United States v. Steven Blakeney , 876 F.3d 1126 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3945
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Steven Blakeney
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 20, 2017
Filed: December 11, 2017
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Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Following a jury trial, Steven Blakeney was convicted of one count of
conspiracy against rights, in violation of 18 U.S.C. § 241; one count of deprivation
of rights under color of law, in violation of 18 U.S.C. § 242; and one count of
falsifying a record, in violation of 18 U.S.C. § 1519. On appeal, he challenges the
sufficiency of the evidence, two evidentiary rulings, a statement made by the
Government during closing argument, and the district court’s1 responses to questions
presented by the jury during deliberation. For the reasons that follow, we affirm.
I.
The conduct underlying Blakeney’s conviction arose during a mayoral election
in the city of Pine Lawn, Missouri between incumbent mayor Sylvester Caldwell and
candidate Nakisha Ford. In the runup to the election, Blakeney, a Pine Lawn police
sergeant, visited the Pine Lawn Food Market. He asked owner Mazen “Mario”
Samad and his brother, store manager Akram “Sam” Samad (together, “the Samad
brothers”), to allow him to display a Caldwell campaign sign. Despite Mario’s
refusal, Blakeney placed the sign in the store’s window.
On March 31, 2013, Ford entered the Pine Lawn Market and saw the sign,
which depicted her mugshot from a previous arrest. Ford asked Mario to take the
sign down. Mario told her that he would not remove the sign himself but that she
could do what she wanted with it. Ford removed the sign and left. Mario did not
object to Ford’s removing the sign, and he did not call the police.
Later that day, Blakeney and several other police officers came to the Pine
Lawn Market and discovered the missing sign. Blakeney demanded to see the
security camera footage and called Sam to the store. Blakeney then instructed Sam
to call 911 to report the theft of the sign and threatened to frame him for drug
possession if he did not comply. After Sam called 911, Pine Lawn Prosecutor
Anthony Gray and other police officers came to the store and reviewed the security
camera footage.
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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The Samad brothers then accompanied Blakeney to the police station, where
he instructed them to give statements using language he provided. Sam’s son,
Mohammed, prepared the statements according to Blakeney’s instructions because
the Samad brothers do not write English proficiently. At one point, Blakeney stopped
Sam’s interview to instruct Sam to change his story. He also directed Sam to step out
of the room, at which point Mayor Caldwell advised Sam, “Oh, we[’ll] take care of
you. Don’t worry about it.” The mayor also told Sam to say that he obtained the sign
from city hall himself.2 The Samad brothers signed the statements, which stated that
Sam obtained the sign from city hall and that Ford created a disturbance and stole the
sign. At Blakeney’s trial, the Samad brothers testified that these statements were
untrue.
After the statements were complete, Officer Jesse Brock completed Pine Lawn
Police Department Incident Report No. 13-1337 based on information Blakeney
provided. Blakeney approved the report, and Brock also filled out a form to obtain
a “wanted” for Ford.3
Blakeney, three other police officers, the chief of police, and Gray then
proceeded to Ford’s house to arrest her. Brock testified that he did not recall anyone
suggesting that they issue Ford a summons instead of making the arrest. Ford was
taken into custody, booked, and transported to a jail in St. Ann, Missouri. An hour
later, Ford was returned to the Pine Lawn Police Department, posted a $750 bond,
and was released early in the morning. Ford was charged with stealing and disorderly
2
Blakeney and Mayor Caldwell also instructed the Samad brothers that they
would have to testify against Ford in court. Both received subpoenas but never
testified.
3
A “wanted” provides authority for an arrest but differs from an arrest warrant
because it is not a statement of probable cause signed by a judge. See State v. Pate,
469 S.W.3d 904, 910 (Mo. Ct. App. 2015).
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conduct, but the charges ultimately were reduced to a single littering charge. Ford
pleaded guilty and paid a $500 fine.
After these events came to light, Blakeney was charged in a three-count
indictment with conspiracy against rights, deprivation of rights under color of law,
and falsifying a record. Blakeney did not testify at his trial. The jury submitted two
questions to the judge during deliberation. First, the jury asked to read the testimony
of Sam, Mario, and Mohammad Samad. Outside the presence of the parties, the judge
responded that a transcript was unavailable, and he later informed both sides of this
exchange. Second, the jury asked for clarification as to which document Blakeney
was accused of falsifying. The judge responded, “You are to be guided solely by the
evidence submitted and the Court’s instructions.” The jury convicted Blakeney on
all counts, and he timely appeals his conviction.
