United States of America v. Darrell Two Hearts

United States Court of Appeals
For the Eighth Circuit
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No. 20-3700
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Darrell Two Hearts,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: October 22, 2021
Filed: April 25, 2022
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Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
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COLLOTON, Circuit Judge.
A jury found Darrell Two Hearts guilty of unlawful possession of a firearm as
a prohibited person, in violation of 18 U.S.C. § 922(g). The district court1 sentenced
1The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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him to 71 months’ imprisonment. On appeal, Two Hearts challenges the sufficiency
of the evidence to support his conviction, an evidentiary ruling at trial, and the
calculation of the advisory guideline range at sentencing. We affirm.
I.
The gun charge arose from a seizure on April 25, 2020, in Aberdeen, South
Dakota. A court had issued an arrest warrant for Two Hearts, and law enforcement
officers located him on a city street. An investigator used binoculars to watch Two
Hearts from a distance, and saw him remove bags from the rear door of a sport utility
vehicle. Shortly thereafter, a patrolman from the Aberdeen police department arrived
and recorded Two Hearts on video carrying three bags away from the SUV. The
patrolman directed Two Hearts to drop the bags and then placed him under arrest.
An investigator with the sheriff’s office, suspecting that Two Hearts was
armed, questioned him and asked where “the gun” was located. Two Hearts
responded that he did not know what the investigator was talking about. The
investigator then asked if the bags belonged to Two Hearts, and Two Hearts answered
affirmatively. When asked who could come pick up the bags for him, Two Hearts
responded that his mother could do so. An officer then searched Two Hearts and
placed him in the backseat of a patrol vehicle for travel to jail. The searching officer
found no weapon or contraband on the person of Two Hearts.
Investigators searched the three bags that Two Hearts was seen carrying. In a
light gray backpack, a detective found a black handgun and a black holster. The
handgun was loaded, and there was a round in the chamber. The backpack also
contained a green Crown Royal bag. Inside the Crown Royal bag, the detective found
an empty cigar pouch that contained a rolled-up rubber glove. Inside the rubber
glove, the detective found a small plastic bag that contained a white crystal-like
substance. The detective also found several items of drug paraphernalia in a pocket
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of the backpack: a smoking device (described by the prosecutor as a “pot pipe”), a
marijuana grinder, and several syringes (including one with an unspecified liquid in
it). Officers searched the other two bags and found men’s clothing but no contraband
or identifying information.
When Two Hearts arrived at the jail, a correctional officer searched him and
found a small plastic bag that contained a white substance inside the front right coin
pocket of his pants. The jailer gave the bag to a police officer, who placed it in an
evidence bag, drove it to the police department, and placed it in an evidence locker.
The police officer completed a drug data collection form and described the evidence
as a “white substance in a bag.” The officer indicated that the evidence should be
sent to the South Dakota State Health Laboratory for testing.
The state laboratory received the bag on May 7, 2020. A chemist examined the
bag and discovered that “there were three baggies that were rolled up, and they had
a rubber band around them.” The chemist tested a substance from one of the three
bags. The substance tested positive for 0.26 grams of methamphetamine.
Before Two Hearts was arrested, a detective discovered on the internet a
Facebook account page with the profile name of Eric Smokes Plenty. The detective
recognized Two Hearts as the person depicted in the profile picture. The picture
shows Two Hearts pointing a gun at the camera. The government offered the
photograph into evidence, and the court received it over Two Hearts’s objection. At
trial, the detective who found the Facebook profile could not say whether the gun in
the photo was a real firearm or a replica. A special agent for the Bureau of Alcohol,
Tobacco, Firearms, and Explosives also could not say definitively whether the gun
in the photograph was a firearm, but he did testify that the front of the gun in the
photograph was consistent with the firearm recovered from Two Hearts’s bag.
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At the close of the prosecution’s case and at the close of the evidence, the
district court denied Two Hearts’s motions for judgment of acquittal. The jury
convicted Two Hearts of unlawful possession of a firearm on two alternative theories:
that he was an unlawful user of a controlled substance, 18 U.S.C. § 922(g)(3), and
that he had been convicted of a crime punishable by a term of imprisonment
exceeding one year. Id. § 922(g)(1). In determining an advisory guideline range at
sentencing, the district court applied a four-level increase under USSG
§ 2K2.1(b)(6)(B) for possession of a firearm in connection with another felony
offense—namely, felony possession of a controlled substance. The district court
sentenced Two Hearts at the top of the advisory guideline range to a term of 71
months’ imprisonment.
