United States of America v. James E. Everett, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 18-2806
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
James E. Everett, Jr.
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: June 16, 2020
Filed: October 9, 2020
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Before LOKEN, ARNOLD, and GRASZ, Circuit Judges.
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LOKEN, Circuit Judge.
James Everett, Jr. resisted arrest and directed a death threat to Federal
Protective Service (“FPS”) officers outside the Richard Bolling Federal Building in
Kansas City, Missouri (the “Bolling Building”). A jury convicted Everett of
threatening a federal law enforcement officer (“Count 1”), forcibly resisting a federal
law enforcement officer (“Count 2”), and being a felon in possession of a firearm
(“Count 3”). See 18 U.S.C. §§ 115(a)(1)(B), 111(a)(1), 922(g)(1). Everett appeals,

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arguing the district court1 erred in denying his motion to suppress the firearm found
under the driver’s seat of the car he drove to the Bolling Building; abused its
discretion by admitting unfairly prejudicial phone calls he made from jail while
awaiting trial; the evidence was insufficient to convict him of any count; and the
Supreme Court’s recent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019),
requires reversal of his felon-in-possession conviction. We affirm.
I. Suppression Issues
The evidence at the initial suppression hearing included testimony from FPS
Inspector David Yadon and Kansas City Police Detective Bradley Bailey, and police
reports of the incident. Yadon testified that he was dispatched from the second floor
of the Bolling Building after Everett walked into the lobby and asked to see a federal
judge. By the time Yadon and two other FPS inspectors reached the lobby, protective
service officers (PSOs) had told Everett no federal judges were in the building and
he must leave. The PSOs told Yadon that Everett came to the Bolling Building from
a silver car parked on the street in a space reserved for emergency vehicles.
The inspectors stepped outside and observed Everett screaming, waving his
arms, and pacing in the middle of the street. Yadon asked Everett “what the issue
was.” Everett walked toward the trio cursing, turned around before reaching them,
then reversed course and marched back with his fists clenched. As he approached,
Everett yelled obscenities like, “I’ll kick your ass.” Inspector Wright drew and
pointed his taser at Everett. Everett stopped walking, looked at Wright, and said, “are
you going to tase me, I’m going to fucking kill you.”
1The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri, adopting the Report and Recommendation of the Honorable
Robert E. Larsen, United States Magistrate Judge for the Western District of
Missouri.
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Yadon circled behind Everett and attempted to handcuff him. Everett resisted
and began kicking, twisting, biting and struggling to get free. Yadon held Everett’s
arms and asked Inspector David Wright to apply handcuffs. The three inspectors with
the help of a fourth FPS officer and Kansas City Detectives Bailey and Anthony Watt
succeeded in taking Everett to the ground and handcuffing him. Yadon saw a set of
car keys fly out of Everett’s hand as he fell to the ground. Recalling that Everett
approached from an illegally parked car, Yadon asked Everett if he had driven to the
Bolling Building. Everett replied, “Yes, I drove and I have a gun in the car.” The
officers called an ambulance for Everett because he demonstrated signs of being
emotionally disturbed or under the influence of a narcotic.
Detective Bailey testified that, while helping subdue Everett, he heard him say
“that the gray car over there was his and that there was a gun under the seat.” Everett
looked toward a silver or gray car illegally parked in a space marked with signs for
emergency vehicles only, which made it subject to ticketing and towing by the KCPD.
The car’s tags revealed that the vehicle was registered to Tiara Gray, Everett’s
girlfriend, who was not present at the scene. Detectives Bailey and Watt concluded
a tow was necessary because the car was being abandoned due to Everett’s arrest. In
accordance with the KCPD’s “Procedural Instruction for Towing and Protective
Custody of Vehicles and Its Contents,” Bailey and Watt inventoried the contents of
the vehicle for personal belongings. They discovered numerous personal items
including a car seat and a loaded handgun under the driver’s seat. Watt contacted
Gray after the tow to return the car seat, who confirmed she loaned the car to Everett.
