United States of America v. Nicholas Ryan Hemsher

Nicholas Hemsher appeals following a jury conviction on firearms-related

charges. He challenges the sufficiency of the evidence, the district court's1 ruling on

hearsay objections, and aspects of the court's sentencing calculation. We affirm.

1The Honorable Karen E. Schreier, United States District Judge for the District

of South Dakota.

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)).

In June 2016, Hemsher and three co-defendants were indicted by a federal

grand jury on firearm theft and possession charges. Hemsher was charged with

possession of stolen firearms in violation of 18 U.S.C. § 922(j) and being a felon in

possession of firearms in violation of 18 U.S.C. § 922(g)(1). The investigation

leading to these indictments involved the gathering of information by law

enforcement over a few-day period in February 2016.

In that month, Jack Hulscher reported to police that his home had been

burglarized and that two gun safes, several guns, and ammunition were missing from

the residence. After investigating, a Sioux Falls police officer determined that the

safes were carried out of the home. The officer questioned Jack's son, Robert

Hulscher, an initial co-defendant in this matter, who claimed at the time that he left

the house around 11:30 a.m. and drove around the city for a couple hours. Robert

Hulscher denied any involvement with the taking of the safes or the guns. A few days

after the theft, officers returned to the Hulscher residence in response to a family

dispute. When officers arrived they separated the parties. Jack Hulscher testified that

the dispute began when Robert told him he might know where the stolen guns were.

Jack Hulscher claimed that Robert said, "he knew a guy with a crew that did that kind

of stuff," concerning the firearms. Separately, Robert Hulscher told officers that he

took the safes that had been reported missing. His father believed that Robert was

under the influence at the time of this questioning and Robert's statements were

totally inconsistent with his previous denial. A detective then spoke to Robert a third

time the day after the family dispute and Robert denied taking the guns as he did

during his first questioning.

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Around that time, a sheriff deputy arrested Nicolas Wingler, also an initial codefendant,

on an outstanding warrant. Wingler was in possession of a controlled

substance and marijuana at the time. When interviewed, Wingler told detectives that

there were about eight firearms in his apartment. Following Wingler's arrest, officers

began surveillance of the apartment until a search warrant could be obtained with the

information Wingler provided during the interview. During surveillance, the

detectives observed a silver Camry parked in the driveway that left with two

occupants. The Camry returned at 10:30 p.m. and the driver, identified as Hemsher,

exited the vehicle and unsuccessfully attempted to enter Wingler's apartment.

Officers followed the Camry when it left the complex and briefly lost sight of

the car, but noted that when they located the Camry again, they observed an unknown

male walking near the location of Hemsher's tattoo parlor. A marked police car then

pulled over the Camry. Hemsher was the driver and sole occupant at the time officers

stopped the vehicle. Officers arrested Hemsher on an outstanding warrant and took

him into custody, impounding the Camry for a later search. When the Camry was

later searched, a detective found a gun on the floor of the driver's seat as well as

ammunition in the trunk. Hemsher's girlfriend owned the Camry.

Detectives executed a search warrant at Wingler's home and at the time they

did so they encountered Matthew Marshall, a third initial co-defendant, in the

apartment house. Marshall had dropped a large black bag containing six firearms

wrapped in a blanket outside Wingler's apartment. One additional firearm was

located in Wingler's apartment.

At the trial of Hemsher and co-defendant Hulscher, Wingler and Marshall, who

had pled guilty, testified as cooperating witnesses. Wingler testified that he knew

Hemsher was in possession of firearms, that Hemsher wanted Wingler to sell them,

and that the two texted regarding the number for sale. Wingler also testified that

Hemsher had the guns laid out in the back of his tattoo shop and Wingler took them

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from there back to his apartment. Wingler testified he knew they were stolen because

Hemsher told Wingler a "buddy" stole them from his dad. Wingler additionally

testified that he told Hemsher that Hemsher could come to his apartment to check on

the guns and the two exchanged phone calls and text messages concerning how much

to charge and what Wingler would receive in exchange for coordinating their sale.

Marshall testified that he observed guns at the tattoo shop and, later, in

Wingler's living room closet. Marshall said he knew Wingler was going to sell the

firearms and that Marshall moved the guns from the bed to the black bag Marshall

had with him when the officers executed the warrant. When Hemsher came to

Wingler's apartment to check on the guns, it was Marshall who encountered Hemsher.

