                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 12 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-8043
                                                    (D.C. No. 99-CR-0105)
    KEVIN LEROY JENKINS, SR.,                             (D. Wyo.)
    also known as Kiven Leroy Kohler,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Kevin Leroy Jenkins appeals his convictions for one count of possession of

a sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5845 and 5861(d), and

one count of being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g) and 924(a)(2), contending the district court erred in denying his motion

to suppress evidence with respect to these charges. Defendant also appeals his

convictions for three counts of aggravated assault, in violation of Wyo. Stat. Ann.

§ 6-2-502(a)(iii) and 18 U.S.C. § 1153, and three counts of use of a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c), contending the

evidence presented at trial was insufficient to convict him of these charges.

Defendant does not appeal his convictions for another three counts of being a

felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.


                               I. Motion to Suppress

      Defendant, who is an Indian, first contends that a Bureau of Indian Affairs

(BIA) law enforcement officer, Sergeant William Warren, illegally stopped the

vehicle in which he was a passenger and illegally arrested him because the stop

and arrest occurred outside of the Wind River Indian Reservation (WRIR), and,

therefore, outside of the officer’s jurisdiction. Defendant contends that the

shotgun discovered during the subsequent search of the vehicle should have been

suppressed as a result of the unlawful stop and arrest. “When reviewing an order

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granting or denying a motion to suppress, we accept the trial court’s findings of

fact unless clearly erroneous, and consider the evidence in the light most

favorable to the district court’s determination.”   United States v. Doyle , 129 F.3d

1372, 1375 (10th Cir. 1997). However, the ultimate determination of

reasonableness under the Fourth Amendment is a question of law that we

review de novo . Id.

                                      A. Background

       Shortly after midnight on June 19, 1998, Sergeant Warren, a BIA law

enforcement officer working for the Wind River Agency Police Department,

received a report of shots being fired at the residence of the Addison family,

located in the WRIR. He went to the home, where witnesses told Sergeant

Warren that a car drove up to the home, defendant got out, fired a gun into the

rear window of Mr. Addison’s car, breaking it, and then aimed the weapon up

at a bedroom window in which the Addisons’ daughter was standing. When the

daughter ducked down, defendant got into the car and left. Witnesses described

the car and pointed out a spent shotgun shell lying in the street. Sergeant Warren

knew that defendant had previously been convicted of a felony and that it was

a federal offense for him to possess a firearm.

       While Sergeant Warren was investigating this incident, a police dispatcher

informed him that a Ms. Sherry Duran had just reported that defendant had driven


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off in her vehicle and she wanted it returned. This was not a report of a stolen

vehicle, but was described as an “attempt to locate.” The car described by the

Addison family was similar to Ms. Duran’s vehicle. Sergeant Warren went to

Ms. Duran’s home. She told him who might be riding with defendant in the car,

including a Ms. April Miller. Sergeant Warren told her the vehicle may

have been involved in a shooting incident and Ms. Duran gave him permission to

search the car if it was located.

      Sergeant Warren began to look for the vehicle, but he came upon a runaway

juvenile. He transported the juvenile to the police department in the nearby town

of Riverton, which is located in Fremont County, Wyoming. After leaving the

Riverton Police Department, he was driving on the highway back to the WRIR

when he recognized Ms. Duran’s car driving in front of him. A woman, later

identified as April Miller, was driving. Sergeant Warren followed the car and

radioed for assistance from both the Riverton Police Department and the BIA.

Sergeant Warren testified at the suppression hearing that the driver voluntarily

pulled the car off to the side of the road, that he pulled in behind the car, then

activated his emergency lights and waited for assistance. R. Vol. II, at 15-16.

In his initial report of the stop, however, Sergeant Warren did not indicate that

the driver voluntarily pulled over, but stated instead that he stopped the vehicle.




                                          -4-
The district court made no finding as to whether the stop was voluntary and

consensual.

