U.S. v. Howe
| Decision Date | 13 August 2008 |
| Docket Number | No. 07-3536.,No. 07-3535.,07-3535.,07-3536. |
| Parties | UNITED STATES of America, Appellee, v. Joshua Lee HOWE, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Leslie Jane Borgognoni, argued, Little Rock, AR, for Appellant.
Edward O. Walker, Asst. U.S. Atty., argued, Little Rock, AR (Laura G. Hoey, AUSA, Little Rock, AR, on the brief), for Appellee.
Before SMITH, BOWMAN and GRUENDER, Circuit Judges.
After a jury trial, Joshua Lee Howe was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced Howe to 120 months' imprisonment for this conviction and a consecutive 60 months on Howe's guilty plea to a related escape charge, for a total sentence of 180 months' imprisonment. Howe appeals. For the following reasons, we affirm.
In December 2002, Jeremy Gaither was kidnapped, robbed and murdered. Howe, Richard Smith and Robert Phillips were arrested in connection with this crime. Smith pled guilty and agreed to cooperate with the Government. Smith detailed Howe's plan to kidnap and rob Gaither and the resulting murder. Smith also described Phillips's role in the kidnapping, robbery and murder. A six-count indictment charged Howe and Phillips with: (1) conspiring with each other to commit the crimes of kidnapping and robbery, resulting in felony murder; (2) committing murder in the perpetration of a robbery and kidnapping; (3) aiding and abetting one another to commit the crime of kidnapping; (4) being a felon in possession of a firearm (as to Phillips); (5) being a felon in possession of a firearm (as to Howe); and (6) aiding and abetting one another to commit the crime of using and carrying a firearm in relation to a crime of violence.
At a jury trial, the Government presented evidence, primarily through Smith, that Howe, a drug dealer, developed a plan to kidnap and rob Gaither because Gaither was a rival drug dealer. Howe had Smith and Phillips execute the plan because he knew Gaither would not agree to meet with him. In order to intimidate Gaither during the robbery, Howe had Smith retrieve a pistol from his car. Howe had received the pistol from Sherria Doyle three months earlier in a trade for drugs. Prior to the trade, Doyle had taken the pistol from her boyfriend, Michael Padgett. When Smith expressed hesitation in using the pistol, Howe gave the pistol to Phillips. Smith and Phillips then followed Howe's directions. Smith lured Gaither into a borrowed car by saying that the owner of the car wanted to sell it to Gaither. Once Gaither got into the car, Smith drove to where Phillips was waiting. Phillips claimed that he needed a ride because his car broke down. Smith then drove Gaither and Phillips to the White River National Wildlife Range. In the car, Phillips ordered Gaither to turn over his money and to strip naked while pointing the pistol at him. Phillips ordered Gaither to get out of the car. Once outside, Gaither attacked Phillips. As they fought, Phillips shot Gaither. Phillips jumped in the car, and Smith and Phillips left Gaither at the wildlife range. Gaither died from the gunshot wound at that location. When Smith and Phillips returned to Howe, Howe directed Smith to place the pistol in the woods and later instructed Smith to retrieve the pistol from the woods. When Smith retrieved the pistol from the woods, he was with Chelsa Dixon, his girlfriend, and he told Dixon to wipe the pistol with her sweater. He then gave the pistol to Howe.
The jury found Howe guilty of being a felon in possession of a firearm (Count 5). However, it acquitted Howe of the murder charge (Count 2) and the charge of aiding and abetting Phillips to commit the crime of using and carrying a firearm in relation to a crime of violence (Count 6). The jury deadlocked on the conspiracy to commit a kidnapping which resulted in felony murder charge (Count 1) and the aiding and abetting the crime of kidnapping charge (Count 3). The district court declared a mistrial on Counts 1 and 3. The jury acquitted Phillips on all counts.
Howe filed a motion for judgment of acquittal regarding the guilty verdict on the felon in possession of a firearm count. Howe also filed a motion for dismissal of the kidnapping charge (Count 3), claiming that a retrial would result in a double jeopardy violation. The Government filed a motion to dismiss the indictment without prejudice because it intended to seek another indictment against Howe for the two offenses on which the district court declared a mistrial. In one order, the district court denied Howe's motion for judgment of acquittal, denied his motion for dismissal of the kidnapping charge (Count 3), and granted the Government's motion to dismiss the indictment without prejudice. Based on this order, the United States District Clerk dismissed all five counts of the indictment against Howe. The Government then filed a motion to clarify the dismissal, requesting that the dismissal only pertain to the counts on which the district court declared a mistrial, Counts 1 and 3. The district court granted the Government's motion and entered an order clarifying that the dismissal without prejudice only applied to Counts 1 and 3 and reinstating the jury's guilty verdict on Count 5 and the judgment of acquittal on Counts 2 and 6.
