U.S. v. Crenshaw
| Citation | 359 F.3d 977 |
| Decision Date | 02 March 2004 |
| Docket Number | No. 02-4085.,No. 02-4084.,No. 03-1067.,02-4084.,02-4085.,03-1067. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Keith Bernard CRENSHAW, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kamil Hakeem Johnson, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Timothy Kevin McGruder, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and BYE, Circuit Judges.
Keith Crenshaw, Timothy McGruder, and Kamil Johnson were convicted of murder in aid of racketeering and sentenced to imprisonment for life without release. They appeal their convictions, arguing that the evidence against them, which consisted mostly of the testimony of their gang leader, his relatives, and the defendants' putative get-away driver, was insufficient to support their convictions. They also contend that the statute under which they were convicted, 18 U.S.C. § 1959 (2000), is unconstitutional because it overreaches Congress's power under the Commerce Clause. Crenshaw also contends that the district court erred in allowing evidence of his past crimes. We affirm.
On July 20, 1996, in St. Paul, Minnesota, four-year old Davisha Brantley-Gillum was returning home from a day at a neighborhood festival, Rondo Days, in a car with her mother and several other women and children. They stopped at an Amoco filling station to put air in the tire of their car. The driver of the car, Lashawn Slayden, was associated with a gang called the Bogus Boys, and two cars full of Bogus Boys had also pulled into the Amoco lot. Some men standing behind a fence at the edge of the Amoco property began shooting into the car where Davisha was sitting. A bullet passed through Davisha's head and killed her.
Police were unable to solve the crime until August 23, 2001, when police arrested Terron ("Rico") Williams, and indicted him for a ten-year conspiracy to distribute co-caine and crack, which exposed him to a sentence of thirty years to life imprisonment. Williams was the leader of the St. Paul branch of the Rolling 60s Crips, a Los Angeles-based street gang. He had joined the Rolling 60s Crips as a teenager in California. He came to Minnesota in 1987 to work in the Rolling 60s' drug business there, and rose to head the local organization, which grew to around 200 people, selling up to ten kilos of cocaine a month. Williams's brother and lieutenant, Greg ("Baby G") Hymes, was also arrested and indicted, on a charge exposing him to about fifteen to twenty years in prison. Williams gave a statement to the police naming Crenshaw, Johnson, and McGruder as the people who were involved in the Davisha Gillum case. Williams also named Maalik Harut, who then confessed to police that he had been the get-away driver and who named the defendants in this case as the other participants. Harut was charged with conspiracy to commit murder in aid of racketeering, which carries a maximum ten-year sentence. Williams, Hymes, and Harut entered plea agreements in which the government agreed to move for reductions in their respective sentences if they testified truthfully in the prosecution of the defendants in this case.
Crenshaw, Johnson and McGruder were indicted under 18 U.S.C. § 1959, for committing murder in aid of racketeering activity. Section 1959 provides:
(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished—
(1) for murder, by death or life imprisonment, or a fine under this title, or both....
(Emphasis added). The state law alleged to have been violated was Minn.Stat. § 609.185, subd. (a), which provides:
Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life:
(1) causes the death of a human being with premeditation and with intent to effect the death of the person or of another....
At trial, the chief dispute was the identity of the shooters. The primary evidence linking Crenshaw, Johnson, and McGruder to the crime was the testimony of Terron Williams; his brother, Greg Hymes; their sister, Diane Williams; Hymes's fiancee, Lavern Christopher; and Maalik Harut. Even Harut has family ties with Terron Williams, since Williams has either one or two children with Harut's sister.
Terron Williams identified McGruder and Johnson as Rolling 60s members and Crenshaw as a hanger-on, or someone who was "around us ... all the time." Williams testified that the Rolling 60s were involved in hostilities with the Bogus Boys and that Williams had issued an order for all Rolling 60s members to shoot Bogus Boys on sight and shoot to kill.
Williams, Hymes, Diane Williams, and Christopher all testified that the three defendants, together with Harut, showed up at Greg Hymes's apartment (either inside the apartment or in the parking lot) after the shooting and bragged about having shot at the Bogus Boys. Diane Williams, Hymes, and Christopher said the defendants bragged that they had stood on something and shot at Bogus Boys through a fence. According to Terron Williams, the four thought they had hit someone because they heard screaming. Diane Williams and Terron Williams also testified that at least two of the defendants came to a party in downtown St. Paul later the same night and continued bragging.
Harut testified that on the night of July 20, 1996, he had been driving around with the three defendants, looking for Bogus Boys. When they spotted some Bogus Boys at the Amoco station, Harut drove down Sherburne Avenue, behind the station. He waited in the car on Sherburne Avenue while the other three ran between some houses toward the Amoco station. He heard shots and the other three came back to the car saying, "We shot them." McGruder expressed disappointment that his gun didn't shoot. Harut drove away. He turned down an alley, where he believed the defendants dumped one or two of the guns.
There were three eyewitnesses to the shooting and two eyewitnesses to the getaway, but none of them ever identified any of the three defendants as the shooters. Indeed, two eyewitnesses to the shooting, Jayne Sommerfeld and Michael Biebl, picked other people's photographs out of photo spreads. Sommerfeld was not shown a photo spread that contained pictures of any of the defendants. Biebl viewed a photo spread that contained pictures of McGruder and Crenshaw, but he picked out another man as looking like one of the shooters and he picked out Terron Williams as someone he had seen that night. Two eyewitnesses said that the shooters were six feet tall or 6'1". There was evidence that Johnson is 5'7", and Crenshaw's lawyer argued to the jury (who saw Crenshaw at trial) that Crenshaw is no more than 5'7".
The only physical evidence was the gun casings and bullets found at the scene. There were casings and bullets from at least two different guns. One set was likely to have come from a Heckler and Koch.38 caliber pistol, which is a very rare gun. Kamil Johnson's girlfriend, Patricia Banks, had such a gun until it disappeared from her apartment sometime in 1996. Banks testified that Johnson stayed at her home and would have had access to the gun. (Greg Hymes testified that he also dated Patricia Banks.) Maalik Harut testified that in the summer of 1996 he had seen Johnson with the Heckler and Koch gun. Harut said he had seen Johnson give the gun to "Six-six," a senior member of the Rolling 60s. Harut said that Johnson was eager to get the gun back because he had taken it from his girlfriend's home, and that Johnson later told Harut he got the gun back. The bullet that killed Davisha Gillum matched Black Talon ammunition that police found at Banks's apartment. Black Talon is a rare type of ammunition that a friend gave Banks for use in the Heckler and Koch gun.
On this evidence, the defendants were convicted and sentenced to life imprisonment without release.
McGruder and Johnson argue that 18 U.S.C. § 1959 is unconstitutional both facially and as applied because the regulated activity lacks the requisite connection to interstate commerce.1
Johnson filed a motion in the district court to dismiss the indictment on the ground that § 1959 is unconstitutional. McGruder did not join the motion in the district court, but raises the constitutional challenge for the first time on appeal. Thus, we review Johnson's constitutional claim de novo, see United States v. Gary, 341 F.3d 829, 835 (8th Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1128, 157 L.Ed.2d 949, 2004 WL 47213 (Jan. 12, 2004) (No. 63-7814), but technically should consider McGruder's appeal under the "plain error" standard, see United States v. Letts, 264 F.3d 787, 789 (8th Cir.2001), cert. denied, 535 U.S. 908, 122 S.Ct. 1211, 152 L.Ed.2d 148 (2002). The anomaly of considering the same issue under two different standards of review is immaterial because...
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