text:
    Sharon C. DOOLEY, as the Administrator of the Estate of the Deceased R. Michael Dooley; Tristan Brooke Engler; Kara E. Krapfl; Nathaniel J. Dooley; Alex M. Dooley; Joseph D. Dooley, Plaintiffs-Appellants v. Jon THARP, in his Individual Capacity, Defendant-Appellee
    No. 15-3368
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 12, 2016
    Filed: May 15, 2017

      Counsel who presented argument on behalf of the appellant was Matt J. Reilly, of Cedar Rapids, IA. The following attorney(s) appeared on the appellant brief; Jeffrey R. Tronvold, of Cedar Rapids, IA.
    Counsel who presented argument on behalf of the appellee was Carlton G. Salmons, of West Des Moines, IA.
    Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
   WOLLMAN, Circuit Judge.

On October 16, 2012, R. Michael Dooley was shot and killed by Van Burén County, Iowa, Deputy Sheriff Jon Tharp. The administrator of Dooley’s estate and Dooley’s five children filed suit against Tharp, alleging an excessive-force claim under 42 U.S.C. § 1983 and related tort claims under Iowa law. The district court granted Tharp’s motion for summary judgment based on qualified immunity and Iowa law. We affirm.

At approximately 11:00 on that clear October morning, a 911 dispatcher in Keo-sauqua, Iowa, received a call reporting that a man dressed in a military uniform and armed with a rifle was “flipping off’ passing motorists as he walked west on Highway 2 toward Cantril, Iowa. A second caller reported the same information and noted that the man may have exited a car that was parked near the highway. According to the second caller, an upside down American flag hung from the parked car’s open trunk.

Deputy sheriffs Jon Tharp and Bradley Hudson were on duty in the Van Burén County Sheriffs Office when the calls came in. Hudson, who was chief deputy sheriff and acting sheriff that day, decided that he and Tharp would together respond to the calls, using Hudson’s patrol vehicle, a 2011 Ford F150 SuperCrew pickup truck. The vehicle displayed law enforcement markings on its body, and the top of the cab was equipped with a light bar that flashed red, white, and blue lights when activated. The truck also had a microphone installed in the headliner above the passenger seat and a camera mounted in the center of the dashboard that pointed outward. The audio/video system automatically began recording whenever the truck’s emergency lights were activated.

Both Hudson and Tharp were wearing uniforms and bulletproof vests. They had been assigned AR-15 .223-caliber rifles and 12-gauge shotguns, which they carried in their separately assigned patrol vehicles. While entering his patrol vehicle, Hudson removed his rifle from its locked mount and placed it between his legs, where he could easily reach it while driving. After retrieving his rifle and shotgun, Tharp sat in the front passenger seat of Hudson’s vehicle. Hudson activated the vehicle’s siren and emergency lights as he drove away from the sheriffs office, causing the audio/video system to begin recording, and sped south on Highway 1 toward its intersection with Highway 2.

As they proceeded on their journey, the officers began discussing what they would do upon encountering the now-afoot motorist, using what Hudson described as “gallows humor,” an example of which was Tharp’s statement, “F-it. Shoot him,” accompanying his remark with a laugh. When Hudson spoke about what might happen if the man had a gun and pointed it at the officers, Tharp interrupted, saying, “Blast his ass.” Tharp also expressed concern that the parked car displayed an upside down American flag, later testifying that he thought it might indicate anti-government sentiment. Hudson recognized that the upside down flag might also signify distress. Both officers were concerned about whether the man had had military training, based on the reports that he was wearing a military uniform. Possessing only the information they had received from dispatch, Hudson and Tharp decided to pursue the following strategy: Tharp would roll down the passenger side window and “stick [his] gun out the window as [they] approach[ed].” Upon seeing the man, Tharp would “start telling him to drop the f-ing gun.” The deputies discussed whether Tharp should remain in the cab or move to the cargo area of the truck, but they did not discuss any alternative ways of approaching the man, nor did they reconsider their plan after the man came into view.

It was approximately twelve miles from the sheriffs office to where the solitary walker was finally spotted, with Hudson driving at speeds of 85 to 90 miles per hour. After they had driven some four miles, Hudson turned off his patrol vehicle’s siren but kept the emergency lights activated, later explaining that he did not want to alert the man to the deputies’ presence or otherwise give him an opportunity to take a defensive position. While en route, Hudson and Tharp received a report from dispatch that it had received another call regarding the man.

The officers drove past a sedan with an open trunk that was parked on the shoulder of Highway 2. An American flag lay crumpled on the ground behind the car. Less than a minute later, Hudson spotted the man—later identified as Dooley—walking west along the north side of the highway. Hudson said to Tharp, “There he is, Jon. He’s on your side.” Hudson testified that he observed Dooley “flip off’ a car that was driving east. The video recording shows that a red truck heading west drove unmolested past Dooley a few seconds before the officers reached him. Soon thereafter, Tharp said, “He’s got the f- - -ing gun.” Dooley seemed unaware of any law enforcement presence as the patrol vehicle approached him. Some six minutes had elapsed from the time the audio/video system began recording to the time the officers first saw Dooley.

Because Dooley and the patrol vehicle were both heading west, the video recording shows Dooley from behind. He was dressed in a brown wide-brimmed hat, a tan-colored coat, and tan jodhupur-style pants that were tucked into his brown knee-high riding boots. He carried what appeared to be a rifle over his right shoulder. The rifle was tucked mostly between the right side of Dooley’s body and his right arm, with the stock positioned behind Dooley and pointed toward the sky, the muzzle pointed toward the ground, and Dooley’s right hand placed on or near the barrel. Hudson testified that “[the rifle] appeared to be slung over his right shoulder.”