Adopting the magistrate judge’s recommendations, the district court granted
Everett’s motion to suppress his statement regarding the gun in his car because it was
obtained in violation of his Miranda rights. But the court denied the motion to
suppress the gun on two grounds: first, because it was discovered pursuant to a valid
inventory search prior to the vehicle being towed; and second, because the firearm’s
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discovery was not the result of an involuntary statement by Everett.2 Everett
challenges those determinations on appeal. We review the court’s underlying factual
findings for clear error and its legal conclusion de novo. United States v. Arrocha,
713 F.3d 1159, 1160 (8th Cir. 2013). We conclude that the district court’s inventory
search ruling was correct and that the firearm would inevitably have been discovered
through this independent line of investigation. Therefore, we need not consider
whether Everett’s statement regarding the firearm was involuntary. See United States
v. Alvarez-Gonzalez, 319 F.3d 1070, 1072 (8th Cir. 2003).
When local police search a vehicle they are impounding for “public safety” or
“community caretaking” functions, incriminating evidence discovered during the
search need not be suppressed if the officers “follow a routine practice of securing
and inventorying the automobiles’ contents.” South Dakota v. Opperman, 428 U.S.
364, 368, 369-71, 376 (1976) (quotation omitted). This inventory search exception
“encompasses distinct police actions -- the decision to impound or tow a vehicle, the
decision to search the vehicle, and the manner and scope of the search.” Arrocha, 713
F.3d at 1162 (quotation omitted). Like the defendant in Arrocha, Everett does not
challenge the KCPD written policy prescribing when and how to conduct inventory
searches nor argue that the search of his vehicle exceeded the policy. Rather, he
argues the decision to tow was based on his incriminating statements, not its being
illegally parked, as evidenced by the fact that the tow truck was not called until thirty
minutes after he was taken to the hospital. In other words, he argues the inventory
search was pretextual and therefore does not justify the warrantless search.
Officers may impound and tow a vehicle without violating the Fourth
Amendment so long as they exercise that discretion “according to standard criteria
2“[A] violation of the Miranda rule does not justify the suppression of physical
evidence that is the fruit of custodial interrogation conducted without Miranda
warnings” unless the statement was involuntary. United States v. Morgan, 729 F.3d
1086, 1091 (8th Cir. 2013), citing United States v. Patane, 542 U.S. 630 (2004).
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and on the basis of something other than suspicion of evidence of criminal activity.”
Colorado v. Bertine, 479 U.S. 367, 375 (1987). Officers conducting inventory
searches consistent with standardized policies may “keep their eyes open for
potentially incriminating items that they might discover in the course of an inventory
search, as long as their sole purpose is not to investigate a crime.” United States v.
Harris, 795 F.3d 820, 822 (8th Cir. 2015) (quotation omitted). “Something else must
be present to suggest that the police were engaging in their criminal investigatory
function, not their caretaking function.” Id. (quotation omitted).
The “something else” on which Everett relies is the thirty minutes between his
departure by ambulance and the order for a tow truck. This is insufficient. The
KPCD policy authorized a tow because Everett was under arrest and the car was
parked in a space reserved for emergency vehicles. Arrest of the driver is a common
reason a car is impounded and towed. See Harris, 795 F.3d at 823; Arrocha, 713 F.3d
at 1163. Bailey’s testimony established that the inventory search for personal effects
was conducted in accordance with neutral criteria promulgated in the KCPD policy.
Bailey and Watt searched only common areas and found the handgun in a location
firearms are routinely stored. See Harris, 795 F.3d at 821. Bailey and Watt had to
inventory the personal effects and attempt to contact Gray, the car’s registered owner,
after Everett was secured in the ambulance. Everett offers no authority suggesting
that thirty minutes was an unreasonably long delay. His motion to suppress was
properly denied.
II. The Phone Calls
Investigating FPS Special Agent Travis Vas testified at trial that he listened to
more than one hundred calls Everett made in the first ninety days he spent in jail. Vas
authenticated three calls that were admitted and played for the jury over Everett’s
objection. Everett argues the district court abused it discretion in admitting these
calls because their probative value was “substantially outweighed by a danger of . . .
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unfair prejudice.” Fed. R. Evid. 403. In reviewing for abuse of discretion, we “give
great deference” to the district court’s Rule 403 ruling. United States v. Huyck, 849
F.3d 432, 440 (8th Cir. 2017) (quotation omitted).