Marshall testified that when he arrived, Hemsher demanded his money or his

firearms, which Marshall interpreted to mean that the firearms in the apartment

belonged to Hemsher. During the visit someone knocked on the door and Marshall

stated that Hemsher pointed a gun at Marshall's head until the person knocking left.

Hemsher then left the apartment after demanding that Marshall either deliver the

firearms or have Wingler contact him.

The government also called Hemsher's then-girlfriend to the stand. She

testified she owned the Camry and that Hemsher had the Camry all day on February

22, 2016–the relevant day in this investigation. She testified she never saw anything

illegal in her car that day.

All eight firearms recovered by law enforcement were received in evidence; the

seven retrieved from Wingler's apartment and the one from the Camry. Jack Hulscher

identified them as the guns stolen from his home. Wingler also testified that the

firearms were the ones he received from Hemsher. Marshall additionally testified that

they were the firearms he observed in Wingler's apartment.

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Hemsher questioned his then-girlfriend and additional witnesses, all of whom

testified either that they saw nothing illegal in the Camry on the day in question, or

that they never saw Hemsher with a gun. Each witness testified to communicating

with Hemsher after his arrest via phone or jail-approved text messaging. Hemsher

informed one of the witnesses that Wingler had spoken to the police about the case

and that Hemsher thought he was a "rat" and a "snitch" for doing so.

Co-defendant Robert Hulscher was acquitted on all counts. Hemsher was

convicted on two counts: possessing a stolen firearm and being a felon in possession

of a firearm. The district court enhanced Hemsher's sentence for the possession of

eight firearms and additionally for possessing those firearms in connection with

another felony offense given the evidence that Hemsher was trying to traffic them.

Finally, the court also increased Hemsher's sentence for his obstructive conduct, as

there was evidence that he told one of his witnesses to testify that she did not see

anything illegal from the dates of February 20 through February 22, 2016, and

additional evidence of obstruction in text messages sent by Hemsher from jail. The

resulting Guidelines range was 120 to 150 months and the court imposed concurrent

sentences at the bottom of the range–120 months on each count.

II. DISCUSSION

A. Sufficiency and Trial Objection

This court reviews sufficiency of the evidence de novo, viewing the evidence

in the light most favorable to the verdict, giving it the benefit of all reasonable

inferences. United States v. Bart, 888 F.3d 374, 377-78 (8th Cir. 2018). Reversal is

warranted only if no reasonable juror could find the defendant guilty beyond a

reasonable doubt. Id. at 378. The general standard is that absent extraordinary

circumstances, the reviewing court does not weigh the evidence or evaluate witness

credibility when making sufficiency of the evidence determinations. United States

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v. Crenshaw, 359 F.3d 977, 988 (8th Cir. 2004). Such extraordinary circumstances

arise when the reviewing court determines no reasonable person could believe the

testimony offered. Id. ("Although ordinarily witness credibility is left completely to

the jury and is beyond appellate review, we must reverse a conviction if no reasonable

person could believe the incriminating testimony.") (quoting United States v. Watson,

952 F.2d 982, 988 (8th Cir. 1991)).

On appeal Hemsher argues this case presents an extraordinary circumstance

allowing this court to review credibility determinations. According to Hemsher,

although normally a cooperating witness's testimony is not rendered insubstantial just

because of its self-interest, here, there were two self-interested witnesses whose

testimony was so full of material inconsistencies that there was no way the jury could

rely on their testimony. Hemsher points out the many inconsistencies of Wingler and

Marshall throughout their questioning by officers, and claims the accounts of Wingler

and Marshall presented at trial were "impossible" in light of the defense's evidence;

namely Hemsher's then-girlfriend and friends who testified they never saw Hemsher

with a gun. As a result of these inconsistencies, Hemsher claims he was convicted

based upon speculation and surmise.

We disagree. This case does not present the extraordinary circumstance where

no reasonable person could believe the incriminating testimony. The witnesses were

subject to thorough cross-examination regarding their testimony and their motives for

providing testimony and there was more than sufficient evidence to convict Hemsher

on the possession charges. Possession may be actual or constructive. United States

v. Jackson, 365 F.3d 649, 655 (8th Cir. 2004). The evidence sufficiently connected

Hemsher to the guns in Wingler's apartment as well as to the gun in the Camry,

because the evidence showed he was the last person to occupy the Camry and to

exercise control over the gun prior to it being located. Further, Hemsher coordinated

the movement of the guns to Wingler's possession so as to facilitate their sale. See

United States v. Howard, 413 F.3d 861, 864 (8th Cir. 2005) (determining the

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government sufficiently connected Howard with stolen guns in part using

circumstantial evidence). Further, there was circumstantial evidence that Hemsher

knew the guns were stolen given his comment to Wingler that he got the guns from

his "buddy" who stole them from his dad, the burglary victim who identified the

recovered guns as his own. And, Marshall testified that Hemsher threatened him at

gunpoint at Wingler's apartment when Hemsher arrived to get his money or his guns.