As Hudson pulled over to the shoulder of the highway and slowed down, Tharp leaned out of the passenger side window yelling, “Drop the gun! Drop it!” The video shows Dooley turning clockwise to face east, where the patrol vehicle was coming to a stop. After completing the turn, Dooley’s body was not quite square with the camera, with the muzzle of his rifle remaining pointed toward the ground. The video shows Dooley quickly taking hold of the barrel with his right hand and bringing his right hand toward his waist, whereupon Tharp again shouted, “Drop the gun! Drop it!” The video then shows Dooley using his right hand to move the rifle in a manner that the district court described as “arc-like,” during the course of which Dooley moved his left hand. Tharp fired a single shot that struck Dooley’s skull, killing him instantly. Some five seconds elapsed from the time Tharp yelled the first command to the time he fired the fatal shot.

It was soon determined that what had appeared to the officers to be a real rifle was in reality a pellet gun that had been attached to a wire sling that had been buttoned under the right epaulet of Dooley’s coat. That after-the-fact information served to explain Dooley’s hand movements as his attempt to loosen the wire sling or unbutton the epaulet in an apparent attempt to comply with Tharp’s command to drop the weapon.

This lawsuit was initially filed in Iowa state court. The petition set forth a federal claim under 42 U.S.C. § 1983, alleging that Tharp had employed excessive force in violation of Dooley’s Fourth Amendment rights, and related state-law claims of assault and battery, negligence, and loss of consortium. Tharp removed the action to federal district court and filed a counterclaim for intentional infliction of emotional distress. The district court granted Tharp’s motion for summary judgment on the § 1983 claim, concluding that he was entitled to qualified immunity because Tharp’s use of force was objectively reasonable. Based on that conclusion, the district court also granted summary judgment on the state-law claims. It later dismissed Tharp’s counterclaim without prejudice and entered judgment in favor of Tharp.

We review de novo a district court’s grant of summary judgment on the basis of qualified immunity. Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). We view the evidence in the light most favorable to the plaintiffs and draw all reasonable inferences in their favor. Id. Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Qualified immunity shields a law enforcement officer from liability in a § 1983 action unless the officer’s conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Loch, 689 F.3d at 965. Qualified immunity involves the following inquiries: (1) whether the facts alleged, taken in the light most favorable to the plaintiffs, show that the officer’s conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the officer’s alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (holding that courts may exercise then-discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first).

The plaintiffs contend that Deputy Tharp violated Dooley’s Fourth Amendment right to be free from the use of excessive force. To establish this alleged constitutional violation, the plaintiffs must show that the amount of force Tharp used was not reasonable under the circumstances. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “The use of deadly force is reasonable where an officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others.” Loch, 689 F.3d at 965 (citing Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). “Before employing deadly force, an officer should give ‘some warning’ when it is ‘feasible’ to do so.” Id. at 967 (quoting Garner, 471 U.S. at 11-12, 105 S.Ct. 1694).

We evaluate the reasonableness of an officer’s use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. This calculus recognizes that officers must make split-second judgments regarding the amount of force necessary in a particular situation and that the circumstances surrounding those judgments can be “tense, uncertain, and rapidly evolving.” Id. at 397, 109 S.Ct. 1865. Nevertheless, “the reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id.

Viewing the evidence in the light most favorable to the plaintiffs, and considering the totality of the circumstances leading up to Tharp’s shooting of Dooley, we conclude that the district court did not err in ruling that Tharp’s use of deadly force was objectively reasonable as a matter of law. When the deputies left the sheriffs office, they knew that Dooley was dressed in a military uniform, that he was carrying a rifle, that he had made rude gestures to vehicles as they passed by, and that he might be associated with a parked car that displayed an upside down American flag. Both deputies described the situation as potentially dangerous, given the possibility that the man had had military training, the presence of a firearm, and the possibility that the flag indicated that the man harbored some anti-government sentiment. The circumstances then known to the deputies, however, also included that Dooley had committed no crime and that he had not employed his rifle in a threatening manner towards passing motorists.

New information came to light as the officers approached Dooley. Hudson testified that he saw Dooley make a rude gesture to a car as it drove past him. The video also shows that when the red truck passed by Dooley, he continued to walk along the shoulder of the highway. He did not turn his body toward the truck, reach for his rifle, or make any threatening movements. As the patrol vehicle approached Dooley from the rear, it became obvious that Dooley was not wearing a modern military uniform, but rather a vintage one. As the patrol vehicle quickly pulled behind Dooley, he did. not immediately turn around or even change the manner in which he was walking.

The officers had several minutes to decide how best to approach Dooley. They also had the opportunity to modify their plan after Dooley came into view and a more complete set of circumstances became known to them. The minutes-long drive from the sheriffs office and the moments leading up to Tharp leaning out the window and screaming at Dooley to drop the rifle cannot be described as chaotic. Dooley had done nothing illegal, and there is no evidence that he had threatened physical harm to anyone. The circumstances did not become tense, uncertain, or rapidly evolving until Tharp, in his words, “began screaming at [Dooley] to ‘[d]rop the gun.’ ”

Tharp testified that when he screamed the command to drop the gun, “[ijnstanta-neously, the subject began to turn toward us and I saw him spin around, raising his rifle and pointing it at me.” According to Tharp, he believed “that the subject was going to fire at me or Deputy Hudson unless I fired first.” Hudson testified that Dooley had pointed the rifle at Tharp and “look[ed] directly at Deputy Tharp as he moved his rifle into a firing position.”