II.
A. Sufficiency of the evidence
Blakeney first argues that the Government presented insufficient evidence to
demonstrate that he reached an agreement with any would-be coconspirator to violate
Ford’s civil rights. “We review the sufficiency of the evidence de novo, viewing
evidence in the light most favorable to the government, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the verdict.”
United States v. Huyck, 849 F.3d 432, 441 (8th Cir. 2017). We must uphold the
verdict “[i]f there is an interpretation of the evidence that would allow a reasonable-
minded jury to find the defendant guilty beyond a reasonable doubt.” Id. Reversal
is not appropriate “[e]ven where the evidence rationally supports two conflicting
hypotheses,” id., and is required “only if no reasonable jury could have found guilt
beyond a reasonable doubt.” United States v. Gray, 700 F.3d 377, 378 (8th Cir.
2012).
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It is a crime for “two or more persons [to] conspire to injure, oppress, threaten,
or intimidate any person . . . in the free exercise or enjoyment of any right or privilege
secured to him by the Constitution or laws of the United States.” 18 U.S.C. § 241.
For a conspiracy against rights, the Government must prove “an actual agreement
between two or more persons to accomplish a prohibited object.” United States v.
Morado, 454 F.2d 167, 169 (5th Cir. 1972); United States v. Lee, 6 F.3d 1297, 1307
(8th Cir.1993) (en banc) (Lay, J., concurring and dissenting).
The indictment names Sam Samad as a coconspirator and references other
coconspirators “known and unknown.” Blakeney contends that Sam could not have
been a coconspirator because Blakeney coerced him to make false statements by
threatening to frame him for drug possession, and thus no agreement existed between
them. See United States v. May, 727 F.2d 764, 765 (8th Cir. 1984) (holding that
coercion excuses a criminal act only when it “induce[s] a well-grounded apprehension
of death or serious bodily injury if the act is not done”); United States v. Wint, 974
F.2d 961 (8th Cir. 1992) (explaining that “a reasonable, legal alternative to
committing the crime” negates a coercion defense).
We need not decide whether coercion negates the agreement element of
conspiracy in this case, however, because the evidence would allow a reasonable jury
to find that another person, Mayor Caldwell, conspired with Blakeney to arrest Ford.
Blakeney argues that the Government did not name Mayor Caldwell as a
coconspirator until closing arguments and that it otherwise represented the conspiracy
as one between Blakeney and “the store owners and managers.” But the indictment
referenced coconspirators “known and unknown,” and Blakeney’s lawyer
acknowledged before trial that “it’s my understanding that potentially one of the
conspirators would, in fact, be Mayor Caldwell.”
Blakeney further argues that only inadmissible hearsay establishes that Mayor
Caldwell was a coconspirator. As we explain below, however, Mayor Caldwell’s
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statements are admissible, and the evidence is sufficient to establish that the mayor
was a coconspirator. Sam testified that Mayor Caldwell was present at the police
station and that Blakeney arranged for Caldwell to speak with Sam during his
interview to encourage the Samad brothers to make false statements. Sam also
explained that Caldwell planned for Blakeney to transport Sam to court to testify
against Ford after her arrest. Several witnesses testified that Blakeney supported
Mayor Caldwell and that the two were frequently in contact. Moreover, as her
opponent in the mayoral race, Caldwell had motive to sabotage Ford’s chances in the
upcoming election.
Together, these facts allow a reasonable jury to conclude that there was an
agreement between Blakeney and Mayor Caldwell and that Blakeney knew of and
intentionally joined this conspiracy. As a result, we find that sufficient evidence
supported Blakeney’s conspiracy conviction.
Second, Blakeney argues that the evidence was insufficient to demonstrate that
he deprived Ford of her rights under color of law by having her illegally arrested.
Once again, we may reverse “only if no reasonable jury could have found guilt
beyond a reasonable doubt.” Gray, 700 F.3d at 378.
To secure a conviction for deprivation of rights under color of law, the
Government must prove that a defendant acted “(1) ‘willfully’ and (2) under color of
law (3) to deprive a person of rights protected by the Constitution or laws of the
United States.” United States v. Lanier, 520 U.S. 259, 264 (1997) (quoting 18 U.S.C.