Viewing the evidence in the light most favorable to the verdict, there was sufficient

evidence supporting Hemsher's conviction.

B. Hearsay

The trial court's evidentiary rulings excluding evidence are reviewed for abuse

of discretion unless an offer of proof has not been made, in which case they are

reviewed only for plain error. United States v. DeMarce, 564 F.3d 989, 995 (8th Cir.

2009); United States v. Henley, 766 F.3d 893, 916 (8th Cir. 2014); Fed. R. Evid.

103(a)(2).

On appeal Hemsher challenges two evidentiary rulings made by the district

court, both sustaining hearsay objections made by the government. First, during his

case-in-chief, Hemsher recalled a detective to question him about his interview with

Wingler to highlight that Wingler's account of events had changed from the officer's

initial questioning of Wingler to Wingler's trial testimony. The district court

sustained hearsay objections made by the government without a response from

Hemsher. On appeal, for the first time, Hemsher argues the court erred in sustaining

the government's objection because the questioning was presented for impeachment

purposes admissible under Federal Rule of Evidence 613(b) (extrinsic evidence of a

prior inconsistent statement). Hemsher also contends that failure to allow this

questioning was necessarily prejudicial because Wingler's credibility was paramount

in Hemsher's conviction. However, Hemsher did not make an offer of proof

concerning either the substance or purpose of the testimony at trial and thus the

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district court was never able to consider whether the posited testimony was proper

impeachment of Wingler under Rule 613(b).

Rule 613(b) permits the admission of extrinsic evidence of a witness's prior

inconsistent statements only where the witness is "given an opportunity to explain or

deny" the statement and "the [opposite] party is given an opportunity to examine the

witness." In this case, these Rule 613(b) preconditions were satisfied. Wingler was

afforded an opportunity to explain or deny his statements during the government's

case-in-chief, as he was questioned on cross-examination about statements he

previously made to the detective during prior interviews and how those statements

changed over time. Wingler claimed at trial he did not recall certain statements, or

gave varying answers on the stand when presented with his inconsistencies. Based on

Hemsher's first-time assertions on appeal, the inconsistencies he wanted to highlight

by calling the detective himself involved whether or not Wingler saw guns at the

tattoo shop and met Hemsher there to retrieve them, and how many guns Wingler said

were kept at the tattoo shop. The government does not respond to Hemsher's Rule

613(b) argument, maintaining only that Hemsher sought to introduce Wingler's

statements for the truth of the matter and that they were thus inadmissible hearsay.

If we assume Hemsher offered the testimony of the detective to impeach Wingler by

showing that Wingler made statements contrary to his trial testimony, the excluded

evidence was not hearsay, and the trial court erred in excluding the extrinsic evidence

on that basis. United States v. Eagle, 498 F.3d 885, 888 (8th Cir. 2007).

A mere showing of error does not, of course, entitle Hemsher to a new trial; the

error must be plain. 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.").

We conclude that the district court did not plainly err in excluding the detective's

testimony since Hemsher failed to lay an evidentiary foundation by showing it to be

Rule 613(b) evidence. Hemsher claims the error was clearly prejudicial because

Wingler's testimony and credibility was key to the government's case. In the end,

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however, a fortiori, the error was not plain because these inconsistencies had already

been addressed with Wingler during the government's case on thorough crossexamination

by two different counsel for the two defendants at trial. Accordingly,

highlighting that testimony yet again with the defendant himself was redundant and

the court's exclusion of that testimony did not affect Hemsher's substantial rights on

these facts. Eagle, 498 F.3d at 889. Given the rigorous cross-examination that

already took place, Wingler's credibility was an issue squarely before the jury at all

times and the fact that Wingler changed his story on multiple occasions as well as his

motivation for doing so was strenuously examined with him. Therefore, the error, if

any, of excluding the purported extrinsic evidence was not plain.

As to Hemsher's second challenge to the exclusion of certain evidence on

hearsay grounds, Hemsher also questioned Wingler's across-the-hall neighbor on the

stand about what the neighbor heard the police officers say during the execution of

the search warrant in an attempt, according to Hemsher, to bolster Marshall's

testimony about his alleged rough treatment by the officers at the time of his arrest.

