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United States v. Pendleton

United States Court of Appeals, Eighth Circuit

July 6, 2018

United States of America, Plaintiff- Appellee,
v.
Jeffrey Joseph Pendleton, Defendant-Appellant.

          Submitted: February 16, 2018

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

          Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges. [*]

          COLLOTON, CIRCUIT JUDGE.

         A jury convicted Jeffrey Pendleton of unlawful possession of a firearm as a previously convicted felon. The district court[1] imposed a 15-year prison sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). On appeal, Pendleton disputes an evidentiary ruling at trial and challenges the determination that he qualifies as an armed career criminal under the sentencing statute. We conclude that there was no reversible error, and we therefore affirm.

         I.

         In March 2015, Pendleton was living in the basement of his nephew's home on the Lower Sioux Indian Reservation near Morton, Minnesota. On March 17, Penny Arredondo reported to law enforcement that she had observed Pendleton carrying a handgun at the nephew's residence. Three days later, law enforcement officers executed a search warrant at the house.

         Officers entered the home and located Pendleton in a basement bedroom, crouched near the bed. After arresting Pendleton, officers found a loaded black nine millimeter semiautomatic handgun under the bed, approximately two feet from where Pendleton had been crouching. Prescription pill bottles bearing Pendleton's name were lying on a dresser in the room. Inside the dresser, officers found shotgun shells, a nine millimeter round, and a .380 caliber round, as well as several pairs of blue jeans that matched Pendleton's physical characteristics. Upstairs, officers found more pill bottles labeled for Pendleton and a bag of nine millimeter ammunition. A forensic examination later confirmed that Pendleton's DNA was on the grip, slide, and magazine of the handgun.

         A grand jury charged Pendleton with unlawful possession of a firearm and unlawful possession of ammunition as a previously convicted felon, both in violation of 18 U.S.C. § 922(g)(1). The case proceeded to trial, and a jury found Pendleton guilty of possessing the firearm, but acquitted him of possessing ammunition. At sentencing, the district court concluded that Pendleton qualified as an armed career criminal under 18 U.S.C. § 924(e) and sentenced him to the statutory minimum term of 15 years' imprisonment.

         II.

         Pendleton appeals his conviction on the ground that the district court erred by admitting testimony of Penny Arredondo that she saw Pendleton carrying a handgun before the search. The government gave advance notice of Arredondo's testimony, and Pendleton moved in limine to exclude it. The district court denied the motion, stating that Arredondo's testimony was admissible under Federal Rule of Evidence 404(b). The court also overruled Pendleton's renewed objection to Arredondo's testimony before opening statements.

         At trial, Arredondo testified that while visiting Pendleton's nephew, she observed Pendleton carrying a firearm on his waistband "maybe two or three months tops" before law enforcement executed the search warrant. When asked to describe the gun, Arredondo testified: "I want to say black. It's not one-not like a revolver. Just one that you put like a-what do you call those, you fill it and then you just pop it in, the casings." We review the district court's evidentiary rulings for abuse of discretion. United States v. White, 816 F.3d 976, 982 (8th Cir. 2016).

         The district court admitted Arredondo's testimony for limited purposes as evidence of a crime, wrong, or other act under Rule 404(b). We agree with the government, however, that the testimony was relevant to the charged offense and was therefore admissible under Rule 402. Arredondo testified that she observed Pendleton carrying a black semiautomatic handgun within two or three months of the search, and officers found a black semiautomatic handgun under the bed near which Pendleton was crouching when they arrested him. Arredondo's testimony tended to make it more probable that the firearm under the bed belonged to Pendleton, because a jury reasonably could infer that the gun under the bed was the gun that Arredondo saw Pendleton carrying in his waistband. See Fed. R. Evid. 401.

         Pendleton complains that Arredondo's observation was too remote in time to be relevant, but the fact that Pendleton carried a firearm of the same description within eight weeks of the search would tend to make it more likely that the seized gun belonged to him. Pendleton also attacks Arredondo's credibility, but a challenge to credibility does not affect admissibility of testimony under Rule 402. See United States v. Searing, 984 F.2d 960, 965-66 (8th Cir. 1993). It was for the jury to determine how much weight to give the testimony in light of Pendleton's ...


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