United States v. Gant, A.J. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1970
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
A.J. GANT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 CR 20043—Michael P. McCuskey, Chief Judge.
____________
ARGUED DECEMBER 8, 2004—DECIDED FEBRUARY 1, 2005
____________
Before FLAUM, Chief Judge, and POSNER and SYKES,
Circuit Judges.
FLAUM, Chief Judge. Following a two-day trial, a jury
convicted defendant-appellant Alfred James Gant of being a
felon in possession of a firearm in violation of 18 U.S.C. §
922(g). Gant was sentenced to 188 months’ imprisonment
and four years of supervised release, and now appeals his
conviction. For the reasons stated herein, we affirm.
I. Background
On May 19, 2001, Gant was involved in a confrontation
with his daughter Angelia Gant and a neighbor named
Daniel Clark. Gant had allowed Angelia to live in an
apartment he owned on Church Street in Champaign,
2 No. 04-1970
Illinois, free of rent, provided that she abstain from using
drugs and not permit others to loiter on the property. Gant
went to Church Street on May 19 to tell Angelia that he was
evicting her for failing to comply with these conditions. At
trial, the government presented testimony of several
eyewitnesses who testified that during the confrontation
that ensued, Gant struck both Angelia and Clark with a
gun. Angelia testified that Gant struck her on the face with
an object approximately three inches long. Clark testified
that Gant struck him with a hard metal object, and that he
then looked up and saw Gant holding a revolver. Another
neighbor, Glenn Seay, testified that he was sitting on his
front porch directly across the street and saw Gant strike
Angelia with a gun. Police officer Jay Warran also testified
that when he responded to the scene, he saw Gant walking
down the street carrying a pistol and then observed him
drop it in the grass nearby.
Gant testified at trial that he used a lead pipe, not a
firearm, in these confrontations. He also called his girl-
friend, Ruby Rodriquez, who testified that on the day of the
incident, after receiving a call from Gant, she went
to Church Street to search the area and found a lead pipe in
the grass.
II. Discussion
A. Evidence of Neighborhood Drug Activity
Gant’s primary argument on appeal is that the district
court abused its discretion in excluding evidence of drug
activity in the neighborhood and his efforts to combat it. He
contends that Angelia and Clark had a motive to lie in their
testimony at trial because they resented Gant’s anti-drug
activity and wanted to get rid of him. Gant asserts that the
jury should have been permitted to hear any evidence that
could affect the witnesses’ credibility and that the exclusion
of this evidence of bias against him was particularly
No. 04-1970 3
damaging because the government’s case rested almost
entirely on eyewitness testimony. Moreover, Gant argues,
this evidence would have provided background to explain
what he was doing in the neighborhood and why he engaged
in altercations with Angelia and Clark.
The district court initially granted the government’s
motion in limine to exclude evidence of Gant’s anti-drug
activity in the neighborhood, finding it irrelevant to the
question of whether he possessed a firearm on the date in
question. The court later modified its order in response to a
written offer of proof by Gant and specifically allowed
evidence of Gant’s eviction of Angelia and his altercation
with Angelia and Clark on May 19, 2001. The court,
however, declined to allow other general evidence of drug
activity in the area or evidence of Clark’s prior arrests for
possession of narcotics.
We review the district court’s decision to exclude evidence
for abuse of discretion and will reverse the court’s ruling
only if no reasonable person could agree with it. United
States v. Richeson, 338 F.3d 653, 661 (7th Cir. 2003).
Recognizing that the balancing of probative value and
prejudicial effect is a highly discretionary exercise, we give
the district court’s evidentiary decisions great deference. Id.Gant argues that his proffered testimony was relevant to
the ultimate question of whether he possessed a gun, but he
provides no support for this contention. As the district court
correctly noted, in order to prove the offense charged, the
government had to show that Gant: (1) had been convicted
of a crime punishable by a prison term exceeding one year;
and (2) knowingly possessed a firearm (3) that traveled in
or affected interstate commerce. 18 U.S.C. § 922(g)(1);
United States v. Lane, 267 F.3d 715, 717 (7th Cir. 2001).
The evidence Gant sought to introduce was irrelevant to
whether he possessed a firearm. See id. at 720 (finding
inadmissible defendant’s proffered evidence that he did not
4 No. 04-1970
intend to exercise control over the gun because that was not
relevant to the question of whether he held the gun).
Moreover, contrary to Gant’s argument, the district
court did not exclude evidence of Angelia’s and Clark’s bias.