§ 242); see also United States v. Ramey, 336 F.2d 512, 514 (4th Cir. 1964) (“When
an officer, knowing a warrant to be illegal, groundless, or fictitious, willfully uses his
authority, and/or such an instrument to arrest and incarcerate the accused, such action
is a deprivation of the right of the arrested to liberty and a violation of 18
U.S.C. § 242.”). Blakeney argues that Ford’s arrest was not illegal because Officer
Brock developed independent probable cause to arrest her for stealing or disorderly
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conduct. The Government counters that this “attenuation” analysis applies only when
determining whether the exclusionary rule excludes illegally obtained evidence and
maintains that Blakeney had a duty to prevent Ford’s arrest because he knew that it
was baseless. See, e.g.,Utah v. Strieff, 136 S. Ct. 2056 (2016).
Even if the attenuation doctrine were applicable, Blakeney’s claim that Officer
Brock developed probable cause for Ford’s arrest from an independent source is
unpersuasive. He argues that Brock established probable cause from his interviews
of Mario Samad and April Brooks, a Pine Lawn Market cashier. These interviews,
Blakeney claims, supplied Brock with information that Ford stole the campaign sign,
which provided probable cause for her arrest. But Blakeney dispatched Officer Brock
to the scene and provided all the information contained in the police report. In other
words, Blakeney supplied the information that purportedly justified Ford’s arrest, and
Brock did not develop independent cause to arrest Ford.
Similarly, Blakeney contends that city prosecutor Gray independently brought
the charges against Ford that led to her arrest. Gray watched the surveillance video
at the store and authorized charges before the Samad brothers made false statements
at the police station. To be sure, Officer Allen Lawson testified that Gray was present
at the store and “everything had to kind of go through him . . . since he was the city
prosecutor.” Brock testified that “both Anthony Gray and Sergeant Blakeney advised
me that there was enough to arrest Nakisha Ford.” But Gray saw the video only after
Blakeney—knowing Ford did not in fact steal the sign—summoned the authorities
to the scene. In other words, Gray did not authorize the charges independent of
Blakeney’s actions.
As a result, we find that sufficient evidence supported Blakeney’s conviction
for illegal arrest.
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B. Evidentiary rulings
Blakeney also challenges two evidentiary rulings made by the district court.
First, he contends that the admission of Exhibit 16, an unsigned copy of Pine Lawn
Police Department Incident Report No. 13-1337, violated the best evidence rule. See
Fed. R. Evid. 1002. Blakeney concedes that, because he did not object at trial, we
review for plain error. See Fed. R. Crim. P. 52(b). Under this standard, the court may
reverse only if the error is “plain,” “affect[s] substantial rights,” and “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 732 (1993) (alterations in original).
The district court did not plainly err by admitting Exhibit 16. Under the
Federal Rules of Evidence, “An original writing, recording, or photograph is required
in order to prove its content unless these rules or a federal statute provides
otherwise.” Fed. R. Evid. 1002. However, a signature is not required for a document
to be an original. See id. 1001(d) (“An ‘original’ of a writing or recording means the
writing or recording itself or any counterpart intended to have the same effect by the
person who executed it or issued it.”). Additionally, a duplicate is admissible “to the
same extent as the original unless a genuine question is raised about the original’s
authenticity or the circumstances make it unfair to admit the duplicate.” Id. 1003.
Blakeney argues that without his signature, there is no way to verify that he
approved the statements in the report. However, Brock testified that Blakeney
provided the false information contained in the report, directed him to prepare it, and
approved it when it was completed. See United States v. Moyer, 674 F.3d 192, 208
(3rd Cir. 2012) (“There was sufficient evidence to prove that [the defendant]
knowingly . . . endorsed false information contained in his subordinate’s
report . . . .”). As a result, admitting the unsigned police report did not violate the
best evidence rule, and the district court did not plainly err.
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Second, Blakeney argues that the district court erred by permitting hearsay
testimony of Mayor Caldwell’s statements to Sam. Blakeney concedes that he did not
object at trial and that the court reviews for plain error. See Fed. R. Crim. P. 52(b).
According to Sam’s testimony, Mayor Caldwell assured Sam during the police
interview that they would take care of him. Caldwell also coached Sam to say that
Sam, not Blakeney, placed the sign in the store window. And after Ford was arrested,
both Caldwell and Blakeney told Sam that he would have to testify against Ford in
court. Blakeney contends that these statements are inadmissible hearsay.