These statements were hearsay and were properly excluded. Hearsay is not

admissible unless one of several exceptions applies. Fed. R. Evid. 802. Hemsher

made no offer of proof at trial, but on appeal, claims the testimony concerning what

the officers purportedly stated during the execution of the warrant was admissible

under Rule 803(2) as excited utterances. The "excited utterance" exception applies

to any statement "relating to a startling event or condition, made while the declarant

was under the stress of excitement that it caused." Fed. R. Evid. 803(2); DeMarce,

564 F.3d at 997 ("The rationale of the excited utterance exception is that the stress of

nervous excitement or physical shock stills the reflective faculties, thus removing an

impediment to truthfulness." (quoting Reed v. Thalacker, 198 F.3d 1058, 1061 (8th

Cir. 1999))). The execution of a search warrant in the normal course of employment

by trained officers does not constitute a startling event. However, even assuming the

circumstances here were abnormally startling, Hemsher has not shown that the

exclusion of this evidence affected his substantial rights. He claims the testimony

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supported the credibility of Marshall, which he views as one of the most important

issues at trial, but the jury had sufficient opportunity to evaluate Marshall’s credibility

throughout the trial. Because Hemsher has failed to show that the purported error

affected his substantial rights, he has not satisfied the plain error standard.

C. Sentence

This court reviews a district court's interpretation and application of the

Guidelines de novo and its factual findings for clear error. United States v. Bates,

584 F.3d 1105, 1108 (8th Cir. 2009).

1. U.S.S.G. § 2K2.1(b)(1)(B)

As to his sentence, Hemsher first argues the court erred in applying an

enhancement under U.S.S.G. § 2K2.1(b)(1)(B) because the offense involved 8-24

firearms. The district court found that eight firearms were recovered by law

enforcement and all eight were involved in Hemsher's offenses. Hemsher argues that

this calculation is wrongly based on the self-serving, inconsistent testimony of

Wingler himself, and that law enforcement never actually saw Hemsher enter

Wingler's apartment that day, but rather only that he approached the building.

However, as earlier noted, seven firearms attributed to Hemsher were located in

Wingler's apartment and the eighth was located in the vehicle Hemsher was driving.

There was evidence supporting the conclusion that law enforcement witnessed

Hemsher approach Wingler's apartment complex on the day the firearms were

recovered. There was additional testimony that Wingler obtained all seven firearms

from Hemsher at the tattoo shop and that the two discussed the sale of those firearms

via text. Too, Marshall testified about Hemsher's appearance at Wingler's apartment

demanding his money and guns. There was thus circumstantial evidence supporting

the enhancement. Under a clear error standard of review, we affirm the district court's

findings in support of the enhancement.

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2. U.S.S.G. § 2K2.1(b)(6)(B)

Next, Hemsher claims the district court erred in applying a four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using or possessing a firearm in

connection with another felony offense, here trafficking firearms. "In applying §

2K2.1(b)(6) when the defendant has not been convicted of another state or federal

felony offense, the district court must find by a preponderance of the evidence that

another felony offense was committed, and that use or possession of the firearm

facilitated that other felony." United States v. Dixon, 822 F.3d 464, 465 (8th Cir.

2016) (quoting United States v. Littrell, 557 F.3d 616, 617 (8th Cir. 2009). The

district court reasoned that Hemsher was convicted of possession of stolen firearms

and that his possession offense was connected to trafficking of the stolen firearms.

In light of the record evidence, the district court was referring to the witness

testimony and evidence of Hemsher's intent and agreement to sell the firearms for

profit (i.e., a conspiracy or attempt to sell stolen firearms).

Hemsher's focus on appeal is on his claim that the application note to §

2K2.1(b)(6)(B) prohibits the use of trafficking as the other felony offense in this case

because the Guidelines defines "[a]nother felony offense" as "any federal, state, or

local offense, other than the explosive or firearms possession or trafficking offense,

punishable by imprisonment for a term exceeding one year." U.S.S.G. § 2K2.1 cmt.

14(C) (emphasis added). Hemsher further points out that application note 13(D)

supports his argument that under the Guidelines, "another felony offense" must be

something other than possession and trafficking offenses. Application note 13(D)

states as much, he claims, by describing "another felony offense" as "i.e., an offense

other than a firearms possession or trafficking offense." U.S.S.G. § 2K2.1 cmt.

