the courtroom twice after becoming agitated. Other than his actions in court, there is nothing in the record to substantiate Rhoads’s claim that he was not getting his necessary medication. The district court investigated and confirmed that he was receiving his prescribed medications.
Rhoads also argues that he was prejudiced because he was restricted in his access to legal materials to prepare for his trial. Rhoads informed the district court twice that he did not have access to law books and the law library. However, he also waived his right to counsel knowing that he would be incarcerated until his trial and would have limited access to legal materials. Rhoads also noted that he was prepared for trial on multiple occasions and points to no specific impairment to his defense. Rhoads makes no argument as to how his defense would have been stronger had trial occurred at an earlier point in time.
Weighing the Barker factors, we note that the length and reasons for the delay weigh against the state. However, Rhoads waited four months before asserting his right to a speedy trial and did not demonstrate prejudice beyond the fact that he was incarcerated before trial and that his incarceration increased his anxiety and concern. While such an extended pretrial incarceration is troubling, we conclude that it does not rise to the level of a violation of the constitutional right to a speedy trial that requires vacating a conviction.
III. Lesser–Included Offense
Minnesota law protects defendants from being convicted of both a crime and a lesser degree of the same crime. Minn.Stat. § 609.04, subd.1(1) (2008). The district court adjudicated Rhoads guilty of both first- and second-degree burglary. The district court only sentenced him for his conviction of burglary in the first degree. But because the district court convicted Rhoads on both counts, we vacate the conviction for second-degree burglary as a lesser degree of first-degree burglary.
We hold that after Rhoads waived his right to counsel, he should have been advised of the consequences, including the increase in the range of punishment resulting from the addition of the first-degree burglary charge. But we conclude that because the record clearly and convincingly demonstrates that the omission was not prejudicial, the error is not reversible. We also conclude that Rhoads was not denied his right to a speedy trial and that the evidence was sufficient to support a conviction for first-degree burglary. However, because second-degree burglary is a lesser-included offense of first-degree burglary, the district court erred by entering convictions on both counts. Accordingly, we vacate the second-degree burglary conviction.
Affirmed in part, vacated in part.
1. The minimum presumptive sentence appears to have been calculated using a criminal-history score of four. At sentencing, Rhoads was found to actually have a criminal-history score of six. Rhoads does not point to the change in criminal-history score as a consideration relevant to the effectiveness of his waiver of counsel.
2. The minimum presumptive sentence with a criminal-history score of six was 92 months. Minn. Sent. Guidelines IV.
3. Although the record does not clearly indicate that an amended complaint was served on Rhoads, he alluded to receiving it during a hearing and affirmatively rejected the plea offer after the charge was added.
4. We note that we considered the sufficiency-of-the-evidence question earlier in this opinion and concluded that Rhoads’s own testimony was almost sufficient in and of itself to establish his guilty. Under the circumstances, one might ask whether a rational person would plead not guilty and risk the greater penalty of first-degree burglary when a plea agreement for second-degree burglary has been offered. Legal counsel would presumably be helpful in evaluating this situation. However, Rhoads had legal counsel at the outset and appears to have been adamant both about his innocence and the malevolent character of the victim. Rhoads’s insistent self-representation to the second-degree burglary charge in these circumstances had all the characteristics of a high-risk strategy. The addition of the first-degree charge only changed the level of the risk, not the fact of the risk.
5. The state incorrectly argues that the delay is measured from when the defendant formally demands a speedy trial. The formal demand triggers the time periods under Minn. R.Crim. P. 11.09(b), but a formal demand is not necessary to put the constitutional right at issue. Windish, 590 N.W.2d at 318.
MINGE, Judge.

Cop isn’t exactly Robin Hood

Courts do not take kindly to government officials abusing their powers against citizens. In the case of United States v. Jackson, a police officer learned where thieves would house stolen goods. The officer would then obtain those goods and keep the goods for himself and another officer. Government agents set up a fake stash house for stolen goods. The officer took the bait and was ultimately convicted for stealing government property, the property the government used in the sting. What is noteworthy is that at sentencing the Court increased the officer’s sentence for being in possession of a weapon while committing the theft. Read below to see the case summary and complete opinion.

