United States of America v. David Tachay Heard, also known as Tashay, also known as Kill Bro Heard, also known…

United States Court of Appeals
For the Eighth Circuit
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No. 18-3411
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
David Tachay Heard, also known as Tashay, also known as Kill Bro Heard, also
known as Kill Bro
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: November 15, 2019
Filed: March 3, 2020
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Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted David Tachay Heard on four counts: (1) possessing a firearm
in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2); (2) possessing with intent to
distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), §
841(b)(1)(D), and § 851; (3) possessing a firearm in furtherance of a drug trafficking

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crime in violation of 18 U.S.C. § 924(c)(1)(A) and § 924(c)(1)(C)(i); and (4)
possessing a stolen firearm in violation of 18 U.S.C. § 922(j) and § 924(a)(2). He
appeals the conviction. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
On the evening of July 30, 2017, Justin Summers was a passenger in the front
seat of an SUV driven by his wife on Redbud Road. Around 7:20 pm, he called 911
reporting he had just seen a parked car with “substantial front-end damage.” Next to
the driver’s side of the car was a man Summers described as a “black male,”
“anywhere from maybe 5’9’’ to 6-foot,” with a white hat and dark clothes. Summers
saw the man throw something “small” into “the weeds” on the side of Redbud Road.
Concerned, Summers and his wife “came really slow up on the car . . . looking
to see if he needed some help or if there was anybody else in the car that needed
help.” The man “tipped his head back so [Summers] could see his face really good”
and “very clearly.” He was “looking for something in his passenger side” and “was
very agitated, more so than what you would be if you were in an accident.” Summers
and his wife “slowed down almost to a stop next to his car and he basically through
a facial expression made it very clear that he didn’t want us there.” As Summers and
his wife drove away, Summers saw the man throw “a semiautomatic pistol into the
. . . weeds or the ditch there.” Summers said no one else was in the car or “around at
all.”
Arriving at the scene, police found Heard, who is five-foot-eight-inches tall,
wearing a black t-shirt and blue jeans. They searched the wooded area near the car
and found a bag of marijuana with 27 individually packaged baggies and a fully
loaded “extremely clean” firearm with “no dirt or debris on it.” They arrested Heard.
Around 8:45 pm, officers asked Summers to return to the scene. He arrived at
dusk. Officers positioned Heard (handcuffed with a spotlight shining on him) 20 to
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25 feet from Summers. Officers told Summers “to have an open mind, and to tell
them if it was or was not the person that [he] saw.” Summers “didn’t hesitate,” saying
that “everything was exactly the same about him, except that . . . he was not wearing
the hat.” During the identification, Heard gave Summers the “same hard looks” he
had given him earlier in the evening.
The next evening, Heard called his girlfriend from jail. The call was recorded.
Heard told her that Summers would not have been able to identify him because he
was not wearing his hat during the identification process.
During the investigation, police learned that the firearm belonged to Heard’s
cousin. When interviewed, the cousin said he kept the firearm in his basement and
had not given Heard permission to take it. However, the cousin said Heard had
visited the basement to “make music.”
Before trial, the district court1 denied Heard’s motion to suppress Summers’
eyewitness identification. The court also declined to give a jury instruction on
eyewitness-identification testimony. At trial, the government introduced evidence
including: (1) Summers’ testimony; (2) the transcript of Heard’s call to his girlfriend
from jail; (3) the ownership of the firearm; (4) testimony of a cooperating witness that
Heard had sold him a firearm, tried to sell him the firearm found at the scene, and
possessed and offered to sell marijuana; and (5) testimony of Heard’s girlfriend’s
mother that she gave him $10,300 to pay back loans for people who “want their
money back,” “are not messing around,” and beat him up for failure to pay.
Heard moved for judgment of acquittal after the submission of the
government’s evidence stating, “[W]e would move for a judgment of acquittal. I
1The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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would focus on Count 4, the possession of a stolen firearm in this case.” At the
conclusion of all evidence, Heard renewed his motion, stating, “[T]he defendant
would renew the motion, specifically as to Count 4, that’s—that’s the one that has
controversy about it. There’s certainly evidence on 1, 2, and 3, even though we
would not say it’s going to be sufficient, but I still think there is significant threshold
problems that the government has on Count 4.” The district court denied the motion.
