U.S. v. Robinson

• Decision Date: 02 November 1992
• Docket Number: 91-2130,91-2096 and 91-2100,Nos. 91-2090,s. 91-2090
• Citation: 978 F.2d 1554
• Parties: , 36 Fed. R. Evid. Serv. 1250 UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. DeShawn Lee ROBINSON a/k/a Leland Kirk, Defendant-Appellant/Cross-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey MEEKES a/k/a Orris Weathington, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Keith JACKSON a/k/a Kevin McElhannon, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1554

978 F.2d 1554

61 USLW 2331, 36 Fed. R. Evid. Serv. 1250

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. DeShawn Lee ROBINSON a/k/a Leland Kirk,

Defendant-Appellant/Cross-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey MEEKES a/k/a Orris Weathington, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Keith JACKSON a/k/a Kevin McElhannon, Defendant-Appellant.

Nos. 91-2090, 91-2130, 91-2096 and 91-2100.

United States Court of Appeals, Tenth Circuit.

Nov. 2, 1992.

Jenine Jensen, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colo., for defendant-appellant Robinson.

Michael W. Gross, Arthur M. Schwartz, P.C., Denver, Colo., for defendant-appellant Meekes.

Daniel J. Sears, Daniel J. Sears, P.C., Denver, Colo., for defendant-appellant Jackson.

Tara C. Neda, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., with her on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before BALDOCK, SETH and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Background

In August 1990, officers executed a search warrant at an Albuquerque apartment. Officers found 700 grams of crack cocaine, some packaged and some drying on paper towels. In addition, scales, baking soda, a razor blade and a pan with crack residue were found in the kitchen. Various pictures, one depicting Mr. Jackson, also were found. Two guns were confiscated; one was in the living room under a couch and the other was in a bedroom in a sealed bag. Finally, the apartment contained various blue objects including a bucket, dish rack, bandanna, comforter, some clothing items and gravel in an aquarium.

The four persons in the apartment were identified as DeShawn Robinson, Jeffrey Meekes, Keith Jackson and Terry Wimberly. ¹ Mr. Robinson was in the living room, Mr. Meekes and Mr. Jackson were apprehended in the kitchen and Mr. Wimberly was found in the utility room. Mr. Meekes had a New Mexico identification card and wore a pager. Mr. Jackson also had a New Mexico identification card and a California driver's license. Several traffic citations issued to Mr. Jackson were found elsewhere in the apartment, along with receipts issued to Mr. Jackson and Mr. Meekes for furniture, rent and utility payments and other services.

All four were charged with conspiracy to possess with intent to distribute more than fifty grams of cocaine base, 21 U.S.C. § 846, possession with intent to distribute more than fifty grams of cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), manufacture of more than fifty grams of cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and the use or carrying of a firearm to facilitate a drug conspiracy, 18 U.S.C. § 924(c). After a jury trial, Meekes, Robinson and Jackson were found guilty of all but the firearm charge. They now appeal. Defendant Wimberly was acquitted. Our jurisdiction arises under 28 U.S.C. § 1291.

All defendants challenge the admission of certain "gang affiliation" evidence, which was introduced through expert testimony. All defendants contend that insufficient findings support a two-point enhancement for obstruction of justice under U.S.S.G. § 3C1.1. All defendants challenge the sufficiency of the evidence to convict. Mr. Robinson contends that the failure of the trial court to give a limiting instruction concerning prior arrests was error and all defendants challenge the admission of prior arrest and conviction evidence. Mr. Meekes and Mr. Jackson both contend their sentence enhancements under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm were incorrect and the government cross-appeals, suggesting that the firearm enhancement should have been applied to Mr. Robinson as well. Mr. Jackson and Mr. Meekes argue that the Sentencing Guidelines violate the equal protection and due process guarantees of the Constitution. Mr. Jackson contends that the government made prejudicial closing remarks and that erroneous instructions were given to the jury. Finally, Mr. Meekes seeks specific performance of an agreement allegedly entered into with the government before trial.

Although we find that the prior arrests of both Mr. Jackson and Mr. Meekes were improperly introduced, we conclude that, under the circumstances, such error was harmless and affirm their convictions along with the conviction of Mr. Robinson. Because it is not clear that the Guidelines were correctly applied with respect to the obstruction of justice enhancement, we remand to the district court for reconsideration as to the applicability of this particular enhancement.