      The vehicle stopped 300 feet short of the bridge over the Wind River into

the WRIR.   1
                When Sergeant Lee of the Riverton Police Department arrived,

Sergeant Warren asked the driver, Ms. Miller, to get out of the car. She did so,

handing the keys to Sergeant Warren. Two men and one woman remained in the

car. Sergeant Warren told Ms. Miller that the police were looking for Kevin

Jenkins and she eventually admitted he was in the front passenger seat. Sergeant

Warren went to the passenger door, asked defendant to step out, arrested him and

placed him in his patrol car. Ms. Miller then told Sergeant Warren that the



1
       Defendant’s argument that Sergeant Warren lacked jurisdiction to effect the
stop and arrest rests on his claim that these events took place outside of the WRIR
and, therefore, outside of the officer’s jurisdiction as a BIA law enforcement
officer. The district court stated its belief that the exterior boundaries of the
WRIR encompass the area in which the vehicle was stopped. R. Vol. II, at 94.
Sergeant Warren also testified that it was his belief that Riverton was within the
exterior boundaries of the WRIR. However, neither the government nor the
defendant presented any competent evidence establishing whether the area was in
or out of the WRIR boundaries. The government states that the jurisdictional
status of the area in question is unclear, Appellee’s Br. at 9 n.2, and appears to
concede that the vehicle was stopped just outside of the WRIR,      id. at 8-9.

       We assume therefore, purely for the sake of argument, that the vehicle was
stopped outside the WRIR reservation boundary. We note, however, that the
proponent of a motion to suppress generally bears the burden of proof,    United
States v. Moore , 22 F.3d 241, 243 (10th Cir. 1994), and that defendant did not
present any evidence in support of his claim that the area was, in fact, outside
of the WRIR.

                                          -5-
shotgun was in the car. Police ordered the other passengers out of the car.

Ms. Duran, who had been notified her car had been located, arrived at the scene

and again gave the officers permission to search the vehicle. During the search,

Sergeant Lee discovered a shotgun between the front seats of the car. Defendant

was arrested for the tribal offenses of discharge of a firearm and malicious

mischief.

                                       B. Analysis

       Defendant does not dispute that there was probable cause to stop the

vehicle or probable cause to arrest him. Rather, he contends that Sergeant Warren

lacked jurisdiction to stop the vehicle and arrest him because these events took

place outside of the WRIR. He relies on     Ross v. Neff , in which we held that

a warrantless arrest made outside an officer’s jurisdiction is analogous to

a warrantless arrest made without probable cause. 905 F.2d 1349, 1353-54

(10th Cir. 1990). Defendant lacks standing to contest the search directly because

he was a passenger in the vehicle.    See United States v. Eylicio-Montoya   , 70 F.3d

1158, 1162 (10th Cir. 1995). Nevertheless, a passenger does have standing to

“challenge a constitutionally improper traffic stop, detention, or arrest on

Fourth Amendment grounds even though, when the seizure occurs, [he] has no

possessory or ownership interest in either the vehicle in which [he] is riding or

in its contents.”   Id. at 1164. If the physical evidence found in the vehicle


                                           -6-
was the fruit of the defendant’s unlawful detention, it must be suppressed.     Id.

at 1164-65. Defendant contends that, but for Sergeant Warren’s unlawful stop

of the vehicle, he would not have been arrested, the car would not have been

searched and the firearm would not have been discovered.

       The government first contends defendant cannot contest the stop because

Ms. Miller voluntary pulled over. However, we are unable to make any

determination as to whether the traffic stop was consensual. Sergeant Warren’s

testimony that Ms. Miller voluntarily pulled over was placed at least in some

doubt by his written report, made at the time of the arrest, stating that he

had stopped the vehicle. The district court made no findings with respect to this

conflicting evidence, and we may not resolve this issue in the first instance.

See United States v. Guzman , 864 F.2d 1512, 1521 (10th Cir. 1988) (voluntariness

and credibility are findings of fact to be made by the district court at a

suppression hearing) ( overruled on other grounds by United States v. Botero-

Ospina , 71 F.3d 783, 787 (10th Cir. 1995));      Sabol v. Snyder , 524 F.2d 1009, 1011

(10th Cir. 1975) (“It is obviously not the function of the appellate court to try the

facts or substitute for the trial court in the determination of factual issues.”).

       The government next contends that Sergeant Warren had authority under

25 U.S.C. § 2803(3) to arrest defendant for the federal crime of being a felon in

possession of a firearm. Section 2803(3) provides that BIA law enforcement


                                            -7-
officers may make a warrantless arrest “for an offense committed in Indian

country if . . . the offense is a felony and the [BIA officer] has reasonable grounds

to believe that the person to be arrested has committed, or is committing, the

felony.” It is undisputed that at the time of the arrest Sergeant Warren had

reasonable grounds to believe defendant had violated the federal felony offense of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and,

indeed, he listed the felon-in-possession charge as a possible offense on a report

he signed the day after the arrest. Nevertheless, it is also undisputed that

Sergeant Warren only arrested defendant for tribal offenses, R. Vol. II at 21, and

that defendant was not charged with the felon-in-possession offense until more

than a year after this arrest. Because Sergeant Warren did not arrest defendant for

a federal felony, we decline to make any determination as to whether the arrest

was authorized under 25 U.S.C. § 2803(3).

