Submitted: November 15, 2018
from United States District Court for the Northern District
of Iowa - Cedar Rapids
BENTON, BEAM, and ERICKSON, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
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 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.
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)).
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.
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
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.
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
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.
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.
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.
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.