                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-2521
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the Southern
                                         * District of Iowa.
Michael Anthony Dock,                    *
                                         * [UNPUBLISHED]
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 13, 2010
                                  Filed: January 19, 2010
                                   ___________

Before MURPHY and BYE, Circuit Judges, and STROM,1 District Judge.
                            ___________

PER CURIAM.

       Michael Dock was convicted of possessing an unregistered sawed off shotgun
in violation of the National Firearms Act. 26 U.S.C. § 5861(d). The district court2
sentenced him to 51 months imprisonment. Dock contends on appeal that the court
erred by denying his motion to dismiss under the Speedy Trial Act and by refusing to



      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska, sitting by designation.
      2
        The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
suppress evidence. He also challenges the sufficiency of the evidence underlying his
conviction. We affirm.

       In the context of a Speedy Trial Act claim, we review the district court's
findings of fact for clear error and its legal conclusions de novo. United States v.
Titlbach, 339 F.3d 692, 698 (8th Cir. 2003). The periods of delay Dock complains of
resulted primarily from continuances and other pretrial motions sought by his own
counsel and are excludable under the act. See 18 U.S.C. § 3161; United States v.
Yerkes, 345 F.3d 558, 561 (8th Cir. 2003). The remaining period of delay was caused
by Dock's failure to return to a halfway house and subsequent arrest on state robbery
charges, also excludable under the act. 18 U.S.C. § 3161(h)(1), (3)(A). The district
court did not err by denying Dock's motion for dismissal.

       Dock argues that the district court erred by denying his motion to suppress the
shotgun and his statements to police. Dock asserts that the shotgun was seized as the
result of an illegal stop and that the arresting officers failed to give him a Miranda
warning. On appeal from the denial of a motion to suppress, we review the district
court's factual findings for clear error and its legal conclusions de novo. United States
v. El-Alamin, 574 F.3d 915, 923 (8th Cir. 2009). The record shows that officers
attempted to pull over a vehicle driven by Dock after observing him driving
erratically. Dock refused to pull over and jumped from the vehicle while it was still
moving. A footchase ensued and Dock was apprehended. A passenger who also fled
the vehicle was not caught. After Dock was secured, Officer Michael Demoss
discovered the sawed off shotgun in the front seat of the vehicle. The butt of the gun
was in the driver's footwell, while the barrel pointed over to the passenger's side.

       The district court denied Dock's motion to suppress the shotgun on the basis
that the gun was lawfully seized under the plain view exception to the warrant
requirement. The plain view exception “allows a police officer to seize evidence
without a warrant when (1) the officer did not violate the Fourth Amendment in

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arriving at the place from which the evidence could be plainly viewed, (2) the object’s
incriminating character is immediately apparent, and (3) the officer has a lawful right
of access to the object itself.” United States v. Abumayyaleh, 530 F.3d 641, 648–49
(8th Cir. 2008); see also United States v. Bynum, 508 F.3d 1134, 1137 (8th Cir. 2007)
(“[n]either probable cause nor reasonable suspicion is necessary for an officer to look
through a window (or open door) of a vehicle so long as he or she has a right to be in
close proximity to the vehicle.”). Based on his observation of Dock’s erratic driving,
the hit and run accident, and his attempt to flee, Officer Demoss had a lawful basis for
his presence near the vehicle. Dock left the door of his vehicle open when he fled the
police so Demoss had a clear view of the front seat. The sawed off shotgun’s
incriminating nature was immediately apparent and admissible under the plain view
doctrine. The district court did not err in denying Dock’s motion to suppress.

       We also reject Dock's argument with respect to his Miranda warnings. The two
arresting officers testified that Dock was advised of his Miranda rights before
questioning. The district court credited the officers' testimony, and we defer to the
court's finding on credibility. United States v. Lockett, 393 F.3d 834, 837–38 (8th
Cir. 2005). Given the officers' testimony, the court's finding that Dock received
Miranda warnings before questioning is not clearly erroneous. United States v. Terry,
400 F.3d 575, 579 (8th Cir. 2005). Dock's statements were not obtained in violation
of Miranda.

       Finally Dock asserts that there was insufficient evidence to prove that he
possessed the unregistered sawed off shotgun. The scope of our review is quite
limited when considering the sufficiency of the evidence underlying a jury verdict.
We will uphold the verdict if "there is any interpretation of the evidence that could
lead a reasonable minded jury to find the defendant guilty beyond a reasonable doubt."
United States v. Brown, 560 F.3d 754, 769 (8th Cir. 2009).




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       The government presented testimony from the arresting officers, who testified
that they discovered the shotgun only minutes after Dock jumped from the vehicle
The jury saw photographs of the position of the gun in the vehicle. The jury also
heard testimony from Dock's cellmate, who testified that Dock had told him that he
knew the shotgun was in the car, that he had used it earlier that night in a robbery, and
that he left it in the car when he fled because it was too heavy to carry. Dock
challenges the credibility of this testimony, arguing that his cellmate was an unreliable
witness. Ultimately, however, the jury appears to have credited the testimony, and it
is not our charge on appeal to second guess the jury's credibility determinations. See,
e.g., United States v. Wesseh, 531 F.3d 633, 637 (8th Cir. 2008); see also United
States v. Bower, 484 F.3d 1021, 1026 (8th Cir. 2007) (we have "repeatedly upheld
jury verdicts based solely on the testimony of co-conspirators and cooperating
witnesses."); United States v. Williams, 512 F.3d 1040, 1044 (8th Cir. 2008)
("[p]ossession may be actual or constructive and need not be exclusive."). There was
sufficient evidence presented for a jury to conclude that Dock possessed the
unregistered sawed off shotgun.

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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