U.S. v. Anderson

• Decision Date: 10 May 2006
• Docket Number: No. 05-3289.,05-3289.
• Citation: 446 F.3d 870
• Parties: UNITED STATES of America, Appellee, v. James ANDERSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

446 F.3d 870

UNITED STATES of America, Appellee, v. James ANDERSON, Appellant.

No. 05-3289.

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2006.

Filed: May 10, 2006.

COPYRIGHT MATERIAL OMITTED

Mark Diamond, New York, New York, for appellant.

Russell X. Mayer, Asst. U.S. Atty., Omaha, Nebraska, for appellee.

Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.

COLLOTON, Circuit Judge.

Following a jury trial, James Anderson was convicted of both conspiring to conduct and conducting an illegal gambling business in violation of 18 U.S.C. §§ 371 and 1955. The district court¹ sentenced him to 21 months' imprisonment and forfeiture in the amount of $5100. Anderson appeals, and we affirm.

I.

In late summer or early fall of 2002, Adam Kyle, a lieutenant with the Omaha Police Department, started investigating a potential illegal gambling business at 2402 Ames Avenue in Omaha. He sent a confidential informant, Curtis Gatheright, to that address with instructions to conduct surveillance and place bets. Gatheright worked with Lieutenant Kyle for 14 months and placed a total of 20 to 25 bets. As a result of this investigation, Anderson and five others were charged with conspiring to conduct and conducting an illegal sports bookmaking business, in violation of Nebraska law, from September 11, 2002, through February 1, 2004. The gambling business was a "walk-in" operation, where bettors would walk into 2402 Ames, approach the bar, and place bets. Evidence at trial, taken in the light most favorable to the jury's verdict, showed that Anderson took bets, received money, handled gambling records, and possessed gambling proceeds at several locations, including 2402 Ames. At sentencing, the court denied Anderson's motion for a downward departure, ordered him to forfeit $5100 in gambling proceeds, and sentenced him within the advisory guideline range to a term of 21 months' imprisonment.

II.

On appeal, Anderson argues that he was unfairly prejudiced when the district court allowed the government to introduce evidence regarding firearms. Prior to trial, Anderson moved to preclude the government from introducing evidence of Anderson's possession of weapons, but the court denied his motion.

At trial, Jerome Howard, a police officer with the Omaha Police Department, testified that he assisted with a search warrant executed at 2402 Ames on December 29, 2002. He stated that after he entered the premises, he handcuffed Anderson, who was behind the bar at which the government alleged bets were placed, searched him, and found a .357 Smith and Wesson handgun in his waistband. Anderson objected again to the admission of the gun at trial, and the court gave a limiting instruction, admonishing the jury to consider the gun only as evidence on the gambling charges and that "there's nothing unlawful about simply having a gun." (Tr. at 285-86). The officer also testified that during his search of Anderson, he found a key to the back door of 2402 Ames, $444 in cash, and an envelope, which bore the name "James" and contained receipts and more cash. Police also found a shotgun behind and underneath the bar. When the shotgun was admitted at trial, the court gave another limiting instruction.

Later in the trial, Mark Noonan, also a police officer in Omaha, testified that on October 10, 2003, during a traffic stop unrelated to the gambling investigation, he found a .380 handgun in the passenger rear seat of the vehicle Anderson was driving and a loaded .380 magazine between the front seats. Officer Noonan stated that he stopped Anderson shortly after he left 2402 Ames. A search of Anderson's person revealed $5100 in currency and a white letter appearing to be a gambling record. Anderson argues that because no witness involved with the gambling operation testified that Anderson possessed or used a weapon, there is no evidence connecting his possession of the guns to the gambling operation. The government contends that his possession of the guns corroborates other evidence that he provided security for the gambling operation. Given the nature of these operations, the government asserts, Anderson's possession of guns in the area where money was frequently exchanged supports the inference that Anderson used the guns to protect the gambling proceeds.

We agree with the government that Anderson's possession of the guns is relevant to the charged offenses. Decisions regarding the admissibility of evidence are reviewed for an abuse of discretion, with great deference to the district court's balancing of the prejudicial effect and the probative value of the evidence. United States v. Claxton, 276 F.3d 420, 422 (8th Cir.2002). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Fed.R.Evid. 401. The evidence may be excluded, however, if "its probative value is substantially outweighed by the danger of unfair prejudice" to the defendant. Fed.R.Evid. 403.

