Submitted: September 22, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids.
LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Anthony Hall appeals from a jury verdict finding him guilty
of possession with intent to distribute marijuana in
violation of 21 U.S.C. § 841(a)(1), possession of a
firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A), and possession of
a firearm by a prohibited person in violation of 18 U.S.C.
§ 922(g)(1) and 922(g)(3). Hall challenges the district
court'sadmission of factual statements from his
withdrawn plea agreement, denial of his motion for a
mistrial, and determination at sentencing that he was a
career offender and an armed career criminal. We affirm.
a traffic stop on April 13, 2015, police smelled marijuana
and searched Hall's car, finding 64 bags of marijuana and
a loaded .40 caliber handgun in the console. Hall texted his
girlfriend, Kari Merwin, to come get him and stated he was
"dirty." When police arrested Hall, he attempted to
flee, punching one of the officers in the process.
pled guilty to possession of a firearm by a prohibited
person. Prior to sentencing, Hall withdrew his guilty plea.
Hall was charged with possession with intent to distribute
marijuana, possession of a firearm in furtherance of a drug
trafficking crime, and possession of a firearm by a
prohibited person. A jury trial ensued. At trial, the
government offered into evidence factual statements from
Hall's withdrawn plea agreement, including Hall's
admission that he knowingly possessed the handgun while
unlawfully using marijuana. Before closing arguments, a juror
requested an escort for the jury to their cars following
trial, stating she was followed by a witness-later identified
as Merwin-for about two miles as she was leaving the
courthouse the previous day. Hall moved for a mistrial, which
the district court denied. Instead, the court instructed the
jury that the incident was a coincidence and should not
influence their decisions. The jury found Hall guilty on all
counts. Based on Hall's two prior drug convictions and a
Texas robbery conviction, the court determined Hall was a
career offender under USSG § 4B1.1(a) and an armed
career criminal under 18 U.S.C. § 924(e)(1). The court
sentenced Hall to 360 months imprisonment.
first challenges the admission of the factual statements from
his withdrawn plea agreement into evidence at trial. Because
a withdrawn plea agreement is generally inadmissible, our
decision turns on whether Hall knowingly and voluntarily
waived his rights. See United States v. Mezzanatto,
513 U.S. 196, 210 (1995). "[W]hether a waiver of rights
is valid is a question of law reviewed de novo."
United States v. Washburn, 728 F.3d 775, 779 (8th
Rule of Criminal Procedure 11(f) states that "[t]he
admissibility or inadmissibility of a plea, a plea
discussion, and any related statement is governed by Federal
Rule of Evidence 410." Under Rule 410, "a guilty
plea that was later withdrawn" is inadmissible.
Fed.R.Evid. 410(a)(1). However, a defendant may waive his
Rule 410 rights "absent some affirmative indication that
the agreement was entered into unknowingly or
involuntarily." Mezzanatto, 513 U.S. at 210.
"We look to the circumstances surrounding the signing
and entry of the plea agreement to determine whether the
defendant willfully agreed to its terms." United
States v. Young, 223 F.3d 905, 909 (8th Cir. 2000)
(internal quotation marks omitted).
plea agreement Hall initialed and signed included the
By initialing each of the following paragraphs, defendant
stipulates to the following facts. Defendant agrees these
facts are true and may be used to establish a factual basis
for defendant's guilty plea and sentence. Defendant has
been advised by defendant's attorney of defendant's
rights under Federal Rule of Criminal Procedure 11(f) and
Federal Rule of Evidence 410. Defendant waives these rights
and agrees this stipulation may be used against defendant at
any time in any proceeding should defendant violate or refuse
to follow through on this plea agreement, regardless of
whether the plea agreement has been accepted by the Court.
language makes clear that if Hall were to later withdraw his
guilty plea, the statements of fact in the plea agreement
could be used against him at any time in any proceeding. By
initialing additional provisions, Hall acknowledged that he
had read the entire agreement with assistance of counsel,
understood his rights, and entered into the agreement freely
and voluntarily. See Washburn, 728 F.3d at 780
(upholding similarly ...