United States v. Robert Joo

Filing

OPINION FILED - THE COURT: JAMES B. LOKEN, BOBBY R. BALDOCK and DIANA E. MURPHY. Diana E. Murphy, Authoring Judge (PUBLISHED) [3783178] [10-2178]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-2178
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United States of America,

*
*
Plaintiff - Appellee,
*
* Appeal from the United States
v.
* District Court for the Western
* District of Missouri.
Robert Joos,
*
*
Defendant - Appellant.
*
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Submitted: April 12, 2011
Filed: May 3, 2011
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Before LOKEN, BALDOCK1, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Robert Joos was convicted by a jury of being a felon in possession of firearms
and ammunition, in violation of 18 U.S.C. § 922(g)(1), and being a felon in possession
of an explosive, in violation of 18 U.S.C. § 842(i)(1). The district court2 sentenced

1

The Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth
Circuit, sitting by designation.
2

The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

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him to 78 months on each count, to run concurrently, followed by three years of
supervised release. Joos appeals his convictions, and we affirm.3
I.
In 2005, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
received information from a confidential informant (CI) suggesting that Joos, a felon,
was in possession of firearms. Following an investigation, the CI arranged for ATF
agent Tristan Moreland to visit Joos in January 2009, posing as an underground
firearms dealer.
Moreland initially met with Joos over a three day period at Joos' 200 acre
property in Sugar Creek, Missouri. During the meetings, Joos gave Moreland an
extensive tour of his property, including the various caves and buildings on it.
Moreland testified at trial that during the visits Joos talked about his in depth
knowledge of explosives, including the manufacture of homemade explosive devices.
He also spoke to Moreland about the use, value, and stockpiling of firearms and
ammunition. During one of their initial meetings, Moreland observed firearms
concealed under a sheet in the front room of what Joos referred to as his office.
Moreland made a second visit to Joos at his property in February 2009.
Moreland testified that they again spoke about firearms and that during the visit, he
saw a shotgun by the front door of Joos' office lying in plain view. Joos identified the
firearm as a Mossberg brand shotgun.
On June 25, 2009 ATF agent James Patterson led a team of 100 ATF and
Missouri state highway patrol SWAT team officers in executing a search warrant on
Joos' property. Patterson catalogued the evidence seized by the officers, which

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We also deny Joos' motion to compel his counsel to file a supplemental brief.
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included the Mossberg shotgun and a loaded rifle found by the front door of Joos'
residence, as well as another eight firearms found inside the residence. The officers
seized more than 19,000 rounds of ammunition from the home, as well as a canister
of black powder and cannon fuse. In Joos' kitchen, officers found a file marked
explosives, which contained a recipe for a homemade explosive device and a
government pamphlet summarizing federal explosives laws. A storage structure that
Joos called the "bunkhouse" was located about a mile from his residence. In it officers
found safety fuses and a box of blasting caps.
ATF special agent Dan Fridley, an interstate nexus expert, examined the seized
firearms and ammunition and determined that all the items had been manufactured
outside Missouri. The blasting caps were examined by an ATF explosive enforcement
officer and determined to be an "explosive" under federal law. They were
manufactured in Pennsylvania.
Joos was charged with being a felon in possession of firearms and ammunition,
in violation of 18 U.S.C § 922(g)(1), and being a felon in possession of an explosive,
in violation of 18 U.S.C. § 842(i)(1). The case was originally scheduled for trial in
November 2009, but in October Joos moved for a continuance and requested new
counsel. The court granted the continuance, rescheduling the case for December
2009, and appointed new counsel. Joos filed a second motion for a continuance in
November, which was again granted by the court. The trial was rescheduled for
January 2010.
Joos also filed a pro se "Notice and Demand for Constitutional Rights" in
November 2009. In this filing, Joos alleged that he was being punished in violation
of the Constitution for possessing firearms and explosives. He demanded his
immediate release, return of all property seized, and both compensatory and punitive
damages. The district court never ruled on the "Notice and Demand."

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One week before his trial in January 2010, Joos filed a pro se motion to remove
his second appointed counsel and to delay the trial in order to allow him to prepare to
defend himself. Joos asserted that his attorney had treated him disrespectfully, had
refused to file a motion to suppress, and had not subpoenaed certain witnesses to
testify on his behalf. The district court engaged in a lengthy colloquy about the
motion with Joos on the morning of the first day of trial. The court answered a
number of questions Joos raised about his defense and advised him that it would not
grant another continuance. Joos decided to withdraw his motion to remove his
attorney.
During the two day trial, the government presented a number of witnesses,
including ATF agents Moreland and Patterson. Agent Moreland testified about his
meetings with Joos, including conversations they had had about Joos' antigovernment
and racist beliefs. Joos testified on his own behalf and denied that he had owned or
been in possession of any of the weapons, ammunition, or explosives found on his
property. The jury found him guilty on both charges and the court sentenced him to
78 months on each count, to run concurrently.
II.
On appeal, Joos argues that: (1) 18 U.S.C. §§ 922(g)(1) and 842(i)(1) are
unconstitutional under the Second Amendment and unauthorized by the Commerce
Clause, (2) the district court erred in denying his pretrial motion for a continuance and
for removal of his second appointed counsel, (3) the court erred in failing to issue a
Federal Rule of Evidence 404(b) limiting instruction to the jury, and (4) the evidence
was insufficient to convict him of being a felon in possession of an explosive.

