U.S. v. Easter

• Citation: 66 F.3d 1018
• Decision Date: 05 September 1995
• Docket Number: Nos. 94-10344,94-10345 and 94-10603,s. 94-10344
• Parties: 42 Fed. R. Evid. Serv. 1374, 95 Cal. Daily Op. Serv. 6992, 95 Daily Journal D.A.R. 11,987 UNITED STATES of America, Plaintiff-Appellee, v. Willie EASTER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ronnie O. LEA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Paul JEMERIGBE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1018

66 F.3d 1018

42 Fed. R. Evid. Serv. 1374, 95 Cal. Daily Op.

Serv. 6992,

95 Daily Journal D.A.R. 11,987

UNITED STATES of America, Plaintiff-Appellee, v. Willie EASTER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ronnie O. LEA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Paul JEMERIGBE, Defendant-Appellant.

Nos. 94-10344, 94-10345 and 94-10603.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 13, 1995.

Decided Sept. 5, 1995.

Kent V. Anderson, West Sacramento, CA, for defendant-appellant Easter.

Alister McAlister, Wilton, CA, for defendant-appellant Lea.

Charles Bonneau, Sacramento, CA, for defendant-appellant Jemerigbe.

Benjamin B. Wagner, Assistant United States Attorney, Sacramento, CA, for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of California.

Before: HOLCOMB HALL, WIGGINS, and LEAVY, Circuit Judges.

WIGGINS, Circuit Judge:

Willie Easter, Paul Jemerigbe, and Ronnie Lea were convicted by a jury of various charges relating to their participation in an armed bank robbery. They raise several issues concerning their joint trial, and Lea also contests his sentence. We affirm the convictions of all three Appellants and we affirm Lea's sentence.

BACKGROUND

In February 1994, Jemerigbe and Easter were tried by a jury for armed bank robbery, in violation of 18 U.S.C. Sec. 2113, and for using a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c). Lea was tried at the same time for aiding and abetting these crimes. The three defendants were accused of robbing the American Savings Bank in Stockton, California, on April 24, 1993, with Lea acting as the getaway driver. (Jemerigbe was also charged with, and convicted of, robbing of the same bank just one month earlier, in March 1993.) During the trial, limited testimony was elicited concerning the fact that all three defendants were associated with the same gang, the "Northside Gangsters" ("NSG"). The admitted mastermind behind both robberies, Omie Hartman, was also linked to NSG. After eight days of trial and three days of deliberations, the jury returned guilty verdicts against all defendants.

On appeal, Easter, Jemerigbe, and Lea all argue that the evidence concerning their affiliation with NSG should not have been admitted. Easter and Lea also raise additional arguments. Easter argues that the trial court should have allowed a Government witness to be cross examined on the subject of the witness' failure to register as a sex offender; that the court delivered an impermissibly coercive Allen charge; and that the cumulative effect of the various errors requires reversal. Lea argues that there was insufficient evidence to support the firearms charge against him, and that the sentencing court erred by not granting him a downward departure for acceptance of responsibility.

DISCUSSION

I. The District Court Did Not Abuse its Discretion by Allowing Testimony That the Defendants Were Affiliated with the Same Gang.

A. Relevance

Decisions concerning the relevance of evidence are committed to the district court's "sound discretion." United States v. Gilley, 836 F.2d 1206, 1213 (9th Cir.1988). We hold that the district court did not abuse its discretion by finding the evidence concerning Appellants' affiliation with NSG relevant on the issue of identity.

Evidence that Appellants were linked to NSG was relevant on the issue of identity because it helped link them to the mastermind who planned both robberies, and to the first robbery. NSG is a small, 25-member gang. There was testimony that Hartman, who admitted planning both robberies, was an associate of the gang. Accordingly, linking Appellants to NSG also linked them to the planner of the robberies. Furthermore, to help him conduct the first robbery, Hartman recruited only NSG members (Jemerigbe, Larry Boyd, and a juvenile). This made the NSG membership of suspected accomplices in the second robbery even more relevant. Lastly, the getaway car recovered after the first robbery bore the initials "NSG" on the windshield, further enhancing the relevance of NSG affiliation.

Both the Supreme Court and this court have ruled that evidence of gang affiliation is admissible when it is relevant to a material issue in the case. See United States v. Abel, 469 U.S. 45, 49, 105 S.Ct. 465, 467-68, 83 L.Ed.2d 450 (1984) (admissible to impeach for bias); United States v. Santiago, 46 F.3d 885 (9th Cir.1995) (admissible to show motive for crime); United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir.1993) (admissible to buttress policeman's ability to identify defendant). We find that the gang-affiliation evidence in this case was relevant on the issue of identity.

