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United States v. Green

United States Court of Appeals, Eighth Circuit

August 31, 2016

United States of America Plaintiff-Appellee
v.
Joshua Green Defendant-Appellant United States of America Plaintiff-Appellee
v.
John Dennis Hayes Defendant-Appellant

          Submitted: June 14, 2016

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before SMITH, GRUENDER, Circuit Judges, and KETCHMARK, [1] District Judge.

          KETCHMARK, District Judge.

         After a joint trial, Appellants Joshua Green and John Dennis Hayes were convicted of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 and 846.[2] Hays and Green were also convicted of possessing, brandishing, and discharging a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Additionally, Hayes was convicted of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

         Green and Hayes raise four points in their joint brief. First, Green and Hayes argue that the evidence was insufficient as a matter of law to support the conviction for methamphetamine conspiracy. Second, Hayes argues that the evidence was insufficient as a matter of law to support his conviction for being a felon in possession of a firearm. Third, Green and Hayes contend that the district court erred in denying their motion to suppress and in not excluding all evidence obtained through a search as a sanction for late disclosure by the government. Fourth, Green and Hayes argue that the district court erred in refusing to give the jury an instruction on the defense of justification in connection with the shooting. For the reasons set forth below, we affirm.

         I.

         On January 30, 2012, Krystal Journigan, Jason Harcourt, and Jamar Williams drove from Little Rock, Arkansas, to Hayes' residence in Alexander, Arkansas. Harcourt had been purchasing methamphetamine from Hayes through Journigan and another woman. That day, Harcourt intended to purchase a pound of methamphetamine directly from Hayes and "eliminate the females out of the middle of it." Hayes would not agree to meet Harcourt, so Journigan agreed to be the "middleman" one more time. Journigan drove alone to Hayes' residence and parked in the driveway. Harcourt and Williams remained parked in Williams' truck some distance down the road from Hayes' residence. Upon arriving at Hayes' residence, Journigan met Hayes and entered. Journigan tried to get Hayes to talk to Harcourt on the phone, but Hayes refused. Harcourt became angry and walked toward the residence.

         While Journigan was in Hayes' residence, she saw Joshua Green and Cammi Lewis arrive, with Green carrying a plastic bag. Journigan walked with Hayes and Green to a back bathroom, where Journigan saw that the bag contained four bundles of methamphetamine, which she presumed were quarter-pound packages.

         Journigan and Hayes remained in the bathroom, and Green went to the kitchen/living room area. Hearing a commotion, Journigan and Hayes left the bathroom. Outside of the residence, Harcourt, wearing a black curly wig, and Williams were asking about buying a car that was parked adjacent to the residence. Green told them the car was not for sale and to leave, which they did.

         Suspicious of the pair outside, back inside the residence, Hayes and Green each brandished a firearm and told Journigan to sit down and not leave. Journigan complied but later went to the bathroom and called Harcourt to alert him that she was being held at gunpoint. Journigan then left the residence, telling Hayes and Green she was "leaving regardless." Hayes followed Journigan as she remained on the phone and left the residence. Journigan handed the phone to Hayes to speak with Harcourt. Hayes and Harcourt argued over the phone while Hayes stood with Journigan at her vehicle.

         While Hayes and Green held Journigan at gunpoint, Harcourt had returned to Williams' truck and dropped off the black curly wig. Harcourt and Williams then walked back towards Hayes' residence. A woman waiting to pick up her child at a bus stop saw Harcourt and Williams walking up the street. She saw Harcourt talking on a cellular phone and heard Harcourt say that he was coming to get his money or his drugs and that he had a gun. Harcourt continued to argue with Hayes over the phone as he turned the corner onto Hayes' street. Harcourt saw Hayes standing with Journigan and noted that Hayes had a firearm in his hand that was resting by his side. Harcourt had a Glock .45 firearm behind his right hip.

         Harcourt and Hayes scuffled by Journigan's vehicle. At some point, Hayes' gun fired, shooting off a portion of his finger. Also at that time, Green appeared on the porch of Hayes' residence and began firing a Ruger 9mm. Williams also appeared at the scene and began to fire at Hayes' residence. Hayes and Harcourt fell to the ground near the cars parked in the street. Williams ran from the scene with his gun. Harcourt was shot in the wrist and forearm.

         When shots were fired, Journigan ducked down in her car, turned over the ignition, and started to back out. Green shot her rear, driver's side tire. Green had walked down to where Hayes was, and Journigan saw one or both of them standing over Harcourt, shooting him. Journigan drove off. Harcourt had multiple gunshot wounds and retreated behind a fence several yards away.

         Green helped Hayes into Green's vehicle. Green gathered the firearms at the scene and placed them in his vehicle. Green and Lewis drove Hayes to the hospital and dropped him off. Green returned to Lewis' residence, driving near Hayes' residence, where Saline County Sheriff's Office and the Alexander Police had responded.

         Upon execution of a search warrant inside Hayes' residence, a detective found an empty Ruger firearm box, an empty Federal Cartridge ammunition box, and a 9mm Federal Cartridge round on the kitchen counter.

         Another officer responded to the hospital where Hayes was having his finger treated. Hayes' personal belongings were seized as evidence of the shooting. In a pocket of his pants was a Wal-Mart receipt for the purchase of 9mm Federal Cartridge ammunition dated January 30, 2012, at 1:09 p.m. Hayes told police that "Josh" was involved in the shooting but that he did not know his last name.

         On February 2, 2012, law enforcement arrested Green for his role in the shooting at Hayes' residence on January 30, 2012. Green gave a recorded statement. Despite initial denials, Green admitted that he fired the Ruger 9mm and that he took guns from the scene. Green told officers that the firearms were at his residence and agreed to turn them over to police. During a consent search of Green's home, officers recovered from an air vent a black computer bag containing four firearms, one of which was the Ruger 9mm used in the shootout on January 30, 2012. The air vent also contained a blue backpack and a black computer bag that had wheels. Within these bags were items identifying Green as the owner of the bags, as well as scales, pipes, baggies, and approximately seven grams of methamphetamine. The bags also contained cellular phones and a laptop computer. The Saline County Sheriff's office seized these items and placed them into secure storage.

         Also on February 2, 2012, law enforcement located Green's blue Trailblazer in the carport at Lewis' residence. During a search of the vehicle, police located a Federal Cartridge ammunition box and fifty rounds of Federal Cartridge ammunition. During a search of Lewis' residence, officers ...


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