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United States v. Naholi

United States Court of Appeals, Eighth Circuit

December 26, 2018

United States of America Plaintiff- Appellee
v.
Kevin Oscar Naholi Defendant-Appellant

          Submitted: November 15, 2018

          Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before BENTON, BEAM, and ERICKSON, Circuit Judges.

          ERICKSON, CIRCUIT JUDGE.

         A jury convicted Kevin Naholi of possession of a firearm by an alien unlawfully in the United States after having been previously convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. §§ 922(g)(5), 922(g)(9), and 924(a)(2). The district court[1] sentenced Naholi to a 60-month term of imprisonment. Naholi appeals, challenging the district court's evidentiary ruling which excluded a government witness's prior inconsistent statements and for prosecutorial misconduct based on alleged improper burden shifting during rebuttal argument. We affirm.

         I. Background

         "We recite the facts in the light most favorable to the jury's verdict." United States v. Daniel, 887 F.3d 350, 353 (8th Cir. 2018) (quoting United States v. Payne-Owens, 845 F.3d 868, 870 n.2 (8th Cir. 2017)).

         Kevin Naholi and Karen Franks Naholi ("Karen") were married and resided together in a house in Cedar Rapids, Iowa. After two and a half years of marriage, on the morning of August 26, 2017, Naholi was served with divorce papers. That evening Naholi's neighbor, Matte Davis, was walking home from a restaurant with her two children when she saw Naholi in his front yard "holding something." Davis was unsure at first what Naholi was holding. She thought it was a stick. When she continued walking closer, Davis identified the object as a gun. Davis asked Naholi to put the gun away or point it down so he would not get in trouble. Davis testified that she was unsure if Naholi heard her talking to him and she was unsure if the object was a rifle or a shotgun because she does not know the difference between the two, but she was sure it was a gun and that Naholi aimed the gun at her and her two children. Davis "panicked" and went to another neighbor's house around the corner and called 911.

         During the 911 call, Davis reported that she was "like a thousand feet away" when she saw Naholi with the firearm. At trial, Davis testified that she had "overexaggerated" and she "actually was very close, like maybe right across the street." On cross-examination, Davis admitted that she was not sure how far away she was from Naholi when she saw him with the gun - it could have been 100 feet or it could have been 200 feet. While on the phone with the dispatcher, Davis could hear Karen yelling at Naholi to "come inside" or something similar.

         When law enforcement officers arrived on scene, Karen and Naholi were inside the residence. Officer Charity Hansel called the residence. Karen answered the phone and she came outside consistent with the officer's request. Karen reported to an officer, who was stationed across the street, that Naholi did not have a gun and that he was "just sitting with me." Officer Hansel called the residence again but Naholi would not come out. Officers entered the home and Naholi was found in the front bedroom, lying on the bed. A rifle was found on the floor in the master bedroom, which was located in the back of the house.

         Karen owned a .22 caliber rifle. She kept it inside a case in the back of her closet in the master bedroom. She told the jury that she only moved the rifle when she cleaned the closet floor. She testified that on the day of the incident she did not touch the rifle. According to Karen, she left the residence in the afternoon and returned around 5:00 p.m. She had a "peaceful" conversation with Naholi at roughly 6:00 p.m. in the sitting room, which was located just outside the master bedroom, of the house. It was approximately 20 minutes later that law enforcement arrived. Karen testified she was surprised when the officers appeared. She also testified that she did not see Naholi with a firearm that day.

         Officer Hansel testified that when she called the residence and Karen answered the phone, Karen said a man had entered her home and he "maybe" had a gun on him. Karen testified at trial that she did not remember telling law enforcement that Naholi had a gun. Karen also denied calling out to Naholi to come inside the residence.

         Naholi denied possessing a firearm. He called neighbor Brian Baxter as a witness at trial. Baxter testified that he had previously observed Naholi walking with a cane. Officer Timothy Brown confirmed that wooden canes and an umbrella were found near the entrance of the home.

         An integral aspect of Naholi's defense was Karen's credibility. Naholi sought to convince the jury that Karen wanted Naholi gone so she framed him. Naholi attempted to undermine Karen's credibility by offering a number of inconsistent statements by Karen on the evening in question. He elicited some of the inconsistencies on cross-examination. As part of his case, Naholi called Officer Hannah Thurston as a witness for the purpose of proffering additional inconsistent statements made by Karen in an attempt to impeach Karen's testimony. The district court sustained the government's objection and excluded the testimony as hearsay. Naholi made an offer of proof during which Officer Thurston testified that Karen initially told her that she did not have a firearm inside the residence. Later in the conversation, Karen told Officer Thurston that Naholi told her that he had a firearm in the residence, but that she had never seen it.

         The jury convicted Naholi of possession of a .22 caliber rifle by a prohibited person. Naholi was sentenced to 60 months' imprisonment to be followed by three years of supervised release. Naholi timely appealed.

         II. ...


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