UNITED STATES v. JACKSON (E.D. Mo., Stohr) (5-9-2011)

Factual Summary: Defendant Jackson was a police officer. Agents received information that Defendant Jackson had been using his authority as
uniformed police officer to seize stolen goods. Then, Defendant Jackson would either keep those items for him, share the goods with another officer and also a finder of the stolen goods. Federal Investigators then set up a sting. The federal investigators caught Defendant Jackson in this sting illegally keeping the property. This amounted to theft. While taking the property, Defendant Jackson had his uniform and duty weapon with him. He was convicted of stealing government property. The government property, was the property used by federal agents in the sting. Defendant Jackson’s sentence was then enhanced for possessing a firearm in
connection with the felony, and for his role in organizing and leading the

The Federal Court of Appeals affirmed the conviction and sentence, holding an officer having his duty weapon on his person when his uniform is used to show authority in committing a theft satisfies the firearm enhancement. Furthermore, the evidence supported his role as a leader because the information about the original “thief” came to him, he recruited the other officer, and he distributed the stolen goods.

UNITED STATES of America, Appellee, v. Ronald JACKSON, Appellant.
No. 10–2027.
— May 09, 2011
Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
Hal Goldsmith, AUSA, argued, St. Louis, MO, for Appellee.V. Clyde Cahill, argued, St. Louis, MO, for Appellant.
Ronald Jackson, formerly a police officer with the St. Louis, Missouri, police department, pleaded guilty to the theft of federal-government property, a violation of 18 U.S.C. § 641. At sentencing, the district court,1 among other things, added eight levels to Jackson’s base offense level for his possession of a dangerous weapon—his duty firearm—in connection with the offense. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2B1.1(b)(13)(B) (2009). It then added two additional levels for his role in organizing and leading the theft. See U.S.S.G. § 3B 1.1(c). Jackson appeals, arguing that because his firearm played no role in facilitating the offense, and because he was not a leader, but rather was a mere “equal part[y]” with his codefendant (another officer), the adjustments found in §§ 2B 1.1(b)(13)(B) and 3B 1.1(c) do not apply. We affirm.
On July 27, 2009, Jackson was on duty as a police officer when an informant tipped him off that a woman, described in the proceedings below only as “Jane Doe,” was in possession of stolen electronics. Unknown to Jackson, the “tip” had been generated by federal investigators, who suspected that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” Sentencing Tr. at 14:13–20. Their plan was to catch Jackson in the act.
The informant gave Doe’s location to Jackson, and the two agreed that Jackson would find her, seize the electronics, and share some of them with the informant. Jackson, a 30–year officer, contacted his co-defendant Christian Brezill, an officer with only 18 months’ experience, and asked if Brezill would help with the theft of the electronics. Brezill agreed to do so, and the two drove to the location the informant had provided, where they found Doe sitting in her car. After a computer check of her name revealed outstanding warrants for minor traffic violations, the officers arrested Doe, handcuffed her, and placed her in the back of Brezill’s police cruiser. They then searched the trunk of her car, recovering the “stolen” electronics, which they put in the trunk of Brezill’s cruiser. The officers booked Doe on the outstanding traffic warrants, but never charged her with possession of the stolen electronics and never reported their recovery to the police department.
Later, after the end of their shift, Jackson and Brezill met to divide the property. Jackson gave part of his share to the informant, kept an XBox gaming system for himself, and sold the rest for cash; Brezill kept a Wii gaming system and a laptop computer for himself, and sold the rest for cash. The total value of the property, all of which belonged to the United States government, was $1480.35.
