U.S. v. Burns, 04-1512.

• Citation: 432 F.3d 856
• Decision Date: 28 December 2005
• Docket Number: No. 04-1512.,04-1512.
• Parties: UNITED STATES of America, Appellee, v. Michael R. BURNS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 856

432 F.3d 856

UNITED STATES of America, Appellee, v. Michael R. BURNS, Appellant.

No. 04-1512.

United States Court of Appeals, Eighth Circuit.

Submitted: October 29, 2004.

Filed: December 28, 2005.

COPYRIGHT MATERIAL OMITTED

John R. Osgood, argued, Lee's Summit, MO, for appellant.

Robyn L. McKee, argued, Asst. U.S. Atty., Springfield, MO, for appellee.

Before WOLLMAN, ARNOLD, SMITH, Circuit Judges.

MORRIS SHEPARD ARNOLD, Circuit Judge.

Michael Burns was convicted by a jury of one count of conspiracy to distribute 500 grams or more of methamphetamine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and two counts of distribution of 50 grams or more of methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(B), and sentenced by the district court to 360 months in prison. On appeal, he contends that prejudicial error occurred during his trial and that his sentence is excessive. We affirm Mr. Burns's conviction, but we remand to the district court for resentencing.

I.

Mr. Burns first argues that the district court should have granted his request for a mistrial after Officer Scott Britton was allowed to testify to a post-arrest hearsay statement of co-defendant Alonzo Ellerman that inculpated Mr. Burns. We conclude that the district court's refusal to grant a mistrial was not reversible error.

In Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court held that "the admission of a non-testifying defendant's statement that inculpated a codefendant, violated the latter's Confrontation Clause rights, despite a curative instruction otherwise." United States v. Coleman, 349 F.3d 1077, 1085 (8th Cir.2003), cert. denied, 541 U.S. 1055, 1080, 124 S.Ct. 2194, 158 L.Ed.2d 754 (2004). Prior to trial, the district court granted the government's motion to sever the trials of Mr. Burns and Mr. Ellerman in order to avoid a potential confrontation-clause problem based on the admission of Mr. Ellerman's post-arrest statement. Cf. United States v. Ellerman, 411 F.3d 941 (8th Cir.2005). Mr. Ellerman was not present at Mr. Burns's trial.

In its case in chief against Mr. Burns, the government presented the testimony of Officer Britton, the investigating officer and a member of a regional drug task force (the Combined Ozarks Multijurisdictional Enforcement Team (COMET)), but it did not ask him about Mr. Ellerman's statement. By questioning the officer, the government established that after methamphetamine was found at Mr. Ellerman's residence, Mr. Ellerman agreed to cooperate and to set up a drug transaction with another co-defendant, Howard Neustel. Mr. Neustel later agreed to assist the government and testified against Mr. Burns at his trial.

Mr. Burns's counsel sought to challenge Mr. Neustel's credibility through his cross-examination of Officer Britton. Counsel began by asking the officer about a report of Mr. Ellerman's interview with COMET (during which the statements inculpating Mr. Burns occurred). The officer then inquired whether "as a result of conversations" with Mr. Ellerman, COMET had "focus[ed] on this Mr. Neustel." After establishing that Mr. Ellerman had assisted COMET in making controlled purchases from Mr. Neustel, counsel inquired whether "anybody had tossed around Mr. Burns's name" by the time of Mr. Neustel's second purchase; the officer (after being sure that he had heard the question correctly) responded that COMET learned of Mr. Burns during its interview with Mr. Ellerman. Counsel asked Officer Britton whether based on the "conversations with Mr. Ellerman, [Officer Britton] suspect[ed] that Mr. Neustel was a major dealer of some kind." At another point in cross-examination, Mr. Burns's attorney asked Officer Britton to identify the report of Mr. Ellerman's interview, although it was not introduced into evidence. Finally, after questioning the officer about Mr. Neustel's arrest and subsequent statement to law enforcement, Mr. Burns's counsel asked whether COMET had any "independent corroboration of anything [Mr. Neustel] told you at that point."

Mr. Burns argues that he was entitled to a mistrial because on redirect examination, the government elicited from Officer Britton post-arrest statements of Mr. Ellerman that incriminated Mr. Burns. Over counsel's objection, the government asked about whom, in addition to Mr. Neustel, Mr. Ellerman had identified as a methamphetamine supplier. Officer Britton responded that Mr. Ellerman had named Mr. Burns and had said that he (Mr. Ellerman) hoped that by Officer Britton meeting Mr. Neustel first, the officer would "build . . . credibility," which would then lead to a purchase from Mr. Burns. At that point, Mr. Burns's counsel asked for a mistrial, which was denied. The government also elicited testimony that, according to Mr. Ellerman, Mr. Burns had been making trips to California and "purchasing 1 pound to 1½ pounds of methamphetamine" at a time.

