U.S.A v. Parish

• Citation: 606 F.3d 480
• Decision Date: 24 May 2010
• Docket Number: No. 08-3421.,08-3421.
• Parties: UNITED STATES of America, Appellee,v.Earl PARISH, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

606 F.3d 480

UNITED STATES of America, Appellee,
v.
Earl PARISH, Appellant.

No. 08-3421.

United States Court of Appeals,
Eighth Circuit.

Submitted: June 12, 2009.
Filed: May 24, 2010.
Rehearing and Rehearing En Banc Denied July 14, 2010.^*

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David E. Woods, argued, O'Fallon, MO, for Appellant.

Reginald L. Harris, AUSA, argued, Thomas C. Albus, AUSA, on the brief, St. Louis, MO, for Appellee.

Before BYE, HANSEN, and BENTON, Circuit Judges.

HANSEN, Circuit Judge.

Following a jury trial, Earl Parish was convicted of one count of knowingly and intentionally possessing with the intent to distribute a mixture or substance containing a detectable amount of cocaine base (crack), in violation of 18 U.S.C. § 841(a)(1), and one count of knowingly possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The district court ¹ sentenced Parish to 157 months' imprisonment. Parish appeals his convictions and sentence. For the following reasons, we affirm.

I.

On January 4, 2007, St. Louis Police Officer James Daly and his partner, Officer Joe Mader, received a tip from a confidential informant that a person named “Earl” was selling and distributing narcotics in the Gate District of St. Louis and that “Earl” was known to possess firearms. The confidential informant told the officers that “Earl” drove a newer model Ford Explorer with chrome rims. While Officer Daly listened in, the confidential informant called “Earl” and arranged for “Earl” to deliver crack cocaine on January 5, 2007, at around 8:00 p.m. On January 5, Officers Daly and Mader again met with the confidential informant, who called “Earl” to confirm the sale. During that

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call “Earl” arranged to meet at 1015 North Grand Avenue, a location in a strip mall.

At approximately 8:00 p.m. on January 5, Officers Daly and Mader, along with Sergeant Kenneth Hornak and Officer Ron Fowlkes, went to the area near the strip mall and set up surveillance. While on surveillance, Sergeant Hornak observed a Ford Explorer matching the confidential informant's description pulling into the parking lot at 1015 North Grand Avenue. Sergeant Hornak and Officer Fowlkes, both in uniform, parked their unmarked police truck behind the Explorer at an angle. Officer Fowlkes got out of the truck and approached the Ford Explorer, identifying himself as a police officer. The driver (later identified as Earl Parish) looked at Fowlkes, placed the Explorer in reverse, and accelerated backward out of the parking space, ramming the police truck and knocking Sergeant Hornak to the ground. Parish also hit an occupied Ford Taurus backing out of a parking space. Parish attempted to flee the area in the Explorer, but the Explorer had become wedged into the police truck and could not accelerate forward. While the police officers were removing Parish from the vehicle, Parish ended up on the ground and banged his head. Officer Fowlkes took custody of Parish, and Officers Daly and Mader searched Parish's vehicle. On the floorboard of the driver's side of the vehicle, they observed two plastic bags, one containing what appeared to be crack cocaine and one containing what appeared to be compressed cocaine. The officers also found a fully loaded firearm under the passenger's seat and a digital electronic scale under the front driver's side seat. The officers arrested Parish for assault on a law enforcement officer, narcotics offenses, and a firearms offense. Parish was charged with one count of knowingly and intentionally possessing with the intent to distribute a mixture or substance containing a detectable amount of cocaine base (crack) and one count of knowingly possessing a firearm in furtherance of a drug trafficking crime.

During the trial, the Government's evidence included testimony from Officer Daly, Sergeant Hornak, Margaret Owens (a forensic drug chemist who testified that the substance seized from Parish's car was 11.74 grams of cocaine base or crack cocaine), and Detective Michael Bradley (a detective assigned to the Drug Enforcement Administration Task Force who testified as to the “street value” of the drugs found in Parish's car, that the quantity of crack cocaine was a distribution as opposed to a user amount, and that the other items found in the car (a scale and a firearm) were consistent with items possessed by drug dealers).

