U.S. v. Evans, 90-8598

• Decision Date: 18 December 1991
• Docket Number: No. 90-8598,90-8598
• Citation: 950 F.2d 187
• Parties: 34 Fed. R. Evid. Serv. 1298 UNITED STATES of America, Plaintiff-Appellee, v. James Edward EVANS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 187

950 F.2d 187

34 Fed. R. Evid. Serv. 1298

UNITED STATES of America, Plaintiff-Appellee, v. James Edward EVANS, Defendant-Appellant.

No. 90-8598.

United States Court of Appeals, Fifth Circuit.

Dec. 18, 1991.

William R. Maynard, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, El Paso, Tex., for defendant-appellant.

Philip Police, LeRoy Morgan Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., Joseph W. Galenski, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.

WISDOM, Circuit Judge:

The appellant was convicted for the knowing possession and use of a gun in El Paso, Texas. That conviction was based on the statement of a non-testifying witness that the defendant possessed an identical gun, which he ordinarily kept, and had not left, at home in St. Louis, Missouri. Because such evidence is inadmissible hearsay, and because its admission in this case prejudiced the defendant, we REVERSE his convictions for possessing and using the gun, and REMAND for resentencing on his conviction for possessing with intent to distribute marijuana.

I. BACKGROUND

James Edward Evans was arrested in El Paso, Texas in March 1990. Agents of the Bureau of Alcohol, Tobacco and Firearms ("BATF") had tracked him to El Paso from his home in St. Louis. They observed him for several days, and amassed extensive evidence identifying him as the purchaser of a quantity of drugs. After concluding that he had completed that purchase and was preparing to leave Texas with the drugs, they advised local police to stop him on the highway. Those police found over 30 pounds of marijuana in the trunk of his car, and a pistol in a sock on the floorboard behind the driver's seat.

The pistol apparently matched a gun described to BATF Agent Terry Bohan at Evans's apartment in St. Louis. The government contends that a Ms. Melton, encountered at Evans's apartment during the execution of a search warrant, told Bohan that Evans owned a gun, showed him where Evans usually kept it (it was not there), and then described the gun to him. The government contends that the gun Melton described is the gun later found in Evans's car.

Evans was indicted on the following counts:

1) being a felon in knowing possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1);

2) possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and

3) using a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).

Before trial Evans moved to exclude the government's use of certain evidence (including Ms. Melton's statement) obtained as a result of the search of his St. Louis apartment. Evans's counsel expressed concern that information about Evans's possession of a gun in St. Louis (and its absence from its regular hiding place) would be used to prove his guilt in the knowing possession of a gun in El Paso. As he said, "we're here to try what Mr. Evans possessed and knew he possessed." The prosecutor admitted his intention to introduce evidence of Ms. Melton's description of the gun, but promised that he would use it only to justify the surveillance conducted in El Paso.

The court agreed to let the prosecution "touch upon [the statement] without going into all the details". The judge said that he would entertain an objection from the defense if the prosecution referred to the gun other than to "give us a background of what's going on" in El Paso. The prosecution assured the court that its evidence would not include Ms. Melton's statement, but only testimony as to Bohan's own observations and the information he sent to El Paso. The court gave this final warning before trial: "I'll let them [the prosecution] briefly discuss what they thought you [Evans] might have in possession just to lay the background so the jury knows what's going on, but outside, going into any specific details, I'll limit you [the prosecutor] in that regard."

In his opening statement the prosecutor connected Ms. Melton's statement and the gun not found in St. Louis to the gun found in Texas. He said, "during the course of that search warrant, they received information concerning the pistol that was in the defendant's possession"; in describing the ultimate search of Evans's car, he said, "they find a .9 millimeter Baretta, or the pistol that we've been talking about."

In his own opening statement, Evans (who, with the help of court-appointed counsel, represented himself at trial) contended that he had not known what was in his car when he was stopped in El Paso.

When the prosecutor began questioning Agent Bohan about the gun Evans usually kept in St. Louis, the defense renewed its pretrial hearsay objection. The court overruled it, but allowed the defense a running objection to this evidence.

