Petition for Writ of Certiorari — Javaar Yavonnie Kalem Watkins, Petitioner v. United States

i

APPENDIX TABLE OF CONTENTS

Page

Opinion, United States Court of Appeals for the

Eighth Circuit (May 9, 2023) ........................... App. 1

Amended Judgment in a Criminal Case, United

States District Court, District of North Dakota (July 14, 2022) ........................................ App. 16

Order Denying Rehearing, United States Court

of Appeals for the Eighth Circuit (June 20,

2023) ............................................................... App. 31

Reasonable Doubt Jury Instruction .................. App. 32

Defendant Watkins’ Requested Reasonable

Doubt Jury Instruction .................................. App. 33

App. 1

United States Court of Appeals

For the Eighth Circuit

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No. 22-2196

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United States of America

Plaintiff - Appellee

v.

Javaar Yavonnie Kalem Watkins, also

known as Javaar Yavonnie Watkins,

also known as Javaar Ya’onnie-K Watkins

Defendant - Appellant

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Appeal from United States District Court

for the District of North Dakota - Western

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Submitted: February 15, 2023

Filed: May 9, 2023

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Before COLLOTON, BENTON, and KELLY, Circuit

Judges.

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BENTON, Circuit Judge.

A jury convicted Javaar Yavonnie Kalem Watkins

of possessing firearms and ammunition as an armed

App. 2

career criminal in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2), and 924(e). The district court1 sentenced him

to 324 months in prison. He appeals his conviction.

Having jurisdiction under 28 U.S.C. § 1291, this court

affirms.

In September 2020, Watkins and his brother went

to a bar in Bismarck, North Dakota. Jakim Jackson,

Kendrick Jackson, and Alvin Blackmon were also

there. After the bar closed, Watkins, his brother, and

Blackmon had an altercation in the parking lot. Taking

a 9 mm pistol from his truck, Blackmon fired three to

four shots in the air. Jakim picked up a cell phone lying

on the ground. He, Kendrick, and Blackmon left in

Blackmon’s truck. The phone rang. Jakim answered.

The caller told Jakim he was tracking the phone and

wanted it back.

Blackmon gave Jakim his 9 mm pistol and then

dropped him and Kendrick off a few blocks from their

apartment. When they arrived at their building,

Kendrick sat on the porch outside. Jakim went inside

to their basement-level apartment. Later that night,

Watkins and his brother arrived at the apartment

building. They pointed guns at Kendrick and asked

“where he is.” Believing they were asking about Jakim,

Kendrick went into the apartment. Watkins and his

brother followed. Watkins pointed a gun at Kendrick’s

head. Jakim came out of his bedroom. Watkins shot at

him. Jakim grabbed the 9 mm pistol. He and Watkins

1

The Honorable Daniel L. Hovland, United States District

Judge for the District of North Dakota.

App. 3

exchanged gunfire. Jakim was shot multiple times.

Kendrick fled. Watkins took the 9 mm pistol and left.

Investigators found shell casings from two different

firearms—a 9 mm pistol and .45-caliber handgun.

Five days later, investigators showed Jakim a

photo array of suspects that did not include pictures of

Watkins or his brother. Jakim identified one person but

wasn’t “even 50 percent sure on that.” At a second interview less than a week later, investigators showed

Jakim two photo arrays, one with Watkins’ picture and

one with his brother’s picture. Jakim positively identified both Watkins and his brother, with 100% certainty.

As to Watkins, he said, “That’s the mother-fucker right

there.” Kendrick separately identified them with 100%

certainty.

The identifications led to a trailer in Bismarck.

Law enforcement surveilled it. They saw Watkins and

his brother arrive and enter. Watkins left soon after.

Officers followed him and apprehended him. His

brother left the trailer later and surrendered. The

brother’s girlfriend wanted to speak with the officers.

They talked on the porch of the trailer. A child stuck

his head out a window of the trailer and said, “My

daddy has a gun too.” Because it was cold outside and

the girlfriend wanted to make a phone call, officers entered the trailer. A child said, “My daddy has a gun in

there,” and “My daddy has a gun in the closet.” They

asked the brother’s girlfriend for consent to search the

trailer. She refused. They obtained a search warrant.

They found two loaded firearms—a 9 mm pistol and a

.45-caliber handgun—in a closet in a bedroom with

App. 4

Watkins’ driver’s license. The handgun was wrapped in

a t-shirt from the restaurant where Watkins and his

brother worked. A DNA analysis showed Watkins was

the main contributor of DNA on the handgun. DNA

analysis was inconclusive on the pistol. The brand and

caliber of the ammunition from both the pistol and the

handgun was the same as the shell casings found at

the apartment.