      We agree, however, with the government’s next contention, that Sergeant

Warren had jurisdiction and authority under Wyoming state law to stop the

vehicle and arrest defendant because he was a special deputy sheriff of Fremont

County. Sergeant Warren testified he took the oath as a special deputy sheriff and

a Fremont County special deputy appointment list was introduced into evidence

listing him as having been appointed as a special deputy sheriff. The sheriff’s

signature line was unsigned on the appointment papers. The government


                                          -8-
presented evidence, however, that the Fremont County sheriff considered Sergeant

Warren to have been appointed as a special deputy and that the lack of the

sheriff’s signature on the form was an oversight.     2
                                                          Based on this evidence, the

district court made a finding of fact that Sergeant Warren was a special deputy

sheriff of Fremont County. We conclude that the district court’s finding that

Sergeant Warren was a special deputy sheriff of Fremont County is not clearly

erroneous. Therefore, he was not acting outside of his lawful jurisdiction when

he stopped the vehicle and arrested defendant.

       Moreover, defendant does not contest the district court’s finding that

exigent circumstances existed to justify the stop and arrest, nor do we conclude

that finding was clearly erroneous. Thus, even if Sergeant Warren had been

acting outside of his jurisdiction, the stop and arrest would nevertheless be

justified under Ross v. Neff , which recognized that exigent circumstances could

justify an arrest outside an officer’s jurisdiction. 905 F.2d at 1354;     see also

United States v. Green , 178 F.3d 1099, 1107 (10th Cir. 1999) (holding that Fourth

Amendment permits warrantless arrests where officer has probable cause and



2
      Defendant notes that this evidence was the hearsay testimony of an FBI
agent who spoke to the Fremont County sheriff during a break in the suppression
hearing. However, defendant did not object to this testimony at the time of
the hearing and it is well established that hearsay evidence is admissible at
suppression hearings. United States v. Merritt , 695 F.2d 1263, 1269-70
(10th Cir. 1982).

                                             -9-
makes the arrest within his jurisdiction   or under exigent circumstances). Because

the stop and the arrest were lawful, the district court correctly denied defendant’s

motion to suppress the firearm discovered during the search of the vehicle.


                                 II. Aggravated Assault

       Defendant was convicted of three counts of aggravated assault by

“threaten[ing] to use a drawn deadly weapon on another” in violation of

Wyo. Stat. Ann. § 6-2-502(a)(iii), made applicable to him pursuant to the Indian

Major Crimes Act, 18 U.S.C. § 1153. The parties agree that Wyoming law

applies pursuant to § 1153(b), which provides that the assimilated crime is to be

punished by reference to state law if no federal statute defining the crime exists.

Defendant challenges his aggravated assault convictions, and the three 18 U.S.C.

§ 924 convictions predicated on these convictions, claiming that the evidence

was insufficient to convict him.

       We review de novo the sufficiency of the evidence supporting a conviction.

United States v. Magleby , 241 F.3d 1306, 1311 (10th Cir. 2001).

       In reviewing his sufficiency of the evidence claims, we must ask only
whether taking the evidence--both direct and circumstantial, together with the
reasonable inferences to be drawn therefrom--in the light most favorable to the
government, a reasonable jury could find [the defendant] guilty beyond a
reasonable doubt. . . . We will only overturn a jury verdict if no reasonable juror
could have reached the disputed verdict. . . . In a sufficiency challenge, we
review the record as a whole and consider the collective inferences reasonably
drawn therefrom. Where conflicting evidence exists, we do not question the
jury’s conclusions regarding the credibility of witnesses or the relative weight of

                                           -10-
evidence. When a record allows for conflicting findings, we must presume that
the trier of fact resolved any such conflicts in favor of the prosecution.

Id. at 1311-12 (quotation marks, citations and alterations omitted).

                                   A. Background

      With respect to the first count of aggravated assault, the government

presented evidence that defendant had been having an argument with his

sixteen-year old cousin, Wallace Jenkins, when defendant walked toward Wallace

with a gun in his hand, tripped Wallace, knocking him to the floor, then stood

above him and held a gun to his head. Wallace saw defendant put the gun to his

head and covered his head with his arms, but heard defendant cock the weapon

and heard a shotgun shell fall out and hit the floor near him. Defendant held the

cocked gun to his cousin’s head for a few minutes. Wallace testified that this

was not a game, that defendant was angry at him, and that he cried after defendant

let him up.