When viewed frame-by-frame, the video appears to contradict the officers’ description. It shows Dooley turning to face the deputies and using his right hand to maneuver the rifle. It also shows that Dooley did not place his right hand near the trigger and did not place his left hand on the rifle. It shows that at the moment of the bullet’s impact, Dooley’s arms were crossed over his chest and the muzzle of the rifle was pointed toward the sky. As we said in Aipperspach v. McInerney, 766 F.3d 803, 808 (8th Cir. 2014), “[w]e agree with the general proposition that a video of the incident can create a genuine issue of material fact that precludes the grant of summary judgment in an excessive force case.” When viewed in slow motion, the video of Dooley’s actions could be seen as creating a genuine issue of fact whether Tharp used excessive force in the light of Dooley’s response to the shouted commands to drop the gun. But law en-foreement officers are not afforded the opportunity of viewing in slow motion what appears to them to constitute life-threatening action. In contrast to the situation in Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the real-time view of the video does not clearly contradict Tharp’s account of what he perceived Dooley’s actions to have been. Cf. Boude v. City of Raymore, 855 F.3d 930, 933-34 (8th Cir. 2017) (concluding that, even though the video evidence did not “blatantly contradict” the plaintiffs factual allegation that she was reaching for the gear shift to ensure her vehicle was in park, the officer’s belief to the contrary was objectively reasonable) (citing Scott, 550 U.S. at 380, 127 S.Ct. 1769). Accordingly, we ,must view Tharp’s mistaken-perception action for objective reasonableness. See Loch, 689 F.3d at 966 (“An act taken based on a mistaken perception or belief, if objectively reasonable, does not violate the Fourth Amendment.”).

In Sinclair v. City of Des Moines, 268 F.3d 594 (8th Cir. 2001) (per curiam), we upheld the grant of qualified immunity to an officer who had shot a person who the officer believed was holding a long-barrel rifle, agreeing with the district court’s conclusion “that no constitutional or statutory right exists that would prohibit a police officer from using deadly force when faced with an apparently loaded weapon.” Id. at 596. Likewise in Partlow v. Stadler, 774 F.3d 497 (8th Cir. 2014), we upheld the grant of qualified immunity to officers who fired shots after they had “observed Part-low move the shotgun in such a way that [they] believed that Partlow was aiming the barrel of the shotgun at them.” Id. In Aipperspach, 766 F.3d at 807, we said that “[t]he responding officers were confronted with a suspect who held what appeared to be a handgun, refused repeated commands to drop the gun, pointed it once at [a responding officer], and then waved it in the direction of officers deployed along the ridge line in an action they perceived as menacing.” 766 F.3d at 807; see also Malone v. Hinman, 847 F.3d 949, 954-55 (8th Cir. 2017) (upholding the grant of qualified immunity to an officer who knew that “approximately three gunshots had just been fired in a crowd of 40 to 50 people” and who thereafter shot a person who was carrying a gun, running toward an officer and others, and did not comply with an order to stop). Viewing the dash-cam video at regular speed and considering the facts of this case in light of the forgoing decisions, we conclude that Tharp’s mistaken perception that Dooley posed a threat of serious physical harm to Tharp was objectively reasonable. We agree with the district court’s determination that “[a] reasonable officer could believe that at some point in this arc of movement the man was pointing his gun at the officers and [could] feel himself to be at risk of serious harm.” D. Ct. Order of August 31, 2015, at 12. We thus conclude that, however tragic the circumstances of Dooley’s death, Tharp was correctly granted qualified immunity in the constitutionally based action.

In light of the post-shooting facts discovered by Hudson and Tharp, a less confrontational approach to the situation facing them—one that might have given them time to recognize that Dooley was in fact attempting to comply with Tharp’s twice-shouted commands to drop the gun rather than preparing to fire upon him—might have prevented this needless loss of life. See Richard Pérez-Peña, When Telling Commands’ Is the Wrong Police Response, N.Y. Times, Sept. 26, 2016, at A12-A13 (describing a growing trend to teach officers to de-escalate tensions). Similarly, in retrospect, and with the 20/20 vision of hindsight, had Tharp identified himself as a law enforcement officer and given a warning, Dooley might well have reacted in such a way that did not involve maneuvering the barrel of the rifle as he did. As it was, however, Dooley’s decision to fasten the pellet gun to his epaulet, coupled with Tharp’s mistaken belief that Dooley was taking aim at the officers, ultimately resulted in his death.

As set forth earlier, the complaint pleaded state tort claims of assault and battery and negligence, alleging that Tharp had used unreasonable force. The loss of consortium claim alleged that Tharp’s actions had caused Dooley’s children to be deprived of the companionship of their father. Having determined “on the federal claim that Tharp’s use of force was objectively reasonable,” the district court granted Tharp’s motion for summary judgment on the state claims based on his affirmative defenses of justification and self-defense. D. Ct. Order of Aug. 31, 2015, at 14 (citing Iowa Code §§ 704.1 and 804.8). We agree with the district court’s disposition of those claims. See State v. Rupp, 282 N.W.2d 125, 126 (Iowa 1979) (setting forth the definition of “reasonable force” and explaining that Iowa Code § 704.1 sets forth a defense of justification or self defense, which allows an individual, “under certain circumstances, to use force in defending himself’); Chelf v. Civil Serv. Comm’n, 515 N.W.2d 353, 355 (Iowa Ct. App. 1994) (citing Graham, 490 U.S. at 396-99, 109 S.Ct. 1865) (“flnd[ing] the ‘reasonableness’ inquiry in Iowa Code section 804.8 [to be] an objective standard”).

The district court’s order granting summary judgment in favor of Tharp on the constitutional claim is affirmed, as is the grant of summary judgment on the state-law based claims.

      . The Honorable Helen C. Adams, now Chief Magistrate Judge/United States District Court for the Southern District of Iowa, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).