No doubt Mr. Ellerman's incriminating hearsay statements normally would be inadmissible because of his right to confront the witnesses against him. See Bruton, 391 U.S. at 135-36, 88 S.Ct. 1620. But we have said that "there can be no reversible error" "where the defendant `opened the door,'" and that the court may admit "otherwise inadmissible evidence to clarify or rebut an issue opened up by defense counsel on cross-examination," United States v. Beason, 220 F.3d 964, 968 (8th Cir.2000) (internal quotations omitted).

We believe that here the cross-examination of Officer Britton was likely to give the jury the false impression that Mr. Ellerman had named Mr. Neustel as the primary actor in the drug conspiracy because COMET "focus[ed]" on Mr. Neustel based on its conversations with Mr. Ellerman. And we think that this impression may have been bolstered when counsel asked whether Mr. Ellerman's statement created suspicions that "Mr. Neustel was a major drug dealer of some kind," even though Officer Britton denied that he had such a suspicion "[a]t that time." In addition, it seems to us that Mr. Burns's counsel sought through his questions to create an inference that Mr. Neustel's statements inculpating Mr. Burns had no "independent corroboration," although, in fact, they were supported by Mr. Ellerman.

Mr. Burns correctly states on appeal that he did not ask Officer Britton to repeat what Mr. Ellerman had said, but we do not believe that resolves the issue. Counsel repeatedly referred to the statement and created confusion about its content. When, as here, "defense counsel leaves a false impression after cross-examining a witness, the court may allow the use of otherwise inadmissible evidence on redirect to clarify the issue." United States v. Womochil, 778 F.2d 1311, 1317 (8th Cir.1985). We therefore conclude that here the government properly questioned Officer Britton to clear up the false impressions created during cross-examination.

In addition, we believe that even assuming that the government's questions should have been prohibited, any error was harmless beyond a reasonable doubt. See Coleman, 349 F.3d at 1086. The government introduced testimony from Mr. Neustel and Kimberly Tally, a friend of Mr. Burns, that Mr. Burns had been purchasing methamphetamine from California in large quantities. We are not persuaded by Mr. Burns's contention that Mr. Ellerman's statements to the same effect were "compelling and forceful" because "a government agent" testified to them. The jury was well aware that Officer Britton was merely repeating the words of a co-conspirator, who had decided to cooperate with the police. The evidence of Mr. Ellerman's hearsay statement was cumulative, and the other evidence of Mr. Burns's guilt was overwhelming. Cf. id. at 1086-87.

II.

Mr. Burns maintains that he was entitled to a mistrial because the government improperly shifted the burden of proof by commenting during closing argument on his failure "to negate key government evidence." We review the denial of a mistrial based on prosecutorial misconduct for an abuse of discretion. United States v. Conroy, 424 F.3d 833, 840 (8th Cir.2005). For reversible error to exist, the government must have engaged in improper conduct that prejudicially affected Mr. Burns's substantial rights so as to deprive him of a fair trial. Id.

During trial, the government introduced evidence showing that in 1999 an officer from the sheriff's department of San Bernardino County, California, arrested Mr. Burns after stopping him for a traffic violation and seized over 340 grams of methamphetamine from his car. A "criminalist" in the sheriff's department testified that the substance, which she determined through testing to be methamphetamine, would have been destroyed a year later in accordance with standard department procedures. According to a government witness, the procedure was necessary because of the large amount of drugs seized in San Bernardino County. When questioning witnesses from the sheriff's department, defense counsel emphasized that he could not have independent testing conducted to counter the state's findings because the evidence had been destroyed.

According to Mr. Burns, the government improperly shifted the burden of proof in closing argument when it addressed the substance seized in California, as well as when it spoke of an automobile bottle jack that Mr. Burns allegedly used to hide methamphetamine. The government argued to the jury that there was a "good reason" that the sheriff's department did not keep evidence in drug cases. It then added that Mr. Burns, while facing related drug-crime charges in California, had a year to have had the substance tested if he was "so inclined," but "there [was] no evidence" that he did so. Defense counsel did not object at this point.

Shortly afterward, the government's attorney referred to a letter that Mr. Burns wrote to Ms. Tally after his arrest. Mr. Burns said in the letter that the police were interested in the bottle jack and asked that Ms. Tally save...