An out-of-court statement “offered against an opposing party” that “was made
by the party’s coconspirator during and in furtherance of the conspiracy” is not
hearsay. Fed. R. Evid. 801(d)(2)(E). For a statement to qualify for this exclusion, the
Government must demonstrate, by a preponderance of the evidence, “(1) that a
conspiracy existed; (2) that the defendant and the declarant were members of the
conspiracy; and (3) that the declaration was made during the course and in
furtherance of the conspiracy.” United States v. Beckman, 222 F.3d 512, 522 (8th
Cir. 2000). The court may conditionally admit the statement and rule on its
admissibility at the conclusion of the evidence. United States v. Bell, 573 F.2d 1040,
1044 (8th Cir. 1978). Moreover, “[w]hen determining whether a conspiracy existed,
a court may consider the co-conspirator’s statement itself.” Beckman, 222 F.3d at 523(8th Cir. 2000) (citing Bourjaily v. United States, 483 U.S. 171, 181 (1987)).
Blakeney argues that the Government did not provide additional evidence to
prove that Mayor Caldwell was a coconspirator and did not identify him as a
coconspirator until closing arguments. As we explained above, Mayor Caldwell’s
statements and the other evidence presented at trial demonstrated that Mayor
Caldwell was Blakeney’s coconspirator. The district court did not plainly err by
admitting Sam’s testimony.
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C. Government’s comment during closing arguments
Blakeney argues that in closing arguments the Government inappropriately
commented on his failure to testify. To demonstrate that the Government violated the
Fifth Amendment by commenting on the accused’s silence, “[a] defendant must
establish that a prosecutor’s comment was both improper and prejudicial to the
defendant’s substantial rights.” United States v. Sandstrom, 594 F.3d 634, 661-62
(8th Cir. 2010) (internal quotation marks omitted). We review de novo whether the
prosecutor has commented unconstitutionally on the defendant’s failure to testify and
then review for an abuse of discretion a district court’s denial of a motion for a new
trial. Id. at 662.
Although “a prosecutor may not comment on a defendant’s failure to present
evidence to contradict the government’s case if the defendant alone had the
information to do so,” United States v. Triplett, 195 F.3d 990, 995 (8th Cir. 1999)
(internal quotation marks omitted), the court “should not lightly infer that a
prosecutor intends an ambiguous remark to have its most damaging meaning or that
a jury, sitting through lengthy exhortation, will draw that meaning from the plethora
of less damaging interpretations,” Donnelly v. DeChristoforo, 416 U.S. 637, 647
(1974).
Blakeney argues that the following language in the prosecutor’s closing
argument constitutes an improper comment on Blakeney’s refusal to testify:
Be reminded that you have to focus on the evidence in this case, what
was testified to, things that were presented that were admitted into
evidence, and not statements that were made in opening statement. You
might recall in opening statement that Mr. Wright made several
statements about what was going to be shown in the trial. And really,
that’s all they were, because they weren’t backed up by any evidence.
For example, he said you were going to hear that Mr. Blakeney did not
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agree to arresting Ms. Ford, and that he said, “Whoa, let’s—let’s do a
summons.”
Blakeney contends that this statement refers to evidence that could only have come
from his testimony and that the district court abused its discretion by overruling his
objection and failing to take curative action. The Government, in turn, emphasizes
that it sought to refute the defense’s opening argument, which promised to show that
Blakeney proposed issuing Ford a summons rather than arresting her.
Blakeney’s argument fails because other witnesses could have testified that he
objected to arresting Ford. Officer Brock testified that he did not recall anyone
suggesting that a summons would be appropriate instead of an arrest. Several other
officers were also present, and Blakeney could have called one of them to testify in
rebuttal. Blakeney also could have called Gray and asked him whether Blakeney
disagreed with the decision to arrest Ford. Because Blakeney was not the only
witness whose testimony could have substantiated the defense’s theory, the jury
would not naturally take the Government’s comment, in context, as a remark on
Blakeney’s refusal to testify. See United States v. Gardner, 396 F.3d 987, 992 (8th
Cir. 2005) (“The existence of other relevant witnesses makes it unlikely that the jury
would have viewed the challenged comments as pointing to defendant[’s] silence at
trial rather than to the lack of evidentiary support for the defense theory.” (alteration
in original and internal quotation marks omitted)). Accordingly, we conclude that the
Government’s comment was not improper.
