Submitted: June 14, 2016
from United States District Court for the Eastern District of
Arkansas - Little Rock
SMITH, GRUENDER, Circuit Judges, and KETCHMARK,  District
KETCHMARK, District Judge.
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. 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).
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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