In the first call -- Exhibit 12 -- Everett in discussing a news article with an
unknown male commented that “the pistol . . . was in the car,” and explained that the
confrontation started when he was “walking back out to the car,” “8 to 10 of these
motherfuckers done rushed up out the building,” “[w]hen I walked back . . . to them,
the pussy done pulled out his Taser,” “I asked him to put up his Taser,” and I said
“you pull your gun out, I’m gonna . . . take your pistol and I’m gonna blow your
motherfucking brains out.” In the second call -- Exhibit 14 -- Everett commented to
Gray about his pending felon-in-possession charge: “they should have charged me
with . . . constructive possession of a firearm” because “[t]hey didn’t pull no pistol
off of my person.” In the third call -- Exhibit 15 -- Everett tells Gray, “I was just
wondering who you let borrow your car the night before,” and then says, “you need
to let me know who you are going to say, so I can know what I need to say.”
Everett contends that the information conveyed in Exhibit 12 could have been
obtained through alternative sources, “his tone was braggadocious,” and therefore its
prejudicial effect outweighed any probative value. He argues that Exhibit 14 could
be seen as an attempt to explore theories of defense and deficiencies in the
government’s case that could be misconstrued by and confuse the jury. He argues
that Exhibit 15 “is arguably Everett sharing his plight with his girlfriend” and saying
things “that may be nothing more than a joke.” “Under Rule 403,” he argues, “after
applying the appropriate balancing test, the prejudicial impact of admitting this
evidence far outweighed its probative value.” We disagree.
“Unfair prejudice means an undue tendency to suggest decision on an improper
basis.” Huyck, 849 F.3d at 440. Here, each of the three calls included highly
damaging admissions by Everett -- that he initiated an altercation with FPS officers,
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threatened to kill one officer, at least constructively possessed the firearm found in
his car, and urged Gray to say she had loaned the car to someone else. “Damaging
evidence is always prejudicial; the question is whether the evidence is unfairly
prejudicial.” United States v. Gant, 721 F.3d 505, 510 (8th Cir. 2013) (emphasis in
original). Everett has failed to identify any unfair prejudice. Therefore, the district
court was not required to decide whether similarly probative information on the same
matters could have been obtained from alternative sources. See United States v.
McCourt, 468 F.3d 1088, 1093 (8th Cir. 2006), cert. denied, 549 U.S. 1301 (2007).
The court did not abuse its discretion by admitting these recorded phone calls.
III. Sufficiency of the Evidence
Everett next argues the evidence was insufficient to convict him of the three
offenses. “We review the sufficiency of the evidence de novo, viewing evidence in
the light most favorable to the government, resolving conflicts in the government’s
favor, and accepting all reasonable inferences that support the verdict.” United States
v. Van, 543 F.3d 963, 964 (8th Cir. 2008).
Everett argues the evidence was insufficient to convict him of Counts 1 and 2
because he was so under the influence of drugs or alcohol that he lacked the specific
intent to threaten or forcibly resist a federal officer. Jury Instruction 23 instructed the
jury that “[b]eing under the influence of a drug provides a legal excuse for the
commission of the crime charged in Count One and Count Two only if the effect of
the drug makes it impossible for the defendant to have the intent to impede, interfere
with, or retaliate against a federal law enforcement officer engaged in his official
duties.”3
3“[A]ssaulting a federal employee [in violation of 18 U.S.C. § 111, the offense
charged in Count Two] is a general-intent crime” that only requires a showing that
the defendant acted voluntarily and intentionally. United States v. Gustus, 926 F.3d
1037, 1040 (8th Cir. 2019), cert. denied, 2020 WL 3405857 (2020).
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The jury was presented substantial circumstantial and direct evidence of
Everett’s specific intent to threaten the officers as charged in Count 1, and to
voluntarily and intentionally resist federal officers, as charged in Count Two.
Inspector David Wright testified that Everett aggressively approached him, Yadon,
and Patterson while uttering profanity-laced threats. When Wright drew his taser,
Everett delivered his most menacing and direct threat: “[A]re you going to tase me,
I’m going to fucking kill you.” Surveillance videos of the Bolling Building captured
the entire encounter and corroborated the accounts of Yadon, Wright, Bailey, and
Watt. And in his Exhibit 12 phone call with the unknown male, Everett confirmed
that he intentionally and consciously threatened the three FPS officers and threatened
to kill Wright after Wright drew his taser, portraying his actions as voluntarily taken,
not driven by a mind-altering substance. The testimony of Wright, Bailey, and Watt
plus the surveillance footage and the phone calls provided more than sufficient
evidence that Everett intentionally fought with officers who were attempting to
handcuff and restrain him.
