United States of America v. Drake L. Banks, Sr.

United States Court of Appeals
For the Eighth Circuit
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No. 21-2781
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Drake L. Banks, Sr.,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: May 12, 2022
Filed: August 9, 2022
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Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
Drake Banks was convicted of a firearms offense after police seized evidence
during a traffic stop. The district court* sentenced Banks to a term of forty-eight
*The Honorable John M. Gerrard, United States District Judge for the District
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months’ imprisonment. Banks appeals the conviction and sentence on several
grounds. We discern no reversible error, and therefore affirm.
I.
On September 19, 2019, Lincoln police officer John Hudec was monitoring
eastbound traffic on Interstate 80 when a silver Nissan Altima caught his attention.
Hudec accelerated to follow the vehicle. He observed the Altima following another
vehicle at what he believed to be an unsafe distance. Using a stopwatch, he twice
clocked the Altima as traveling less than a second behind the vehicle in front of it.
He then watched the Altima move from the left lane to the right lane, leaving only
about forty feet between the car and a semi-truck behind.
Officer Hudec initiated a traffic stop. Hudec asked the driver, Zachary
Macomber, to accompany him to his patrol car. After talking with Macomber, Hudec
returned to the Altima to check the vehicle identification number and to speak with
the passenger, Drake Banks. Banks and Macomber each explained that they had set
out from the St. Louis area to visit Denver and were now on their way home. But
they gave inconsistent accounts concerning whom they intended to visit, whether they
spent any time in Denver before turning back, and whether they obtained the Altima,
a rental car, in Colorado or Missouri.
Hudec eventually detained Macomber, and seated him in the back seat of the
patrol car. Hudec then asked Banks, who was still sitting in the Altima’s passenger
seat, whether he had any contraband in the vehicle. Banks admitted he had some
“smoke,” and pulled out a plastic baggie of marijuana from the glove compartment.
Hudec detained Banks, and seated him with Macomber in the patrol car.
Hudec then searched the Altima. He found marijuana crumbs throughout the
cabin. He also discovered a used blunt near the center console and 1.5 grams of
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methamphetamine stowed inside a pill bottle in a compartment in the driver-side
door. Hudec seized this drug evidence and five cellular phones.
Hudec also searched the vehicle’s trunk. He found two Glock pistols stored
in a black Nike bag, three larger “military style” pistols in a duffel bag, and two more
Glock pistols that were fully loaded and wrapped in a blue towel toward the back of
the trunk. One of the loaded guns, a Glock .45, bore DNA with a profile that was
1.43 trillion times more likely to match Banks than an unknown individual. The
officer also uncovered several magazines and “a large amount” of ammunition.
As Hudec started his search of the rental car, his patrol car’s interior camera
recorded a distressed Banks saying “no, no, no,” and questioning why Macomber
stopped for the officer. The camera also captured attempts by Banks and Macomber
to escape the patrol car. At one point, the pair succeeded in unlocking the partition
separating the back seat from the front cabin, and Macomber was able briefly to push
open the front passenger-side door before retreating to the back seat.
A grand jury charged Banks with unlawful possession of a firearm by an
unlawful user of a controlled substance. See 18 U.S.C. § 922(g)(3). Banks moved
to suppress the evidence discovered during the traffic stop. He also moved in limine
to exclude photographs and videos that showed him in possession of firearms or
drugs, as well as any evidence regarding his attempts to escape Officer Hudec’s patrol
car. The district court denied the motions, and the evidence was received at trial.
After the trial, a jury found Banks guilty. At sentencing, the district court
applied a two-level increase under USSG § 2K2.1(b)(1)(A) for an offense that
involves three to seven firearms. The court calculated an advisory guideline range
of forty-one to fifty-one months’ imprisonment and ultimately sentenced Banks to
forty-eight months.
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II.
Banks first challenges the district court’s denial of his motion to suppress. He
asserts that the traffic stop was not justified at its inception, and that all evidence
discovered during the stop should be suppressed as fruit of an unlawful seizure. The
government responds that Officer Hudec observed the driver of the Altima commit
two traffic violations: (1) following too closely, see Neb. Rev. Stat. § 60-6,140(1),
and (2) shifting lanes without first ascertaining whether the shift could be safely
made, see id. § 60-6,139(1).
An officer’s observance of a traffic violation, no matter how minor, gives the
officer probable cause to initiate a stop. United States v. Cox, 992 F.3d 706, 709 (8th
Cir. 2021). Hudec testified that he twice timed the Altima as traveling less than a
second behind the vehicle in front of it—once at 0.9 seconds and once at 0.8 seconds.