Prosecutors charged Watkins and his brother with

possession of a firearm by a prohibited person. The district court denied Watkins’ motion to suppress the evidence from the trailer. It also denied his motions to

suppress the eyewitness identifications, to allow an expert witness on the reliability of eyewitness identification, and to sever his trial from his brother. The jury

convicted Watkins but acquitted his brother. He appeals.

I.

Watkins argues the district court erred in denying

his motion to suppress evidence because the search

warrant was “authorized on uncorroborated statements”

of a child and lacked probable cause. This court need

not decide this issue because the district court correctly

found that even without probable cause, the good faith

exception applied. See United States v. Leon, 468 U.S.

897, 925 (1984) (allowing courts to “reject suppression

motions posing no important Fourth Amendment

questions by turning immediately to a consideration of

the officers’ good faith”); United States v. Randle, 39

App. 5

F.4th 533, 536 (8th Cir. 2022) (“We will assume without

deciding that the warrant affidavit lacked a sufficient

showing of nexus and turn to consideration of the officers’ good faith.”).

The good faith exception applies unless “a reasonably well trained officer would have known that the

search was illegal despite the issuing judge’s authorization.” Randle, 39 F.4th at 536 (cleaned up). “Under

Leon, evidence obtained from a search performed under a warrant is suppressed only if (1) the affiant misled the issuing judge with a knowing or reckless false

statement; (2) the issuing judge wholly abandoned her

judicial role; (3) the supporting affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) the

warrant was so facially deficient that the executing

officer could not reasonably presume its validity.”

United States v. Hay, 46 F.4th 746, 751 (8th Cir.

2022) (cleaned up).

On appeal, Watkins does not challenge the district

court’s good-faith conclusion. This argument is waived.

See United States v. Azure, 539 F.3d 904, 912 (8th

Cir. 2008) (holding that “appellants must raise their issues on appeal in their opening briefs”). Even if it were

not, the record does not indicate that any of the Leon

exceptions applies here. The district court did not err

in determining the good-faith exception applied.

App. 6

II.

Watkins contends the district court erred in

denying his motion to suppress the eyewitness identification because it was “based on the impermissibly

suggestive photo array line-up and likelihood of misidentification.” This court reviews de novo. United

States v. Gilbert, 721 F.3d 1000, 1006 (8th Cir. 2013).

Considering the admissibility of a photo lineup identification, this court examines (1) “whether the identification procedure is impermissibly suggestive,” and (2)

“whether under the totality of the circumstances the

suggestive procedure creates a very substantial likelihood of irreparable misidentification.” Id.

Even if the line-up were impermissibly suggestive

as Watkins contends, it was sufficiently reliable (i.e.,

there was not a substantial likelihood of irreparable

misidentification). In assessing sufficient reliability,

this court considers “the opportunity of the witness to

view the criminal at the time of the crime, the witness’

degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the

crime and the confrontation.” United States v. Williams, 340 F.3d 563, 567 (8th Cir. 2003).

Balancing these factors, there was “very little likelihood of misidentification.” Id. As the district court

found, the two eyewitnesses interacted with Watkins

both at the shooting and at the bar before the shooting, giving them “ample opportunity” to see him. The

eyewitnesses also consistently identified Watkins’

App. 7

physical characteristics, including his lighter skin tone

and the tattoo on his neck. Finally, the eyewitnesses

expressed 100% certainty about their identifications.

Watkins also suggests the district court’s failure to

hold a hearing on his motion to suppress the identification is a constitutional violation. But a pretrial hearing on the admissibly of identification evidence is not

“constitutionally necessary.” United States v. Daily,

488 F.3d 796, 802 (8th Cir. 2007). Where a defendant

has sufficient notice of pretrial identification evidence

and the opportunity to cross-examine identification

witnesses, there are no “exceptional circumstances”

warranting a “constitutionally mandated pretrial

hearing.” Id. at 803. Watkins does not argue lack of notice or ability to cross-examine the eyewitnesses. The

district court did not err in declining to hold a hearing

on the motion to suppress.

III.

Watkins asserts the district court erred in rejecting his request to present expert testimony on eyewitness identification. This court reviews the exclusion of

expert testimony for abuse of discretion. See United

States v. Davis, 260 F.3d 965, 970 (8th Cir. 2001).