Jackson and Brezill both pleaded guilty to theft of federal-government property. See 18 U.S.C. § 641. At Jackson’s sentencing, the district court applied—over Jackson’s objection—two upward adjustments to his base offense level. The first was for Jackson’s possession of a dangerous weapon in connection with the theft. See U.S.S.G. § 2B1.1(b)(13)(B). The second was for Jackson’s role in organizing and leading the offense. See U.S.S.G. § 3B1.1(c). The district court then calculated a total offense level of 15 and sentenced Jackson to 18 months’ imprisonment, the low end of the guidelines range. This appeal followed.
“This court reviews the district court’s construction and application of the sentencing guidelines de novo, and we review its factual findings regarding enhancements for clear error.” United States v. Bastian, 603 F.3d 460, 465 (8th Cir.2010) (citation and quotation marks omitted).
Guidelines § 2B 1.1(b)(13)(B) provides a two-level enhancement for “possession of a dangerous weapon (including a firearm) in connection with” a theft. Furthermore, “[i]f the resulting offense level is less than level 14,” it is “increase[d] to level 14.” Jackson had a base offense level of six, see U.S.S.G. § 2B1.1(a)(2), which meant that § 2B 1.1(b)(13)(B) worked an eight-level increase to his base offense level.
Jackson acknowledges that he was in possession of a firearm—his duty weapon—when he committed the theft. But, he argues, there was no “nexus” between the firearm and the offense such that the enhancement found in § 2B1.1(b)(13)(B) could apply. In his view, that section applies only when the weapon advances the criminal enterprise, for example, by “enhanc[ing] the benefits of the offense,” “mak[ing] the offense easier to commit,” “inject[ing] a degree of fear,” or “increas[ing] the seriousness of the crime,” to name a few possibilities. And, Jackson argues, his firearm was just a necessary part of his uniform, “inconsequential” to the commission of the theft.
Section 2B 1. 1(b)(13)(B) requires that the possession of the weapon be “in connection with” the theft. See also U.S.S.G. § 2B 1.1 cmt. background (“Subsection (b)(13)(B) implements, in a broader form, the instruction to the Commission in section 110512 of Public Law 103–322.”); Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103–322, § 110512, 108 Stat. 1796, 2019 (1994) (“[T]he United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a defendant convicted of a felony under chapter 25 of title 18, United States Code, if the defendant used or carried a firearm ․ during and in relation to the felony.” (emphasis added)).
But Jackson goes too far in arguing that his firearm was unconnected to his theft of the electronics. As the district court explained:
While the presence of a firearm will not always warrant [application of § 2B1.1(b)(13)(B) ], with regard to this case and this defendant, it’s clear that the presence of defendant’s firearm was not accidental or coincidental. It was available to help to deter resistance or intimidate the victim, and was available to help to protect the defendant in the event that the victim attempted to resist or harm him. In other words, the defendant used his status as a police officer with all the trappings, including the carrying of a service firearm, to commit the [theft].
Sentencing Tr. at 28:20–29:6. Indeed, it was Jackson’s police uniform, which included the firearm, that cloaked him with the apparent authority to arrest Doe, search her vehicle, and confiscate the electronics. Had he not been in uniform, it is not improbable that Doe would have regarded him as just another civilian. In those circumstances, we think it unlikely that she would have complied so readily, if at all, with his directives.
Furthermore, an officer’s visible possession of a firearm, even when it remains holstered, is a signal of authority that will usually promote compliance in an ordinary citizen. Accord Florida v. Bostick, 501 U.S. 429, 448, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (Marshall, J., dissenting) (“Our decisions recognize the obvious point, however, that the choice of the police to ‘display’ their weapons during an encounter exerts significant coercive pressure on the confronted citizen.” (citing cases)). That the department required Jackson to possess the firearm as one of the “certain tools or items in order to perform and carry out his duties,” Appellant’s Br. at 7, only furthers that view. We therefore agree with the district court that Jackson’s possession of a firearm was sufficient to support the enhancement.