D. Jury questions
Blakeney also raises two issues related to the jury’s questions during
deliberation. First, he contends that the judge’s supplemental instructions did not
mitigate the jury’s confusion when it inquired as to which document Blakeney was
accused of falsifying. Blakeney did not object at trial and again concedes that we
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review for plain error. See Fed. R. Crim. P. 52(b). “A district court has broad
discretion to respond to a jury request for supplemental instructions. It must insure
that any supplemental instructions given are accurate, clear, neutral and non-
prejudicial.” United States v. Jenkins, 792 F.3d 931, 935 (8th Cir. 2015).
After the jury asked which document Blakeney was accused of falsifying, the
judge responded, “You are to be guided solely by the evidence submitted and the
Court’s instructions.” The jury instructions included a verbatim recitation of the
indictment, which specified that Blakeney was charged with falsifying police report
13-1337. That police report was admitted as Exhibit 16 and identified by the report
number 13-1337.
The jury instructions therefore answered the question the jury posed. See
United States v. Hayes, 574 F.3d 460, 481-82 (8th Cir. 2009) (affirming a conviction
when the district court referred the jury to instructions that answered the jury’s
question). Accordingly, the district court did not plainly err in responding to the
jury’s questions about the falsified documents.
Finally, Blakeney argues that the judge plainly erred by responding to the
jury’s request for a transcript in Blakeney’s absence. He also contends that the
judge’s response violated the Sixth Amendment by denying him a fair trial. The jury
requested to read transcripts of the testimony of Sam, Mario, and Mohammed Samad.
After failing to “track down everybody,” the judge responded that “there is no
transcript of that testimony to read.” The judge later informed both attorneys, and
neither attorney objected or proposed any additional response. The Government
concedes that Blakeney had a right to be present during this incident but contends that
the absence did not prejudice him.
Because Blakeney was given a chance to object even though he was not
originally present, we review for plain error. See United States v. Picardi, 739 F.3d
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1118, 1122 (8th Cir. 2014). The Federal Rules of Criminal Procedure provide that
the defendant must generally be present at “every trial stage.” Fed. R. Crim. P.
43(a)(2). “Communication between judge and jury in the absence of and without
notice to the defendant creates a presumption of prejudice. Such presumption may
be overcome, however, by a clear indication of a lack of prejudice.” United States
v. Smith, 771 F.3d 1060, 1063 (8th Cir. 2014).
Although the judge initially communicated with the jury in the absence of the
defendant, the judge later informed both sides of the question and response and
provided them an opportunity to object or suggest another response. Blakeney argues
that he was prejudiced because he could have objected to the instruction at the time
and requested that the court order the testimony to be prepared for the jury. Because
the judge provided that opportunity once he “track[ed] down everybody,” Blakeney’s
initial absence did not prejudice him. See United States v. Anwar, 428 F.3d 1102,
1114 (8th Cir. 2005) (finding that the judge’s refusal of the jury’s request for
transcripts in the defendant’s absence was harmless).
Moreover, the court did not plainly err in declining to provide the transcripts.
“It is within the sound discretion of the trial court to determine whether to allow a
jury to review properly admitted testimony . . . during deliberations.” United States
v. Muhlenbruch, 634 F.3d 987, 1001-02 (8th Cir. 2011). A defendant is not entitled
to have the jury review a transcript unless “it can be demonstrated that the failure to
permit the reading of requested testimony create[s] unfairness to the defendant.”
United States v. Golliher, 820 F.3d 979, 986 (8th Cir. 2016).
Blakeney argues that the testimony could have led the jury to the conclusion
that Sam, Mario, and Mohammed Samad were unreliable witnesses. But the
testimony requested was favorable to the Government in that it established that
Blakeney forced the Samad brothers to make false statements. Thus, reviewing it
likely would not have swayed the jury in Blakeney’s favor. See United States v.
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Bassler, 651 F.2d 600, 604 (8th Cir. 1981) (finding that the district court’s refusal to
read testimony to the jury did not create unfairness for the defendant because the
testimony had not yet been transcribed and “the testimony requested was that of
government witnesses favorable to the government and not defendants”). As a result,
the district court did not plainly err by refusing to provide the requested transcript.
III.
Accordingly, we affirm.4
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4
Blakeney has also filed multiple motions to supplement the record. We
decline to depart from the general rule prohibiting consideration by an appellate court
of evidence that was not presented to the trial court. See Ferguson v. United States,
623 F.3d 627, 631 n.2 (8th Cir. 2010). Blakeney’s pro se motion to set an appeal
bond amount or, in the alternative, to be placed on home confinement pending appeal
is denied as moot.
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