      . There is no dispute that Dooley's pellet gun appeared to be a real firearm. According to an analysis by the Washington Post, during 2015-2016 police officers shot and killed eighty-six individuals who were armed with imitation firearms like pellet guns, toy weapons, and non-functioning replicas. John Sullivan et al., Deadly Run-ins, Replica Guns, Wash. Post, Dec. 19, 2016, at A1, A8 ("Police say it is virtually impossible to train officers to identify imitation firearms from any distance.”).


source: Caselaw Access Project

author: FENNER, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Bradley J. PRUCHA, Defendant-Appellant
    No. 16-3014
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 7, 2017
    Filed: May 15, 2017
    Rehearing and Rehearing En Banc Denied July 13, 2017

      Counsel who represented the appellant was David C. Shinkle of Des Moines, IA.
    Counsel who represented the appellee was Virginia Bruner, AUSA, of Des Moines, IA.
    Before SMITH, Chief Judge, SHEPHERD, and FENNER, District Judge.

       Judge Kelly did not participate in the consideration or decision of this matter.

      . The Honorable Gary A. Fenner, Judge, United States District Court for the Western District of Missouri, sitting by designation.

   FENNER, District Judge.

Bradley J. Prucha was charged with conspiracy, mail fraud, producing child pornography, distribution of Xanax to persons under the age of 21, producing child pornography while required to register as a sex offender, and attempting to tamper with witnesses. His trial commenced on February 22, 2016. On the third day of trial, Prucha moved to proceed pro se for the fourth time. The district court denied Prucha’s motion. At trial, a jury found Prucha guilty on all counts. Prucha now directly appeals the district court’s order denying him leave to proceed pro se. We affirm.

1. BACKGROUND

In the months leading to trial, Prucha filed several pro se motions. His first set of pro se motions was filed on November 10, 2015 and included a motion to proceed pro se and a request for a hearing regarding access to discovery requests. On December 14, 2016, a magistrate judge held a hearing on these motions. Following an ex parte discussion with the court and defense counsel, Prucha withdrew his motion to proceed pro se. The court then clarified what discovery was available to Pincha, noting that he cannot himself have access to certain discovery under the law. The court further granted Prucha’s request to allow a private investigator access to him without presence of counsel.

Later that month, Prucha filed a second motion to proceed pro se and to establish a plan for discovery. Prucha admitted he had reviewed discovery but wanted free access to the discovery to “check and re-check” it. A second hearing before the magistrate judge was held and Prucha again withdrew his motion to represent himself.

On February 22, 2016, the trial commenced with jury selection. After jury selection had concluded, the clerk’s office docketed Prucha’s third written motion to proceed pro se. He outlined the discovery issues addressed by the magistrate judge and alleged that defense counsel had not done everything he wanted him to do, despite the fact that his prior discovery requests had been provided. He stated that “he has a slightly better defense proceeding pro se as he himself knows most of the answers the witnesses will provide and can impeach them when necessary with other witnesses!?] testimony engraved in the defendants [sic] memory and documents.” He further stated that he planned to request to proceed pro se “for some time.”

The next morning, the district court addressed Prucha’s motion to proceed pro se. Through counsel, Prucha stated that he was not seeking a continuance at that time, but wanted to know “when he can ask to be his own lawyer during the course of the trial once the jury is sworn.” The court informed him that he could ask at any time through defense counsel. Prucha then withdrew his motion to proceed pro se.

Midday on the third day of trial, Prucha moved to proceed pro se for the fourth time. This occurred just before the government was going to show damaging evidence to the jury. When asked why he wanted to represent himself, Prucha first said it was because “everything is iñ my mind and he’s just not getting all of the questions out that I would like to get out. I write them down and they still don’t make it out.” He then went on to complain about his access to discovery. The district court twice asked Prucha if he was prepared to represent himself, to which he responded, “I haven’t seen all the discovery.” The court denied his request to proceed pro se. It is from this denial that Prucha seeks review.

Prucha did not renew the motion during the remainder of the trial. In fact, the next day, Prucha wrote what he stylized as a “notice to the court.” He explained that his first three motions to proceed pro se were filed to ensure he received access to discovery and conceded they had been addressed by the court. He differentiated his fourth motion to proceed pro se by contending defense counsel was inadequate at trial. However, he did not renew his motion to proceed pro se. Rather, Prucha stated that he would like to hire new counsel.

Prucha testified at length during the trial. A jury returned a guilty verdict on all counts on March 1, 2016. Prucha was allowed to represent himself at his sentencing with defense counsel remaining as stand-by counsel. The court sentenced Prucha to 840 months’ imprisonment on June 23, 2016. Prucha timely filed his notice of appeal on June 29, 2016, arguing the court’s denial of his fourth motion to proceed pro se violated his rights to self-representation.

II. DISCUSSION

“In the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation.” Faretta v. California, 422 U.S. 806, 812, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). “ ‘The Constitution does not force a lawyer upon a defendant.’ ” United States v. Warner, 428 F.2d 730, 733 (8th Cir. 1970) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). However, the right to self-representation is not absolute. United States v. Edelmann, 458 F.3d 791, 808 (8th Cir. 2006). “ ‘Once the defendant makes a clear and unequivocal request to represent himself, a court may nonetheless deny the request in certain circumstances,’ such as when the request is untimely, the defendant ‘engages in serious and obstructionist misconduct,’ or the defendant is unable to produce a ‘valid waiver’ of right to counsel.” United States v. Kelley, 787 F.3d 915, 917-18 (8th Cir. 2015) (quoting Edelmann, 458 F.3d at 808). “ *We review the district court’s decision [to deny a request to proceed pro se] de novo.’ ” Id (quoting United States v. Mosley, 607 F.3d 555, 558 (8th Cir. 2010)).

