United States v. Mykel Crawford ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1888
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Mykel Lee Crawford, *
*
Appellant. *
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Submitted: January 16, 2008
Filed: April 17, 2008
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Before BYE, BEAM and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
A jury convicted Mykel Lee Crawford of possession with intent to distribute
marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D) and possession of a
firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). The
district court1 sentenced him to six months’ imprisonment on the marijuana conviction
and a consecutive sixty months’ imprisonment on the firearm conviction. Crawford
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
appeals only the firearm conviction, arguing that the Government engaged in
prosecutorial misconduct that resulted in an unfair trial. We affirm.
On February 11, 2006, members of the Des Moines Police Department and the
Bureau of Alcohol, Tobacco, Firearms and Explosives followed a white car that made
an illegal turn. Police officers signaled the car to pull over and stop. Crawford pulled
over, exited the vehicle and ran away. He was arrested, and a search revealed
marijuana in his pockets and in the car. Officer Patrick Hickey read Crawford his
Miranda2 rights and asked him about the marijuana. Crawford stated that Locdog
provided the drugs and explained that Locdog was a “Loc Crip.” Police obtained a
search warrant for Crawford’s home and found more marijuana, scales, packaging
materials, and a loaded SKS rifle.
Crawford was indicted for possession with intent to distribute marijuana and
possession of a firearm during a drug trafficking crime. At trial, Crawford conceded
guilt on the marijuana charge, and the only element of the firearm charge he contested
was whether he knowingly possessed the SKS rifle in furtherance of his drug crime.
Crawford filed a motion in limine to prevent the Government from referring to
Crawford’s relationship to gangs and gang activity. The Government generally agreed
but explained during the motion in limine hearing that it wanted to introduce
testimony from Officer Hickey that Crawford stated the marijuana belonged to an
individual named Locdog, “who was a local Crip gang member.” Crawford’s counsel
sought clarification:
[COUNSEL]: As I understand the government’s position, Your Honor,
they just want to relate to the jury allegedly what my client has said to
the officer.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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THE COURT: But what your client allegedly said to the officer has
nothing to do with gang.
[COUNSEL]: Correct. So if that’s the understanding, then we have no
problem with the government’s position on that.
In its opening statement, the Government told the jury that Crawford “stated the
marijuana belongs to an individual by the name of Locdog, who was a member of the
Loc Crips street gang.” Crawford did not object to this statement.
The Government presented the testimony of Officer Hickey, who testified about
the conversation he had with Crawford.
A. [Crawford] said his friend’s name was Locdog, his nickname was
Locdog, and that Locdog was an L O C Crip in the area.
Q. What is an L O C Crip?
A. Well, a Crip is a type of a gang member.
Crawford objected, and the district court sustained the objection. Crawford did not
request that the jury be instructed to disregard the answer, and the district court did
not give such an instruction. The Government then asked:
Q. Did he make further statements concerning this Locdog who was a
LOC Crip and the 5 pounds of marijuana?
Crawford objected again, and the district court sustained the objection before Officer
Hickey could answer.
The Government requested a sidebar conference, which was not made a part of
the record. After the conference, the Government continued to question Officer
Hickey.
Q. Did you ask him where the marijuana had come from?
A. Yes.
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Q. What was his answer?
A. It came from his friend that he knew as Locdog, who was an LOC
Crip.
Crawford did not object.
Crawford called his cousin, John Galbreath, as a witness. Galbreath testified
that he and Crawford “live in a rough neighborhood.” During closing argument, the
Government stated, “Then he threw out that, ‘Well, we live in a bad neighborhood on
the near north side of Des Moines.’ Well, I don’t know if I call it bad, but it’s
certainly not the best neighborhood in Des Moines, Iowa.” Crawford did not object
to this statement.
Crawford also called Paul Jacobsen, a firearms dealer, to testify about the uses
of an SKS rifle. Jacobsen testified that local farmers who ran turkey and hog
confinement operations use SKS rifles. On cross-examination, Jacobsen
acknowledged that he knew of no “large scale farrowing or hog operations or turkey
farms on the near north side of the City of Des Moines.” Officer Hickey had
previously testified that Crawford lived in a residential neighborhood. In closing
argument, the Government stated, “[F]or those of you who are from Des Moines,
Iowa, you know that there’s absolutely no turkey farms in the city limits of Des
Moines, Iowa and certainly not up around 2104 Washington. There’s no farrowing
operations, there’s no hog confinement. There’s nothing along those lines.”
Crawford also did not object to this statement.
