United States v. Waller , 209 F. App'x 519 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0933n.06
Filed: December 26, 2006
Nos. 05-3374 & 05-3375
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
)
GARY D. ERVIN, )
)
Defendant-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
UNITED STATES OF AMERICA, ) THE NORTHERN DISTRICT OF
) OHIO
Plaintiff-Appellee, )
)
v. )
)
AUBREY A. WALLER, )
)
Defendant-Appellant. )
Before: MARTIN and COOK, Circuit Judges; TARNOW, District Judge.*
*
The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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TARNOW, District Judge. Defendants Gary Ervin and Aubrey Waller were
convicted at a joint jury trial of carjacking, assaulting a federal agent, two counts of
the use of a firearm during a violent crime, and three counts of attempted murder of
a federal officer (Waller only). Ervin received a sentence of 552 months (46 years);
Waller, 684 months (57 years).
Defendants appeal, claiming a violation of the Confrontation Clause. Ervin
also appeals court rulings on the Federal Rule of Evidence 404(b), double jeopardy,
and the court’s failure to give a requested jury instruction. For the reasons that
follow, we AFFIRM the decisions of the district court.
I.
On December 22, 2003, Darnell Lester, a cooperating witness for the New
York FBI, was car-jacked and kidnaped at gunpoint by the defendants, in Cleveland.
Lester called his FBI contact, Agent O’Rourke, via cellphone, and told him what was
happening.
Over the course of the evening, O’Rourke maintained regular contact with
Lester, while coordinating a rescue effort with the Cleveland FBI. A meeting to
exchange Lester for a purported ransom was arranged between the FBI and the
defendants, at a Rally’s restaurant in east Cleveland.
A SWAT team, comprised of several vehicles and FBI agents, gathered at the
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meeting place. Ervin and Waller were in a GMC Jimmy, driven by Ervin. Lester was
also in the Jimmy. The agents present decided to take custody of the defendants’
vehicle. The SWAT team vehicles moved to contain the Jimmy.
One FBI agent exited his vehicle as part of the containment effort. As he
approached the Jimmy, it “surged” toward him. Believing his life was in danger, as
well as those of other agents, he fired three rounds at Ervin. Two struck and wounded
Ervin; the third killed Lester.
The Jimmy subsequently crashed into a fence. Defendant Waller exited the
Jimmy and fired two shots at the agents. When they returned fire, Waller
surrendered. A 9 mm Bryco semiautomatic was found discarded in the Jimmy.
At the jury trial, Agent O’Rourke testified at length, over defendants’
objections, about his cellphone conversations with the decedent Lester. His
testimony related what Lester told him: how many kidnappers there were, whether
they were armed, and that they wanted a ransom. He also testified that the
information he received from Lester was relayed to the Cleveland FBI contact to aid
planning of a rescue effort.
In response to defendants’ objections, the district court acknowledged that
Lester was not present in court for cross-examination. The court instructed the jury
that the purpose of the testimony was to explain why the FBI agents, including
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O’Rourke, took the actions they did. The court reminded the jury that defendants
were not charged with kidnaping, nor could they convict the defendants of their
charged crimes on the basis of concluding that defendants had held Lester against his
will.
II.
In general, the admission or exclusion of evidence is reviewed for abuse of
discretion. United States v. Perry, 438 F.3d 642, 647 (6th Cir. 2006). However,
when an evidentiary ruling is challenged as a violation of the Sixth Amendment, it
is reviewed de novo. United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005).
In Crawford v. Washington, 541 U.S. 36 (2004), the Court held that the
Confrontation Clause bars admission of testimonial out-of-court statements unless the
witness is unavailable and the defendant had a previous opportunity to cross-examine
him. Id. at 53-54. However, claims of Confrontation Clause violations can be
defeated by equity, under the rule of forfeiture by wrongdoing. Id. at 62.
In United States v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005), this Court held
that a defendant who killed his wife could not raise Confrontation Clause objections
to the admission of her out-of-court statements about a previous assault by him. Id.
at 370 (“[T]he Defendant is responsible for Kathleen's unavailability. Accordingly,
he has forfeited his right to confront her.”) The Court stated that this principle
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applies regardless of the defendant’s motive, that is, even if the defendant did not act
with the intent to prevent the witness from testifying. Id. at 370-71.
Similarly, the defendants are responsible for Darnell Lester’s unavailability.
They put in motion the events that led to the confrontation in the Rally’s parking lot.
More immediately, Ervin’s attempt to run down the FBI agent caused the agent to
shoot in self-defense. Darnell Lester died because of Ervin’s actions. Waller was
part of the criminal activity, as well. Both are therefore responsible for Lester’s
unavailability.1 They have forfeited the right to confront him as a result, even if their
intent was not to prevent his testimony.
Defendant Ervin challenges the admission of witness testimony that he had a
baggie of crack in his mouth when he was shot. This evidence was revealed to two
witnesses in the ambulance after the incident. He charges error under Fed. R. Evid.
404(b), which permits admission of “other acts” only for a permissible purpose.
Perry holds that the admission of evidence under Fed. R. Evid. 404(b) is
reviewed (1) for clear error, on the determination that another crime or act took place;
(2) de novo, on the issue of admission for a proper purpose; and (3) for abuse of
1
While defendants were not charged with Lester’s death in this case, they were convicted
in state court of felony murder. The convictions were upheld on appeal. See State v. Ervin, No.
CR-448726, 2006 WL 250756 (Ohio Ct. App. Aug. 31, 2006); State v. Waller, No. CR-448726,
2006 WL 2692590 (Ohio Ct. App. Sept. 21, 2006).
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discretion, in determining whether probative value is substantially outweighed by
unfair prejudicial effect. 438 F.3d at 647.
The district court did not err in admitting this evidence. Two eyewitnesses
from the ambulance ride testified to the presence of the cocaine. The purpose of
admission, to refute Ervin’s assertion that he did not know the SWAT team members
were law enforcement, was proper. The district court’s limiting instructions to the
jury made that purpose clear. Finally, defendants put knowledge of law enforcement
at issue, and the evidence was probative of that fact. It was not substantially
outweighed by prejudicial effect.
Ervin also claims his Fifth Amendment protections against double jeopardy
were violated by the two firearms charges in the indictment. Ervin failed to raise this
issue below, and is therefore barred from bringing it now. Such claims must be raised
before trial, or they are waived. United States v. Hart, 70 F.3d 854, 859-60 (6th Cir.
1995).
Finally, Ervin argues that the district court erred in failing to deliver a
requested excessive force instruction. This instruction was to support his defense
theory that the FBI used excessive force, against which he was entitled to defend
himself.
However, a jury instruction is not warranted if “it lacks evidentiary support or
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is based upon mere suspicion or speculation.” United States v. Hargrove, 416 F.3d
486, 489 (6th Cir. 2005) (citing United States v. James, 819 F.2d 674, 675 (6th Cir.
1987)). Ervin provided no evidence on the use of excessive force. The district court
did not err in refusing to instruct the jury on an unsupported theory.
AFFIRMED.
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