United States v. Payne-Owens

• Decision Date: 04 January 2017
• Docket Number: No. 15-3445,15-3445
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Christopher Tracy PAYNE–OWENS, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

845 F.3d 868

UNITED STATES of America, Plaintiff–Appellee

v.Christopher Tracy PAYNE–OWENS, Defendant–Appellant

No. 15-3445

United States Court of Appeals, Eighth Circuit.

Submitted: September 23, 2016

Filed: January 4, 2017

Counsel who represented the appellant was James Samuel Nelsen of West Des Moines, IA.

Counsel who represented the appellee was Mikaela Jo Shotwell, AUSA, of Des Moines, IA.

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.

RILEY, Chief Judge.

A jury found Christopher Payne–Owens guilty of possession of a firearm by a felon and unlawful drug user, see 18 U.S.C. § 922(g)(1), (3), and the district court¹ sentenced him to 63 months in prison. Payne–Owens filed this timely appeal. He contends the district court erred by allowing the government to present evidence of his gang affiliation and by rejecting his combined motion for a new trial or judgment of acquittal. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND²

In January 2014, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) began investigating Payne–Owens and obtained a search warrant to access his Facebook account. While reviewing his profile, ATF agents found two pictures of interest from November 2012. In the first photo, entitled "Bout that life," Payne–Owens posed with what looked to be a bandolier of ammunition around his head, and he held up four fingers—a gang sign associated with the Four Corner Hustlers, an offshoot of the Chicago-based Vice Lords gang. In the second photo Payne–Owens had what appeared to be a .45–caliber 1911–style handgun in his waistband and again raised the four-finger sign. Shortly after posting the pictures Payne–Owens sent two private Facebook messages to a friend, which included telling the friend to "See mi new pic big 45 on mi hip."

Payne–Owens was subsequently indicted for unlawful possession of a firearm and ammunition under § 922(g)(1) and (3). He pled not guilty, arguing there was no proof that the gun or ammunition was real because neither artifact was recovered. Instead, the government planned to introduce circumstantial evidence that suggested the items were real, including: Facebook posts by Payne–Owens where he threatened general gun violence in the context of his involvement with the Four Corner Hustlers gang; testimony to explain the four-finger sign, who the Four Corner Hustlers are, and the various slang words in the Facebook messages; and a threatening Facebook exchange between Payne–Owens and another individual that apparently stemmed from a gang dispute about whether the other was a "real" or "fake" gang member. The parties filed competing motions in limine regarding the evidence that revealed Payne–Owens's gang ties, and after a hearing the district court deemed the evidence admissible to the extent it provided context for "the circumstances surrounding the alleged crime" and suggested the gun and ammunition were, in fact, real.

At trial, the government called two witnesses. First, an ATF firearms expert testified that, although he could not state with absolute certainty the gun was real, the picture was consistent with a .45–caliber handgun like the one Payne–Owens referenced in the post-picture messages. Second, the ATF agent in charge of the case spoke about Facebook posts made by Payne–Owens, which were then admitted into evidence. As put by the district court, these Facebook statements by Payne–Owens evidenced his "desire to acquire a firearm, ability to help others acquire a firearm, and willingness to use a firearm against other people." But the district court was also aware that some of the evidence and testimony "explicitly referenced gang activity," so the district court verbally instructed the jury to consider the gang references only for the "real specific purpose" of determining "whether the firearm and ammunition were real and whether the defendant on trial here had a motive to possess [a real gun] and nothing else."

Payne–Owens moved for acquittal at the conclusion of the government's case, and the district court declined to rule on the motion immediately. See Fed. R. Crim. P. 29(a)–(b). Payne–Owens did not offer any additional evidence. During closing arguments, the government again mentioned Payne–Owens's boastful Facebook statements about being a real gang member, unlike the fake gang member he taunted and threatened, to suggest the pictures show a "real gun and real ammunition because that's what you pose with when you're a real Four Corner Hustler from Chicago." The jury then received its written instructions—including one regarding how to assess evidence that referenced his gang membership³ —and found Payne– Owens guilty of possessing a real firearm, but not ammunition. The district court rejected his combined motion for a new trial or judgment of acquittal and sentenced him to 63 months in prison. Payne–Owens appeals, challenging the district court's determinations as to the evidentiary issue and the sufficiency of the evidence.