After the government’s closing argument, Heard’s counsel informed the court
that Heard himself wanted to deliver his closing argument. The court immediately
excused the jury. Outside the presence of the jury, Heard’s attorney reiterated that
Heard “desires, demands, to present the closing argument in this case.” His attorney
advised him that he must “stay within the evidence that has been presented” and not
“testify about things that have not been previously presented.” He also advised that
he “runs the risk that, if he goes outside those boundaries, that the Court could
potentially strike his statement and not allow any sort of potential closing statement
to be made by the defense in this case.” The government responded, voicing
“significant concerns based on his behavior yesterday after the Court repeatedly
instructed him to stop doing things and he kept doing it, talking over counsel and
talking over the Court.”
The court then explained the procedure for closing argument. It warned Heard
that if he violated orders, he would not be allowed to finish the closing argument.
The court also cautioned him:
Closing arguments are very important in a case, and they have to be
delivered in a way that is convincing, courteous, civil, but persuasive.
And [defense counsel] has gone to law school. He has appeared for
defendants in my court for 15 years and other judges of this district. He
knows what juries will believe and what they won’t believe.
. . . .
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I think that you are making a huge mistake, but the Constitution does
guarantee you the right to make this closing argument if you want to.
. . . .
[The defendant] knows the ups and downs and apparently has made his
own decision that this is what he wishes to do. And although I don’t
agree with his analysis of what’s best for him, it’s his life, so I will
permit it, provided that he abide by the Court’s rules.
The court then conducted an ex parte hearing with Heard and his attorney. His
attorney said:
Certainly, I would say he’s running a very significant risk by choosing
to make his own closing argument. Mr. Heard, however, has frequently
throughout my representation indicated his knowledge of the facts and
circumstances. . . . [H]e certainly is well aware of the circumstances and
facts of this particular matter, and he has that constitutional right.
The court concluded by asking, “And is it your desire, Mr. Heard, in fact, your
demand, that you be permitted to make your own closing argument?” Heard
answered, “Yes, ma’am. I just need about—yes, Your Honor. I just need maybe 10
minutes to just—to just get my delivery together.” The court granted the request.
Heard gave his closing argument. After the government’s closing argument, Heard
renewed his motion for judgment of acquittal, stating “We would again renew the
motions previously made at the close of the evidence for a judgment of acquittal,
especially as to Count 4.” The court denied the motion.
The jury convicted Heard on all four counts. Heard did not renew his motion
for judgment of acquittal. He appealed, challenging the conviction and arguing: (1)
the district court erred in admitting eyewitness-identification evidence; (2) the district
court abused its discretion in failing to instruct the jury on eyewitness identification;
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(3) the trial violated his Sixth Amendment right to counsel; and (4) the evidence was
insufficient to convict.
I.
Heard believes the district court erred in admitting Summers’ eyewitness
testimony. He complains the “show-up” identification was “clearly impermissibly
suggestive” because officers called Summers back to the scene of the crime, asking
him suggestive questions while Heard was handcuffed with a bright light shining
“directly” on his face. This court reviews the denial of a motion to suppress de novo,
but reviews “underlying factual determinations for clear error, giving due weight to
the inferences of the district court and law enforcement officials.” United States v.
Leon, 924 F.3d 1021, 1025 (8th Cir. 2019).
“Police officers are not limited to station house line-ups if there is an
opportunity for a quick, on-the-scene identification. Show-up identifications are
essential to free innocent suspects and to inform the police if further investigation is
necessary. Thus, even if the line-up is inherently suggestive, the line-up will be
admissible as long as it is not impermissibly suggestive and unreliable.” United
States v. Mitchell, 726 F. Appx. 498, 501 (8th Cir. 2018) (cleaned up). See generally
Sexton v. Beaudreaux, 138 S. Ct. 2555, 2559 (2018) (“To be impermissibly
suggestive, the procedure must give rise to a very substantial likelihood of irreparable
misidentification.” (internal quotation marks omitted)).
