United States v. Walker , 391 F. App'x 638 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-10643
Plaintiff - Appellee, D.C. No. CR-03-00042-FCD
v.
MEMORANDUM *
JASON KEITH WALKER, aka Fade,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 06-10653
Plaintiff - Appellee, D.C. No. CR-03-00042-FCD
v.
SHANGO JAJA GREER,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior United States District Judge, Presiding
Argued and Submitted July 12, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FERNANDEZ, W. FLETCHER, and TALLMAN, Circuit Judges.
Jason Walker and Shango Greer (collectively “Defendants”) challenge their
convictions after a jury found them guilty of conspiring to conduct the affairs of an
enterprise, an illegal street gang, through a pattern of racketeering activity in
violation of 18 U.S.C. § 1962(d). The jury also found Greer guilty of the
substantive crime of conducting the affairs of the enterprise through a pattern of
racketeering activity. See 18 U.S.C. § 1962(c). Because the parties are familiar
with the facts of this case, we do not repeat them here. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its gatekeeping discretion when it
determined that Vallejo Police Gang Crimes Detective Stephen Fowler’s testimony
was both reliable and relevant and thus admissible under Federal Rule of Evidence
(“Rule”) 702. See United States v. Hankey, 203 F.3d 1160, 1169–70 (9th Cir.
2000).
Detective Fowler’s testimony regarding street intelligence was not admitted
in violation of Rule 703, because that testimony did not reveal the substance of the
conversations; Detective Fowler merely stated that he relied on these conversations
when reaching his conclusion that the Pitch Dark Family (“PDF”) was a criminal
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street gang. See Fed. R. Evid. 703 (limiting the admission of the “facts or data”
that underlie an expert’s opinion). Nor was it an abuse of discretion for the district
court to admit the substance of the co-defendants’ admissions to being PDF
members as a basis for Detective Fowler’s opinion. It was apparent at the hearings
in limine that Defendants planned to vigorously attack the basis for Detective
Fowler’s opinion—increasing the probative value of the “facts or data” underlying
his opinion—and the district court took extra precautions to limit the prejudicial
effect of its admission. See Fed. R. Evid. 703 advisory committee’s note
(recognizing that an adversary’s attack on the basis for an expert’s opinion may
shift the balancing analysis required by Rule 703 and may also allow the proponent
to introduce the evidence to “remove the sting” of the anticipated attack). The
district court properly gave an adequate limiting instruction before Detective
Fowler’s opinion testimony directing the jury that it could not consider the basis
for his opinion as substantive evidence. See Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1262 (9th Cir. 1984).
Detective Fowler’s testimony also did not violate Defendants’ Sixth
Amendment right to confrontation. His testimony regarding modus operandi based
on his years of gathering street intelligence on gang activities, coupled with the co-
defendants’ admissions, was introduced only as a basis for the opinion and not for
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the truth of the information asserted therein—it was therefore not hearsay. See
Fed. R. Evid. 801. Because the testimony was not hearsay, it did not implicate the
Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)
(citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).
The admission of Charles McClough’s testimony pertaining to three
conversations in which Defendants did not deny their participation in an alleged
predicate racketeering act of murder is not reversible error. The district court
certainly did not abuse its discretion when it admitted the testimony about the third
challenged conversation. See United States v. Sears, 663 F.2d 896, 904 (9th Cir.
1981) (stating that the district court makes only a “preliminary or threshold
determination” of admissibility under Rule 801(d)(2)(B), and the jury must then
“decid[e] whether . . . the defendant actually heard, understood, and acquiesced in
the statement”). Based on this conclusion, the admission of the testimony about
the first two challenged conversations was harmless error.
The district court properly found that the other acts evidence of the
destruction of a stereo and shooting at an inhabited dwelling, the altercation
between an alleged PDF member and officers when police attempted to arrest
Walker, and the assault of Phillip Gomez were admissible as evidence that was
“inextricably intertwined” with the charged conduct. See United States v.
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Williams, 989 F.2d 1061, 1070 (9th Cir. 1993) (stating that Rule 404(b) is
inapplicable when evidence arising from a “single criminal episode” is other acts
evidence only because the defendant is “indicted for less than all of his actions”
(internal quotation marks omitted)). The district court did not abuse its discretion
by admitting the other acts evidence of the carjacking pursuant to Rule 404(b). See
United States v. Banks, 514 F.3d 959, 976–77 (9th Cir. 2008). Although it was an
abuse of discretion to admit the discovery of a personal use amount of heroin in
Walker’s apartment, the erroneous admission did not “substantially sway the
verdict,” making this error harmless. United States v. Alviso, 152 F.3d 1195, 1199
(9th Cir. 1998).
Special Agent French’s statements about the truthfulness of Danyea Gray’s
testimony to the grand jury do not warrant reversal under the plain error standard.
While it may have been improper for Special Agent French to comment on the
credibility of Gray, see United States v. Sanchez-Lima, 161 F.3d 545, 548 (9th Cir.
1998), Defendants have not shown that this error caused prejudice in light of the
strong, independent evidence of their involvement with the alleged racketeering
organization, see United States v. Romero-Avila, 210 F.3d 1017, 1022–23 (9th Cir.
2000).
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The prosecutor did not engage in misconduct when asking witnesses about
the difficulty of testifying against Defendants or when asking Special Agent
French about the potential consequences of the alleged instances of witness
intimidation. The prosecutor did not give personal assurances as to the veracity of
the witnesses, nor did he insinuate that extra-record material supported their
testimony. Rather, the prosecutor refuted efforts by Defendants to impeach those
witnesses. See United States v. Nash, 115 F.3d 1431, 1439 (9th Cir. 1997).
Furthermore, the prosecutor’s questions to Special Agent French about his
involvement with the investigation of the PDF, during which Special Agent French
said he was distracted by two unrelated child abduction investigations, do not
constitute vouching, because there was no government imprimatur as to the
veracity of Special Agent French’s responses. The prosecutor’s reference to that
testimony and a Zen philosopher in the rebuttal closing argument was an “invited
response” to Defendants’ assertions in their closing that the FBI was investigating
only leads that conformed with its theory that PDF was a gang. See United States
v. Lopez-Alvarez, 970 F.2d 583, 598 (9th Cir. 1992) (finding that the prosecutor’s
remarks were acceptable because they “merely rebutted defense counsel’s repeated
allegations that the prosecution had intimidated, coached, and bribed witnesses”).
AFFIRMED.
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