II.
A.
Two Hearts first challenges the district court’s denial of his motions for
judgment of acquittal. The offense required proof that he knowingly possessed a
firearm, that he was a prohibited person, and that he knew he belonged to the relevant
category of persons who are prohibited from possessing a firearm. See Rehaif v.
United States, 139 S. Ct. 2191, 2200 (2019). In reviewing a preserved challenge to
the sufficiency of evidence, we consider the evidence in the light most favorable to
the verdict, and assess whether any rational jury could have found the elements of the
offense beyond a reasonable doubt. United States v. Owens, 966 F.3d 700, 708 (8th
Cir. 2020).
Two Hearts argues that the government failed to prove that he knowingly
possessed the firearm. This element may be satisfied by proof of actual or
constructive possession. United States v. Green, 835 F.3d 844, 852 (8th Cir. 2016).
The jury was instructed correctly that “[a] person who, although not in actual
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possession, has both the power and the intention at a given time to exercise dominion
or control over a thing, either directly or through another person or persons, is then
in constructive possession of it.” R. Doc. 42, at 14; see United States v. Gilmore, 968
F.3d 883, 886 (8th Cir. 2020).
The record contains ample evidence from which a reasonable jury could
conclude that Two Hearts constructively possessed the firearm. An investigator
observed Two Hearts remove three bags from a vehicle. Video footage shows Two
Hearts carrying three bags away from an SUV just before police apprehended him.
After he was arrested, Two Hearts told officers that the bags belonged to him, and
that his mother could pick them up. Officers found the loaded firearm in one of the
bags. Two Hearts’s physical control over that backpack, and his admission that the
bag belonged to him, is sufficient to support a finding that he knew about the gun
inside, and that he therefore constructively possessed the firearm.
Two Hearts also contends that even if the government proved knowing
possession of the firearm, the evidence was insufficient to show that he was a
prohibited person. The jury found that he was prohibited from possessing a firearm
on two grounds, and sufficient evidence of either would be sufficient to sustain the
conviction. We conclude that both grounds are supported by the record.
The jury first concluded that Two Hearts was “an unlawful user of . . . any
controlled substance” when he possessed the firearm. 18 U.S.C. § 922(g)(3). This
statute does not require use of a controlled substance at the exact moment that the
defendant possessed a firearm. United States v. Mack, 343 F.3d 929, 933 (8th Cir.
2003). Rather, it is sufficient for the prosecution to establish that a defendant
occupied the status of an “unlawful user” of drugs during the time that he possessed
a firearm. Id. A jury reasonably may infer a defendant’s drug-user status from the
fact that he possessed a user quantity of illegal drugs. United States v. Johnson, 572
F.3d 449, 453 (8th Cir. 2009).
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There was sufficient evidence to support a finding by the jury that Two Hearts
possessed methamphetamine at the time of his arrest, and was an unlawful user of a
controlled substance. Investigators seized a bag from Two Hearts’s pants pocket that
tested positive for 0.26 grams of methamphetamine. They also found in the backpack
several items suggestive of drug use, including syringes, a white crystalline
substance, a smoking device, and a marijuana grinder. Those seizures justified a
finding that Two Hearts was a drug user.
Two Hearts argues that the inference is unreasonable because the evidence
seized from his pants does not match the report of evidence tested at the state
laboratory. The jailer who searched him reported finding one bag in his front right
pocket, but the laboratory reported receiving three bags for testing. The chemist at
the laboratory then tested only one of those three bags. Two Hearts theorizes that two
of the bags received at the laboratory came from another source, so the government
proved only a one-in-three chance that he possessed methamphetamine.