“Criminal defendants have a fundamental right to present the testimony of witnesses in their defense.”

United States v. Strong, 826 F.3d 1109, 1115 (8th Cir.

2016). “However, there is no absolute right for criminal

defendants to call every witness.” Id. “A defendant’s

right to present witness testimony is limited by ‘other

App. 8

legitimate interests in the criminal trial process.’ ” Id.,

quoting United States v. Scheffer, 523 U.S. 303, 308

(1998). “In the case of all expert testimony the district

court serves as a gatekeeper to ensure that only reliable and relevant expert testimony is presented to a

jury.” United States v. Legs, 28 F.4th 931, 935 (8th

Cir. 2022). Even if expert testimony meets the requirements of Federal Rule of Evidence 702, the district

court may exclude it if “its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Strong, 826 F.3d at 1115 (cleaned up), quoting

Fed. R. Evid. 403. When a layperson juror “would be

able to make a common sense determination of the issue without the technical aid of such an expert, the expert testimony should be excluded as superfluous.”

United States v. Kime, 99 F.3d 870, 884 (8th Cir.

1996).

Here, the district court analyzed the admission of

the proposed testimony:

In Perry v. New Hampshire, the Supreme

Court stated the use of “expert testimony on

the hazards of eyewitness identification evidence” may be admitted in appropriate cases,

specifically noting it is appropriate to admit

expert testimony in cases involving eyewitness identification of strangers. 565 U.S. at

247. However, as the charges in this case relate to the possession of firearms and ammunition, this is simply not one of those cases in

which expert testimony regarding eyewitness

App. 9

identifications is appropriate. The Court is

mindful that in any number of cases, expert

testimony regarding eyewitness identifications could be useful to the jury in deciding

factual issues, particularly when the identity

of the defendant is an element of the offense

charged or when the eyewitness identification

is uncorroborated. However, this is simply not

one of those cases. Moreover, the Court has

significant concerns that any probative value

of Professor Kehn testimony is outweighed by

the danger of it misleading the jury in this

case. See Fed. R. Evid. 403. Again, the Court

emphasizes, this is not a case of mistaken

identity or where the only evidence against

the Defendant is uncorroborated eyewitness

identifications, but instead the Defendants

are charged with being felons or prohibited

persons in possession of firearms or ammunition. Accordingly, the Court finds Rule 702 of

the Federal Rules of Evidence is not satisfied

and concludes testimony from Professor Kehn

is not admissible at trial.

As the district court noted, the government presented

significant evidence, in addition to the eyewitness testimony, that Watkins possessed the firearms: they were

found in a bedroom where he stayed (immediately after he left the residence); one had his DNA on it; and

the other was wrapped in a shirt from his business.

The government’s case did not solely rely on, or even

require, the eyewitness testimony. See United States

v. Nickelous, 916 F.3d 721, 724-25 (8th Cir. 2019)

(holding the district court did not abuse its discretion

App. 10

in excluding expert testimony on eyewitness identification in part “because the conviction did not rest

solely” on the eyewitness testimony); Kime, 99 F.3d at

885 (“We are especially hesitant to find an abuse of

discretion in denying expert eyewitness identification

testimony unless the government’s case against the

defendant rested exclusively on uncorroborated eyewitness testimony.” (cleaned up)). And the court gave a

“comprehensive instruction regarding the evaluation

and reliability of eyewitness testimony.” Kime, 99 F.3d

at 885. There was no abuse of discretion.

IV.

Watkins believes the court deprived him of a fair

trial by “denying multiple requests to sever” the trial

with his co-defendant “despite antagonistic defenses.”

This court reviews the denial of a motion to sever for

abuse of discretion. See United States v. Hawkins,

796 F.3d 843, 861 (8th Cir. 2015). “There is a preference

in the federal system for joint trials of defendants who

are indicted together.” Zafiro v. United States, 506

U.S. 534, 537 (1993). Indeed, joint trials “play a vital

role in the criminal justice system.” Id. Severance is

not required merely because codefendants present conflicting defenses. Id. at 538. District courts should

grant a severance “only if there is a serious risk that a

joint trial would compromise a specific trial right of one

of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.” Id. Reversal of a denial of a motion to sever is not appropriate

unless the denial resulted in “real and clear prejudice.”