The show-up identification here was not impermissibly suggestive. “Necessary
incidents of on-the-scene identifications, such as the suspects being handcuffed and
in police custody” or having a light shone on their face “do not render the
identification procedure impermissibly suggestive.” United States v. House, 823
F.3d 482, 488 (8th Cir. 2016). See United States v. Pickar, 616 F.3d 821, 828 (8th
Cir. 2010) (holding that a show-up identification was not unduly suggestive where
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the defendant “was handcuffed and standing in front of a marked police cruiser,”
“stood between an officer in uniform and an officer in plainclothes,” and “one of the
officers [was] shining a small flashlight in [the defendant’s] face”).
The identification also was not unreliable. An identification is unreliable if the
circumstances allow for “a very substantial likelihood of irreparable
misidentification.” House, 823 F.3d at 487. “The factors affecting reliability include
the opportunity of the witness to view the criminal at the time of the crime, the
witness’ degree of attention, the accuracy of his prior description of the criminal, the
level of certainty demonstrated at the confrontation, and the time between the crime
and the confrontation.” Sexton, 138 S. Ct. at 2559 (internal quotation marks
omitted). Here, Summers paid close attention to Heard due to the severe damage to
his car. Summers observed him at a close distance, in good light, and “could see his
face really good.” Summers testified that Heard gave him “a threatening hard look”
and “made it very clear that he didn’t want us there.” Only about an hour and a half
passed between when Summers first saw Heard and when he made the identification.
The district court did not err in admitting the eyewitness identification.
Mitchell, 726 F. Appx. at 502 (upholding the admission of a “show-up
identification” where the witnesses “had the opportunity to observe” the defendant,
“they were able to confidently identify him based on a distinctive outfit that he was
wearing,” and “little time elapsed” between the crime and the identification).
II.
Heard maintains the district court abused its discretion in refusing to give
Eighth Circuit Model Jury Instruction 4.08 Eyewitness Testimony on the “value of
identification testimony.” Eighth Circuit Manual of Model Jury Instructions
(Criminal) 4.08 (2018). This court reviews the refusal to submit a proffered jury
instruction for abuse of discretion. United States v. Waits, 919 F.3d 1090, 1093 (8th
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Cir. 2019). District judges have “wide latitude” in formulating jury instructions.
United States v. Amaya, 731 F.3d 761, 771 (8th Cir. 2013). Jury instructions are
sufficient “if they fairly and adequately submitted the issues to the jury.” Id.
“It is reversible error for a trial court to refuse this specific jury instruction
where the government’s case rests solely on questionable eyewitness identification.”
United States v. Mays, 822 F.2d 793, 798 (8th Cir. 1987). Here, however, the
government’s case did not rely solely on the eyewitness identification. The evidence
showed: (1) police found a firearm in the wooded area next to Heard’s car; (2) the
firearm belonged to Heard’s cousin; (3) Heard had $340 in cash on him when
arrested; (4) Heard had prior convictions for drug distribution and possession of
firearms; and (5) Heard owed large sums of money to people who beat him up for
failure to pay. “Although the district judge might well have given such an
[eyewitness] instruction, in view of the other corroborating evidence of [the
defendant’s] guilt . . . the district court did not commit prejudicial error in refusing
to do so.” Id. See United States v. Cain, 616 F.2d 1056, 1058-59 (8th Cir. 1980)
(affirming a conviction despite the lack of an eyewitness-identification instruction
because the identification was corroborated by other testimony).
III.
Heard argues his “right to counsel was violated when the district court
permitted him to give his own closing argument without the proper colloquy.”
