United States of America v. Ronald Donte Finley, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 22-1014
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United States of America
Plaintiff - Appellee
v.
Ronald Donte Finley, Jr.
Defendant - Appellant
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No. 22-1052
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United States of America
Plaintiff - Appellee
v.
Jarvae Josiah Somerville
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 19, 2022
Filed: January 9, 2023
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Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Ronald Donte Finley, Jr., and Jarvae Josiah Somerville (together, Appellants)
were each convicted of unlawfully possessing a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Appellants challenge their convictions, arguing that the
district court erred by denying their motions to suppress the firearms because law
enforcement discovered the firearms as a result of unlawful arrests. Somerville also
appeals the admission of certain testimony at trial and the district court’s decision to
withhold juror questionnaires that were completed as part of voir dire. Having
jurisdiction under 28 U.S.C. § 1291, we affirm Finley’s conviction and remand
Somerville’s case to the district court for the limited purpose of making the
completed questionnaires available to the parties and determining whether juror bias
prejudiced Somerville.
I.
Minneapolis law enforcement issued a “probable cause pickup” (PC pickup)1
for Finley and Somerville in connection with a May 2020 drive-by shooting. In July
2020, law enforcement surveilled Appellants going to a south Minneapolis
restaurant. Law enforcement witnessed Finley and Somerville exit the restaurant;
Finley entered the passenger side of a vehicle while Somerville returned to the
restaurant. Law enforcement decided to arrest Appellants based on the PC pickup.
Law enforcement surrounded the vehicle with weapons drawn. The officers wore
plain clothes and black tactical vests that displayed a badge on the chest and “Police”
1 A PC pickup “is not the same as a ‘charging warrant.’ It is a document
prepared by law enforcement that directs officers who encounter the subject to arrest
[him or her]. It is neither signed by a judge nor a prosecutor.” R. Doc. 91, at 4
(citation omitted).

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on the front and back. An officer opened the driver-side door and ordered Finley to
put his hands up. Startled by the interaction, Finley exited the passenger-side door
and fled. Law enforcement continued to order Finley to put his hands up and to get
on the ground. Officers quickly apprehended Finley and subsequently recovered a
firearm from the passenger side of the vehicle.
Meanwhile, a separate team of law enforcement approached Somerville inside
the restaurant. Officers were dressed similarly to those outside of the restaurant but
uttered no commands when approaching Somerville. Somerville fled from law
enforcement through the kitchen and into a restroom. Officers forced their way into
the restroom and struggled with Somerville. During the skirmish, one officer
exclaimed that Somerville was reaching for his waistband and felt a gun on his
person. Somerville was eventually subdued and apprehended. Law enforcement
discovered a firearm in the restroom. A subsequent search of Somerville’s
apartment produced ammunition matching the firearm.
Both Finley and Somerville were charged with unlawful possession of a
firearm. Appellants each filed a motion to suppress the firearms found incident to
their respective arrests, challenging the probable cause supporting their arrests.
Specifically, Appellants argued that the PC pickups did not provide law enforcement
with probable cause to arrest them. While the Government argued that the PC
pickups (and the underlying facts of the May 2020 drive-by shooting) supported
probable cause, it alternatively argued that Appellants’ respective flights provided
law enforcement with independent probable cause for arrest under Minn. Stat.
§ 609.487, subdiv. 6, which states:
Whoever, for the purpose of avoiding arrest, detention, or
investigation . . . attempts to evade or elude a peace officer, who is
acting in the lawful discharge of an official duty, by means of running,
hiding, or by any other means except fleeing in a motor vehicle, is guilty
of a misdemeanor.

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Appellants contested the Government’s alternative theory, both arguing that they
could not have fled from arrest because they were not aware that they were being
approached by law enforcement. Appellants also argued that they had been
unlawfully seized prior to fleeing pursuant to law enforcement’s execution of the PC
pickups. Somerville additionally argued that his flight was not sufficiently
attenuated from the execution of the PC pickup such that it was “purged” of the taint
of the unlawful execution. He also argues that that he had a right to flee from the
allegedly unlawful arrest.
The district court, adopting the report and recommendation of the magistrate
judge, found that the PC pickups were not warrants and that the factual basis
supporting Appellants’ PC pickups was otherwise insufficient to establish probable
cause for their arrests. However, the district court agreed with the Government that
Appellants’ respective flights from arrest gave law enforcement an independent
basis to arrest them. It rejected Appellants’ arguments to the contrary, noting that
Appellants’ recognition of law enforcement was irrelevant because the probable-
cause test is analyzed from the objective point of view of the arresting officer. It
also found that Appellants were not seized during the initial execution of the PC
pickups because neither Appellant submitted to law enforcement’s show of
authority. The district court found that the attenuation doctrine did not apply to
Somerville’s arrest and that even if it did, his flight constituted an “intervening
circumstance” sufficient to purge any prior unlawful act. Finally, the district court
found that Somerville did not have a right to flee law enforcement’s execution of the
PC pickup. Accordingly, it denied Appellants’ motions to suppress.
Prior to trial, the Government filed a motion in limine, seeking to admit
evidence of the May 2020 drive-by shooting investigation and the PC pickups for
the purpose of contextualizing Appellants’ arrests. As relevant to this appeal,
Somerville opposed the Government’s motion, arguing that the evidence was
irrelevant and that its probative value was substantially outweighed by its prejudicial
effect, in violation of Federal Rules of Evidence 402 and 403, respectively. The