App. 11

Hawkins, 796 F.3d at 861. Clear prejudice exists if:

(1) a defendant’s defense is irreconcilable with a

codefendant’s defense and the jury will infer this

conflict demonstrates guilt; or (2) the jury will not be

able to compartmentalize evidence about separate defendants. See United States v. Martin, 777 F.3d 984,

994 (8th Cir. 2015). “The defendant carries a heavy

burden to make either showing.” Id.

Watkins claims irreconcilable defenses: his defense relies on mistaken identity (he claims he was not

at the apartment at the time of the shooting), while his

brother claims both he and Watkins were at the shooting, but he did not possess a gun or shoot anyone. Watkins’ argument is flawed. First, his claim of mistaken

identity was not a defense to the crime charged. He

was charged with unlawfully possessing a firearm and

ammunition, not shooting or assaulting someone. The

jury was not required to decide whether Watkins shot

someone or was even present at the shooting. It could

have convicted him for possession whether it believed

he was present at the shooting or not. Second, the

core of his brother’s defense was simply that the

brother did not possess or shoot the gun. See Hawkins, 796 F.3d at 861 (“A defense is irreconcilable when

the jury, to believe the core of one defense, must necessarily disbelieve the core of another.”). The jury could

have believed that both brothers were present at the

shooting or neither was and still convicted Watkins.

Third, as discussed, the government presented sufficient evidence, absent the eyewitness identification,

to prove his possession charge. See Martin, 777 F.3d

App. 12

at 994 (holding that even if defenses were mutually

antagonistic and irreconcilable, severance was not

appropriate because the government offered evidence

“independent of the conflicting defenses”). Finally, the

district court instructed the jury to consider each

charge and the evidence pertaining to that charge separately. It told the jury that a finding of guilty or innocent as to one defendant should not control their

verdict as to the other. See Zafiro, 506 U.S. at 540

(holding that a district court’s jury instructions may

cure any risk of prejudice from antagonistic defenses);

United States v. Mann, 685 F.3d 714, 718 (8th Cir.

2012) (“The risk of prejudice posed by joint trials is

best cured by careful and thorough jury instructions.”).

The district court did not abuse its discretion in declining to sever the trial.

V.

Watkins maintains the district court erred by rejecting his proposed instruction on eyewitness identification and “instructing the jury they could consider

personal experiences when determining objective reasonable doubt.” District courts have “broad discretion”

in formulating jury instructions. United States v.

White Horse, 35 F.4th 1119, 1121 (8th Cir. 2022). This

court will affirm instructions if “taken as a whole,” they

“fairly and adequately submitted the issues to the

jury.” Id.

Watkins challenges part of the district court’s “reasonable doubt” instruction: “Proof beyond a reasonable

App. 13

doubt is proof of such a convincing character that a reasonable person, after careful consideration, would not

hesitate to rely and act upon that proof in life’s most

important decisions” (emphasis added). He also challenges the preliminary instruction that stated: “You

are entitled to consider the evidence in light of your

own observations and experiences in the affairs of

life.” He believes both of these instructions allow “the

jury to make incorrect comparisons and input their

own subjective level of proof to an otherwise objective

standard.”

Both these instructions are in the current edition

of the Eighth Circuit Model Jury Instructions (Criminal), at §§ 1.01 and 3.11. Earlier versions of the reasonable doubt instruction did not contain the phrase, “in

life’s most important decisions.” See United States v.

Owens, 966 F.3d 700, 705 (8th Cir. 2020). Adding the

phrase, the Judicial Committee on Model Jury Instructions for the Eighth Circuit noted it was similar to instructions used in three other circuits. See Eighth

Circuit Manual of Model Jury Instructions (Criminal), § 3.11, Committee Comments (2021), citing

Fifth Circuit Model Jury Instruction, § 1.05; Sixth

Circuit Model Jury Instructions, § 1.03; Eleventh

Circuit Model Jury Instruction § 3 (Reasonable

Doubt).

The Supreme Court and other courts of appeal

have approved similar language in reasonable doubt

instructions. See Holland v. United States, 348 U.S.

121, 140 (1954) (holding the instruction “the kind of

doubt . . . which you folks in the more serious and

App. 14

important affairs of your own lives might be willing to

act upon” was not misleading and “correctly conveyed

the concept of reasonable doubt to the jury”); United

States v. Stewart, 306 F.3d 295, 306-07 (6th Cir.

2002) (affirming jury instruction on reasonable doubt—

“Proof beyond a reasonable doubt means proof which

is so convincing that you would not hesitate to rely and

act on it in making the most important decisions in

your own lives”). This court has recognized that jurors

can rely on their own observations and experiences in

considering the evidence. United States v. Owens,

966 F.3d 700, 709 (8th Cir. 2020) (“Rational jurors, using reason and common sense in light of their own observations and experiences, could infer beyond a

reasonable doubt that a felony conviction would be a

significant life event that a person would know about

when it happened and remember at a later date.”).

