Appeal from United States District Court for the District of Minnesota - St. Paul
The opinion of the court was delivered by: Shepherd, Circuit Judge.
Submitted: October 18, 2012
Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
Based on the sale of a handgun to a confidential informant, a jury convicted Roger Bugh of being a felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court*fn1 sentenced Bugh to 188 months imprisonment pursuant to the Armed Career Criminal Act because Bugh had previously been convicted of at least three violent felonies. See 18 U.S.C. § 924(e)(1). Bugh now appeals, raising several arguments related to the Government's investigation, the destruction of evidence, and his sentence. We affirm.
In late 2010, Roger Bugh met Troy Nowland through a mutual friend known as "Michael T." While Michael T. and Bugh were using the drugs Nowland had sold them, Nowland expressed concern for his safety. He was worried that as a drug dealer he could be the target of a robbery because of the large amounts of cash and drugs he carried. Hearing this, Bugh offered to sell Nowland a firearm which belonged to his former girlfriend for $500. Although Nowland agreed to buy the gun, he later decided a gun was unnecessary. As a result, when Bugh called Nowland to set up the sale, Nowland declined.
Approximately two weeks later, Officer Mark Nelson, a member of St. Paul, Minnesota's narcotics unit, arrested Nowland for distributing methamphetamine. Officer Nelson told Nowland that if he provided three criminal targets, then Nowland would receive favorable sentencing and charging considerations.*fn2 After agreeing to work with the Government, Nowland offered Bugh as a potential target. Even though he had never heard of Bugh, Officer Nelson was interested because of Bugh's criminal history and access to a gun. While Officer Nelson was recording the conversation, Nowland called Bugh on the day of his arrest, January 6, 2011. Bugh answered and agreed to sell the gun. Although he could not deliver the gun that day because he did not have a car, Officer Nelson decided to continue pursuing Bugh.
On January 11, 2011, Officer Nelson, along with other law enforcement agents, met Nowland at a motel in St. Paul to set up the sale. Once the operation was in place, Nowland called Bugh and asked him to deliver the gun to the motel. Bugh had seen the gun since they last spoke, and told Nowland that it was "nicer than [he] thought." It was a brand new, "real . . . high shot" gun with a two-and-a-half inch barrel, according to Bugh. Bugh agreed to sell the gun, but had to get it from his former girlfriend. In the end, Bugh did not bring the gun to Nowland that day. Not only did Bugh have a meeting with his parole officer that morning, his former girlfriend never brought him the gun. After trying to set up the sale for several hours, Officer Nelson and the other officers decided to end the operation for the day, but continued pursing Bugh.
After subsequent conversations between Bugh and Nowland, Officer Nelson planned another operation which would take place near a gas station on January 19, 2011. When Nowland called Bugh to purchase the gun, Bugh did not answer. Bugh returned Nowland's call a few minutes later and told Nowland he was "trying to get a . . . ride over to" his former girlfriend's house, so "hold tight." His former girlfriend still had the gun, but Bugh had no way of picking the gun up from her house or transporting it to Nowland. After five phone calls between Bugh and Nowland, Bugh was unable to get the gun or find transportation. As a result, Officer Nelson ended the operation for the day.
The next day, Officer Nelson and other officers again put in place an operation at the same gas station to facilitate the purchase. Nowland and Bugh called each other eight times that day. Eventually, Bugh's former girlfriend borrowed a van and transported Bugh and the gun to the gas station. When Bugh and his former girlfriend arrived, Nowland was waiting in the parking lot with a concealed recording device. Officer Nelson was in a surveillance van a block away and approximately 12 officers were hiding around the gas station. Nowland entered the van and exchanged money for the gun. Then, Nowland alerted Officer Nelson with a prearranged signal that the transaction was complete. At that point, officers swarmed the van with their guns drawn and seized the three individuals,*fn3 the money, and the gun. Bugh was arrested and taken to the county jail.
Based on the sale, a grand jury indicted Bugh with one count of being a felon in possession of a firearm. Bugh pled not guilty and proceeded to trial. At trial, the jury heard numerous audio recordings of phone conversations between Nowland and Bugh. Officer Nelson testified, however, that he erased the phone conversations he recorded on January 6, 2011. He stated: "I was actually surprised when I went to download all the calls that those calls weren't on the recorder, but they just weren't."
After the Government had presented all of its evidence and rested its case against Bugh, Bugh made a motion for judgment of acquittal and separate motions to dismiss the charge based on outrageous Government conduct, entrapment, and the intentional destruction of evidence. The district court denied all of Bugh's motions. Bugh presented no evidence and rested his case. Based upon a request by Bugh, the district court instructed the jury on the defense of entrapment,*fn4 despite the Government's objection. After receiving the jury instructions and deliberating, the jury found Bugh guilty of one count of being a felon in possession of a firearm. After trial, Bugh moved the court to either dismiss the indictment or grant a new trial based on outrageous Government conduct and the destruction of evidence. The district court denied Bugh's motion.
At sentencing, Bugh objected to portions of his presentence report, arguing his non-residential burglary convictions should not count as violent felonies within the meaning of the Armed Career Criminal Act. The district court overruled Bugh's objection and found that Bugh had been convicted of four violent felonies, and, therefore, must be sentenced as an armed career criminal. The ...