“[T]he right to self-representation is unqualified only if demanded before trial.” United States v. Wesley, 798 F.2d 1155, 1155 (8th Cir. 1986). “Once trial commences, that right is subject to the trial court’s discretion which requires a balancing of the defendant’s legitimate interests in representing himself and the potential disruption and possible delay of proceedings already in progress.” Id. at 1155-56. We have routinely found requests made after the commencement of trial to be untimely. See Kelley, 787 F.3d at 918 (concluding motion to proceed pro se made on the morning of trial was not timely); United States v. Wright, 682 F.3d 1088, 1090 (8th Cir. 2012) (same); United States v. Webster, 84 F.3d 1056, 1063 n.3 (8th Cir. 1996) (stating motion to proceed pro se made during trial could have been denied by district court as untimely). Prucha made his fourth motion to proceed pro se midway through the third day of trial, and thus, it was not timely.

Furthermore, Prucha’s motion to proceed pro se was untimely because he claimed he was not prepared to represent himself. The district court twice asked Prucha if he was prepared to represent himself to which he responded that he had not seen all of the discovery. While Prucha now claims his statements were untruthful, the district court was not required to challenge the statements and then force him represent himself unprepared. See United States v. Oaks, 606 F.3d 530, 541 (8th Cir. 2010) (district court acted within its discretion in denying defendant’s motion to represent himself after defendant expressed concern over his ability to properly prepare for trial).

That the district court advised Prucha he could make his motion to proceed pro se at any time does not make his motion timely. Prucha was allowed to make his motion, and the district court considered it. Only after the district court determined that the motion was untimely did the court deny the motion.

Considering that Prucha’s fourth motion to proceed pro se was made midday on the third day of trial, we agree with the district court that Prucha’s request was untimely. We conclude the district court properly denied Prucha’s request to proceed pro se.

III. CONCLUSION

We affirm Prucha’s conviction.

      . The Honorable John A. Jarvey, United States District Judge for the Southern District of Iowa.


text:
    UNITED STATES of America, Plaintiff-Appellee v. Alfred Latrell JACKSON, Defendant-Appellant United States of America, Plaintiff-Appellee v. Curtis Lee Kemp, Defendant-Appellant
    No. 16-3556, No. 16-3632
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 7, 2017
    Filed: May 15, 2017

      Counsel who represented the appellant Jackson was Stephen Arthur Swift of Cedar Rapids, IA.
    Counsel who represented appellant Kemp was Murray W. Bell of Bettendorf, IA.
    Counsel who represented the appellee were Ashley Corkery, AUSA, of Davenport, IA, and William Reiser Ripley, AUSA, of Davenport, IA.
    Before SMITH, Chief Judge, SHEPHERD, Circuit Judge, and FENNER, District Judge.

      . The Honorable Gary A. Fenner, Judge, United States District Court for the Western District of Missouri, sitting by designation.

   FENNER, District Judge.

This case arises from an investigation into a heroin-distribution conspiracy in Iowa City, Iowa. On July 21, 2015, a grand jury sitting in the Southern District of Iowa returned a superseding indictment charging Alfred Latrell Jackson and Curtis Lee Kemp, as well as five other individuals, with conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and multiple counts of distribution of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Before trial, the government filed a notice of intent to use Rule 404(b) evidence. On April 12, 2016, a jury returned guilty verdicts as to both Jackson and Kemp.

The district court sentenced Jackson to 188 months’ imprisonment and sentenced Kemp to 84 months’ imprisonment. Both filed timely notices of appeal. We affirm the district court’s judgment.

1. BACKGROUND

Beginning in 2012, Iowa City law enforcement witnessed a tremendous increase in the use and distribution of heroin within the jurisdiction. In July 2014, investigators identified a man named Jason Dawson as a source of heroin in the area. With the goal of ultimately purchasing heroin directly from Dawson, police began executing controlled purchases in the city. Those purchases led them to contact with both Dawson, and appellant Curtis Kemp. In July 2014, an officer was able to execute a search of Dawson’s vehicle during a traffic stop. The officer discovered a small amount of heroin, $1,097 in United States currency, and two cellular phones. Officers later obtained warrants to search the contents of those phones. They identified two numbers Dawson frequently texted about heroin and large amounts of money. Officers searched Dawson’s residence that same day. During the search, they discovered additional evidence of an on-going heroin distribution scheme. Dawson agreed to cooperate with authorities, and identified appellant Alfred Jackson as his heroin source. The officers set up a recorded phone call between Dawson and Jackson, and the two spoke about a pending transaction. Officers then searched Jackson’s residence and discovered further evidence of a heroin distribution ring. Among the discovered evidence was a cell phone that matched the number Dawson frequently texted about heroin transactions.

Officers eventually arrested both Kemp and Jackson. The two, along with five oth-, ers, were charged with conspiracy to distribute heroin and several other related crimes. Kemp and Jackson now appeal their conviction.

II. DISCUSSION

A. Admission of Evidence under Federal Rule of Evidence 404(b)

Appellant Kemp argues that the district court abused its discretion when it, over Kemp’s objection, allowed the government to present (1) evidence of a 2010 search of Kemp’s apartment that showed Kemp was involved in selling controlled substances; and (2) testimony from Ricky Jones detailing that he and Kemp had used heroin together. We review the district court’s admission of evidence under Rule 404(b) for abuse of discretion. United States v. Wilson, 619 F.3d 787, 791-92 (8th Cir. 2010). We will reverse the district court’s decision “only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Littlewind, 595 F.3d 876, 881 (8th Cir. 2010) (quotation omitted).