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district court granted the Government’s motion, stating that the evidence was
necessary to provide context and that a limiting instruction would be given.
Moving forward to trial, the district court discussed the matter of voir dire
with the parties, specifically as to how the process might require modification in
light of the COVID-19 pandemic. The district court determined that it would use
“jury questionnaires” that would be sent out to prospective jurors before formal voir
dire. In the district court’s view, “a jury questionnaire is a good thing to have [during
the COVID-19 pandemic], because it becomes helpful to [the parties], it becomes
helpful to everybody . . . in the matter, including what can lead to some very obvious
cause strikes.” The district court provided the parties with its proposed questionnaire
and allowed the parties to propose changes to the questions, some of which were
adopted.
The questionnaires were sent to the pool of prospective jurors and at least a
portion of the pool returned responses. However, the district court declined to
release the completed questionnaires to the parties and informed the parties that voir
dire would instead be in court and oral. Believing that jurors might be more
forthcoming in written answers than in in-court statements, Appellants nonetheless
moved the district court to release the completed questionnaires for the parties to
review or, in the alternative, to hold the same under seal for purposes of challenging
the decision on appeal. The district court denied the motion in part, stating:
I believe that the oral inquiry and the responses that we will get from
jurors as they are called will be more appropriate and will be
appropriate, where I’m afraid that inadvertently there may have been
some what I call inadvertent comments, they were gratuitous
comments, made that are not appropriate for any courtroom and the
result is that it is appropriate for the [district court] just to keep them
under seal.
R. Doc. 187, at 4-5. Then, the district court continued by conducting oral voir dire.
The district court exclusively conducted voir dire but allowed the parties to submit

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questions throughout the process. The district court posed all of the questions
submitted by the parties.
A jury was empaneled, and trial ensued. The jury convicted both Appellants.
Appellants appeal their convictions. Both challenge the denial of their motions to
suppress the firearms, arguing that law enforcement discovered the firearms incident
to unlawful arrests. Somerville also challenges the Government’s references to the
May 2020 drive-by shooting investigation at trial and the district court’s decision to
withhold the completed questionnaires from the parties. We address each
Appellant’s arguments in turn.
II.
On appeal, Finley argues only that the district court erred in denying his
motion to suppress the firearm found incident to his arrest because law enforcement
lacked probable cause to arrest him based on Minn. Stat. § 609.487, subdiv. 6.2
Specifically, he argues that a reasonable person would not be justified in concluding
that he intended to avoid arrest by fleeing because he was unaware that the arresting
officers were in fact law enforcement. “We review the denial of [a] motion to
suppress under a mixed standard of review. ‘We review the district court’s findings
of fact under the clearly erroneous standard, and the ultimate conclusion of whether
the Fourth Amendment was violated is subject to de novo review.’” United States
v. Holly, 983 F.3d 361, 363 (8th Cir. 2020) (citations omitted). Under the clearly
erroneous standard, we will reverse a finding of fact only “if, despite evidence
supporting the finding, the evidence as a whole leaves us with a definite and firm
conviction that the finding is a mistake.” Id. (citation omitted).
2 The Government does not challenge the district court’s finding that the PC
pickups were not warrants or that law enforcement otherwise lacked probable cause
based on the PC pickups. Neither Appellant challenges the district court’s finding
that they were not seized prior to being physically detained by law enforcement.