Other parts of the reasonable doubt instruction included language that this court has approved. See

Harris v. Bowersox, 184 F.3d 744, 750-52 (8th Cir.

1999) (approving language that “Proof beyond a reasonable doubt is proof that leave you firmly convinced

of the defendant’s guilt”). Viewing the instruction as a

whole, there was no error.

Watkins also argues the district court erred when

it declined his proposed jury instruction on out-of-court

identification that he took from the New Jersey Model

Jury Instructions. This instruction was not based on

federal law but rather on the due process protections

under the New Jersey Constitution. See State v. Henderson, 27 A.3d 872, 919 n.10 (N.J. 2011). Watkins was

App. 15

not entitled to this instruction as a matter of right. See

United States v. Bull, 8 F.4th 762, 769 (8th Cir. 2021)

(holding “the district court is only obligated to instruct

the jury on relevant law”).

The district court gave two instructions on eyewitness testimony and out-of-court identification evidence. These instructions were based upon the Eighth

Circuit Model Jury Instructions of Witness Credibility

and Eyewitness Testimony. See Eighth Circuit Manual of Model Jury Instructions (Criminal), §§ 3.04

and 4.08. These instructions sufficiently and accurately submitted these issues to the jury. See United

States v. Grey Bear, 883 F.2d 1382, 1387-88 (8th Cir.

1989) (upholding trial court’s refusal to give an identification instruction where the instruction given adequately “pointed out the relevant considerations to be

weighed in gauging eyewitness testimony”). The district court did not abuse its discretion in denying this

instruction. See United States v. Heard, 951 F.3d

920, 926 (8th Cir. 2020) (holding that the refusal to give

a specific eyewitness instruction was not prejudicial error where the case did not rest solely on eyewitness

identification).

*******

The judgment is affirmed.

App. 16

UNITED STATES DISTRICT COURT

District of North Dakota

UNITED STATES

OF AMERICA

)

AMENDED

)

JUDGMENT IN A

)

CRIMINAL CASE

v.

(amended

to include

)

Javaar Yavonnie

) dismissal of forfeiture)

Kalem Watkins

)

a/k/a Javaar Watkins ) Case Number:

1:21-cr-00010-01

a/k/a Javaar

)

Ya’onnie-Kaile Watkins ) USM Number: 17569-509

) Paul H. Myerchin

) Defendant’s Attorney

THE DEFENDANT:

⬜ pleaded guilty to count(s)

⬜ pleaded nolo contendere to count(s)

which was accepted by the court.

🗹 was found guilty on count(s) 1 of the Indictment

after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title &

Section

Offense

Nature of Offense Ended Count

18 USC

Possession of

§§ 922(g)(1), Firearms and

Ammunition by

a Prohibited

924(a)(2),

Person (Armed

924(e) and 2 Career Criminal)

Oct. 2020

1

App. 17

The defendant is sentenced as provided in pages 2

through 7 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

⬜ The defendant has been found not guilty on

count(s)

🗹 Count(s) Forfeiture Allegation 🗹 is ⬜ are

dismissed on the motion of the United States.

IT IS ORDERED that the defendant must notify

the United States attorney for this district within 30

days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If

ordered to pay restitution, the defendant must notify

the court and United States attorney of material

change in economic circumstances.

May 25, 2022

Date of Imposition of Judgment

Daniel L. Hovland

Signature of Judge

Daniel L. Hovland U.S. District Judge

Name and Title of Judge

July 14, 2022

Date

App. 18

IMPRISONMENT

The defendant is hereby committed to the custody of

the Federal Bureau of Prisons to be imprisoned for a total

term of:

324 MONTHS, with credit for time served.

🗹

The court makes the following recommendations

to the Bureau of Prisons:

The Court recommends the defendant be

placed at FCI Oxford in Oxford, WI. In addition, the Court recommends that the defendant be afforded the opportunity to participate

in the Bureau of Prisons’ 500-Hour Residential Drug Abuse Program (RDAP).

🗹

The defendant is remanded to the custody of the

United States Marshal.

⬜

The defendant shall surrender to the United

States Marshal for this district:

⬜

⬜

at

⬜ a.m. ⬜ p.m. on

⬜

as notified by the United States Marshal.