Jackson’s next argument—that he was not an organizer or leader for the purposes of guidelines § 3B1.1(c), but rather a mere “equal part[y]” with his co-defendant—fares no better.
Guidelines § 3B1.1(c) provides a two-level enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity” involving fewer than five participants and that was not “otherwise extensive.” See U.S.S.G. § 3B1.1 (criminal activity involving “five or more participants” or that is “otherwise extensive” is covered in parts (a) and (b)). Section 3B1.1(c) differs from § 3B1.1(a) and (b) in that it does not distinguish an “organizer or leader” from a “manager or supervisor”—both are treated to the same two-level enhancement. The background commentary explains:
In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of § 3B1.1(c).
U.S.S.G. § 3B1.1 cmt. background. Therefore, when considering whether § 3B1.1(c) applies, it is unnecessary to determine whether the defendant was a mere “manager or supervisor” or instead was a more responsible “organizer or leader.” Still, we think that application note 4, which explains how to “distinguish[ ] a leadership and organizational role from one of mere management or supervision” for the purposes of § 3B 1.1(a) and (b), is a helpful guide in determining whether § 3B1.1(c) should be applied to a defendant. See U.S.S.G. § 3B1.1 cmt. n.4.
That note provides:
In distinguishing a leadership and organizational role from one of mere management or supervision, ․ [f]actors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Reviewing the facts regarding Jackson’s role in the offense, we conclude that the district court did not err in applying the enhancement. At sentencing, the district court heard testimony that it was Jackson who initially planned the offense, that it was Jackson who recruited an accomplice in Brezill, that Jackson was, by some three decades, the senior officer, that when the two officers found Doe it was Jackson who “made the decision to take the property,” that it was Jackson’s decision to split up the property at Brezill’s parents’ house, and that it was Jackson who shared some of the stolen electronics with the informant. Given those circumstances, a § 3B1.1(c) enhancement was appropriate.
Jackson’s final claim of error is that the district court punished him “for criminal behavior for which he was not charged,” specifically, that it relied on evidence that Jackson had committed similar “rip off[s]” on numerous prior occasions. Doing so, Jackson argues, conflicted with the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
At sentencing, the government called as a witness FBI Special Agent Anthony Bernardoni, who testified that in “the spring or early summer of 2009” he had received information that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” It was that information that led to the sting operation that gave rise to this prosecution. Furthermore, an addendum to Jackson’s Presentence Investigation Report (PSR) remarked that “Jackson had engaged in this type of illegal activity for quite some time, and he purposely conducted this type of illegal business armed with a weapon in order to intimidate the victims.” Addendum to PSR at 1.
Although Jackson did not object to Bernardoni’s testimony (he did object to the PSR addendum), he repeatedly urged the district court not to consider any “other incidents, crimes, or alleged crimes” that had not been charged. And it seems that the district court took Jackson’s objections to heart, for the record contains no indication that the district court gave any weight to Jackson’s prior, uncharged conduct or that it made reference to such conduct while imposing its sentence. Rather, it noted Jackson’s “lack of a criminal history.” We therefore find meritless Jackson’s contention that the district court’s sentence was based, even in part, on uncharged conduct.
In any event, judge-found facts regarding uncharged conduct may be considered by the district court in selecting a sentence. See United States v. Red Elk, 426 F.3d 948, 951 (8th Cir.2005). So long as the district court treats the guidelines as advisory, as it did here, Booker is not to the contrary. See Booker, 543 U.S. at 233, 259–60; United States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir.2006).
The sentence is affirmed.
1. The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.
WOLLMAN, Circuit Judge.