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“A warrantless arrest is consistent with the Fourth Amendment if it is
supported by probable cause.” Royster v. Nichols, 698 F.3d 681, 687-88 (8th Cir.
2012) (citation omitted). “Probable cause exists ‘when the totality of the
circumstances at the time of the arrest “[is] sufficient to lead a reasonable person to
believe that the defendant has committed or is committing an offense.”’” Brown v.
City of St. Louis, 40 F.4th 895, 900 (8th Cir. 2022) (citation omitted); see also Bell
v. Neukirch, 979 F.3d 594, 603 (8th Cir. 2020) (“There must be a ‘fair probability’
or a ‘substantial chance’ that the person seized has committed an offense.” (quoting
Illinois v. Gates, 462 U.S. 213, 243 n.13, 246 (1983)). Importantly, the existence of
probable cause “is determined from ‘the standpoint of an objectively reasonable
police officer,’” not the defendant. Walz v. Randall, 2 F.4th 1091, 1100 (8th Cir.
2021) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)). Because
the statute here—Minn. Stat. § 609.487, subdiv. 6—is a specific-intent crime, an
officer must have probable cause that the individual committed the “prohibited
physical act [i.e., fleeing] with a specific intention to avoid arrest, detention, or
investigation.” State v. Wilson, 830 N.W.2d 849, 854 (Minn. 2013); see also
Williams v. City of Alexander, 772 F.3d 1307, 1312 (8th Cir. 2014) (“For probable
cause to exist, there must be probable cause for all elements of the crime, including
mens rea.”). Because an officer cannot be certain of a suspect’s mens rea at the time
he or she commits the crime, “[a]n officer can rely on ‘the implications of the
information known to him’ when assessing whether a suspect possessed the state of
mind required for the crime.” Borgman v. Kedley, 646 F.3d 518, 524 (8th Cir. 2011)
(citation omitted).
Here, Finley argues that the officers could not have reasonably believed that
Finley fled with the specific intent of avoiding arrest because no objective officer
could have believed that Finley was aware that the officers were in fact law
enforcement. In support of his argument, he notes that the officers were wearing
plain clothes, that none of the officers announced that they were law enforcement or
that Finley was under arrest, and that the officers obscured the “Police” labels on
their tactical vests with their raised firearms. His fleeing, Finley argues, was not in

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response to seeing law enforcement but rather a reasonable reaction to suddenly
seeing a firearm pointed at his face.
Even so, Finley’s “perception of the officers is not relevant because we draw
our conclusion from the facts known to the arresting officer at the time of the arrest.”
United States v. Flores-Lagonas, 993 F.3d 550, 561 (8th Cir. 2021). It is unclear
whether law enforcement was cognizant of how much of their vests were observable
to Finley, but they nonetheless knew that they were wearing black tactical vests with
the “Police” label and with badges prominently displayed. Though law enforcement
did not identify themselves as such or announce that Finley was under arrest, they
did issue what the district court described as “quintessential law enforcement orders
that accompany arrest,” i.e., for Finley to put his hands up and to get on the ground.
In response to these repeated commands, Finley fled. Even if Finley thought that he
was fleeing an unprompted attack, the totality of the circumstances—that the
interaction occurred during the day in a public area, that law enforcement wore the
tactical vests with “Police” and badges displayed, and that law enforcement
repeatedly issued commands consistent with arrest—was sufficient to lead a
reasonable officer to believe that Finley was fleeing with an intent of avoiding arrest
in violation of Minnesota law. Accordingly, we find that the district court correctly
denied Finley’s motion to suppress and refuse to otherwise disturb his conviction.
III.
On appeal, Somerville challenges (1) the denial of his motion to suppress the
firearm discovered incident to his arrest, (2) the grant of the Government’s motion
in limine to admit references to the May 2020 drive-by shooting investigation at trial,
and (3) the district court’s decision to withhold the completed questionnaires from
the parties.

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A.
First, Somerville challenges the district court’s denial of his motion to
suppress. As above, we review the district court’s factual findings for clear error
and the ultimate question of whether Somerville’s Fourth Amendment rights were
violated de novo. Holly, 983 F.3d at 363. Somerville argues that discovery of the
firearm is “fruit of the poisonous tree” and must accordingly be suppressed. See
Utah v. Strieff, 579 U.S. 232, 237 (2016) (citation omitted). Of course, for there to
be “fruit,” there must first be a “poisonous tree,” that is, “an illegal search or seizure”
or “an illegality.” Id. (citation omitted); see also California v. Hodari D., 499 U.S.
621, 629 (1991) (holding that evidence abandoned during flight was not fruit of the
poisonous tree because defendant was not seized until after brief foot chase).
Somerville contends that the requisite illegality was law enforcement’s execution of
the PC pickup, which the district found to be insufficient to establish probable cause
for his arrest. However, an attempted arrest alone, even if unsupported by probable
cause, is insufficient to invoke Fourth Amendment protections against unreasonable
seizures. See Hodari D., 499 U.S. at 626 (“The word ‘seizure’ . . . does not remotely
apply . . . to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a
fleeing form that continues to flee.”). Instead, the Fourth Amendment protection
against unlawful seizures attaches only when there is either “physical force,” or, as
relevant here, “submission to the assertion of authority.” Id. (emphasis omitted).
Here, the district court found that Somerville was never seized during law
enforcement’s execution of the PC pickup because he did not “submi[t] to the[ir]
assertion of authority,” a finding that Somerville does not meaningfully challenge in
this appeal. See id. (emphasis omitted). Instead, law enforcement seized Somerville
only after he fled into the restroom, at which point they had probable cause to arrest
him under Minn. Stat. § 609.487, subdiv. 6. Unlike Finley, Somerville does not
challenge this probable-cause finding. Given that there was no illegal seizure, the
discovery of the firearm was not fruit of the poisonous tree. Accordingly, we affirm
the district court’s denial of Somerville’s motion to suppress.