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A.
Joos argues that the felon in possession statutes under which he was convicted,
18 U.S.C. §§ 922(g)(1) and 842(i)(1), are facially unconstitutional under both the
Second Amendment and the Commerce Clause. He also argues that § 922(g)(1) and
§ 842(i)(1) are unconstitutional as applied to him under the Commerce Clause.
Turning first to Joos' facial attack on his statutes of conviction, it is well settled
that Congress did not violate the Second Amendment or exceed its authority under the
Commerce Clause when enacting § 842(i) and § 922(g), and Joos' arguments to the
contrary are foreclosed by our prior decisions. See e.g., United States v. Folen, 84
F.3d 1103, 1104 (8th Cir. 1996) (upholding § 842(i) against Commerce Clause
challenge); United States v. Waller, 218 F.3d 856, 857 (8th Cir. 2000) (upholding §
842(i) under Second Amendment); United States v. Hill, 386 F.3d 855, 859 (8th Cir.
2004) (upholding § 922(g) against Commerce Clause challenge); United States v.
Seay, 620 F.3d 919, 925 (8th Cir. 2010) (upholding § 922(g) under Second
Amendment).
Joos' as applied constitutional challenges do not fare any better. Joos raised
these claims before the district court only in his pro se "Notice and Demand for
Constitutional Rights", which he now styles as a motion to dismiss the indictment.
The district court never made any ruling on this pro se filing, however. Because we
have determined that as applied constitutional challenges to statutes are
nonjurisdictional, Joos likely waived this argument. See United States v. Morgan, 230
F.3d 1067, 1071 (8th Cir. 2000).
Even if we were to find that his as applied challenges had not been waived, they
still fail. The government presented undisputed evidence at trial that all of the seized
firearms, ammunition, and explosives were manufactured outside Missouri. We have

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repeatedly held that this is sufficient to satisfy the interstate commerce requirements
of § 922(g) and § 842(i). See Folen, 84 F.3d at 1104.
B.
Joos next argues that the district court erred by denying his pretrial motions for
a continuance and for removal of his second appointed counsel. He argues that the
court's denial amounted to a deprivation of his Sixth Amendment right to represent
himself.
Joos asserts that the district court violated his constitutional right to self
representation by denying his third motion for a continuance, which he filed a week
before the start of his trial. A district court has "broad discretion in deciding whether
to grant or deny a motion for a trial continuance." United States v. Myers, 503 F.3d
676, 680 (8th Cir. 2007). To determine whether an abuse of discretion occurred, we
consider: "(1) whether counsel had sufficient time to prepare for trial; (2) whether
counsel's conduct at trial shows that counsel was well prepared; and (3) whether the
denial of the continuance prejudiced the defendant." Id. at 681.
After assessing the relevant factors, we conclude that the district court did not
abuse its discretion by denying Joos' motion for a continuance. The court appointed
his second counsel nearly twelve weeks prior to his trial, which was sufficient time
to prepare for the two count criminal case. Moreover, the trial transcript reflects that
his counsel was prepared for trial. Counsel made timely objections during witness
testimony, cross examined government witnesses, and entered exhibits on Joos' behalf.
Joos argues that his counsel's failure to make an opening statement demonstrates a
lack of preparation for trial. Counsel's decision not to make an opening statement may
be logically explained as a matter of trial strategy, however, and does not persuade us
that trial counsel was unprepared.

