United States of America v. Mario B. Long, Sr.

United States Court of Appeals
For the Eighth Circuit
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No. 24-1267
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United States of America
Plaintiff - Appellee
v.
Mario B. Long, Sr.
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri
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Submitted: January 17, 2025
Filed: February 11, 2025
[Unpublished]
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Before GRASZ, STRAS, and KOBES, Circuit Judges.
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PER CURIAM.
In August 2020, Mario Long, Sr., assaulted his girlfriend and threatened her
and her daughter with a firearm. Following a trial, he was convicted of unlawfully
possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). He raises three
challenges to his conviction on appeal, arguing: (1) his rights under the Speedy Trial

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Act, 18 U.S.C. §§ 3161–3174, were violated; (2) the district court1 improperly
admitted evidence of his prior convictions; and (3) section 922(g)(1) is
unconstitutional as applied to him. Finding no error, we affirm his conviction.
Under the Speedy Trial Act, trial must “begin within 70 days after a defendant
is charged or makes an initial appearance unless the running of the time is stopped
for reasons set out in the statute.” United States v. Herbst, 666 F.3d 504, 509 (8th
Cir. 2012) (quoting United States v. Lucas, 499 F.3d 769, 782 (8th Cir. 2007) (en
banc)). This 70-day clock stops running when the trial judge grants a motion to
continue “on the basis of his findings that the ends of justice served by taking such
action outweigh the best interest of the public and the defendant in a speedy trial.”
18 U.S.C. § 3161(h)(7)(A). Long challenges the district court’s findings that the
government’s requested three-month continuance for DNA testing tolled the speedy
trial clock.2 “[W]e review the district court’s factual findings [for purposes of the
Speedy Trial Act] for clear error and its legal conclusions de novo.” United States
v. Villarreal, 707 F.3d 942, 953 (8th Cir. 2013) (alterations in original) (quoting
Herbst, 666 F.3d at 509).
On April 26, 2023, the government sought a three-month continuance for
DNA testing of a buccal swab collected from Long after the laboratory stated results
would take “at least 12 weeks.” The district court granted the motion and reset the
trial from May 8, 2023, to August 7, 2023, concluding the ends of justice served by
the continuance outweighed the interests in a speedy trial. Long asserts this delay
was not excludable because the government had failed to diligently prepare by
waiting to collect his DNA for testing until thirty months after he was indicted. See
1 The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri, now retired.
2 Long also challenges the excludability of a continuance granted due to the
unavailability of a government witness. Even if this continuance was not excludable,
more than 70 countable days would not have passed under Long’s own calculation
unless the DNA testing continuance was also improper.

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18 U.S.C. § 3161(h)(7)(C). The district court did not clearly err in finding the
government acted diligently. Once the government collected the buccal swab, it
took the sample to the lab that day, inquired when testing would be completed, and
filed a continuance the following day after learning that results would take twelve
weeks. These actions by the government are nearly identical to ones of which we
have previously approved as demonstrating diligence. See Villarreal, 707 F.3d at
954. Long argues Villarreal is inapplicable given the greater delay from indictment
to testing here, but he has not shown that the government had any obligation to
collect his DNA for testing at an earlier date besides its general duty to prepare cases
for trial. See id. Long’s many motions and requests for continuance, not the
government’s inaction, were the primary cause of the length of time between his
indictment and the trial date that was continued for DNA testing. The challenged
continuance was the government’s first request to postpone trial, and it arose once
the government learned the extent of the issues Long planned to contest at trial.
Thus, while the government should actively prepare its cases during trial delays
caused by the defendant in order to protect the public’s interest in a speedy trial,
under these circumstances, the district court did not clearly err by finding the
government acted diligently. The delay therefore was excludable, and no Speedy
Trial Act violation occurred. See 18 U.S.C. § 3161(h)(7)(A).
Long next challenges the admission of two exhibits under Federal Rules of
Evidence 403 and 404(b). These exhibits were a certified copy of the criminal
complaint, indictment, and judgment for Long’s prior convictions for unlawful
possession of a firearm by a felon and unlawful use of a firearm, including the
circumstances surrounding those convictions. We review a district court’s
evidentiary rulings under Rules 403 and 404(b) for abuse of discretion. See United
States v. Medrano, 925 F.3d 993, 996 (8th Cir. 2019); United States v. Aldridge, 664
F.3d 705, 713 (8th Cir. 2011). Even if the district court erred in admitting this
evidence, we will not reverse Long’s conviction unless “the erroneous evidentiary
ruling had a substantial influence on the jury’s verdict.” Aldridge, 664 F.3d at 714
(quoting United States v. Henderson, 613 F.3d 1177, 1183 (8th Cir. 2010)). In this
case, the admission of the exhibits was harmless because the jury never saw them.

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The parties agreed the jury would see the exhibits only if a party wanted to publish
a certified copy of the convictions or if the jury requested to view it. Neither
occurred. While the jury knew Long had these prior convictions due to other
testimony and the parties’ stipulation, the specific content of these exhibits was not
discussed in the jurors’ presence. Thus, the exhibits had no substantial influence on
the jury’s verdict, so their admission was harmless. See Aldridge, 664 F.3d at 714.
Finally, Long challenges the constitutionality of 18 U.S.C. § 922(g)(1) as
applied to him. Circuit precedent forecloses his argument that the Second
Amendment prohibits a ban on firearm possession by all persons previously
convicted of a felony. See United States v. Cunningham, 114 F.4th 671, 675 (8th
Cir. 2024); United States v. Jackson, 110 F.4th 1120, 1125–26 (8th Cir. 2024). The
district court therefore did not err in denying his motion to dismiss the indictment.3
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3 Even if Long could bring an as-applied challenge to section 922(g)(1), he
would not likely prevail as he has multiple past convictions for violent felonies,
including one as recent as 2013. See United States v. Rahimi, 144 S. Ct. 1889, 1898
(2024); see also United States v. Jackson, 85 F.4th 468, 470–72 (8th Cir. 2023)
(Stras, J., dissenting from denial of reh’g en banc) (explaining that, based on
Founding-era history, the government can strip “dangerous” individuals of their
firearms).

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