Give a friend a ride – make sure you know what’s in the van before you do

There are times when a person may find themselves in a situation wanting to make some easy money. Usually, if it seems too good to be true, it probably is. In the Case of United States v. Listman, a young man agreed to drive a van cross country for about $1,000 a trip. The Defendant was told there were drugs in secret compartments within the van, although Defendant Listman never actually saw the drugs. However, as the case discusses, the knowledge he did have was enough for a jury to convict him of conspiracy to distribute methamphetamine. Read below to see how a seemingly simple act can get you wrapped up into a conspiracy.



The Jury convicted Defendant Listman of conspiracy to distribute methamphetamine for his role driving a van carrying the drugs in a hidden compartment. Defendant Listman did know where the trap doors were on the vehicle and there was no evidence that he ever saw the drugs. However, The Federal Court of Appeals Held that Evidence that Defendant Listman knew the van carried drugs was sufficient to support the conviction. There was no need to need to prove he knew where in the van the drugs were.

Furthermore, The Federal Court of Appeals Held there was no error in allowing an officer to testify that Defendant Listman seemed to be under influence of drugs. This testimony was allowed not to show that Defendant was actually under the influence, but was relevant to show his knowledge, court said.

The Federal Court of Appeals rejected Defendant Listman’s argument that since he did not ever see the drugs and really did not know if he was told the truth about what he was doing, that he should be allowed to provide a “Deliberate ignorance” instruction to the jury.

Complete Decision:

636 F.3d 425 (2011)
UNITED STATES of America, Appellee,
Bruce LISTMAN, Appellant.
No. 10-1721.

United States Court of Appeals, Eighth Circuit.
Submitted: December 17, 2010.
Filed: April 12, 2011.

428*428 Steven Ray Davis, N. Little Rock, AR, for appellant.

Anne E. Gardner, AUSA, Little Rock, AR, for appellee.

Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.

RILEY, Chief Judge.

A jury convicted Bruce Listman of conspiracy to possess with intent to distribute at least 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Listman appeals, arguing there was insufficient evidence to support the conviction. Listman also challenges the district court’s[1] evidentiary rulings and inclusion of a deliberate ignorance jury instruction. We affirm.


A. Facts[2]

From approximately March to November 2008, Listman was a courier for the Valdovinos drug trafficking organization. Candice Russell recruited Listman to drive with her from California to Arkansas because she did not have a driver’s license.

Russell and Listman drove vehicles modified to include a trap door concealing a hidden compartment. The vehicles carried methamphetamine to Arkansas and cash back to California. Listman and Russell deny knowing the specific locations of the traps.

Listman accompanied Russell on four trips.[3] Russell did not tell Listman they were smuggling drugs during their first trip to Arkansas. During their second trip, Russell told Listman “what was going on … [b]ecause it wasn’t right for him not to know.” Russell received approximately $2500 per round-trip. In turn, Russell paid Listman $1000 per trip in addition to methamphetamine.

Starting in September 2008, the offices of the United States Department of Justice Drug Enforcement Agency (DEA) in California and in Arkansas began investigating the Valdovinos drug trafficking organization, surveilling and arresting various participants. During the investigation, the DEA identified Russell as a courier.

On November 21, 2008, California Highway Patrol Officer Anthony Cichella, acting on DEA information relayed to him from an area police department, stopped a gray Toyota Corolla traveling westbound on Interstate 10 near Fontana, California. Russell was driving the vehicle and Listman was a passenger. Russell consented to a search of the vehicle. With a drug dog’s assistance, Officer Cichella discovered a trap over a modified compartment under the rear bench seat. The trap contained a crystalline residue, which Officer Cichella believed to be methamphetamine.

During the encounter, Officer Cichella observed Listman was fidgety, moody, easily agitated, and at times uncooperative. 429*429 This led Officer Cichella to conclude Listman “was definitely under the influence.” Officer Cichella did not conduct a field sobriety test and did not arrest Listman for being under the influence of a controlled substance. Officer Cichella took both Russell and Listman to the police station and seized the Corolla.

B. Prior Proceedings

A federal grand jury charged Listman with conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.[4] Listman moved to suppress evidence of Officer Cichella’s discovery of the trap, arguing the stop and search violated his Fourth Amendment rights. Alternatively, Listman moved in limine to exclude evidence of the trap, contending “testimony that he was a passenger in a vehicle which contained a hidden compartment which police suspected of being used to transport drugs would unduly prejudice his defense.” The district court denied both motions.