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B.
Somerville next challenges the district court’s grant of the Government’s
motion in limine and admission of references to the May 2020 drive-by shooting
investigation and Somerville’s related PC pickup. “We review a district court’s
evidentiary rulings, including its decision to [grant] a motion in limine, for abuse of
discretion.” United States v. Banks, 43 F.4th 912, 917 (8th Cir. 2022). Specifically,
Somerville argues that the testimony concerning the May 2020 drive-by shooting
investigation should have been excluded under Federal Rules of Evidence 402 and
403 because it was irrelevant to his felon-in-possession charge and unfairly
prejudicial, respectively.
Under Federal Rule of Evidence 402, evidence that is not relevant—that is,
having “any tendency to make” the existence of any fact that is of consequence to
the determination of the action “more or less probable than it would be without the
evidence,” see Fed. R. Evid. 401—is not admissible. “We have recognized that ‘[a]
jury is entitled to know the circumstances and background of a criminal charge,’ and
have permitted the introduction of evidence ‘providing the context in which the
crime occurred, i.e., the res gestae.’” United States v. LaDue, 561 F.3d 855, 857
(8th Cir. 2009) (alteration in original) (citation omitted). Accordingly, testimony
regarding the ongoing May 2020 drive-by shooting investigation and Somerville’s
related PC pickup was relevant for the purposes of contextualizing why law
enforcement sought to arrest Somerville in the first place.
Nonetheless, relevant evidence may be excluded “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Somerville argues
that evidence of the shooting unfairly misled the jury by suggesting that Somerville
was the shooter and that he possessed a gun on a prior occasion. But the Government
made only a passing reference to the shooting investigation to explain why law

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enforcement went to arrest Somerville. In doing so, the Government did not disclose
any details about the shooting or the investigation.
Even assuming that the district court abused its discretion in admitting the
evidence, such error was harmless. “An evidentiary error is harmless when, after
reviewing the entire record, we determine that the substantial rights of the defendant
were unaffected, and that the error did not influence or had only a slight influence
on the verdict.” United States v. Red Legs, 28 F.4th 931, 935 (8th Cir. 2022)
(citation omitted). Somerville fails to sufficiently explain how this evidence had “a
substantial influence on the verdict.” LaDue, 561 F.3d at 859 (reviewing the
admission of evidence under the harmless error standard). While Somerville argues
that he was unable to cross-examine the witness, he asked at least one question of
the witness who testified as to the investigation without objection from the
Government or the district court. Furthermore, Somerville, not the Government,
referenced the shooting investigation in closing and utilized it as a defense. Finally,
we will not reverse for improperly admitted testimony when, as here, the record
contains “overwhelming evidence” supporting the conviction absent the testimony.
See Red Legs, 28 F.4th at 935-36. Law enforcement testified to their struggle with
Somerville, feeling the firearm in his waistband, retrieving the firearm from the
bathroom floor after the struggle, and recovering ammunition from Somerville’s
apartment that matched the firearm. Accordingly, we find any error committed in
admitting the testimony of the May 2020 drive-by shooting investigation was
harmless and does not warrant reversal. See id.
C.
Finally, Somerville challenges the district court’s decision to withhold the
completed juror questionnaires. “We review ‘whether the district judge conducted
voir dire in a way that protected a defendant’s Sixth Amendment right . . . [for] an
abuse of discretion.’” United States v. Young, 6 F.4th 804, 807-08 (8th Cir. 2021)
(alterations in original) (citation omitted). “The district court abuses its discretion
when the overall examination of the prospective jurors and the charge to the jury