Viewed in the light most favorable to the verdict, however, the alleged
discrepancy is satisfactorily explained. The chemist testified that upon examining the
bag received from the jail, she discovered that “there were three baggies that were
rolled up, and they had a rubber band around them.” A reasonable jury could have
concluded that the “one bag” found in Two Hearts’s pocket consisted of three baggies
that were rolled up and bound together by a rubber band. On that understanding, the
baggie that contained methamphetamine came from Two Hearts’s pocket, and the
evidence supported a reasonable finding that he was an unlawful drug user.
As a second ground for conviction, the jury concluded that Two Hearts
unlawfully possessed the firearm as a convicted felon. The court instructed the jury,
in accordance with Rehaif, that the government must prove that the defendant “knew
on or about April 25, 2020, that he was a prohibited person.” R. Doc. 42, at 11. The
jury found that element beyond a reasonable doubt, but Two Hearts now argues that
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the government’s evidence was insufficient to show that he knew of his status as a
felon. In his motions for judgment of acquittal, Two Hearts challenged the
sufficiency of the evidence on other grounds, but did not raise this point. We
therefore review the contention for plain error only. United States v. Samuels, 874
F.3d 1032, 1036 (8th Cir. 2017); see United States v. Olano, 507 U.S. 725, 732-36
(1993). In this context, we have said that an error is plain only “if there is no
evidence of the defendant’s guilt or the evidence on a key element of the offense was
so tenuous that a conviction would be shocking.” United States v. Calhoun, 721 F.3d
596, 600 (8th Cir. 2013) (quoting United States v. Villasenor, 236 F.3d 220, 222 (5th
Cir. 2000)).
There is no plain error warranting relief, because the evidence was sufficient
to support a finding that Two Hearts knew of his status as a convicted felon. The
parties stipulated at trial that he had “been convicted of a crime punishable by a term
of imprisonment exceeding one year for purposes of 18 U.S.C. § 922(g)(1).”
Although the stipulation addressed only the fact of the defendant’s status as a felon,
not the defendant’s knowledge of his status, defense counsel proceeded in closing
argument as though the stipulation resolved the knowledge element too: “Did he
know he was a felon? Yes. He signed that stipulation. The government didn’t have
to prove that.” R. Doc. 65, at 22.
Whether or not defense counsel conceded too much, or invited any error, the
evidence was sufficient to support the finding. As we said in United States v. Owens,
966 F.3d 700 (8th Cir. 2020): “Rational jurors, using reason and common sense in
light of their own observations and experiences, could infer beyond a reasonable
doubt that a felony conviction would be a significant life event that a person would
know about when it happened and remember at a later date.” Id. at 709. And “it is
highly improbable that a person could be convicted of a felony without being aware
that his possible sentence would exceed one year’s imprisonment.” Id. (quoting
United States v. Miller, 954 F.3d 551, 559 (2d Cir. 2020)). The jury reasonably could
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have concluded based on the stipulation that Two Hearts knew of his status as a
convicted felon. At a minimum, under the plain-error standard, the evidence was not
“so tenuous that a conviction would be shocking.” Calhoun, 721 F.3d at 600 (internal
quotation omitted). It is therefore unnecessary, where the jury was properly
instructed under Rehaif, to address whether our plain-error analysis should consider
evidence adduced in the post-trial sentencing record that Two Hearts had sustained
five previous felony convictions and served at least six years in custody. Cf. Greer
v. United States, 141 S. Ct. 2090, 2098 (2021) (concluding that a trial “where the
proper instruction was given, but where the Government did not introduce additional
evidence to prove that [the defendant] knew he was a felon” is “not a realistic
scenario”).
B.
Two Hearts next challenges the admission of the Facebook photograph that
shows him pointing a gun at the camera. We review the district court’s evidentiary
ruling for abuse of discretion. United States v. Johnson, 860 F.3d 1133, 1139 (8th
Cir. 2017).
Two Hearts first argues that the photograph was not relevant. See Fed. R. Evid.
401, 402. Evidence is relevant if it has “any tendency to make a fact more or less
probable” and “the fact is of consequence in determining the action.” Id. 401. A
disputed fact of consequence at trial was whether Two Hearts knowingly possessed
a firearm in his backpack at the time of his arrest on April 25, 2020. The Facebook
photograph was posted on March 14, 2020. Evidence that Two Hearts possessed a
comparable firearm on a recent occasion was relevant to show that he knew about the
firearm in his backpack on April 25. See United States v. Rembert, 851 F.3d 836, 839
(8th Cir. 2017).
