United States of America v. Joseph Patrick Fitzgerald

United States Court of Appeals
For the Eighth Circuit
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No. 24-1250
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United States of America
Plaintiff - Appellee
v.
Joseph Patrick Fitzgerald
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Central
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Submitted: February 14, 2025
Filed: July 2, 2025
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Before SMITH, KELLY, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Joseph Patrick Fitzgerald pleaded guilty to possession of a firearm by a
prohibited person, 18 U.S.C. §§ 922(g)(1), (g)(9), and 924(a)(2). The district court1
applied a four-level enhancement for possessing a firearm in connection with
1 The Honorable Leonard T. Strand, then Chief Judge, United States District
Court for the Northern District of Iowa.

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another felony, U.S.S.G. § 2K2.1(b)(6)(B), and sentenced him to 120 months in
prison. We affirm.
Jill Walker filed an Iowa petition for relief from domestic violence alleging
that Fitzgerald lived with her and “[p]ulled [her] by the hair out of bed,” “[h]eld a
knife to [her] neck,” and “pointed [a] shotgun at [her].” She claimed that
Fitzgerald’s “excessive verbal abuse . . . suggests physical abuse to come.” She then
withdrew the petition.
Six months later Walker called 911 and told the operator that Fitzgerald was
threatening her life. She said in the recorded call that “yesterday he had a gun to my
head, today so far it’s just words but I’m tired of it. I’ve been threatened every day
for the last five days.” When the operator asked how he was going to kill her, Walker
said “he’s gonna point a gun at me and then he’s going to mount my head.” Walker,
sobbing, reported that Fitzgerald still had the gun “under his bed” but not on him
“right now.”
When police arrived, Fitzgerald was on the balcony and refused to let officers
inside. The officers insisted that they needed to check on Walker. During the
conversation, Fitzgerald went back into the house twice. After Walker gave police
permission to break open the door, Fitzgerald allowed them inside. Body camera
footage shows Walker, still crying, telling police that Fitzgerald was threatening her.
She said that “yesterday, or not yesterday, the day before, no it was yesterday” she
sat “in the bathroom for an hour and a half waiting for him to get . . . out of this
house so I could be safe.” Walker repeated to the officer that “the other day and
yesterday again he had a shotgun to me.” The officer began to ask Walker another
question, and Walker interrupted with “what more do I have to say?” Then Walker
told the officer that Fitzgerald had pointed the shotgun at her about ten minutes
earlier. Police found a loaded shotgun hidden in the shower behind a curtain.
Meanwhile, Fitzgerald told other officers there was not a gun in the house and that
he did not own a gun because he was a felon. He later pleaded guilty to being a felon
in possession.

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Walker died before sentencing, so the district court relied on Walker’s sworn
petition, the 911 recordings, and the body camera footage and found Fitzgerald
possessed the gun in connection with another felony—domestic abuse assault, Iowa
Code § 708.2A(2)(c). See U.S.S.G. § 2K2.1(b)(6)(B); see also United States v.
Holm, 745 F.3d 938, 941 (8th Cir. 2014) (“A crime designated as an aggravated
misdemeanor under Iowa law falls within the Guidelines definition of felony
offense.”). Fitzgerald claims that Walker’s hearsay statements were not sufficiently
reliable because the statements were unsworn, oral statements; “[h]er story
changed”; and the Government did not present sufficient corroboration. We review
“for clear error a district court’s finding that a defendant possessed a firearm in
connection with another felony offense.” United States v. Mitchell, 963 F.3d 729,
731 (8th Cir. 2020).
“A district court has wide discretion at sentencing as to the kind of information
considered or its source.” United States v. Pratt, 553 F.3d 1165, 1170 (8th Cir.
2009). “In resolving any dispute concerning a factor important to the sentencing
determination, the court may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its probable accuracy.”
U.S.S.G. § 6A1.3(a). “The relevant information a court may consider includes . . .
uncorroborated hearsay, provided the defendant is given a chance to rebut or explain
it.” Pratt, 553 F.3d at 1170 (cleaned up). Whether hearsay “is probably accurate
and therefore sufficiently reliable turns on factors such as the consistency of the
hearsay testimony, the timing and nature of the declarant’s statements, and the
witness’s impressions of the declarant’s demeanor, as well as other corroborating
evidence.” United States v. Harris, 44 F.4th 819, 822–23 (8th Cir. 2022) (cleaned
up).
Walker’s story—told through her sworn petition and the recorded 911 call and
bodycam—was mostly consistent. She told police in the 911 call that Fitzgerald was
threatening her, the same claim she made in a petition for relief from domestic
violence six months earlier. She also told police Fitzgerald pointed a gun at her.

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Fitzgerald argues Walker’s statement from the 911 call that Fitzgerald had not
pointed a gun at her and Walker’s later statement to police that he had pointed a gun
at her “about ten minutes ago” were “contradictory.” Not necessarily—video
evidence shows Fitzgerald going inside twice while police waited outside, giving
Fitzgerald ample time to point the gun after the 911 call. And Walker maintained
that Fitzgerald had pointed a gun at her the day before both in the 911 call and when
officers arrived.
The timing and nature of Walker’s statements also suggest reliability. Walker
told the 911 operator that someone was threatening her life and soon after repeated
the allegation to officers. She was distraught during the 911 call and was crying in
the audio recordings and bodycam video. The district court heard the phone call and
watched the bodycam footage, so it could evaluate Walker’s credibility and consider
her demeanor.
Walker’s earlier sworn petition further corroborates her complaints about
Fitzgerald’s threats. True, Walker withdrew her petition for relief and the two
continued living together, but that does not make the statement inconsistent with
Walker’s later reports that Fitzgerald was again threatening to kill her.2 “[Walker]’s
statements, though hearsay, were made under circumstances indicating sufficient
reliability, and [Fitzgerald] offered no evidence to rebut them.” United States v.
Clark, 932 F.3d 1064, 1067 (8th Cir. 2019).
Fitzgerald also argues that—even with the hearsay statements—the evidence
is not enough to show that he possessed the shotgun in connection with domestic
abuse assault. We disagree. “A person commits an assault when . . . [he]
[i]ntentionally points any firearm toward another, or displays in a threatening
manner any dangerous weapon toward another.” Iowa Code § 708.1(2)(c). An
assault is domestic abuse assault when committed “between . . . household members
2 The parties dispute whether Fitzgerald lying to officers corroborates
Walker’s accusation about the threats. Even without the lie, there is sufficient indicia
of reliability of the accuracy of Walker’s statements.

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who resided together at the time of the assault.” Iowa Code § 236.2(2)(a). Walker’s
sworn statement and the audio and video recordings suggest Fitzgerald pointed a
shotgun at Walker and threatened her while they lived together, so the district court
did not clearly err by finding that Fitzgerald used the firearm in connection with
another felony offense.
Affirmed.
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