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fails to protect the defendant from prejudice or fails to allow the defense to
intelligently use its peremptory challenges.” Id. (citation omitted).
Here, Somerville argues that the district court conducted voir dire in a way
that violated his Sixth Amendment right to a fair and impartial jury by withholding
the completed juror questionnaires. Somerville contends that prospective jurors
were more likely to provide honest answers in writing as opposed to orally in open
court. With no case law directly on point, this rather unique circumstance presents
this Court with an issue of first impression. Despite attacking the district court’s
withholding of the completed questionnaires, the heart of Somerville’s argument is
that jurors may have concealed biases in oral voir dire that they may have otherwise
disclosed in their responses to the written questionnaires. Accordingly, we deem
jurisprudence regarding jurors who conceal bias during voir dire as the best parallel
to the issue at bar. See, e.g., United States v. Tucker, 137 F.3d 1016, 1026-29 (8th
Cir. 1998) (ordering further proceedings when defendant discovered after trial that
juror had connections to a family member who had strong biases against defendant).
To succeed on such a concealed bias claim, Somerville must prove (1) that a juror
answered dishonestly, not just inaccurately, (2) that such dishonest answers, if any,
were motivated by partiality, and (3) that the true facts, if known, would have
supported striking the juror for cause. See id. at 1026 (citing McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984)).
However, we are a court of review, and the lack of information on the record
as to the questionnaire answers exacerbates our already difficult task of reviewing
the adequacy of voir dire. Young, 6 F.4th at 807. Here, the completed
questionnaires are not a part of the record, nor have the parties been granted the
opportunity to review their contents. Thus, the parties have not been able to make
specific challenges based on the jurors’ answers or engage in adversarial
proceedings before the district court. Accordingly, we are simply blind to the
impact, if any, these questionnaires may have had on the jury pool. That said, we
find troubling the district court’s comment that the responses to the questionnaires
were filled with “inadvertent[,] . . . gratuitous comments . . . that are not appropriate

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for any courtroom.” This bolsters Somerville’s argument that the jurors may have
been more candid in their written responses than in open court.
While “[t]he district court has broad discretion in handling allegations that
jurors have not answered voir dire questions honestly, . . . [t]hat discretion is not
unlimited.” Tucker, 137 F.3d at 1026. “[A] movant who makes a sufficient showing
of McDonough-type irregularities”—that a juror may have answered voir dire
questions dishonestly to conceal bias—“is entitled to the court’s help in getting to
the bottom of the matter.” Id. Still, we are hesitant to take any drastic steps, such
as reversing Somerville’s conviction, based on an incomplete record. See id. at
1027, 1029 (refusing to reverse defendant’s conviction based on concealed bias
when the record was “woefully incomplete” and defendant’s arguments were
supported only by circumstantial evidence). Instead, we find that Somerville has
cited enough evidence “to entitle him to a hearing and findings of fact on this issue.”
See id. at 1027. Specifically, the district court’s troubling description of the
comments warrants disclosure of the completed questionnaires to the parties. After
disclosing the answers, the district court shall proceed with any steps it deems
necessary to determine whether any bias impacted Somerville’s conviction, which
may include holding an adversarial hearing to engage in a fact-intensive analysis.
See Kelly as Tr. of PCI Liquidating Tr. v. Safe Harbor Managed Acct. 101, Ltd., 31
F.4th 1058, 1068 (8th Cir. 2022) (remanding when it was beneficial for the district
court to conduct a fact-intensive analysis in the first instance).3
3 We note that Finley did not raise, and thus waived, this issue on appeal.
Mahler v. First Dakota Title Ltd. P’ship, 931 F.3d 799, 807 (8th Cir. 2019) (finding
an issue waived under Rule 4 of the Federal Rules of Appellate Procedure when
appellant failed to include the issue in the statement of issues and discussed it only
briefly in the briefing). Accordingly, our instructions to the district court on this
matter concern Somerville’s case only.

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IV.
For the foregoing reasons, we affirm the judgment of the district court with
respect to Finley. With regard to Somerville, we remand the case to the district court
for the limited purpose of disclosing the completed questionnaires to him and the
Government and taking any steps it deems necessary to determine whether
concealed jury bias prejudiced Somerville, including, for example, holding a
McDonough hearing, see Tucker, 137 F.3d at 1026-29. The district court is ordered
to disclose the completed questionnaires no later than 14 days from the filing of this
opinion and enter a supplemental order addressing the matter discussed herein in due
course. We retain jurisdiction over the appeal during this limited remand. Once the
district court’s supplemental order is entered, the clerk is directed to return the case
to this panel for disposition of Somerville’s appeal.
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