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Two Hearts argues, however, that admission of the Facebook photograph
risked misleading the jury and unfairly prejudiced him, because the prosecution
witnesses could not say definitively whether the gun in the photograph was a real
firearm or the same firearm that officers found in his backpack. See Fed. R. Evid.
403. This contention is unavailing: the “mere possibility that the weapon could have
been fake does not preclude a reasonable jury from finding that the gun was real.”
United States v. Payne-Owens, 845 F.3d 868, 875 (8th Cir. 2017) (internal quotation
omitted). Though neither law enforcement witness who addressed the issue could say
with certainty that the gun in the photograph was a real firearm, a federal firearms
agent did testify that the front of the gun in the Facebook photograph was consistent
with the firearm recovered from Two Hearts’s backpack. Whether to infer that the
firearm in the backpack was the gun displayed in the photograph of Two Hearts was
a proper subject of argument to the jury. The absence of conclusive evidence that the
items were the same does not create a risk of unfair prejudice or demonstrate an abuse
of discretion in admitting the photograph.
C.
Two Hearts next argues that the district court committed procedural error at
sentencing when it applied a four-level increase under the sentencing guidelines for
possession of a firearm “in connection with another felony offense.” USSG
§ 2K2.1(b)(6)(B). The guideline commentary provides that the increase applies if the
firearm “facilitated, or had the potential of facilitating,” a felony drug offense. Id.,
comment. (n.14(A)). Possession of methamphetamine is a felony under South Dakota
law, see S.D. Codified Laws § 22-42-5, and the court found that Two Hearts
possessed the firearm in connection with that drug felony offense. In explaining why
the increase applied, the district court found that Two Heart had methamphetamine
on his person while he was carrying a backpack that contained a loaded handgun, thus
creating “a very dangerous situation.” We review the district court’s finding that Two
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Hearts possessed the firearm in connection with the felony drug offense for clear
error. United States v. Sneed, 742 F.3d 341, 344 (8th Cir. 2014).
Two Hearts argues that the district court clearly erred by failing to make an
explicit finding that his possession of the firearm “facilitated” his possession of the
methamphetamine. We have strongly encouraged district courts to make an explicit
finding on facilitation, but we have also recognized that “the guideline does not
require that level of precision.” United States v. Jones, 990 F.3d 1141, 1143 (8th Cir.
2021). Indeed, we “have never reversed a § 2K2.1(b)(6)(B) enhancement merely
because a specific ‘facilitate’ finding was not made.” Sneed, 742 F.3d at 344. The
guideline does not allow an automatic increase simply because a defendant possesses
drugs and a gun in the same proximity, but there is no error if “the record makes clear
the district court understood and properly applied the ‘facilitate’ standard.” Id.
The district court here adopted the conclusion of the presentence report that
Two Hearts “possessed the firearm in connection with Possession of Controlled
Substance,” but did not make an explicit finding that the gun “facilitated” the
possession. The court found that Two Hearts possessed methamphetamine and a
loaded gun at the same time, and described this circumstance as “a very dangerous
situation.” We conclude that these comments, while minimal, are sufficient to show
that the court did not apply the increase automatically based on mere proximity. By
referring to the “very dangerous situation,” the court evoked our decisions
recognizing “the increased risk of violence whenever guns are in the possession of
persons engaged in committing drug felonies,” even those that involve a small
amount of drugs for personal use. United States v. Regans, 125 F.3d 685, 686 (8th
Cir. 1997). Theft of contraband is always a risk when a person possesses illegal
drugs, and a weapon naturally facilitates the offense by providing protection and
emboldening the offender. Id. at 686-87. The district court did not spell out this
rationale in as much depth as we have encouraged, but the potential for facilitation
is so readily apparent that “when a drug user chooses to carry illegal drugs out into
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public with a firearm, an ‘in connection with’ finding will rarely be clearly
erroneous.” Sneed, 742 F.3d at 344 (internal quotation omitted). The district court
did not clearly err in applying the four-level increase under the guidelines.
* * *
The judgment of the district court is affirmed.
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