At trial, the government presented testimony from Investigator Blomgren, a narcotics investigator with the Iowa' City Police Department. Blomgren’s testimony covered many aspects of the investigation that snared Kemp, and included an account of a 2010 search of Kemp’s apartment. In 2010, the police obtained a search warrant after they executed a controlled-buy with a different individual inside the unit. Officers discovered a crack cocaine pipe, crack cocaine paraphernalia, prescription pills, packaging materials, a digital scale, and cell phones during the search. The state of Iowa filed charges against Kemp over the officers’ findings, but the charges were later dismissed. The district court allowed the government to introduce Blomgren’s testimony about the 2010 search, but contemporaneously instructed the jury as follows:

Remember if you find that Defendant Kemp was involved in drug activity prior to the alleged conspiracy, this is not evidence that he committed the drug crimes alleged in this case. You may not convict a person simply because he may have committed similar acts in the past. Defendant Kemp is on trial only for the crimes charged, and you may consider this evidence of any prior acts that you find to be supported by evidence involving drug activities' only for matters relating to his plan, knowledge, and intent regarding the charged conspiracy.

The government also offered testimony from Ricky L. Jones, an Iowa City resident that regularly used heroin with Kemp in the past. Jones and Kemp sometimes shared the cost of heroin. Other times he would give Kemp money to purchase the drug and Kemp would return later with the purchase.

Kemp advances two arguments in his appeal: first, that Blomgren’s testimony regarding the 2010 search and the Ricky Jones testimony regarding Kemp’s prior drug use were irrelevant to any issue at trial; and second, that the testimony’s probative value was substantially outweighed by the danger of unfair prejudice.

Rule 404(b)(1) provides that “[e]vi-dence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” However, Rule 404(b) is a rule ■ of inclusion. United States v. Cotton, 823 F.3d 430, 434 (8th Cir. 2016). Evidence of prior bad acts is admissible if offered for a certain limited purpose, and “(1) is relevant to a material issue, (2) is similar in kind and close in time to the crime charged, (3) is proven by a preponderance of the evidence, and (4) does not have a prejudicial effect that substantially outweighs the probative value.” United States v. Ali, 616 F.3d 745, 752-53 (8th Cir. 2010) (citing United States v. Turner, 583 F.3d 1062, 1065-66 (8th Cir. 2009)). Such valid purposes for admission include “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid: 404(b)(2); see also United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995).

Kemp’s defense advanced a general denial of his participation in the conspiracy. “When a defendant raises the issue of mental state ... by means of a general denial that forces the government to prove every element of its case, prior bad acts evidence is admissible because mental state is a material issue.” United States v. Thomas, 58 F.3d 1318, 1322 (8th Cir. 1995). Further, “[e]vidence of prior drug dealings is relevant to the material issue of whether [Kemp] had the requisite intent to enter into a conspiracy.” Turner, 583 F.3d at 1066 (quotation and alterations in original omitted). The dismissal of Kemp’s 2010 state charges does not bar admissibility under Rule 404(b). See United States v. Emmanuel, 112 F.3d 977, 981 (8th Cir. 1997) (stating district court did not abuse its discretion in admitting evidence of uncharged drug distribution). The test for relevance is simply, whether “the jury can reasonably conclude that the act occurred and that the defendant was the actor.” United States v. Armstrong, 782 F.3d 1028, 1034 (8th Cir. 2015) (quoting Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). We find that evidence of drug distribution discovered at Kemp’s apartment in 2010 is relevant to the material issue of Kemp’s mental state as to the present charged conspiracy.

Kemp similarly challenges that Jones’s testimony regarding his and Kemp’s prior drug use was not relevant for any Rule 404(b) purpose. However, this circuit allows the admission of evidence under Rule 404(b) concerning prior drug use. United States v. Williams, 895 F.2d 1202, 1205 (8th Cir. 1990). Jones’s testimony relates to the same material issues of Kemp’s mental state that also supported the admissibility of Officer Blomgren’s testimony. See United States v. Armijo, 834 F.2d 132, 135-36 (8th Cir. 1987) (observing that prior drug use helps establish motive, intent, and lack of accident regarding alleged participation in conspiracy).

Kemp next argues that the district court failed to require the government to explain the chain of logic that the jury could employ to link the Rule 404(b) evidence to an element of the charged crime. It is true; the government must “identify the permissible non-propensity purpose for the evidence, and must articulate the relationship between the [evidence] and a material issue in the case.” Cotton, 823 F.3d at 432. Simple recitation of Rule 404(b)’s elements is generally discouraged. United States v. Mothershed, 859 F.2d 585, 589 (8th Cir. 1988). Here, however, the government’s Rule 404(b) Notice sufficiently explained how the evidence related to establishing a common intent, motive, and plan. The district court’s ruling reveals no error that substantially influenced the jury’s verdict.

Kemp’s final argument relates to the potential prejudicial effect of Officer Blomgren’s and Jones’s testimony. “Though all Rule 404(b) evidence is inherently prejudicial, the test under Rule 403 is whether its probative value is substantially outweighed by the danger of unfair prejudice.” United States v. Cook, 454 F.3d 938, 941 (8th Cir. 2006) (emphasis in original) (citing United States v. Noland, 960 F.2d 1384, 1387 (8th Cir. 1992)). Such weighing is generally left to the district court’s discretion. United States v. Franklin, 250 F.3d 653, 659 (8th Cir. 2001). Kemp primarily argues that Officer Blom-gren’s and Jones’s testimony was merely cumulative of other evidence presented, and thus should have been excluded. Indeed, we must closely scrutinize evidence of prior bad acts when the evidence is cumulative in nature. See United States v. Sw. Bus Sales, Inc., 20 F.3d 1449, 1456-57 (8th Cir. 1994). However, in this circumstance, the government established a valid purpose to admit the evidence and showed how the prior bad acts were similar in kind and close in time to the charged conduct. Such a showing has been found sufficient for the purposes of Rule 404(b) on prior occasions. See Turner, 583 F.3d at 1066. Kemp’s prior bad acts were relevant to proving he possessed the charged offenses’ requisite mental state. Further, the district court controlled for any potential prejudicial effect when it instructed the jurors that the evidence was only to be considered for the purpose of showing Kemp’s plan, knowledge, and intent. See United States v. Hill, 638 F.3d 589, 592-93 (8th Cir. 2011) (finding the court’s limiting instruction minimized any prejudicial effect) (quoting Turner, 583 F.3d at 1066). Consequently, we find no error in the district court’s inclusion of the Rule 404(b) evidence.