At sentencing, the district court grouped Howe's felon in possession of a firearm count and escape count for the purposes of calculating an advisory sentencing guidelines range under the United States Sentencing Guidelines.2 In calculating his offense level, the district court applied the § 2K2.1(c)(1)(B) cross reference to § 2A1.1(a) because Howe possessed the firearm in connection with the conspiracy to kidnap and rob Gaither and because of the resulting felony murder. With this cross reference and the adjustments for his role in the offense and obstruction of justice, Howe's total offense level was 47 and his criminal history category was VI, which resulted in an advisory sentencing guidelines range of life imprisonment. The district court sentenced Howe to 180 months' imprisonment, representing the total of the statutory maximum sentences for both convictions. Howe appeals his felon in possession of a firearm conviction and his sentence.
We review a district court's decision regarding the admissibility of evidence for an abuse of discretion. United States v. Dorsey, 523 F.3d 878, 879 (8th Cir.2008). We "will not reverse unless substantial rights were affected." United States v. Nguyen, 526 F.3d 1129, 1135 (8th Cir.2008). "Evidence is relevant so long as it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" United States v. Heppner, 519 F.3d 744, 751 (8th Cir.), petition for cert. filed, ___ U.S.L.W. ___ (U.S. July 12, 2008) (No. 08-5334) (quoting Fed. R.Evid. 401). "A court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, however." Id. (citing Fed. R.Evid. 403).
Howe argues that the district court erred by admitting Exhibit 63 into evidence. Exhibit 63 was a picture of a .22 caliber Hi-Standard Supermatic, Tournament Model pistol, a pistol that the Government argued was similar to the pistol used to murder Gaither. Howe argues that Exhibit 63's prejudicial effect outweighed any probative value because the pistol portrayed in the exhibit was not the pistol used to murder Gaither. See Fed. R.Evid. 401, 403. He contends that the ballistic report that Gaither was shot with a .22 caliber long-rifle bullet suggests that numerous other firearms could have been used.
We permit "the use of replica evidence, more specifically guns, for demonstrative purposes." United States v. Parks, 364 F.3d 902, 907 (8th Cir.2004), vacated on other grounds, 543 U.S. 1101, 125 S.Ct. 1022, 160 L.Ed.2d 1008 (2005); see United States v. McIntosh, 23 F.3d 1454, 1456-57 (8th Cir.1994). While Exhibit 63 was a picture of a pistol and not an actual pistol, the potential for unfair prejudice is even less when using a picture as demonstrative evidence than it would be for an actual pistol.
The Government correctly used Exhibit 63 as demonstrative evidence and did not suggest that it pictured the actual firearm used to murder Gaither. Instead, the Government questioned its witnesses about the similarities and differences between the pistol in Exhibit 63 and the pistol used to murder Gaither. When questioning Smith, the Government asked, "How do you recognize Government's Exhibit 63?" Smith responded, "It's the same caliber weapon that was used in the murder." The Government later asked, "And are you sure that you got that gun — a similar type gun from [Howe]?" Smith answered, "Yes, sir, from underneath the seat of a car." Doyle testified that the pistol in the exhibit resembled the pistol that belonged to Padgett, her boyfriend, which she traded to Howe. Padgett testified that the pistol in Exhibit 63 looked like the pistol that he had owned. He also testified that the only material differences between his pistol and the pistol in Exhibit 63 was that his pistol had the word "Tournament" on it and his pistol's handle was slightly darker than that in Exhibit 63.
"In balancing the prejudicial effect and probative value, great deference is given to the district judge's determination." Parks, 364 F.3d at 907. Given this deference and the Government's proper use of Exhibit 63 as demonstrative evidence, we find that the exhibit had probative value in identifying the type of pistol possessed by Howe and was not unfairly prejudicial because the jury could only have understood that it was being used as demonstrative evidence. Therefore, the district did not abuse its discretion in admitting Exhibit 63.
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