II. DISCUSSION

A. Evidence of Gang Membership

Payne–Owens first argues the district court abused its discretion by allowing the government to present evidence that revealed and related to his gang affiliation. In making this argument on appeal, Payne–Owens relies on Federal Rule of Evidence 404(b)(1), which provides: "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." We review a challenged Rule 404(b) decision for abuse of discretion and "reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts." United States v. Brown, 148 F.3d 1003, 1009 (8th Cir. 1998).

As the district court recognized, not all evidence relating to a defendant's prior bad acts is barred by Rule 404(b). One reason such evidence may be admissible is because " Rule 404(b) applies only to extrinsic, not intrinsic, evidence." United States v. Young, 753 F.3d 757, 770 (8th Cir. 2014). Evidence " ‘is considered intrinsic when it is offered’ " to contribute to the narrative of the story and provide context for the charged crime—a non-propensity purpose. Id.(quoting United States v. Johnson, 463 F.3d 803, 808 (8th Cir. 2006) ). Also, by its own terms Rule 404(b) does not prohibit evidence of prior bad acts when it is offered for a different non-propensity purpose, like to suggest the defendant has motive to commit the crime. See Fed. R. Evid. 404(b)(2).

We agree with the district court that the disputed evidence was offered for reasons that do not implicate Rule 404(b)'s prohibition. To begin, the generic and fleeting testimony by the government's witness about the Four Corner Hustlers, the significance of the hand gesture, and defining the slang words used in the Facebook messages contributed to the narrative of the charged crime. The district court correctly characterized this evidence as intrinsic because it helped "provide a total picture." The fact that such testimony referenced Payne–Owens's gang ties did not make it inadmissible under Rule 404(b). See United States v. Sills, 120 F.3d 917, 920 (8th Cir. 1997) (affirming admission of testimony about gang-related graffiti on a shotgun because " ‘the jury probably could not have understood the meaning’ " of it otherwise (quoting United States v. Sparks, 949 F.2d 1023, 1026 (8th Cir. 1991) (approving admissibility of officer's expert testimony on "the meaning of the graffiti and hand signs depicted in ... pictures," relating them to gang affiliation))). Furthermore, the Facebook messages and posts that referenced gang membership included threats of violence that evidenced Payne–Owens's motive to possess a real gun.⁴ The district court did not have to require the government to sanitize the messages and posts before allowing them into evidence because motive is a permissible purpose under Rule 404(b)(2).

Payne–Owens nonetheless contends the district court erred given our decision in United States v. Roark, where the gang-related evidence was "inherently and unfairly prejudicial." United States v. Roark, 924 F.2d 1426, 1434 (8th Cir. 1991) ; see Fed. R. Evid. 403 ("[A] court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice."); Fed. R. Evid. 403 advisory comm. notes to 1972 amendment (" ‘Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis."); see also United States v. Johnson, 28 F.3d 1487, 1497–98 (8th Cir. 1994) (assessing the admissibility of gang-related evidence under Rule 403 ). We recognize, as did the district court, "[g]eneral evidence as to gang culture, aimed at simply establishing a violent or lawless culture, is often unduly prejudicial and can be irrelevant."

In Roark, we ordered a new trial where the government had made a "relentless attempt to convict" the defendant based on his affiliation with a gang, and "the jury could not disregard the entire theme of the trial: guilty by association." Roark, 924 F.2d at 1432–34. We gave great weight to the district court's own expressions of regret for allowing the evidence, which effectively "made a perfect case for ordering a new trial." Id. at 1432. In hindsight the district court acknowledged the evidence "did not go really to the guilt or innocence really of the defendant in this lawsuit," but rather "to the general reputation" of the gang in its entirety and essentially made it "an uncharged defendant."⁵ Id. at 1433–34.

Payne–Owens cites United States v. Street only in passing, but in that case we found the district court abused its discretion in allowing gang evidence. See United States v. Street, 548 F.3d 618, 629–33 (8th Cir. 2008). In Street, the government elicited testimony—which spanned twenty pages in the record—with the admitted "main purpose" of "illustrat[ing] the violent, lawless...