B. Sufficiency of Evidence

Appellant Jackson argues the evidence was insufficient to convict him for the charged conspiracy. “We review the sufficiency of evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Polk, 715 F.3d 238, 245 (8th Cir. 2013).

“To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy.” United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir. 2007) (quotation omitted). The government can establish these elements through direct or circumstantial evidence. United States v. Chavez-Alvarez, 594 F.3d 1062, 1067 (8th Cir. 2010).

Jackson’s argument focuses primarily on the credibility of Jason Dawson’s testimony. At trial, Dawson testified that Jackson was his source of heroin. He testified that the two were in frequent contact, which was supported by phone records that showed 639 such instances between January 2014 and August 2014. Dawson testified that he began selling heroin as a means to get high, but worked with Jackson to increase his sales volume over time. Although Dawson recruited many of his own customers, Jackson put Dawson in contact with Dawson’s original clientele. Dawson further testified about his money management practices. Dawson would obtain heroin from Jackson, sell the heroin, and then return a portion of the profit to Jackson in white envelopes each containing one-thousand dollars.

Jackson points to various portions of Dawson’s testimony and claims they demonstrate that Dawson was inconsistent and lacked credibility. However, it is the jury’s responsibility to determine matters of credibility, and any credibility issue is resolved in favor of the verdict. Polk, 715 F.3d at 247. Further, Dawson’s testimony did not stand alone. The jury heard voluminous evidence from other sources that supported a finding that Jackson took part in a conspiracy to distribute heroin. The government advanced several other supporting witnesses, a drug ledger showing records of monetary transactions, a recorded phone call between Dawson and Jackson, and evidence consistent with drug distribution that was recovered from Jackson’s residence. Taking into consideration the extensive amount of evidence that implicated Jackson in the conspiracy, we affirm his conviction.

III. CONCLUSION

The district court properly allowed the government to present evidence under Rule 404(b). Further, the government presented sufficient evidence to establish Jackson’s participation in the conspiracy to distribute heroin. Accordingly, we affirm the judgment of the district court.

      . The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa.


author: SHEPHERD, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. David CARTAGENA, Defendant-Appellant
    No. 16-3356
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 8, 2017
    Filed: May 18, 2017

      Bruce E. Clark, Assistant U.S. Attorney, U.S. ATTORNEY’S OFFICE, Kansas City, MO, for Plaintiff-Appellee.
    David Cartagena, Pro Se.
    Jane Francis, LAW OFFICE OF JANE FRANCIS, Kansas City, MO, for Defendant-Appellant.
    Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

David Cartagena pled guilty to one count of conspiracy to possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The district court sentenced him to 156 months imprisonment. He argues on appeal that the district court failed to consider the Sentencing Guideline factors for minimal-role adjustment to the offense level, erred in denying a minimal-role adjustment, and imposed an unreasonable sentence. We affirm.

In 2012, Angel Rivera began obtaining heroin for resell from sources in Mexico. In January 2015, Angel Rivera paid Cart-agena and Frankie Rivera $10,000 plus expenses to travel by bus from Reading, Pennsylvania to Los Angeles with over $250,000 in cash. Angel Rivera instructed them to check into a hotel in Los Angeles, where they were contacted by Elisandra Varela and provided bundles of heroin in exchange for the cash. At her instruction, Cartagena and Frankie Rivera removed the cash from their own luggage and replaced it with the bundles of heroin. Cart-agena and Frankie Rivera were then instructed by Angel Rivera to return to Reading by bus with the heroin in tow.

During the return trip Cartagena and Frankie Rivera encountered Kansas City, Missouri Police Department drug interdiction squad officers at the Greyhound Bus Station in Kansas City. The officers’ canine alerted on luggage later determined to belong to Cartagena. When questioned, Cart-agena explained that he was traveling with his long-time friend Frankie Rivera. Cart-agena denied officers permission to search his luggage. He was taken into custody and a search warrant for the luggage was obtained and executed. In the luggage officers found three bundles of heroin later determined to weigh 3,989 grams.

While officers were speaking with Cart-agena, other officers spoke with Frankie Rivera, who told them that he and Cart-agena had just met. Frankie Rivera consented to the officers’ search of his luggage in which officers found three bundles of heroin weighing 2,991 grams in a hidden compartment. Frankie Rivera agreed to cooperate with law enforcement and the ensuing investigation led to the arrest and indictment of Angel Rivera and Varela.

Prior to sentencing, Cartagena requested a four-level reduction in his Guideline offense level as a minimal participant in the criminal activity pursuant to USSG § 3B1.2(a). The presentence report did not recommend the reduction, and Cartagena objected. The district court—after considering the description of the offense conduct contained in the presentence report, Cartagena’s objections to the presentence report, the probation officer’s response to Cartagena’s objections, and the argument of counsel—denied the minimal-participant reduction.