Nebraska law prohibits “follow[ing] another vehicle more closely than is reasonable
and prudent.” Neb. Rev. Stat. § 60-6,140(1). This statute contains no numerical
criteria for assessing whether a driver’s following distance is reasonable, but we have
stated “that when one car trails another by less than two seconds, an officer will
generally have probable cause to believe that the trailing car is closer than what is
reasonable and prudent.” United States v. Andrews, 454 F.3d 919, 922 (8th Cir.
2006). After observing the Altima traveling less than a second behind another
vehicle, Hudec reasonably concluded that the driver’s following distance was not
reasonable and prudent. He thus had probable cause for a traffic stop, and the district
court properly denied the motion to suppress.
III.
Banks also argues that the district court erred when it denied his motions in
limine to exclude certain evidence at trial. We review a district court’s evidentiary
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rulings, including its decision to deny a motion in limine, for abuse of discretion.
United States v. Petroske, 928 F.3d 767, 771 (8th Cir. 2019).
Banks first disputes the admission of four government exhibits. Exhibits 22C
and 22D are videos showing Banks and Macomber handling handguns inside the
Altima. Exhibits 25A1 and 25A2 are images of a green, leafy substance consistent
with the appearance of marijuana. These exhibits were extracted from a pair of
cellular phones that Banks was holding during the traffic stop. Banks contends that
the exhibits depicted events that occurred before the traffic stop and are not relevant
to the charged offense.
Evidence is relevant if it has “any tendency” to make a fact of consequence
“more or less probable.” Fed. R. Evid. 401. The videos of Banks and Macomber
handling firearms made it more probable that Banks knowingly possessed firearms
at the time of the traffic stop. These videos were created fifteen days before the stop,
and were filmed inside the same vehicle in which Banks was traveling. In each video,
Macomber refers to a “Glock .45.” In the first video, Banks responds with “big
Glocks, big Glocks” and reaches for something out of sight. In the second, Banks is
seen brandishing a Glock handgun. Four of the firearms found in the Altima’s trunk
were Glocks, including one Glock .45. Video evidence of Banks and Macomber
handling firearms of the same description in the same rental car fifteen days before
the traffic stop made it more probable that Banks had knowledge of the firearms in
the trunk on the date of the stop.
The photographs of suspected marijuana also were relevant. The pictures were
taken on July 19, 2019, and September 1, 2019, within two months and three weeks,
respectively, of the traffic stop on September 19. The drug-user-in-possession
firearms offense under § 922(g)(3) contains no strict temporal requirement. United
States v. Mack, 343 F.3d 929, 935 (8th Cir. 2003). The government was required to
prove only that Banks used a controlled substance “during the period of time he
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possessed the firearms,” not that he “was actually smoking marijuana at the time that
the officers discovered him in possession.” Id. at 933. The photographs made it more
probable that Banks was engaged in a pattern of ongoing marijuana use at the time
he was alleged to have possessed the firearms. The district court thus did not abuse
its discretion by admitting the evidence. See United States v. Johnson, 572 F.3d 449,
454 (8th Cir. 2009).
Banks next asserts that the same four exhibits were “overly prejudicial.” A
court may exclude evidence if its probative value is “substantially outweighed” by the
danger of “unfair prejudice.” Fed. R. Evid. 403. These exhibits showcased Banks in
possession of a firearm and permitted an inference that Banks engaged in drug use.
They were prejudicial in the sense that they tended to prove the elements of the
offense, but Banks articulates no reason why any prejudice from this evidence was
unfair. We thus conclude that there was no abuse of discretion.
Banks argues briefly that these exhibits should not have been admitted because
they “lacked in foundation.” But “‘foundation’ is simply a loose term for preliminary
questions designed to establish that evidence is admissible.” A.I. Credit Corp. v.
Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001). As best we can tell, Banks
suggests that the government failed to show that the exhibits were authentic, because
the prosecution did not produce a witness who was present when the exhibits were
created.
To authenticate the challenged exhibits, the government needed only to
“produce evidence sufficient to support a finding” that the exhibits were what the
government claimed they were. Fed. R. Evid. 901(a). To that end, the prosecution
presented testimony from both Officer Hudec and Investigator Curtis Reha. Hudec
identified the two cellular phones that he observed Banks holding during the traffic
stop. Reha explained the process of extracting data from those phones and converting
the data into the form of a report. The extraction reports listed the dates when files
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were created and other metadata associated with the media files stored on the phones.