The parties dispute the applicable standard of review. Heard contends review
is de novo. See United States v. Turner, 644 F.3d 713, 720 (8th Cir. 2011) (“This
court reviews de novo a district court’s decision to allow a defendant to proceed pro
se.”). The government seeks plain error review because Heard “never filed a new
trial motion asserting error in the district court’s decision to grant his request to give
his own closing argument.” Alternatively, the government asserts this court should
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review for abuse of discretion. See United States v. Garrett, 898 F.3d 811, 817 (8th
Cir. 2018) (“The district court has broad discretion in controlling closing arguments,
and we will not reverse absent an abuse of discretion.”). This court need not decide
which standard applies because Heard’s claim fails under all of them.
Heard believes the district court did not “provide the proper colloquy for
waiver of counsel.” However, Heard did not fully waive his right to counsel. “A
defendant does not have a constitutional right to simultaneously proceed pro se and
with the benefit of counsel. However, district courts have discretion to permit ‘hybrid
representation’ arrangements whereby a defendant takes over some functions of
counsel despite being represented.” Fiorito v. United States, 821 F.3d 999, 1003-04
(8th Cir. 2016) (cleaned up). As this court has explained:
Such hybrid representation arrangements create significant problems in
analyzing the issue of waiver of counsel. Where a defendant seeks to
represent himself entirely without a lawyer, he must knowingly and
intelligently waive his right to counsel. Faretta, 422 U.S. at 835, 95 S.
Ct. 2525. However, courts of appeals analyzing hybrid representation
arrangements have disagreed as to when a defendant’s conduct triggers
the waiver of his right to counsel. Compare United States v. Leggett, 81
F.3d 220, 224 (D.C. Cir. 1996) (holding that defendant in hybrid
representation arrangement does not waive his right to counsel unless he
makes “an articulate and unmistakable demand . . . to proceed pro se”)
with United States v. Turnbull, 888 F.2d 636, 638 (9th Cir. 1989)
(holding that defendant must knowingly and intelligently waive his right
to counsel before he assumes any of the “core functions” of counsel).
Further, courts that have held that a waiver is necessary for hybrid
representation have disagreed about what procedures are required before
a defendant’s waiver is knowing and intelligent. While some courts
have required Faretta warnings any time a hybrid-represented defendant
waives his right to counsel, see, e.g., United States v. Davis, 269 F.3d
514, 518-20 (5th Cir. 2001), we have held that such warnings are not
required when “the defendant had the required knowledge [about the
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dangers of proceeding pro se] from other sources.” Yagow, 953 F.2d at
431.
Id. at 1004. Like the defendant in Fiorito, Heard believes that “despite retaining
counsel . . . the court was required to hold a Faretta hearing before granting his
requests [to give his own closing argument] to ensure that his purported waiver of
counsel was knowing and intelligent. . . . [B]ecause the court erred by failing to hold
this hearing to warn him about the dangers of proceeding pro se, he was deprived of
his Sixth Amendment right to counsel.” Id.
This argument is without merit. Heard was represented by counsel who
repeatedly advised him not to give his own closing argument. Because he “was
represented by counsel and received counsel’s advice, he did not waive his right to
counsel, and the district court had no duty to conduct a Faretta hearing.” Id. at 1005.
Even if construed as a waiver of his right to counsel, Heard’s claim fails.
“[N]either the Supreme Court nor this court has ever adopted a list of essential points
that must be conveyed to a defendant in order for a waiver of counsel to be deemed
knowing and voluntary.” United States v. Tschacher, 687 F.3d 923, 932 (8th Cir.
2012). “The adequacy of the waiver depends on the particular facts and
circumstances of each case, including the background, experience, and conduct of the
accused.” Id. at 931. This court “will uphold a waiver of counsel absent specific
warnings when the record as a whole demonstrates that the defendant knew and
understood the disadvantages of self-representation.” Fiorito, 821 F.3d at 1006
(internal quotation marks omitted). “The record clearly shows that [Heard’s] alleged
waiver was knowing and intelligent.” Id. The district court spoke with Heard at
length about his request to give his own closing argument and made clear that the
request was a “huge mistake.” Heard’s attorney also advised against the “significant
risk” of delivering his own closing argument. The district court sufficiently apprised
Heard of his right to counsel and of the possible consequences of forgoing that right.
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IV.