B. Prejudice versus Probativeness

We review for abuse of discretion whether the district court erred in finding the evidence of Appellants' membership in NSG more probative than prejudicial. "The district judge is given wide latitude in determining the admissibility of evidence under this standard." Fagan, 996 F.2d at 1015 (citation omitted).

In this case identity was a central issue. The robbers wore masks and gloves, and left no fingerprints. Their identities could not be discerned from videotape. The only witness to place Jemerigbe, Lea, and Easter at the scene of the second robbery was Hartman, and he was rigorously cross examined by all three defense attorneys. As Lea's own counsel argued in closing: "[T]he question is ... who committed the robbery?" Accordingly, evidence tending to show identity, such as the gang-related connections between the defendants, the mastermind of the crime, and the getaway car, was very probative. ¹

On the other side of the scale, the prejudicial impact of the gang-affiliation evidence was minimized. Appellants rely on general, and admittedly valid, concerns that simply referring to a defendant as a gang member can cause prejudice in some jurors. In the present case, however, several steps were taken, and others offered, to prevent undue prejudice. These safeguards rendered the evidence of gang membership more probative than prejudicial.

The Government offered to stipulate to Appellants' gang membership. It also submitted a cautionary instruction before trial; it limited its NSG evidence to the initials on the getaway car and to the membership status of the various defendants and witnesses; it refrained from inquiring about the nature of the gang, its history, other members, activities, or Appellants' participation in specific gang activities; it did not emphasize the gang affiliation in its closing argument, but only made a few comments concerning the subject, in the context of the parties' relationships to each other; and it made only one passing reference to gang affiliation (of a witness) in its rebuttal closing.

The district court also took several steps to minimize possible prejudice. It probed potential jurors, during voir dire, on the issue of bias due to gang affiliation; it dismissed three potential jurors who indicated that such evidence might influence their deliberations; it offered to give a cautionary instruction at trial; and it gave a cautionary instruction at the close of the trial.

In light of all the precautionary measures, and the Government's limited questioning concerning gang affiliation, we hold that the gang-affiliation evidence did not "unduly" prejudice Appellants. See Abel, 469 U.S. at 55, 105 S.Ct. at 470-71. The district court did not abuse its discretion in finding that the probativeness of this evidence outweighed its potential prejudice.

C. Prior Bad Acts Evidence

Appellants' challenge to the gang-affiliation evidence as impermissible "prior bad acts" evidence is precluded by a recent case in this circuit. In Santiago, 46 F.3d at 888-89, this court faced facts similar to those in the present case. The Santiago court held that Fed.R.Evid. 404(b)'s prohibition against evidence of prior acts was not implicated, because the evidence was forwarded for its

                probativeness on the matter of the crime for which the defendant was charged:  "[E]vidence is not considered to relate to 'other crimes' if it is 'inextricably intertwined' with, and 'part of the same transaction' as, the crime for which the defendant is charged."  46 F.3d at 889 (citations omitted).  In the present case, the evidence of Appellants' gang ties was forwarded by the Government as bearing on the identity of the perpetrators of the crimes charged.  Further, in the present case, as in Santiago, the Government did not forward "evidence of any specific, wrongful acts by either the [gang at issue] or [the defendants] that are unrelated to [the crime charged]."  Id.   Accordingly, we reject Appellants' Rule 404(b) argument
                

II. The District Court Did Not Abuse its Discretion by Refusing to Allow Defense Counsel to Cross Examine a Government Witness on His Failure to Register as a Sex Offender.

Easter argues that the district court erred by not allowing Lea's counsel to cross examine Cleardis Oliver, a Government witness, on the subject of Oliver's failure to register as a sex offender, as required by California law. Easter argues that Oliver's desire to avoid potential punishment for this failure could have furnished Oliver with a substantial motivation to testify for the Government. We conclude that the jury had ample information from which it could evaluate Oliver's motives and purported biases, however.

It is axiomatic that defendants have a Sixth Amendment right to confront witnesses. It is also true that a witness' potential motives for testifying is a relevant inquiry. Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974); Burr v. Sullivan, 618 F.2d 583, 586 (9th Cir.1980). The facts of the present case, however, demonstrate that Oliver's non-registration probably did not provide a motivation for his testimony. Further, any relevance that this...