At the close of the Government's case-in-chief, Parish unsuccessfully filed a motion for acquittal, which he renewed at the close of evidence and which was again denied. The jury found Parish guilty, and the district court imposed a sentence of 97 months' imprisonment on the drug count and 60 months' imprisonment on the firearms count, to be served consecutively. Parish appeals his convictions and sentence.

II. A.

Parish first argues that the district court erred in limiting Parish from questioning the police during the Government's case-in-chief about Parish's claims that he was beaten and that the incriminating evidence was “planted” by the arresting officers.

Before the trial began, Parish's counsel stated that he intended to question the police about the alleged beating and to

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suggest that the police planted the evidence because Parish wanted to complain about the beating. The Government filed a motion in limine to prevent Parish from asking the police about those claims before Parish had testified to them and raised those allegations as part of his defense. In ruling on the motion in limine, the district court assumed that the officers would, on cross-examination during the Government's case-in-chief, deny that they had either beaten Parish or planted the evidence, and the district court was concerned that Parish would base his later jury argument on the content of the cross-examination questions asked, rather than on any actual evidence of either event. The court indicated that it wanted some foundation established for the admission of such evidence because “what people say and argue on motions, particularly motions in limine, typically by my experience, is radically different from how things actually pipe out, as it were.” (Trial Tr. at 9-10.) The court further stated that “as things go along, and if foundation can be established for the admission of this stuff, that's a whole other issue. For right now, I'm not going to get into it, especially during voir dire or opening statements.” ( Id. at 10.)

During the cross-examination of Officer Daly by Parish's counsel, Officer Daly testified that while Parish was being “extracted” from the Ford Explorer by the officers, Parish's face hit the pavement, that he was injured, and that a paramedic was notified. No attempt was made by Parish's counsel to question whether or not the injuries were caused by a beating, nor did counsel seek permission from the court to ask such questions once the existence of Parish's injuries while being taken down by the officers was opened up. On redirect, the Government's attorney questioned Officer Daly about the extent of Parish's injuries, and no recross-examination was undertaken by Parish's counsel, nor was an attempt made to explore the extent of the limine ruling. During the defense's case, Parish testified that the police used physical force against him and took turns beating him at the scene, that he was seriously hurt, and that the police refused to take him to a hospital. He denied having drugs, a gun, or a scale in his vehicle and claimed he was at the strip mall to drop off his two sons at a barber shop. He denied ramming the police truck and striking another car. On cross-examination by the Government's counsel, Parish reasserted that the officers took turns beating him, that he sustained a lot of swelling to the back of his head, his forehead, and his face and that his lip was “busted open.” The subject was not explored on redirect. In its rebuttal case, the Government presented the supervising officer at the scene who denied any beating had taken place, and who testified that Parish's booking photograph did not bear out the extensive injuries Parish claimed he suffered. Cross-examination was directed to the proposition that the booking photo did not depict the back of Parish's head or part of one side of his face where he claimed injury.

Under Federal Rule of Evidence 103(a), “[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Our review of the pretrial ruling made by the district court convinces us that it was “definitive” only in the sense that it applied to voir dire and opening statements and not to the offer of testimony or evidence during the trial. The district court left open the option for Parish to lay a foundation for the admission of the disputed evidence, and indeed, when the arresting officer testified during Parish's

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counsel's cross-examination concerning how Parish was extracted from his vehicle and taken to the ground, such a foundation was available for further leading questioning about the extent of the officers' manhandling of Parish, contesting the officers' benign version, and including direct questions about a beating. None occurred.

We review the district court's evidentiary rulings, including its rulings on motions in limine, for an abuse of discretion. United States v. Fincher, 538 F.3d 868, 872 (8th Cir.2008), cert. denied, --- U.S. ----, 129 S.Ct. 1369, 173 L.Ed.2d 591 (2009). Because the district court left open the question of the later admission of the evidence as the trial record developed, we see no abuse of discretion in its ruling. Nor do we find any error of any kind in the court's limine ruling. It appears to us from a review of the record that Parish was able to present to the jury all the evidence supporting...