U.S. v. Moore, 83-2173

• Decision Date: 15 May 1984
• Docket Number: No. 83-2173,83-2173
• Citation: 735 F.2d 289
• Parties: 15 Fed. R. Evid. Serv. 856 UNITED STATES of America, Appellee, v. Douglas MOORE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 289

735 F.2d 289

15 Fed. R. Evid. Serv. 856

UNITED STATES of America, Appellee, v. Douglas MOORE, Appellant.

No. 83-2173.

United States Court of Appeals,

Eighth Circuit.

Submitted March 12, 1984.

Decided May 15, 1984.

Springfield Baldwin, St. Louis, Mo. (court-appointed), for appellant Douglas Moore.

Thomas E. Dittmeier, U.S. Atty., St. Louis, Mo., James K. Steitz, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before HEANEY, Circuit Judge, and FLOYD R. GIBSON and HENLEY, Senior Circuit Judges.

PER CURIAM.

The defendant, Douglas Moore, appeals from a criminal conviction for being a felon in possession of a firearm which had moved in interstate commerce. 18 U.S.C. Appendix, Sec. 1202(a) (1982). We affirm.

The St. Louis Police Department had the home of Joyce Barnett under surveillance because of suspected drug trafficking. On October 15, 1982, several officers went to the house to execute a search warrant for the premises. When they arrived at the house the officers announced their presence and, receiving no answer, forcibly entered the house. Upon entrance, one officer heard a toilet being flushed and assumed that drugs were being flushed down the drain. As the officers went up to the second floor, the defendant walked out of the bathroom and joined Barnett on the landing. In a bedroom on the second floor the officers found two .12 gauge shotguns. During the course of the raid, the officers found and seized illegal drugs. While at the house, the defendant was arrested and given Miranda warnings. Despite these warnings, the defendant told the officers that the shotguns belonged to him. At the police station, another officer read Miranda warnings to the defendant. The defendant signed a "waiver of rights" form and once again stated that the guns belonged to him.

The defendant pleaded guilty to a state narcotics charge arising from the raid on Barnett's home. He was charged in federal court with being a felon in possession of a firearm that had moved in interstate commerce. At trial, the defendant took the stand in his defense. During his testimony, he withdrew his previous admissions and denied that the guns were his. The defendant told the jury that he had assumed responsibility for the guns in order to protect Barnett. On cross-examination the defendant testified that, while he lived elsewhere, he spent two or three nights a week at Barnett's home and sometimes ate meals there. He also admitted that he had five previous convictions, some of which were for illegal possession of drugs.

The defendant claims, in general, that he was tried unfairly because the government repeatedly introduced evidence of his connection with drug related activities, which was irrelevant to the charge for which he was tried, i.e., illegal possession of a firearm. The defendant raises several specific incidents under this general claim for our consideration. At the threshold we note that a jury verdict must be sustained if, taking the view of the evidence most favorable to the government, it is supported by substantial evidence in the record. United States v. Todd, 657 F.2d 212, 216 (8th Cir.1981), cert. denied, 455 U.S. 926, 102 S.Ct. 1288, 71 L.Ed.2d 469 (1982).

The defendant argues that the trial court erred by letting the government establish that he had been arrested in the course of a drug raid. Generally, evidence of other crimes committed by a defendant is inadmissible. United States v. Oliver, 525 F.2d 731, 739 (8th Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976); Fed.R.Evid. 404(b). However, one of the exceptions to the general rule permits the introduction of evidence of other criminal activity for the purpose of providing the context in which the crime occurred, i.e., the res gestae. Carter v. United States, 549 F.2d 77, 78 (8th Cir.1977). A jury is entitled to know the circumstances and background of a criminal charge. It cannot be expected to make its decision in a void--without knowledge of the time, place, and circumstances of the acts which form the basis of the charge. United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980). It was not error to allow the government to establish the context in which the defendant was arrested.

At trial, an officer testified that, upon entering the house, he heard a toilet being flushed and moments later the defendant emerged from the bathroom. The defendant argues that it was error to allow this testimony because the clear inference was that the defendant had flushed drugs down the toilet. We think it was improper for the government to raise this inference; it was irrelevant to the crime charged and it was not a necessary element of the context in which the defendant was arrested. See United States v. Beardslee, 609 F.2d 914, 918 (8th Cir.1979). However, given the evidence of the defendant's involvement in drug related activity, which was properly admitted, we think the error was harmless. Fed.R.Crim.P. 52(a).

Defendant also claims that his case was prejudiced because, on cross-examination of Barnett, the government was allowed to establish that drugs had been seized during the raid on her house and that she was on probation for a conviction which had resulted from that raid. Also, the government was allowed to pursue a line of questioning which inferred that Barnett was a drug dealer. The argument is without merit. Under Fed.R.Evid. 609(a), the government was entitled to attack Barnett's credibility by establishing both the fact and the nature of her prior conviction.

Defendant also claims that it was reversible error for the government to elicit from him during cross-examination the fact that he had been convicted previously for drug offenses, and that two of those convictions had stemmed from the raid on Barnett's home. This argument is without merit. Once the defendant became a witness on his own behalf, the government was entitled to impeach his testimony and attack his credibility with the fact and the differing natures of his prior convictions. Fed.R.Evid. 609(a).

Defendant argues that his case was prejudiced because during closing arguments the government had twice remarked that the defendant's involvement in drugs was the reason he had shotguns in his possession. In its brief, the government responds that the argument was proper because it was relevant. We disagree. The fact that the defendant possessed drugs does not necessarily make it likely that the guns found during the raid were his. However, because the defendant failed to object to this error at trial he must establish that these remarks affected substantial rights, resulting in a miscarriage of justice. United States v. Librach, 536 F.2d 1228, 1231 (8th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976); Fed.R.Crim.P. 52(b). We do not condone this type of behavior on the part of the prosecution. Nevertheless, given the substantial evidence which was properly before the jury, we cannot say that the prosecutor's remarks prejudicially affected the defendant's substantial rights.

As a second general issue, defendant argues that, aside from his admissions, the government failed...