A three-day jury trial began on January 19, 2010. Law enforcement officers and four co-conspirators, including Russell, testified for the government. At trial, Listman objected to Officer Cichella’s observation that Listman was under the influence of drugs during the traffic stop, arguing Listman’s drug use was not relevant. The district court ultimately found the evidence admissible because “although [Listman’s] personal use of methamphetamine does not lead to the conclusion that he must have been involved in a conspiracy, it does show … that methamphetamine was … in his presence … [a]nd … would indicate he had some knowledge.” At Listman’s request, the court instructed the jury “if you believe … Listman used methamphetamine … you may not just from that alone conclude that he was involved in a conspiracy … to possess with intent to distribute.”

At the close of the government’s case, the district court denied Listman’s Fed. R.Crim.P. 29 motion for a judgment of acquittal. Listman testified in his own defense. Before closing arguments, Listman objected to the district court’s inclusion of a deliberate ignorance jury instruction. The district court overruled the objection and included the instruction. The jury found Listman guilty. Listman appeals.


A. Sufficiency of the Evidence

Listman claims the evidence supporting his conviction was insufficient. We “review[] sufficiency of the evidence de novo and reverse[] only if no reasonable jury could have found the defendant guilty.” Clay, 618 F.3d at 950. We must sustain a conviction when the evidence, viewed most favorably to the government, substantially supports the verdict. See id.

To convict Listman of conspiracy to distribute methamphetamine, “the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute [methamphetamine]; (2) that [Listman] knew of the conspiracy; and (3) that [Listman] intentionally joined the conspiracy.” United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir.2007) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir.2007)) (internal quotation marks omitted). Listman concedes there was a conspiracy, but argues the government failed 430*430 to prove he knew of or intentionally joined the conspiracy.

The evidence was sufficient for the jury to conclude Listman knew he was transporting methamphetamine. Russell testified she told Listman they were transporting drugs, and it was the jury’s prerogative to believe her. “The jury is the final arbiter of the witnesses’ credibility, and we will not disturb that assessment.” United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004). The government also produced circumstantial evidence—such as Russell paying Listman cash and methamphetamine, and Russell and Listman using methamphetamine together during the trip—supporting an inference Listman knew he was transporting drugs.

Listman argues “a person who is caught driving a car full of drugs does not possess them in a legal sense if he did not know what he had.” See United States v. Mendoza-Larios, 416 F.3d 872, 873-74 (8th Cir.2005) (noting legal possession could not be inferred based solely on the defendant driving a car containing large quantities of hidden illegal drugs). This proposition, while true, is inapplicable here because the jury heard direct and circumstantial evidence demonstrating Listman knew he was transporting methamphetamine. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir.1994) (holding direct and circumstantial evidence supported finding driver was aware of the presence of drugs within the vehicle). It is not necessary to prove Listman knew exactly where in the vehicle the drugs were hidden.

B. Motion in Limine

Listman argues “the trial court erred in denying Listman’s motion in limine and objections at trial” to Officer Cichella’s testimony regarding the vehicle stop. Specifically, Listman challenges Officer Cichella’s testimony regarding the existence of the hidden trap and his assessment that Listman was under the influence of drugs.

“We review the district court’s evidentiary ruling for clear abuse of discretion, and will not reverse if the error was harmless.” United States v. Hyles, 479 F.3d 958, 968 (8th Cir.2007) (internal citation omitted). “The trial court has broad discretion in determining the relevancy and admissibility of evidence” and “great deference is given to a district court’s balancing of the relative value of a piece of evidence and its prejudicial effect.” United States v. Zierke, 618 F.3d 755, 759 (8th Cir.2010) (quoting Jiminez, 487 F.3d at 1145) (internal quotation marks omitted); see also United States v. Emmanuel, 112 F.3d 977, 979 (8th Cir. 1997) (“The district court’s discretion is particularly broad in the context of a conspiracy trial.”)