Bohan testified that he had received information that Evans usually kept a semiautomatic pistol in his closet. Bohan was unable to find it there. The only identified source of this information was Ms. Melton. Bohan also testified that an unidentified source had told him that Evans was in El Paso to buy drugs.

At the close of the government's case, Evans's counsel moved for acquittal. As to counts 1 and 2 he argued "that there is simply insufficient evidence that the physical location of these items in the vehicle, which arguably which would be physical possession, insufficient evidence that it was known. That is, that Mr. Evans knew that these items were in his possession." As to count 3 he said, "I don't believe there's any evidence other than the mere fact that the gun was found in the vehicle.... There's no evidence that is sufficient for the jury to find [that] possession [of the gun], if there was possession, was in connection with possession of marijuana." The court denied the defendant's motion.

In his closing argument the prosecutor said:

Mr. Bohan, based on the information he received, contacted agent Sanders here with the Alcohol, Tobacco and Firearms office here in El Paso, and he related to Officer Sanders the following. That Mr. Evans was believed to be here in El Paso. That he was believed to have a certain type of weapon with him, a semi automatic possibly a .9 millimeter that--or a .32, depending--but a smaller weapon than the officers had or carried but that it was an automatic. It had been described to him.

....

Based on the information that the officers had received from St. Louis that this individual had previously been convicted of a felony, that he had a weapon in his possession, that he had, that they had an accurate description of the weapon, and that he was here to do a narcotics deal.

In his own closing argument, Evans contended that the government had not shown where the marijuana and gun had come from. He said, "If I knew marijuana or a gun was in a car I was driving, I'll guarantee you I wouldn't be in that car." With weak syntax but strong legal effect he got to the heart of his case; he asked, "Did I knowingly know that marijuana or a gun is in the car? They assume that I knew this or they're claiming the possibility existed. Knowingly, to know something."

The prosecutor rebutted Evans's defense with continued reliance on the truth of Melton's statement:

What this case comes down to is, if you look back at the information that was received from the ATF agent up in St. Louis, is one, we've received information that defendant was down here to do a narcotics deal.

Secondly, the officers had received a very detailed description as to the weapon that this individual would be carrying with him while he was here to commit that narcotics transaction, and we know now that information was incredibly reliable because what happens? When the vehicle is stopped and that vehicle is searched, right behind the defendant, within ready access to protect his narcotics load, is the pistol that matched the description that was provided from St. Louis. Coincidental, good police work because the ATF agent took the time when he was there conducting that search to get a description of that weapon so that he could relay it to his fellow officers down here in El Paso for their safety and for their protection.

The jury found Evans guilty on all three counts. The court gave him a 15-year sentence on count 1--to be served concurrently with a 5-year sentence on count 2--and a separate 5-year sentence on count 3.

Evans filed a timely appeal. He raised three issues for review: the insufficiency of the evidence of his previous conviction of a crime punishable by imprisonment of more than one year; the prejudicial hearsay of Ms. Melton's statements; and the invalidity of his sentence enhancement under the Armed Career Criminal Act. Because we decide this appeal on the hearsay issue alone, we will not discuss the first or third issues.

II. DISCUSSION

Hearsay is the use of a statement by a non-testifying witness to show that the contents of the statement are true. ¹ With limited exceptions, it is inadmissible. ² If used to show that what she said was true (i.e., that Evans did possess a gun matching her description and did ordinarily keep it in St. Louis), the statement of Ms. Melton would be hearsay, and would be inadmissible at trial. If used to show only why the BATF were observing Evans, it would not be hearsay. We have allowed the admission of such evidence when its use is strictly limited to showing the jury that "the officers did not act in a vacuum". ³ The same evidence becomes inadmissible hearsay if it also points directly at the defendant and his guilt in the crime charged. ⁴ When such evidence comes into play, the prosecution must be circumspect in its use, and the trial court must be vigilant in preventing its abuse. Although the trial court has broad discretion over evidentiary matters, to admit such evidence when...