USA v. Mccann

• Decision Date: 28 July 2010
• Docket Number: No. 09-30550.,09-30550.
• Citation: 613 F.3d 486
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chris Lamont McCANN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

613 F.3d 486

UNITED STATES of America, Plaintiff-Appellee,

v.Chris Lamont McCANN, Defendant-Appellant.

No. 09-30550.

United States Court of Appeals,Fifth Circuit.

July 28, 2010.

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R. Christopher Cox, III (argued) Stephen Andrew Higginson, Asst. U.S. Attys., New Orleans, LA, for U.S.

Robin Elise Schulberg, Asst. Fed. Pub. Def. (argued), New Orleans, LA, for McCann.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, STEWART and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

On March 17, 2009, a jury found defendant-appellant, Chris Lamont McCann, guilty of having been a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He was sentenced to 100 months' imprisonment on June 17, 2009. He appeals his conviction and his sentence, arguing that the district court erred by refusing to grant a mistrial based on certain statements made by the prosecutors during closing arguments, by admitting prejudicial evidence, and by enhancing his sentence without consulting documents it was required to consult under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). For the following reasons, we affirm McCann's conviction but vacate his sentence and remand for resentencing.

FACTS AND PROCEEDINGS BELOW

On the night of June 30, 2008, New Orleans Police Department (NOPD) Officers Daniel Hunter, Evan Cox, and Troy Black were patrolling a high-crime area of the city when they encountered McCann, McCoy Walker, and Stephon McGee, Jr. At trial, McCann and the Government disagreed over the details of this encounter.

The officers testified that they spotted McCann, Walker, and McGee underneath a streetlight outside Taylor Park, standing at the rear of a vehicle with an open trunk, talking. Officer Cox saw a handgun in Walker's waistband and alerted the other two officers. Officer Hunter responded by lighting up the trio with the patrol car's spotlight. Startled by the light, Walker pulled the gun out of his waistband and bolted for the park. Officer Cox jumped out of the moving patrol car and chased him. After the patrol car came to a stop, McGee removed a gun from his pocket and also ran into the park. Officer Black chased after him. Inside the park, both Walker and McGee threw their guns into a swimming pool and surrendered.

Meanwhile, Officer Hunter had been left alone with McCann. Officer Hunter testified that McCann reached behind his back. Officer Hunter drew his weapon and ordered McCann to show his hands. McCann then tossed a handgun he had drawn from the back of his waistband into the open trunk of the vehicle, closed the trunk, and put his hands up. After all three suspects had been handcuffed, the officers opened the trunk, which they testified still had the keys in its keyhole, and discovered a loaded Glock 17 pistol inside. Officer Black then jumped into the pool and recovered the other two guns.

McCann called two eye-witnesses at trial, who told a different story. One was McGee, who pleaded guilty to being a felon in possession of a firearm before McCann's trial took place. The other was Mitchell Phillips, a man who lived in the neighborhood and who testified that he had been in the park on the night of the arrests watching some of the neighborhood youths play basketball. Neither McCann nor Walker testified.

McGee testified that he, Walker, and McCann had been inside the park talking to some other people when the police arrived, not outside it standing around a car, as the officers had testified. He said that when the officers walked up, several people ran away, and he and Walker immediately threw their guns into the park pool. He stated that he had not run from the police, because he was already close enough to the pool to toss his gun into it. He testified that McCann did not have a gun on him that night and that the gun McCann was charged with possessing had not appeared until the trio arrived at the police station. His testimony strongly implied that the police had framed McCann. ¹

Phillips corroborated some portions of McGee's testimony. He testified that he had come to the park about two hours before the arrests to watch the neighborhood youths play basketball. He said that nobody had been outside the park when the officers arrived. According to him, the officers entered the park, and several people started running. He said that two officers chased some of the people who were running, while one officer remained behind and immediately arrested McCann, who had not been running.