13(D). Reading these notes in tandem, Hemsher claims "the other felony offense"

supporting the enhancement under § 2K2.1(b)(6)(B) has to be something other than

a firearms possession or trafficking offense and thus on the facts present here, the

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plain language of the Guidelines prohibits the enhancement of a possession offense

with a trafficking offense.

While the two commentary notes, read together and highlighted by Hemsher

might give pause to the discussion, we are bound to apply the plain language of

application note 14(C), which this court has already stated narrows the scope only

slightly, but determinatively, for our purposes.

Application note 14(C) narrows the scope only slightly, by defining

"another felony offense" to exclude "the explosive or firearms

possession or trafficking offense." Importantly, application note 14(C)

does not exclude "any," "an," or "a" firearms possession offense. The

word "the" is a definite article commonly employed to refer to

something specific. See United States v. I.L., 614 F.3d 817, 821 (8th

Cir. 2010). The phrase "the . . . firearms possession . . . offense" in

application note 14(C) most plainly refers to the underlying offense of

conviction . . . . Thus, the plain language of application note 14(C)

excludes only the underlying firearms possession offense of conviction

from the definition of "another felony offense."

United States v. Jackson, 633 F.3d 703, 705-06 (8th Cir. 2011). Indeed, in United

States v. Walker, 771 F.3d 449, 451-52 (8th Cir. 2014), we clarified this

interpretation as congruent with the 2011 Guidelines amendments, which removed

any doubt that "another felony offense" contemplated by the § 2K2.1(b)(6)(B)

enhancement categorically removed firearm possession and trafficking offenses from

the four-level enhancement altogether as Hemsher advocates here. Accordingly, the

court did not err in applying an enhancement under § 2K2.1(b)(6)(B) after

determining that Hemsher's firearms possession offense was connected to the other

felony offense of firearms trafficking.

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3. U.S.S.G. § 3C1.1

Hemsher also argues that the district court erred in applying an obstruction of

justice enhancement under U.S.S.G. § 3C1.1. "We give great deference to a district

court's decision to impose an obstruction of justice enhancement, reversing only when

the district court's findings are insufficient." United States v. Cunningham, 593 F.3d

726, 730 (8th Cir. 2010). Covered conduct under § 3C1.1 includes threatening,

intimidating, or otherwise unlawfully influencing or attempting to influence a

witness, directly or indirectly. U.S.S.G. § 3C1.1 cmt. n.4(A). The district court

sufficiently reviewed the text messages admitted at trial sent by Hemsher while in

custody and was reasonable in concluding that he communicated with the recipients

to threaten, intimidate or otherwise influence the witnesses, including the "snitch" he

referenced.

4. Procedural and Substantive Unreasonableness

As to Hemsher's claim that his sentence is procedurally and substantively

unreasonable, a matter this court reviews under a deferential abuse-of-discretion

standard, we find none. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)

(en banc). The district court discussed its review of the presentence report and

detailed Hemsher's criminal history and the resulting sentence of 120 months was at

the bottom of the Guidelines range and is therefore presumptively reasonable. United

States v. Ewert, 828 F.3d 694, 698 (8th Cir. 2016). Though presumptively

reasonable, Hemsher argues the great disparity between his sentence and those of the

cooperating co-defendants is evidence that his sentence is unreasonable. 18 U.S.C.

§ 3553(a)(6) (instructing sentencing courts to take into account the need to avoid

unwarranted sentencing disparities among defendants with similar records who have

been found guilty of similar conduct).

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Citing United States v. Lazenby, 439 F.3d 928 (8th Cir. 2006), Hemsher claims

his own sentence of 120 months is wholly unreasonable when viewed in light of the

six- and seven-month respective sentences imposed on co-defendants Marshall and

Wingler. However, Hemsher's argument founders on the mistaken premise that the

statutory direction to avoid unwarranted sentencing disparities among defendants

refers to differences among co-conspirators. It does not. United States v. Pierre, 870

F.3d 845, 850 (8th Cir. 2017). Additionally, we have limited the Lazenby decision

to the "unusual circumstances" presented in that case, which included "a consolidated

appeal involving both conspirators that permitted a remand for resentencing of both

parties." United States v. Fry, 792 F.3d 884, 892-93 (8th Cir. 2015). This case does

not present such a unique circumstance. And, in any event, any disparity in

sentencing among Hemsher and the noted co-defendants here was warranted. These

defendants were dissimilar. Wingler and Marshall pleaded guilty, accepted

responsibility, and cooperated with the government, all of which would have

warranted favorable consideration in their sentencing. Id. at 893. The district court

reasonably arrived at Hemsher's sentence.

For the reasons stated herein, we affirm.