Everett argues he acted “instinctual[ly],” but his criminal activity was
nonetheless voluntary. He never lost “the volition to control or prevent his conduct”
and therefore was criminally liable for his responses. People v. Grant, 377 N.E.2d 4,
8 (Ill. 1978). Although multiple officers stated that Everett’s behavior was consistent
with someone under the influence of a narcotic, this evidence did not compel the jury
to find that he was actually influenced by a drug to such a degree that he could not
act with specific intent. The jury’s contrary findings were thus well-supported.
Regarding Count 3, Everett argues the jury lacked sufficient evidence to find
he knowingly possessed the handgun because the government presented no
fingerprint or DNA evidence tying him to the gun, the gun was found hidden in a car
that did not belong to him, and the jail calls should have been excluded. We disagree.
The video surveillance and Everett’s phone calls from jail provided compelling
evidence that he was in either actual or constructive possession of the firearm. See
United States v. Battle, 774 F.3d 504, 515 (8th Cir. 2014), cert. denied, 575 U.S. 978
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(2015). The surveillance video shows Everett leaning into the driver’s door of the
silver car he drove to the Bolling Building. In all three phone calls, Everett revealed
his knowledge that the gun was in the car. The jury could reasonably find that Everett
possessed the gun and placed it under the driver’s seat before instigating conflict with
the officers. See United States v. Hyles, 521 F.3d 946, 956 (8th Cir. 2008), cert.
denied, 555 U.S. 1102 (2009). Moreover, Everett constructively possessed the
firearm because he exercised “control, ownership, or dominion over . . . the premises
where [it] was found.” Battle, 774 F.3d at 515; see United States v. Porter, 687 F.3d
918, 921 (8th Cir. 2012). It is irrelevant that the car belonged to Gray. See United
States v. Boykin, 986 F.2d 270, 274 (8th Cir.) (“ownership is irrelevant to the issue
of possession”), cert. denied, 510 U.S. 888 (1993). Finally, “forensic evidence is not
necessary for a firearms conviction.” Porter, 687 F.3d at 921 (quotation omitted).
IV. The Rehaif Issue
While Everett’s appeal was pending, the Supreme Court held in Rehaif that, in
a prosecution under 18 U.S.C. § 922(g), 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.” 139 S. Ct. at 2200. We
requested supplementary briefing in light of Rehaif. As Rehaif was decided while his
case was on direct appeal, Everett correctly argues the district court erred by failing
to instruct the jury it needed to find Everett knew he belonged to the “relevant
category” of felons when he possessed the handgun. However, since Everett did not
raise this issue before the district court, our review is for plain error. To succeed,
Everett must demonstrate the district court committed an error that is plain, affected
his substantial rights, and seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See United States v. Olano, 507 U.S. 725, 734 (1993).
“[T]he absence of an instruction requiring the jury to find that [Everett] knew
he was a felon was clear error under Rehaif.” United States v. Hollingshed, 940 F.3d
410, 415 (8th Cir. 2019), cert. denied, 140 S. Ct. 2545 (2020). However, as in
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Hollingshed, Everett cannot show that his substantial rights were affected, that is, “a
reasonable probability that, but for the error, the outcome of the proceeding would
have been different.” Id. at 416 (quotation omitted). Like the defendant in
Hollingshed, Everett stipulated prior to trial to having previously been convicted of
a crime punishable by a term of imprisonment exceeding one year. See 940 F.3d at
415. We need not decide whether that stipulation resolves the issue because the
entire record demonstrates that a Rehaif instruction would not have altered the jury’s
verdict because Everett knew he was a convicted felon.
Like the defendant in Hollingshed, Everett had previously been convicted of
a felony, served a substantial prison term, and then served additional time when he
violated supervised release conditions. See Hollingshed, 940 F.3d at 415-16. Even
more telling, in Exhibit 15, a call between Everett and Gray, the jury heard Everett
say: “Start looking at the news, or find an article. . . . Okay. Well, the next brother
that comes up. . . . That was the motherfucker that had it. You hear me?” Like a
similar call from Hollingshed to his girlfriend, this call told the jury that Everett
understood he was legally barred from possessing “it,” the firearm found in Gray’s
car. See id. at 416. With the facts pertaining to this issue so closely parallel to the
facts in Hollingshed, we conclude the district court did not commit plain Rehaif error.
The judgment of the district court is affirmed.
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