The jury convicted Crawford on both counts, and he appeals his firearm
conviction. Crawford argues that the Government engaged in misconduct by
introducing evidence about gang affiliation, stating that Crawford lived in a “bad”
neighborhood and referring to the jurors’ knowledge of the lack of turkey and hog
farming operations in Des Moines. To obtain a reversal for prosecutorial misconduct,
Crawford must first show that the comments were improper and then that they
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prejudiced Crawford’s rights in obtaining a fair trial. United States v. Milk, 447 F.3d
593, 602 (8th Cir. 2006) (quoting United States v. King, 36 F.3d 728, 733 (8th Cir.
1994)). A prosecutor’s comments are improper if they “are likely to inflame bias in
the jury and to result in a verdict based on something other than the evidence.” United
States v. Mullins, 446 F.3d 750, 759 (8th Cir. 2006). If the comments are improper,
we examine for prejudice by considering “(1) the cumulative effect of the misconduct,
(2) the strength of the properly admitted evidence of the defendant’s guilt, and (3) any
curative actions taken by the trial court.” United States v. Yu, 484 F.3d 979, 986 (8th
Cir. 2007) (internal quotation omitted). “Nevertheless, a criminal conviction is not to
be lightly overturned on the basis of a prosecutor’s comments standing alone . . . .”
United States v. Young, 470 U.S. 1, 11 (1985).3
Crawford first argues that the Government’s attempt to elicit evidence about
gang affiliation violated the district court’s ruling on his motion in limine. It appears
that the district court’s ruling on the motion in limine intended to allow into evidence
Crawford’s statement that Locdog was a Loc Crip member but not any reference to
the Loc Crips being a “gang.” During opening statement, however, Crawford did not
object to the Government’s reference to the Loc Crips as a street gang. Only after
Officer Hickey testified that a Loc Crip is a type of gang member did Crawford object.
After the sidebar conference thereafter, the Government neither elicited evidence
about nor made further reference to gangs. To the extent that the Government’s
reference to “gangs” in opening statement and during Officer Hickey’s testimony may
have violated the motion in limine, we do not believe that it rises to the level of
prosecutorial misconduct. Indeed, a “Crip” is widely recognized as a member of a
particular gang. See, e.g., United States v. Banks, 494 F.3d 681, 685 (8th Cir. 2007)
(“The letter twice uses the word ‘crip,’ the name of a widely recognized gang.”).
3
To be eligible for reversal for the statements to which Crawford did not object,
he must show plain error. The error must be plain, affect substantial rights and
seriously affect the fairness, integrity or public reputation of judicial proceedings.
United States v. Pirani, 406 F.3d 543, 550 (8th. Cir. 2005) (en banc).
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Although Crawford apparently sought to exclude any reference to “gang,” it is a
reasonable inference that a “Crip” is a member of a gang. Because Crawford did not
contest the introduction of the word “Crip,” the Government’s brief references to the
word “gang” were neither improper nor prejudicial.
Next, Crawford contends that the Government’s reference to a “bad”
neighborhood in closing argument was improper. The Government was simply
commenting on evidence adduced by Crawford’s witness Galbreath who testified
about a “rough” neighborhood. Although he did not object at trial, Crawford now
relies on our opinion in United States v. Cannon, 88 F.3d 1495 (8th Cir. 1996),
abrogated on other grounds, Watson v. United States, 552 U.S. ---, 128 S.Ct. 579(2007), in which we held that the Government’s labeling of defendants as “bad
people” was improper argument. Id. at 1503. In Cannon, defense counsel objected
to the characterization that the Government was making about the defendants’ guilt
by calling them “bad people.” In this case, the statement was related to a “rough” or
“bad” neighborhood, not a particular defendant, and Crawford’s own witness
introduced the evidence about the “rough” neighborhood in the first place. In fact, the
Government even said of the neighborhood, “Well, I don’t know if I call it bad.”
Thus, we do not find that the Government’s characterization of Galbreath’s testimony
about the nature of the neighborhood to be improper, much less plainly so.
Finally, Crawford argues that the Government’s statement about the lack of
turkey or hog farming on the near north side of Des Moines amounted to the
prosecutor testifying during closing argument. “The very nature of closing argument
requires a detailed analysis of the testimony of each witness and the inferences to be
drawn from the evidence.” United States v. Littrell, 439 F.3d 875, 883 (8th Cir.
2006). Jacobsen testified that an SKS rifle could be used for turkey or hog farming,
but the Government elicited testimony from Jacobsen that he knew of no such farming
operations on the near north side of Des Moines. Officer Hickey testified that
Crawford lived in a residential neighborhood. Although the Government’s reference
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to the jury’s putative knowledge, rather than the specific evidence adduced at trial,
was inartful, its inference during closing argument that Crawford’s possession of the
SKS rifle was not for turkey or hog farming purposes was supported by the record and
thus not improper or prejudicial.
Because we do not find that the Government engaged in prosecutorial
misconduct, we affirm Crawford’s conviction.
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