It is not contested that McCann became extremely angry after he was arrested. At the police station, he kicked chairs and yelled at Officer Hunter, the only person who claimed to have seen him in possession of a firearm, that he couldn't wait for the charges against him to be dropped and that “[m]otherfucker, I hope you have a big vest under that shirt because that's your ass.” Officer Hunter interpreted this statement as meaning that McCann was threatening to shoot him.

McCann was indicted on August 7, 2008, for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) ² and 924(a)(2). ³ He pleaded not guilty and was tried before a jury on March 16 and 17, 2009. At trial, the defense's theory of the case was that the police had framed McCann.

In his cross-examinations of the officers, McCann's counsel repeatedly and clearly implied the officers were lying. On redirect, one of the prosecutors asked Officer Cox if he and the other officers had framed McCann or given false testimony:

“Q: Did you ever get together to try to concoct a false story or lie so that you could put the blame on these individuals falsely?

A: No, sir.

Q: Would you ever do that?

A: No, sir.

Q: Why not?

A: I wouldn't-wouldn't risk my job for that. It's-we-the amount of good police work you can do outweighs doing bad, wrong. I mean, why would you do that when there's actual people doing bad things.

Q: And what would you face, according to police officer regulations and the law to the best of your knowledge, if you and your fellow officers falsely created evidence, falsely planted evidence, lied in court to falsely implicate individuals with crimes that they did not commit; what consequences would you face?

* * *

THE WITNESS: You could lose your job and be charged with federal crimes of, I would imagine, perjury and civil rights violations.”

McCann objected to this line of questioning, but the district court overruled the objection.

During the trial, the district court allowed Officer Hunter to testify about the threat McCann had made after he was arrested. McCann had objected to this evidence in limine, but the court had decided to allow it. The district court also admitted a photograph of Phillips over McCann's objection that had identification details written under it that made it resemble a mug shot or a wanted poster.

During closing arguments, one of the prosecutors made several comments in response to the defense counsel's theory of the case that drew objections and motions for mistrial from the defense. The first comment was made after one of the prosecutors listed reasons why the jurors should not credit the testimony of the defense witnesses:

“Ladies and gentlemen, they also effectively have said, These police officers are liars. This is a frame-up. Let me tell you something. You saw those men testify. For a police officer to stand before you and lie and put evidence on people that was not justifiably there, they would risk their life, their family, their future, their career, everything that they had worked for.”

During the defense's closing arguments, McCann's counsel continued to advance the theory that he had been framed. McCann's counsel stated that the police officers “don't face any sanction here. If they lied there's nothing that will happen to them. This agency won't prosecute them nor will any other. Okay?”

McCann's counsel also accused the prosecution of engaging in “theatrics”:

“Another part of the theatrics of the case. These officers that sat right here on the front row so that they want to say to you, Look at these officers, and, You have to support these officers. That's what undergirds or that's what underpins some of what the government's argument is. And what I'll suggest to you, that's inappropriate. The Judge will tell you that's inappropriate.”

McCann's counsel continued to make similar arguments throughout his closing.

In rebuttal, one of the prosecutors responded by making the second comment to which McCann objected, moving for a mistrial:

“On cross-examination yesterday, again of Officer Cox, I don't remember exactly what the question that [defense counsel] asked, but he apologized-excuse me. Mr. Cox said, I'm sorry. And [defense counsel] says, There's no need for an apology. I disagree. I think there is a need to apologize, to apologize to NOPD officers who wear bulletproof vests because they have to worry about getting shot at on the street and then they come in here in court and they get shot at again. They don't deserve that. They came in here and testified about what they did.

These are guys who run into that (indicating) on a regular basis-by the way, I know these photos didn't show up very well on the screen .... These guys run into that (indicating) after guys with guns. And then because the defendant is caught red-handed, they get call [ sic] liars.”

The district court overruled McCann's objections to both of the prosecutors' comments and denied his motions for mistrial.

The jury found McCann guilty on March 17, 2009. The district court sentenced him to 100 months' imprisonment on June 17, 2009. The district court applied the highest offense level under § 2K2.1 ⁴ of the November 2008 United States Sentencing Commission's Guidelines Manual (Sentencing Guidelines) after determining that McCann had been convicted of...