We perceive no reversible error here. The very existence of the hidden trap was probative as to whether Listman participated in the conspiracy and the danger of unfair prejudice, if any, did not substantially outweigh this probative value. See Fed.R.Evid. 403. “[E]vidence is not unfairly prejudicial merely because it tends to prove a defendant’s guilt.” United States v. Boesen, 541 F.3d 838, 849 (8th Cir.2008).

Neither are we persuaded the admission of Officer Cichella’s assessment that Listman was under the influence of drugs was an abuse of discretion. The district court found this assertion probative of Listman’s knowledge that he was transporting methamphetamine. The officer’s assessment also corroborated Russell’s testimony that Russell and Listman discussed methamphetamine, Russell paid Listman, in part, with methamphetamine, and they used methamphetamine during the trips. Considering the court’s accompanying 431*431 cautionary instruction that the jury could not conclude Listman was involved in the conspiracy based solely upon Listman’s use of drugs, we find no abuse of discretion. See United States v. Davidson, 449 F.3d 849, 853 (8th Cir.2006) (noting a cautionary instruction to the jury diminished the risk of unfair prejudice to the defendant). Regardless, any error was harmless. It is difficult to imagine the challenged evidence substantially influenced the verdict, see United States v. Donnell, 596 F.3d 913, 919 (8th Cir.2010), particularly because Listman admitted he often used methamphetamine with Russell, and on at least one occasion during their trips to Arkansas, Russell started to smoke methamphetamine.

C. Jury Instruction

Listman argues the district court erred in instructing the jury on a theory of deliberate ignorance consistent with Eighth Circuit Model Criminal Jury Instruction 7.04 (2007), contending “there is absolutely no evidence that Listman deliberately avoided learning about the drug conspiracy.” We disagree.

We review the inclusion of a jury instruction for an abuse of discretion and consider whether any error was harmless. See United States v. Hernandez-Mendoza, 600 F.3d 971, 979 (8th Cir.2010). “A deliberate ignorance instruction is appropriate when the evidence is sufficient to support a jury’s conclusion that `the defendant had either actual knowledge of the illegal activity or deliberately failed to inquire about it before taking action to support the activity.'” Id. (quoting United States v. Whitehill, 532 F.3d 746, 751 (8th Cir.2008)). “Ignorance is deliberate if the defendants were presented with facts putting them on notice criminal activity was particularly likely and yet intentionally failed to investigate.” Whitehill, 532 F.3d at 751. It is “not appropriate if the evidence implies defendants could only have had `either actual knowledge or no knowledge of the facts in question.'” Id. (quoting United States v. Parker, 364 F.3d 934, 946 (8th Cir.2004)).

As discussed above, Russell’s testimony and other evidence supported a conclusion Listman knew he was transporting methamphetamine. The jury could have disbelieved Russell and still concluded Listman knew it was likely he was transporting drugs and chose to remain ignorant. Listman contends, “There is no reason to believe that a methamphetamine user like [Listman] could conduct an investigation worthy of Sherlock Holmes and discover the existence of a multi-level conspiracy to transport methamphetamine.” To the contrary, we deduce it is elementary that someone recruited to drive across the country on multiple occasions in exchange for cash and drugs would suspect criminal activity was afoot. Listman’s own testimony that he wondered whether Russell had methamphetamine on her “[b]ecause she used so much more [methamphetamine] than anyone [Listman had] known before” is strong evidence Listman had some notice. The deliberate ignorance instruction was appropriate, and giving the instruction was not an abuse of discretion.


We affirm the judgment of the district court.

[1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

[2] “We recite the facts in the light most favorable to the jury’s verdict[].” United States v. Clay, 618 F.3d 946, 948 n. 2 (8th Cir.2010) (quoting White v. McKinley, 605 F.3d 525, 528 (8th Cir.2010)) (internal quotation marks omitted).

[3] Listman did not return with Russell on the first trip, opting instead to fly home to California.

[4] This indictment superseded an already existing indictment against other participants in the conspiracy. In January 2010, a grand jury returned a second superseding indictment, charging Listman with the same crime.