.

The defendant shall surrender for service of sentence at the institution designated by the Bureau

of Prisons:

⬜

before 2 p.m. on

⬜

as notified by the United States Marshal.

⬜

as notified by the Probation or Pretrial Services Office.

.

App. 19

RETURN

I have executed this judgment as follows:

at

Defendant delivered on

to

, with a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of:

5 YEARS.

MANDATORY CONDITIONS

1.

You must not commit another federal, state or local crime.

2.

You must not unlawfully possess a controlled substance.

3.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug

test within 15 days of release from imprisonment

and at least two periodic drug tests thereafter, as

determined by the court.

App. 20

⬜

The above drug testing condition is suspended, based on the court’s determination that you pose a low risk of future

substance abuse. (check if applicable)

4.

⬜

You must make restitution in accordance with

18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of restitution.

(check if applicable)

5.

🗹

You must cooperate in the collection of DNA

as directed by the probation officer. (check if

applicable)

6.

⬜

You must comply with the requirements of the

Sex Offender Registration and Notification

Act (34 U.S.C. § 20901, et seq.) as directed by

the probation officer, the Bureau of Prisons, or

any state sex offender registration agency in

the location where you reside, work, are a student, or were convicted of a qualifying offense.

(check if applicable)

7.

⬜

You must participate in an approved program

for domestic violence. (check if applicable)

You must comply with the standard conditions that

have been adopted by this court as well as with any

other conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply

with the following standard conditions of supervision.

These conditions are imposed because they establish

the basic expectations for your behavior while on

App. 21

supervision and identify the minimum tools needed by

probation officers to keep informed, report to the court

about, and bring about improvements in your conduct

and condition.

1.

You must report to the probation office in the federal judicial district where you are authorized to

reside within 72 hours of your release from imprisonment, unless the probation officer instructs you

to report to a different probation office or within a

different time frame.

2.

After initially reporting to the probation office, you

will receive instructions from the court or the probation officer about how and when you must report to the probation officer, and you must report

to the probation officer as instructed.

3.

You must not knowingly leave the federal judicial

district where you are authorized to reside without first getting permission from the court or the

probation officer.

4.

You must answer truthfully the questions asked

by your probation officer.

5.

You must live at a place approved by the probation

officer. If you plan to change where you live or anything about your living arrangements (such as

the people you live with), you must notify the probation officer at least 10 days before the change. If

notifying the probation officer in advance is not

possible due to unanticipated circumstances, you

must notify the probation officer within 72 hours

of becoming aware of a change or expected change.

App. 22

6.

You must allow the probation officer to visit you at

any time at your home or elsewhere, and you must

permit the probation officer to take any items prohibited by the conditions of your supervision that

he or she observes in plain view.

7.

You must work full time (at least 30 hours per

week) at a lawful type of employment, unless the

probation officer excuses you from doing so. If you

do not have full-time employment you must try to

find full-time employment, unless the probation

officer excuses you from doing so. If you plan to

change where you work or anything about your

work (such as your position or your job responsibilities), you must notify the probation officer at

least 10 days before the change. If notifying the

probation officer at least 10 days in advance is not

possible due to unanticipated circumstances, you

must notify the probation officer within 72 hours

of becoming aware of a change or expected change.

8.

You must not communicate or interact with someone you know is engaged in criminal activity. If

you know someone has been convicted of a felony,

you must not knowingly communicate or interact

with that person without first getting the permission of the probation officer.

9.

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer

within 72 hours.

10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or

was modified for, the specific purpose of causing

App. 23

bodily injury or death to another person such as

nunchakus or tasers).

11. You must not act or make any agreement with a

law enforcement agency to act as a confidential

human source or informant without first getting

the permission of the court.

12. If the probation officer determines that you pose a

risk to another person (including an organization),

the probation officer may require you to notify the

person about the risk and you must comply with

that instruction. The probation officer may contact

the person and confirm that you have notified the

person about the risk.

13. You must follow the instructions of the probation

officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me

with a written copy of this judgment containing these

conditions. For further information regarding these

conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.gov.

Defendant’s Signature

Date

SPECIAL CONDITIONS OF SUPERVISION

1. You must totally abstain from the use of alcohol and illegal drugs or the possession of a controlled substance, as defined in 21 U.S.C. § 802 or

App. 24

state statute, unless prescribed by a licensed

medical practitioner; and any use of inhalants or

psychoactive substances (e.g., synthetic marijuana, bath salts, etc.) that impair your physical or

mental functioning.