Cartagena now contends that the district court committed procedural error in failing to consider the advisory factors set forth in the commentary to USSG § 3B1.2. The commentary provides:

The determination whether to apply subsection (a) or subsection (b), or an intermediate adjustment, is based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case.
In determining whether to apply subsection (a) or (b), or an intermediate adjustment, the court should consider the following non-exhaustive list of factors:
(i) the degree to which the defendant understood the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from the criminal activity-
For example, a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.
The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative. Such a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.

USSG § 3B1.2, comment. (n.3(C)).

Cartagena contends the district court procedurally erred by failing to consider these advisory factors and by making no findings of fact in connection with its minimal role adjustment decision. See United States v. Barrientos, 670 F.3d 870, 873 (8th Cir. 2012) (district court commits procedural error by failing to consider factors listed in commentary to the guidelines). However, Cartagena did not object to this alleged procedural error and, accordingly, we review the issue for plain error. United States v. Burnette, 518 F.3d 942, 946 (8th Cir. 2008) (“Procedural sentencing errors are'forfeited, and therefore may be reviewed only for plain error, if the defendant fails to object in the district court.”).

Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights. If these conditions are met, an appellate court may exercise its discretion to correct a forfeited error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Vaughn, 519 F.3d 802, 804 (8th Cir. 2008) (citations omitted); see also Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”).

Indeed, at sentencing the district court did not expressly refer to the factors set forth in the commentary to USSG § 3B1.2. However, assuming the district court procedurally erred by failing to consider these factors, for the error to affect substantial rights Cartagena “must show a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc). From our review of the record as a whole, as more fully discussed below, Cartagena has not shown that he would have received a minimal role adjustment, much less that he would have received a lesser sentence, had the district court not procedurally erred.

The minimal-participant adjustment “applies to a defendant ... who plays a minimal role in the criminal activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group.” USSG § 3B1.2, comment, n.4. “Whether a defendant played a minor role is a question of fact reviewed for clear error. The burden of proof rests with the defendant to prove that he played a minor role.” United States v. Mitchell, 613 F.3d 862, 870 (8th Cir. 2010) (citation omitted).

Cartagena argues that his role in the criminal enterprise was merely that of a one-time courier without a proprietary interest in the heroin that he and his companion transported. He points out that the commentary to USSG § 3B1.2 also instructs: “[A] defendant who is convicted of a drug trafficking offense, whose participation in that offense was limited to transporting or storing drugs and who is accountable under § 1B1.3 only for the quantity of drugs the defendant personally transported or stored may receive an adjustment under this guideline.” USSG § 3B1.2, comment. n.3(A). He also argues that, “when comparing Mr. Cartagena’s role to that of the other participants, his culpability is significantly less.”

The relevant commentary to USSG § 3B1.2 speaks in terms of eligibility for the minimal-role adjustment. Cartagena’s eligibility for a minimal-role adjustment was not in dispute at sentencing and was implicitly acknowledged by the district court as it determined that under these circumstances the minimal-role adjustment should be denied. Our cases have made clear, however, that “merely showing the defendant was less culpable than other participants is not enough to entitle the defendant to the adjustment if the defendant was ‘deeply involved’ in the offense.” United States v. Bush, 352 F.3d 1177, 1182 (8th Cir. 2003).

Cartagena has a history of drug trafficking offenses. He and Frankie Rivera made a deal with Angel Rivera, in exchange for $10,000, not only to carry over a quarter of a million dollars cross-country but also to exchange that cash for almost seven kilograms of heroin, which they then transported back across the country. Significantly, Cartagena himself was in possession of 3,989 grams of heroin, and the entire quantity of the drugs was attributed to Cartagena for sentencing purposes. Cartagena and Frankie Rivera “were active, necessary, and well-compensated members of th[e] conspiracy. Their roles as couriers do not necessarily entitle them to the minor role adjustment. Transportation is an important component of an illegal drug distribution organization.” United States v. Adamson, 608 F.3d 1049, 1054 (8th Cir. 2010) (citation omitted). Thus, the district court did not plainly err in denying a minimal-role reduction.

Finally, Cartagena submits that considering his role in the offense and his criminal record, his sentence of 156 months—36 months above the mandatory minimum sentence—is substantively unreasonable as “greater than necessary to meet the statutory factors for sentencing.” We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Mees, 640 F.3d 849, 856 (8th Cir. 2011). “[A]n abuse of discretion occurs where the sentencing court fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only the appropriate factors but commits a clear error of judgment in weighing those factors.” United States v. Bryant, 606 F.3d 912, 921 (8th Cir. 2010) (internal quotation marks omitted).

In this case, the district court adequately considered the 18 U.S.C. § 3553(a) factors. The court expressly noted Cart-agena’s criminal history and sentencing consideration that has been afforded to him in the past; the increasing quantities of drugs that have been attributed to him; his history of probation violations; his history and characteristics, including family history; the nature and circumstances of the subject offense, and; the need to protect the public from future crimes. See 18 U.S.C. § 3553(a). Further, the court imposed a within-Guidelines sentence. United States v. Sandoval-Sianuqui, 632 F.3d 438, 444 (8th Cir. 2011) (sentences within the advisory Guideline range are presumed reasonable). Cartagena has not demonstrated that the district court abused its discretion in not giving more weight to his relative role in the offense. We therefore conclude that the sentence was not substantively unreasonable.

We affirm.

      . The Honorable Roseann Ketchmark, United States District Judge for the Western District of Missouri.

      . When interviewed by law enforcement, Angel Rivera stated that Cartagena and Frankie Rivera actually transported $282,000.

      . Prior to sentencing, Cartagena also filed a Sentencing Memorandum with exhibits which included law enforcement investigative reports.