Heard contends there was insufficient evidence to convict on Counts 2 and 3
because the evidence did not show he possessed marijuana. When a defendant
properly moves for judgment of acquittal in the district court, this court reviews de
novo, “viewing the evidence and all reasonable inferences in the light most favorable
to the jury’s verdict.” United States v. Waloke, 923 F.3d 1152, 1155 (8th Cir. 2019).
Under this standard, a “judgment of acquittal” is appropriate “only when no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
Id. However, when a defendant fails properly to move for judgment of acquittal in
the district court, plain error review applies. United States v. Calhoun, 721 F.3d 596,
600 (8th Cir. 2013). “To demonstrate plain error, [defendant] must show (1) error,
(2) that was plain, (3) that affects [his] substantial rights, and (4) that seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id.
Heard asserts he moved for judgment of acquittal on all counts, and this court
should review his claim de novo. The government disagrees, advocating plain error
review. Compare United States v. Huntley, 523 F.3d 874, 875 (8th Cir. 2008)
(reviewing for plain error where the defendant failed to filed a “post-verdict motion
for judgment of acquittal”), with United States v. Yarrington, 634 F.3d 440, 449 (8th
Cir. 2011) (reviewing de novo where the defendant moved for judgment of acquittal
at the close of evidence but not after the verdict). This court need not decide the issue
because Heard’s claim fails under either standard.
Both Counts 2 and 3 required that Heard possess marijuana. The evidence
showed: (1) Summers saw Heard throw two objects from his car into a nearby
wooded area; (2) police found a firearm belonging to Heard’s cousin and a
distribution quantity of marijuana in the wooded area; (3) Heard has prior federal
marijuana-related convictions; (4) Heard had $340 in cash on him when police
arrested him; (5) Heard previously had sold firearms and offered to sell marijuana;
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and (6) Heard owed large sums of money to people who beat him up for failure to
pay. The bag of marijuana did not have Heard’s fingerprints on it. However, law
enforcement testified that this is common because “[d]rug packaging is one of the
hardest items to find latent prints on.” Similarly, the bag did not have Heard’s DNA.
But law enforcement testified that “no DNA tests were taken from that bag” because
“the success [of] touch DNA on those types of items is extremely low.” The lack of
DNA and fingerprint evidence is not dispositive. See, e.g., United States v. Porter,
687 F.3d 918, 921 (8th Cir. 2012) (holding evidence was sufficient on a firearm
conviction despite a “lack of fingerprints or DNA found on the firearm,” and noting
that examiners find “fingerprints on firearms” in only “three to five percent of
cases”). Viewing the evidence most favorably to the verdict, there was sufficient
evidence to show he possessed the marijuana. The district court did not err, let alone
plainly err.2
* * * * * * *
2In his reply, Heard argues the Supreme Court’s decision in Rehaif v. United
States, 139 S. Ct. 2191 (2019) requires dismissal of Count 1 because the jury was not
instructed that the government was required to prove that Heard knew he was a
convicted felon prohibited from possessing a firearm. See Rehaif v. United States,
139 S. Ct. 2191, 2200 (2019) (“[I]n a prosecution under 18 U.S.C. § 922(g) and §
924(a)(2), the Government must prove both that the defendant knew he possessed a
firearm and that he knew he belonged to the relevant category of persons barred from
possessing a firearm.”). Because Heard “failed to challenge the lack of a jury
instruction regarding his knowledge of his felony status,” this court reviews “his
claim for plain error.” United States v. Hollingshed, 940 F.3d 410, 415 (8th Cir.
2019). Heard cannot satisfy elements three and four of the plain-error test. At trial,
he admitted he pled guilty to the felonies of possession with intent to distribute
marijuana and possession of firearms and served a term of imprisonment exceeding
one year. “These facts . . . indicate that [Heard] knew he had been convicted of ‘a
crime punishable by imprisonment for a term exceeding one year.’” Id. at 416,
quoting 18 U.S.C. § 922(g)(1). He thus cannot “show a reasonable probability that,
but for the error, the outcome of the proceeding would have been different.” Id.
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The judgment is affirmed.
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