      As to the second count, the government presented evidence that defendant

got into an argument with his sister, Lisa, and knocked her to the ground, then

straddled her and pointed a gun towards her head, fired one round from the gun

approximately five feet from her head, and attempted to fire a second shot, though

the gun failed to fire. Defendant’s shot was within Lisa’s arm-length reach and

was close enough to make her ears ring. A witness to this incident testified that

Lisa was very upset after this incident.

                                           -11-
      The third count relates to the incident at the Addison home. After shooting

out the rear window of the family’s car with a sawed-off 12 gauge shotgun,

defendant immediately reloaded his weapon and aimed it up at the Addison’s

daughter, Fatima, who was standing in her bedroom window. The government

presented evidence that defendant had been in a previous altercation with one of

the Addison family members and was angry at the family. Fatima Addison

testified she heard a car pull up in the driveway, looked out her window and

saw defendant fire the shotgun at the car, heard the car window break, saw him

reload the shotgun and aim it at her. She testified she was scared, she “kind of

freaked out,” and screamed to her parents. R. Vol. 3 at 95-97. A witness

testified defendant did not just swing his weapon in Fatima’s direction, but

held the shotgun in both hands and aimed it at her. The witness testified that

Fatima dropped below the window and defendant left the scene.

                                      B. Analysis

      The Wyoming Supreme Court has held “that the phrase ‘threatens to use’

in § 6-2-502(a)(iii) . . . requires proof of an actual threat of physical injury during

the act of employing a deadly weapon.”     Johnston v. State , 747 P.2d 1132, 1134

(Wyo. 1987). The court held that proof of the mere presence of a weapon is

insufficient to satisfy the “threatens to use” element of the aggravated assault

crime. Id. at 1134. It is undisputed that defendant never verbally threatened


                                          -12-
anyone in the three incidents for which he was charged with aggravated assault.

He claims, therefore, that the evidence was insufficient to convict him because

there is no proof of an “actual threat of physical injury.”

      We disagree. It is clear that under Wyoming law, a threat need

not constitute an express verbal threat, and that a threat for purposes of

§ 6-2-502(a)(iii) may be implied and may be expressed simply by actions. The

Wyoming Supreme Court in      Johnston ruled that the following jury instruction

is a proper definition of the term “threat” in the aggravated assault statute:

      A threat is an expression of an intention to inflict pain, injury, or
      punishment. It may be expressed by words      or acts , or a combination
      of words and acts. Considering all of the circumstances of the case,
      you must decide whether the defendant’s words and acts amounted to
      an express or implied statement of his intention to use a drawn
      deadly weapon to inflict pain, injury, or punishment.

747 P.2d at 1135 (emphasis added). The Wyoming Supreme Court upheld

a conviction in Cox v. State for aggravated assault under § 6-2-502(a)(iii) based

solely on implied actions where the defendant advanced toward the victim,

slashing back and forth with a knife, without uttering any verbal threat

whatsoever. 829 P.2d 1183, 1186 (Wyo. 1992) (holding that aggravated assault

statute is a general intent crime, requiring only that intent which may be inferred

from doing the act which constitutes the offense charged, such as slashing back

and forth with a hunting knife).



                                         -13-
      Here, defendant was bigger than all of his victims, two women and his

sixteen-year old cousin. In each instance, there was evidence that defendant was

angry at his victim when he aimed a deadly weapon at or very near his victim.

In each instance, defendant did not simply aim the weapon at his victim, but also

took affirmative menacing actions. In the first case, he cocked the weapon while

holding it next to his victim’s head, causing a shell to fall out, and held the

cocked weapon next to the victim’s head for several minutes. In the second case,

defendant fired his weapon so close to the victim’s head it made her ears ring and

attempted to fire it near her a second time. In the third case, defendant shot out

the window of the victim’s family car in the middle of the night immediately

before reloading and aiming his shotgun directly at the victim. In each instance,

the victim was scared and upset by defendant’s actions.    See Gunderson v. State ,

925 P.2d 1300, 1304 (Wyo. 1996) (noting that victim’s fear is evidence of

defendant’s threat). Accordingly, we hold that the evidence, viewed in the

light most favorable to the government, provides an adequate basis from which

a reasonable jury could find that defendant’s actions with respect to each count

of aggravated assault constituted an implied intention to use a drawn deadly

weapon to inflict pain, injury or punishment.




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     The government’s unopposed motion to supplement the record is

GRANTED. The judgment is AFFIRMED.



                                               Entered for the Court



                                               Mary Beck Briscoe
                                               Circuit Judge




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