I. Prior Arrest Evidence

Evidence of other crimes, wrongs or acts is admissible only for limited purposes and only when various prerequisites are satisfied. Fed.R.Evid. 404(b); United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986). Because evidence of "other crimes" requires a defendant to defend against past actions and tends to show that the defendant is "generally bad," United States v. Burkhart, 458 F.2d 201, 204 (10th Cir.1972), we have long urged trial courts to determine that the proffered evidence:

(1) tends to establish intent, knowledge, motive, identity, or absence of mistake or accident;

(2) is so related to the charged offense that it serves to establish intent, knowledge, motive, identity, or absence of mistake or accident;

(3) has real probative value and not just possible worth;

(4) is close in time to the crime charged; and,

(5) even if relevant, be excluded if the probative value is substantially outweighed by the danger of unfair prejudice. See Kendall, 766 F.2d at 1436; United States v. Nolan, 551 F.2d 266, 271 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). See also Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988); United States v. Parker, 469 F.2d 884, 889 (10th Cir.1972).

In addition, the government should "articulate precisely the evidentiary hypothesis by which a fact of consequence may be inferred from the evidence of other acts." Kendall, 766 F.2d at 1436. In Kendall, we indicated that the "trial court must specifically identify the purpose for which such evidence is offered and a broad statement merely invoking or restating Rule 404(b) will not suffice." Id. Subsequently, we held that the failure to specifically identify the purpose of the evidence was harmless error when " 'the purpose for admitting the other acts testimony is apparent from the record, and the district court's decision to admit was correct.' " United States v. Record, 873 F.2d 1363, 1375 n. 7 (10th Cir.1989) (quoting United States v. Orr, 864 F.2d 1505, 1511 (10th Cir.1988)).

Finally, "[t]here must be a clear and logical connection between the alleged earlier offense or misconduct and the case being tried." United States v. Biswell, 700 F.2d 1310, 1317-18 (10th Cir.1983). A lack of clear association between the purported purpose for introduction of the evidence and the act itself renders the past conviction irrelevant, highly prejudicial and inadmissible.

A. The prior arrests of Mr. Meekes and Mr. Jackson

During the trial, evidence of several prior arrests was admitted through the testimony of an agent who was not the actual arresting officer and who could not and did not testify concerning the actual circumstances of the arrests. The prosecutor elicited testimony of prior arrests by asking whether the officer had "knowledge" concerning the prior arrest. The officer, with the documentation of the arrests to aid him, recited the date, location and charge for each of the defendants. Mr. Meekes's 1988 arrest in Oregon for delivery of controlled substance (cocaine) was introduced, as was Mr. Jackson's 1987 arrest in Los Angeles for possession of a controlled narcotic substance for sale. Following testimony regarding each arrest, an instruction was given by the court explaining the limited purpose for which the evidence was to be considered. XVI R. 201-209.

Rule 404(b) concerns the admission of evidence concerning particular acts and circumstances that would tend to indicate intent, knowledge, motive or similar permissible purposes. The mere fact that an arrest was made is not, in and of itself, a "prior bad act" which the prosecution may introduce into evidence. "Evidence of prior arrest or the lodging of charges should not itself be admitted under Rule 404(b), since neither has been traditionally viewed as sufficiently probative of the basic question of whether the underlying act occurred." 2 David W. Louisell & Christopher B. Mueller, Federal Evidence § 140 at 177 (1985) (noting Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948) wherein the Court concluded that "[a]rrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty.") ² Rule 404(b) "pertains only to evidence of acts extrinsic to the charged crime." Orr, 864 F.2d at 1510. Thus, the evidence of mere arrest, as was admitted against Defendants Meekes and Jackson, without any evidence of the particular act or circumstance that would tend to show intent or knowledge, should not have been admitted as an "other crime[ ], wrong[ ], or act[ ]" under Fed.R.Evid. 404(b). Rule 404(b) allows evidence concerning the prior activity of a particular defendant, not simply testimony that records indicate an arrest took place.

However, error which does not affect substantial rights does not require reversal. Fed.R.Crim.P. 52(a). In Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946), the Court held that as to nonconstitutional error, the inquiry is "what effect the error had or reasonably may be taken to have had upon the jury's decision." The error is to be considered in "relation to all else that...