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United States v. White

March 4, 2009

UNITED STATES OF AMERICA, APPELLEE,
v.
CLYDE WHITE, APPELLANT.



Appeal from the United States District Court for the District of South Dakota.

The opinion of the court was delivered by: Wollman, Circuit Judge.

Submitted: December 11, 2008

Before WOLLMAN, BYE, and RILEY, Circuit Judges.

A jury found Clyde White guilty of one count of being a drug user in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). The district court*fn1 imposed a sentence of fourteen months' imprisonment. White appeals his conviction. We affirm.

I.

In July 2006, White set off from Florida on a solo motorcycle trip across the United States. In August, he arrived in Sturgis, South Dakota, for the annual motorcycle rally. While attending the rally, White stayed at a campground with members of the Outlaw motorcycle club, of which he was a member. On Friday, August 11, White was involved in a motorcycle accident. He suffered a broken ankle and two cracked ribs, and his motorcycle was rendered inoperable. White was taken to a hospital, but decided to return to Florida rather than to undergo immediate surgery.

White made arrangements to ride at least part of the way to Florida with other Outlaw members whom he met at the campground. Because the cab of the members' pickup truck was already full, White agreed to ride in the truck's bed. As the group took a detour through Badlands National Park on their return trip, they were pulled over by a park ranger for a defective tail light. Investigating officers found several weapons in the truck's cab and a 9mm Beretta in the bed. White and the other occupants were transported to the Pennington County Jail, where they were processed and booked. An inventory of White's personal items revealed that he possessed a tin containing powdery residue that later tested as cocaine. White was required to provide a urine sample, which tested positive for 18.1 nanograms per milliliter of THC (marijuana) and .431 micrograms per milliliter of benzoylecgonine (cocaine).

At trial, Chief Ranger Mark Gorman testified that he had advised White of his rights before interviewing him at the county jail. According to Gorman, White said that "the Egyptian 9 millimeter" found in the bed of the truck was his and that he wanted it back. Gorman further testified that when asked why he had the gun, White referred to a violent confrontation between Outlaw members and a rival motorcycle gang, suggesting that the gun was for protection. During the presentation of his case, White denied making these statements.

While cross-examining one of the investigating officers earlier during the trial, White's counsel attempted to offer into evidence a document entitled "Arrest Report and Custody Authorization" (Report).

In response to the district court's query regarding the document's relevance, counsel stated that he intended to use it during Ranger Gorman's testimony. After stating, "Why don't you wait for Mr. Gorman to testify," the district court declined to admit the Report, questioning its relevance.

During his cross-examination of Ranger Gorman, defense counsel asked Gorman to identify the Report, and then again offered it as an exhibit. The district court sustained the government's relevance-based objection, precluded defense counsel from further questions regarding the Report, and granted counsel permission to file a written offer at a later time.

The following morning, defense counsel submitted a written offer, which stated, among other things:

Of particular importance is block 100 of the form, entitled "Arrestee's Rights Given By:" and filled out as "Not Given." Witness Gorman testified at length that a statement was taken regarding Defendant White's possession of a weapon, his manipulation of it and related circumstances. The credibility of this witness, who also testified that Defendant White's Miranda rights were provided to him from a card, is a central issue in this case. The statement at issue was not ...


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