Hudec testified that he reviewed the reports and identified pertinent photographs and
videos, including Exhibits 22C, 22D, 25A1, and 25A2. Each exhibit had a creation
date within two months before the stop. While the officers were not present when the
images and videos were first captured, their testimony provided a rational basis to
believe that the exhibits had been created within the relevant time frame and stored
on Banks’s cellular phones. That was sufficient “to clear the low bar for
authenticating evidence.” United States v. Turner, 934 F.3d 794, 798 (8th Cir. 2019).
Banks further asserts that the district court should have excluded as unduly
prejudicial the evidence of his attempted escape from the patrol car. It is well
established, however, that evidence of flight is admissible to show consciousness of
guilt. United States v. Davis, 867 F.3d 1021, 1030 (8th Cir. 2017). The district court
did not abuse its discretion in concluding that a jury reasonably could infer that Banks
sought to flee the patrol car because he recognized that officers were on the brink of
discovering his unlawful possession of firearms in the trunk of the rental car. Banks’s
efforts to escape coincided with Hudec’s search of the Altima’s trunk and with
Banks’s anxious statements about that search. The evidence was properly admitted.
IV.
Banks next argues that there was insufficient evidence to sustain his
conviction. Under § 922(g)(3), the government was required to prove that Banks was
a user of a controlled substance “during the time” that he possessed a firearm. United
States v. Carnes, 22 F.4th 743, 749 (8th Cir. 2022). We view the evidence in a light
most favorable to the verdict, and “must affirm unless no reasonable juror could find
the defendant guilty beyond a reasonable doubt.” United States v. Urbina-Rodriguez,
986 F.3d 1095, 1097 (8th Cir. 2021).
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There was substantial evidence that Banks used controlled substances. During
the traffic stop, Banks told Officer Hudec that he had some “smoke” and retrieved a
baggie of marijuana from the Altima’s glove compartment. Once detained, Banks
admitted he “had a little bit of marijuana.” Hudec observed marijuana crumbs
throughout the car, and discovered a used blunt and methamphetamine elsewhere in
the cabin. The government also presented the images of apparent marijuana on
Banks’s cellular phone, and a video that showed him smoking a blunt in the rental car
two days before the stop. A jury reasonably could have found that Banks was a user
of a controlled substance.
There was also sufficient evidence that Banks possessed a firearm. Firearm
possession “may be actual or constructive, sole or joint.” United States v. Vega, 720
F.3d 1002, 1003 (8th Cir. 2013). A reasonable jury could have found that Banks had
actually possessed at least one firearm that likely bore his DNA, and maintained joint
constructive possession of all seven firearms found in the Altima’s trunk. Banks had
shared dominion over the vehicle for at least the duration of his trip with Macomber.
As Hudec initiated his search of the trunk, Banks made anxious statements from
which a jury could have inferred that Banks knew what was in the trunk. The jury
also heard testimony about DNA evidence connecting Banks to the Glock .45
handgun found in the trunk, and watched footage of Banks wielding a Glock inside
the rental car fifteen days before the traffic stop. Banks objects that much of this
evidence is “merely circumstantial,” but circumstantial evidence can support a
conviction, and the combination of direct and circumstantial evidence here was
sufficient to support a finding that Banks was guilty beyond a reasonable doubt.
V.
Finally, Banks asserts that the district court erred at sentencing when it applied
a two-level increase under the guidelines for an offense that involved three to seven
firearms. See USSG § 2K2.1(b)(1)(A). The court concluded that Banks had “at least
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a joint constructive possession” of the seven guns found in the Altima’s trunk. We
review this factual finding for clear error. United States v. Brooks-Davis, 984 F.3d
695, 700 (8th Cir. 2021). Banks emphasizes that the “strongest evidence” of firearm
possession—the DNA testing—definitively ties him to only a single firearm. But a
person has constructive possession of a firearm if he “has dominion over the premises
where the firearm is located,” or if he has knowledge and control of the firearm itself.
United States v. Fisher, 965 F.3d 625, 630 (8th Cir. 2020) (internal quotation
omitted). All of the guns were together in the trunk, and Banks shared dominion over
the vehicle. Banks’s recorded utterances and actions in the patrol car evidenced his
knowledge that the officers would find evidence of a crime in the trunk. The district
court’s finding that he constructively possessed the guns is not clearly erroneous in
light of the record as a whole.
* * *
The judgment of the district court is affirmed.
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