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Furthermore, Joos has not identified anything in the record to show that he was
prejudiced by the district court's denial of his continuance motion. Although Joos
alleges that he was prejudiced by his attorney's failure to make an opening statement
and to subpoena the government's confidential informant, he has not provided an
explanation as to how an opening statement would have aided his defense and has not
identified any exculpatory information the CI could have testified to on his behalf.
In sum, Joos has not shown that the district court's denial of his third motion for a
continuance actually prejudiced his defense.
While the Sixth Amendment allows a defendant to represent himself, that right
is not absolute. United States v. Edelmann, 458 F.3d 791, 807 (8th Cir. 2006). The
right to self representation "does not exist . . . to be used as a tactic for delay, for
disruption, for distortion of the system, or for manipulation of the trial process." Id.
at 808–09. Here, the district court had ample reason to suspect that Joos was merely
seeking to delay his trial again by filing for another continuance. Joos had already
moved for two continuances, both of which had been granted and which resulted in
a trial delay of two months. Joos then filed his motion for a third continuance one
week before his trial was scheduled to begin. It was therefore within the court's broad
discretion to deny the third motion for a continuance.
We also conclude that the district court did not err with respect to Joos' motion
for removal of his second appointed counsel. Since Joos withdrew his motion for
removal before the court ruled on it, he likely waived appellate review of the issue.
Joos argues nonetheless that the district court effectively left him with no choice but
to withdraw the motion. Even if we were to review for plain error, however, there was
none here. When confronted with a defendant's colorable complaint about counsel,
a district court is obligated to "inquire thoroughly into the factual basis of defendant's
dissatisfaction." Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991). The
morning of the first day of trial, the district court spent a considerable amount of time
discussing with Joos his reasons for seeking a continuance and removal of his second
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appointed counsel and answering his many questions concerning his defense.
Following this colloquy, Joos decided to withdraw his motion for removal of his
attorney. On review of the record, we are satisfied that the court engaged in a
sufficiently thorough inquiry into the concerns Joos raised and committed no error
requiring reversal.
C.
Joos contends that the district court erred by failing sua sponte to issue a Rule
404(b) limiting instruction concerning trial testimony about his "purported character,
unsavory associations, offensive values and beliefs, and involvement in domestic
terrorism." Although we generally review jury instructions for abuse of discretion,
the proper review here is for plain error because Joos did not request a limiting
instruction at trial or raise an objection to the district court's instructions. See United
States v. Ladoucer, 573 F.3d 628, 637 (8th Cir. 2009). We may reverse under plain
error review only "if the error was so prejudicial as to have affected substantial rights
resulting in a miscarriage of justice." Id.
Agent Moreland testified at trial that during his meetings with Joos, they
discussed what Moreland described in general terms as Joos' antigoverment and racist
beliefs. Joos asserts that this testimony painted him as a terrorist and bigot to the jury.
He argues that the district court should have sua sponte issued a Rule 404(b) limiting
instruction advising the jury that testimony concerning his character or prior bad acts
could not be used as proof of his guilt.
We have "never found it to be plain error when a court does not give a limiting
instruction of any kind sua sponte with respect to Rule 404(b) type evidence." United
States v. Bamberg, 478 F.3d 934, 939 (8th Cir. 2007). Moreover, we are satisfied that
the absence of a limiting instruction did not affect Joos' substantial rights. The
government presented significant evidence at trial supporting his convictions. In light
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of the substantial evidence of Joos' guilt, we conclude that "the failure to give a
limiting instruction was not such plain error as to require reversal." See Ladoucer,
573 F.3d at 638.
D.
Finally, Joos challenges his conviction for being a felon in possession of an
explosive, in violation of 18 U.S.C. § 842(i)(1). He argues that the government
presented insufficient evidence at trial to prove that he knowingly possessed the
explosive material seized from the bunkhouse on his property. We review the
sufficiency of the evidence de novo, viewing the evidence in the light most favorable
to the verdict, accepting all reasonable inferences that support the verdict, and
reversing only if no reasonable jury could have found the defendant guilty beyond a
reasonable doubt. United States v. Van, 543 F.3d 963, 964 (8th Cir. 2008).
To convict Joos of being a felon in possession of a firearm, the goverment was
required to prove that he had knowingly possessed an explosive which had traveled
in interstate commerce. 18 U.S.C. § 842(i)(1). "Knowing possession may be actual
or constructive." United States v. Cox, 627 F.3d 1083, 1085 (8th Cir. 2010).
Constructive possession exists when a person had control over the place where the
contraband was located, or control, ownership, or dominion over the contraband itself.
United States v. Jackson, 610 F.3d 1038, 1043 (8th Cir. 2010).
At trial an ATF agent testified that he found blasting caps in the bunkhouse on
Joos' property. In the same building he also recovered Missouri Department of
Probation and Parole documents pertaining to Joos. Agent Moreland testified that
Joos had spoken to him extensively about explosives and had said that he kept
materials on his property used to make explosive devices. Moreland further testified
that he had not seen anyone else on Joos' property during their meetings. Joos
testified in his defense that he was unaware the blasting caps were in the bunkhouse,
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a building located about a mile from his residence. He also testified that a number of
people stored things in the bunkhouse and that three people in addition to himself had
keys to the building.
The trial testimony provided strong evidence that Joos was at least in
constructive possession of the blasting caps seized from the bunkhouse. Although
Joos presented an alternative theory for the source of the explosives, "the presence of
one possible 'innocent' explanation for the government's evidence does not preclude
a reasonable jury from rejecting the exculpatory hypothesis in favor of guilt beyond
a reasonable doubt." United States v. Maloney, 466 F.3d 663, 667 (8th Cir. 2006).
Based on the evidence presented at trial, a reasonable jury could conclude that Joos
knowingly possessed the explosives found in the bunkhouse. We conclude that the
evidence was sufficient to sustain his conviction.
III.
Accordingly, we affirm the judgment of the district court.
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