2. You must submit to drug/alcohol screening at

the direction of the United States Probation Officer to verify compliance. Failure or refusal to

submit to testing can result in mandatory revocation. Tampering with the collection process or

specimen may be considered the same as a positive test result.

3. You must participate in a drug/alcohol dependency treatment program as approved by the

supervising probation officer.

4. You must not communicate, or otherwise interact, with J.J., either directly or through someone else, without first obtaining the permission

of the probation officer.

5. You must participate in a program aimed at

addressing specific interpersonal or social areas,

for example, domestic violence, anger management, marital counseling, financial counseling,

cognitive skills, parenting, at the direction of

your supervising probation officer.

6. You must participate in mental health treatment/counseling as directed by the supervising

probation officer.

App. 25

7. As directed by the Court, if during the period

of supervised release the supervising probation

officer determines you are in need of placement

in a Residential Re-Entry Center (RRC), you

must voluntarily report to such a facility as directed by the supervising probation officer, cooperate with all rules and regulations of the

facility, participate in all recommended programming, and not withdraw from the facility

without prior permission of the supervising probation officer. The Court retains and exercises

ultimate responsibility in this delegation of authority to the probation officer.

8. You must submit your person, property,

house, residence, vehicle, papers, computers (as

defined in 18 U.S.C. § 1030(e)(1)) other electronic

communications or data storage devices or media, or office, to a search conducted by a United

States probation officer. Failure to submit to a

search may be grounds for revocation of release.

You must warn any other occupants that the

premises may be subject to searches pursuant to

this condition. The probation officer may conduct a search under this condition only when

reasonable suspicion exists that you have violated a condition of supervision and that the areas to be searched contain evidence of this

violation. Any search must be conducted at a

reasonable time and in a reasonable manner.

App. 26

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on

Sheet 6.

TOTALS

Assessment

Restitution Fine

$ 100.00

$

$

$

AVAA Assessment* JVTA Assessment**

$

⬜

The determination of restitution is deferred until.

An Amended Judgment in a Criminal Case (AO

245C) will be entered after such determination.

⬜

The defendant must make restitution (including

community restitution) to the following payees in

the amount listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment, unless specified otherwise in the priority

order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664W, all nonfederal

victims must be paid before the United States is

paid.

* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub. L. No.

114-22.

App. 27

Name of Payee

Total

Loss***

TOTALS

$

Restitution Priority or

Ordered

Percentage

0.00 $

0.00

⬜

Restitution amount ordered pursuant to plea

agreement $

⬜

The defendant must pay interest on restitution

and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day

after the date of the judgment, pursuant to 18

U.S.C. § 3612(f). All of the payment options on

Sheet 6 may be subject to penalties for delinquency

and default, pursuant to 18 U.S.C. § 3612(g).

⬜

The court determined that the defendant does not

have the ability to pay interest and it is ordered

that:

⬜

the interest requirement is waived for the

⬜ fine ⬜ restitution.

⬜

the interest requirement for the ⬜ fine

⬜ restitution is modified as follows:

*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

committed on or after September 13, 1994, but before April 23,

1996.

App. 28

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties are due

as follows:

A 🗹 Lump sum payment of $ 100.00 due immediately,

balance due

⬜ not later than

, or

🗹 in accordance ⬜ C, ⬜ D, ⬜ E, or 🗹 F below; or

B ⬜ Payment to begin immediately (may be combined with ⬜ C, ⬜ D or, ⬜ F below); or

(e.g., weekly, monthly,

C ⬜ Payment in equal

quarterly) installments of $

over a period

of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after the

date of this judgment; or

(e.g., weekly, monthly,

D ⬜ Payment in equal

quarterly) installments of $

over a period

of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after release

from imprisonment to a term of supervision; or

E ⬜ Payment during the term of supervised release

will commence within

(e.g., 30 or 60 days)

after release from imprisonment. The court will

set the payment plan based on an assessment of

the defendant’s ability to pay at that time; or

F 🗹 Special instructions regarding the payment of

criminal monetary penalties:

All criminal monetary payments are to be

made to the Clerk’s Office, U.S. District

App. 29

Court, PO Box 1193, Bismarck, North Dakota 58502-1193.

While on supervised release, the defendant

shall cooperate with the Probation Officer

in developing a monthly payment plan consistent with a schedule of allowable expenses provided by the Probation Office.

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All

criminal monetary penalties, except those payments

made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the clerk

of the court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary penalties imposed.