Taken in the light most favorable to the government, the evidence showed that Anderson participated in a gambling operation that often garnered more than $2000 per day and operated solely through cash transactions. Officer Kyle testified that gambling operations generally employ a person for "security" whose job is "to be armed or to get themselves armed if somebody comes in to rob the place." (Tr. at 166-67). One gun was recovered from Anderson's waistband while he was at 2402 Ames, one was found in his car shortly after he was observed leaving 2402 Ames, and both searches also revealed cash and gambling receipts on his person. The shotgun was found behind the counter where a confidential informant testified that bets were placed and, according to the informant, where no bettors were allowed. The informant testified that Anderson usually stood behind the bar observing "us bettors and more like — like he's the over-seer looking over — you know, that I guess for no one to jack the place or anything goes down wrong." (Tr. at 454).

Anderson's location behind the betting counter in the gambling establishment near where the shotgun was found and his possession of the cash and receipts support the inference that he possessed the firearms to protect the gambling proceeds, which is probative of his role in the gambling operation. The district court alleviated any unfair prejudice by instructing the jury that the firearms were introduced "as evidence on the government's claim that Mr. Anderson was involved in either a conspiracy to conduct an illegal gambling business or the actual conduct of an illegal gambling business . . . but at bottom you can't convict Mr. Anderson of these crimes because he had a — merely because he had a gun," (Tr. at 285-86), and by repeating a similar warning twice more during the trial. (Tr. at 297, 319). See United States v. Cockerham, 417 F.3d 919, 921 (8th Cir. 2005). We find no abuse of discretion in the district court's admission of evidence of the firearms.

III.

Anderson also argues that the district court erred in allowing the government to elicit expert testimony from a witness, Lieutenant Kyle, without first providing notice of the testimony in accordance with Federal Rule of Criminal Procedure 16(a)(1)(G). Anderson says he was surprised by the testimony and denied a fair trial. He also claims that Lieutenant Kyle was unqualified to testify about the general customs and practices of gambling operations. Kyle, although listed on the government's witness list, was not identified as an expert witness prior to trial. The government failed to provide Anderson with prior notice as required under Rule 16(a)(1)(G). The court nonetheless allowed Kyle to testify both as a fact witness to his investigation into the gambling operation and as an expert to identify betting sheets and slips and to provide general background on previous gambling investigations and modes of operation. Anderson objected to Kyle's testimony on numerous occasions, moved to strike the testimony, and moved for a continuance to obtain his own expert. The district court overruled his objections and denied the motion to strike and the motion for a continuance.

"Decisions concerning the admissibility of expert testimony lie within the broad discretion of the trial court and will not be reversed on appeal unless there has been an abuse of that discretion." United States v. Ortega, 150 F.3d 937, 943 (8th Cir.1998) (internal quotations omitted). Federal Rule of Evidence 702 provides that a witness "qualified as an expert by knowledge, skill, experience, training, or education" may testify to specialized knowledge that will "assist the trier of fact to understand the evidence or to determine a fact in issue." The structure of a gambling enterprise and jargon employed by the business are appropriate subjects for expert testimony. United States v. Scavo, 593 F.2d 837, 844 (8th Cir.1979).

Anderson argues that Lieutenant Kyle was not qualified to render an expert opinion, but we find this argument to be without merit. Rule 702 does not rank academic training over demonstrated practical experience. Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir.1990). Kyle has been employed by the City of Omaha as a police officer for 17 years, has assisted in a "support role" in "half a dozen or more" gambling investigations, and has been the leader or in charge of another half-dozen such investigations. (Tr. at 56-57, 66, 156). We believe that there was a sufficient basis for the district court's conclusion that he was qualified to testify concerning the general operation of a gambling enterprise, and challenges to his skill and knowledge were properly considered by the jury in determining the weight to be accorded his testimony. The district court did not abuse its discretion in permitting Kyle to describe generalized gambling operations and terminology.

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