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United States v. Booker

United States Court of Appeals, Eighth Circuit

December 19, 2014

United States of America, Plaintiff - Appellee
v.
Demario Kentrell Booker, Defendant - Appellant

Submitted October 7, 2014

Appeal from United States District Court for the District of Minnesota - St. Paul.

For United States of America, Plaintiff - Appellee: LeeAnn K. Bell, Assistant U.S. Attorney, Richard Newberry, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN; Carol M. Kayser, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Saint Paul, MN.

Demario Kentrell Booker, Defendant - Appellant, Pro se, Brooklyn Center, MN.

For Demario Kentrell Booker, Defendant - Appellant: Katherine M. Menendez, Assistant Federal Public Defender, Robert H. Meyers, Douglas Olson, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Minneapolis, MN.

Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

OPINION

Page 929

LOKEN, Circuit Judge.

A jury found Demario Booker guilty of being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g). Booker appeals his conviction, challenging the district court's[1] response to a question from the jury during its deliberations. Reviewing the court's response for abuse of discretion, we affirm. See United States v. Hudspeth, 525 F.3d 667, 679 (8th Cir. 2008) (standard of review).

At approximately 2:00 a.m. on November 20, 2012, Booker led Minneapolis police on a high-speed chase through north Minneapolis and suburban Robbinsdale after refusing to obey an attempted traffic stop. When the car finally stopped and three occupants exited the vehicle, police found a loaded handgun lying in plain view under the brake pedal. During the chase, Booker was driving the car. Its owner, Booker's friend Daniel Mack, was the back seat passenger. Michelle Crook, an acquaintance of Mack, was the front seat passenger. Booker's defense at trial was that he never had knowing actual or constructive possession of the firearm.

Crook testified that, during the chase, Booker pulled out a gun, " showed it," dropped it on the floor, tried to retrieve it by reaching under the seat while driving, and asked the passengers to help find it. Mack testified he never saw Booker with a gun that night, but Booker " made a reference" to a gun at some point during the chase, and Mack " drew an assumption" that Booker " had a gun in the car." Booker testified that Mack said during the chase that Mack's gun was under the driver's seat, causing Booker to panic and begin searching for it. Booker declared that he never possessed, touched, saw, or controlled a gun on November 20. Mack, who also had a prior felony conviction, testified he had not put the gun in the car.

At the close of the trial, the district court instructed the jury, without objection, that the government must prove beyond a reasonable doubt that Booker " knowingly possessed the firearm described in the indictment" at the time in question. The court explained the meaning of " possession," again without objection, in Instruction 19:

The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may ...

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