⬜ Joint and Several

Case Number

Defendant and

Co-Defendant

Joint and Corresponding

Names (including

Total

Several

Payee,

defendant number) Amount Amount if appropriate

⬜ The defendant shall pay the cost of prosecution.

⬜ The defendant shall pay the following court cost(s):

⬜ The defendant shall forfeit the defendant’s interest

in the following property to the United States:

App. 30

Payments shall be applied in the following order:

(1) assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including

cost of prosecution and court costs.

App. 31

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 22-2196

United States of America

Appellee

v.

Javaar Yavonnie Kalem Watkins, also

known as Javaar Yavonnie Watkins,

also known as Javaar Ya’onnie-K Watkins

Appellant

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Appeal from U.S. District Court

for the District of North Dakota - Western

(1:21-cr-00010-DLH-1)

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

Judge Erickson did not participate in the consideration or decision of this matter.

June 20, 2023

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

App. 32

REASONABLE DOUBT DEFINED

F-12

Reasonable doubt is doubt based upon reason and

common sense, and not doubt based on speculation. A

reasonable doubt may arise from careful and impartial

consideration of all the evidence, or from a lack of evidence. Proof beyond a reasonable doubt is proof of such

a convincing character that a reasonable person, after

careful consideration, would not hesitate to rely and

act upon that proof in life’s most important decisions.

Proof beyond a reasonable doubt is proof that leaves

you firmly convinced of the Defendant’s guilt. Proof beyond a reasonable doubt does not mean proof beyond

all possible doubt.

There are a few things in this world that we know

with absolute certainty, and in criminal cases the law

does not require proof that overcomes all possible

doubt. It is only required that the government’s proof

exclude any “reasonable doubt” concerning the Defendant’s guilt. If, based on your consideration of the evidence, you are firmly convinced that the Defendant is

guilty of the crime charged, you must find him guilty.

If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit

of the doubt and find him not guilty.

App. 33

United States of America vs. Javaar Watkins

Case No. 1:21-cr-00010

DEFENDANT WATKINS’ REQUESTED

PRELIMINARY INSTRUCTION NO. 3

REASONABLE DOUBT – DEFINED

Proof beyond a reasonable doubt is proof that

leaves you firmly convinced of the defendant’s guilt.

There are few things in this world that we know with

absolute certainty, and in criminal cases the law does

not require proof that overcomes every possible doubt.

It is only required that the government’s proof exclude

any “reasonable doubt” concerning the defendant’s

guilt. A reasonable doubt is a doubt based on reason

and common sense after careful and impartial consideration of all the evidence in the case. If, based on your

consideration of the evidence, you are firmly convinced

that the defendant is guilty of the crime charged, you

must find him guilty. If on the other hand, you think

there is a real possibility that he is not guilty, you must

give him the benefit of the doubt and find him not

guilty.5

ALTERNATE INSTRUCTION (A)

Proof beyond a reasonable doubt is proof that

leaves you firmly convinced the defendant is guilty. It

is not required that the government prove guilt beyond

all possible doubt. A reasonable doubt is a doubt based

5

10th Circuit Jury Instructions: https://www.ca10.uscourts.

gov/sites/default/files/clerk/Jury%20Instructions%202021%20

Version.pdf

App. 34

upon reason and common sense and is not based

purely on speculation. It may arise from a careful and

impartial consideration of all the evidence, or from lack

of evidence. If after a careful and impartial consideration of all the evidence, you are not convinced beyond

a reasonable doubt that the defendant is guilty, it is

your duty to find the defendant not guilty. On the other

hand, if after a careful and impartial consideration of

all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to

find the defendant guilty.6

ALTERNATE INSTRUCTION (B)

The prosecution must prove all of the essential elements of the crime charged by proof beyond a reasonable doubt. In other words, if you have a reasonable

doubt that the Defendant committed the crime, then

you must find the Defendant not guilty.

The prosecution is not required to prove guilt beyond all doubt, but beyond a reasonable doubt.

You should find the Defendant guilty only if you have

a firm and abiding conviction of the Defendant’s guilt

based on a full and fair consideration of the evidence

presented in the case and not from any other source.7

6

9th Circuit: https://www.ce9.uscourts.gov/juryinstructions/

sites/default/files/WPD/Criminal_Instructions_2021_3.pdf

7

N.D.J.I. Crim. No. K - 1.10 Proof Beyond a Reasonable Doubt

2004 (North Dakota Jury Instructions - Criminal (2019 Edition))