Gant was permitted to elicit testimony regarding Angelia’s
eviction from Gant’s apartment and the reasons for it. In
addition, he was able to impeach her with her two prior
drug convictions and her prior inconsistent statements
concerning whether Gant struck her with a firearm. Gant
was also permitted to elicit testimony from Clark about
their ongoing dispute regarding Clark’s loitering around
Angelia’s apartment. He also impeached Clark with his
prior inconsistent statements concerning Gant’s possession
of a firearm. The district court did not abuse its discretion
in excluding other evidence proffered by Gant about general
conditions in the neighborhood.
B. Prior Conviction
Gant also contends that the district court abused its
discretion in admitting his prior conviction for impeachment
purposes. Of Gant’s three prior convictions, only the third
was admitted into evidence—a 1986 conviction for posses-
sion of a controlled substance with intent to distribute.
Gant was sentenced to twenty years’ imprisonment for this
conviction and was discharged from parole on October 14,
1995, eight years prior to trial.
Again, we review for abuse of discretion. United States v.
Redditt, 381 F.3d 597, 600-01 (7th Cir. 2004). Federal Rule
of Evidence 609 provides that evidence that an accused has
been convicted of a crime punishable by death or imprison-
ment in excess of one year “shall be admitted if the court
determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused.”
Fed. R. Evid. 609(a)(1). The Rule further provides:
No. 04-1970 5
(b) Time limit. Evidence of a conviction under this
rule is not admissible if a period of more than ten years
has elapsed since the date of the conviction or of the
release of the witness from the confinement imposed for
that conviction, whichever is the later date, unless the
court determines, in the interests of justice, that the
probative value of the conviction supported by specific
facts and circumstances substantially outweighs its
prejudicial effect. However, evidence of a conviction
more than 10 years old as calculated herein, is not
admissible unless the proponent gives to the adverse
party sufficient advance written notice of intent to use
such evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence.
Fed. R. Evid. 609(b).
In determining whether the probative value of admit-
ting a prior conviction outweighs its prejudicial effect, the
court should consider: “(1) the impeachment value of the
prior crime; (2) the point in time of the conviction and the
defendant’s subsequent history; (3) the similarity be-
tween the past crime and the charged crime; (4) the impor-
tance of the defendant’s testimony; and (5) the centrality of
the credibility issue.” Rodriguez v. United States, 286 F.3d
972, 983 (7th Cir. 2002) (quoting United States v. Smith,
131 F.3d 685, 687 (7th Cir. 1997)).
Gant argues that the prejudicial effect of this convic-
tion outweighs its probative value because the conviction
was remote in time and did not involve a crime of dishon-
esty. He also claims that the district court failed to consider
adequately his history as a productive member of society
following his release from prison in 1995.
Considering all the evidence presented at trial, the
district court did not abuse its discretion in allowing the
government to impeach Gant with evidence of his prior
conviction. This conviction was within the ten-year limit set
6 No. 04-1970
forth in Rule 609(b). Moreover, given Gant’s theory of the
case, his credibility was a crucial part of the trial. Gant’s
testimony that he possessed a pipe, not a firearm, directly
contradicted the testimony of government witnesses Daniel
Clark, Glenn Seay, and Officer Warran. The district court
did not abuse its discretion in admitting Gant’s prior
conviction for impeachment purposes. See Smith, 131 F.3d
at 687 (holding that district court did not abuse its discre-
tion in admitting defendant’s prior convictions where
defendant’s testimony directly contradicted that of other
witnesses, making the credibility issue central).
C. Missing Witness Instruction
Finally, Gant argues that the district court erred in
declining to give a “missing witness instruction.” At the jury
instruction conference, Gant’s counsel requested an instruc-
tion regarding the government’s failure to call Lintez
Motley, an individual who was purportedly with Daniel
Clark during the events in question. Gant’s requested
instruction read as follows:
It was particularly within the power of the government
to produce Lintez Motley who could have given material
testimony on an issue in the case. The government’s
failure to call Lintez Motley may give rise to
an inference that his testimony would be unfavorable to
it. You should bear in mind that the law does not
impose on a defendant in a criminal case the burden
or duty of calling any witnesses or producing any
evidence.
The district court declined to give this instruction, noting
that it is disfavored within the Circuit.1 The court also
1
The Committee on Federal Criminal Jury Instructions provided
(continued...)
No. 04-1970 7
observed that Motley was a private individual who ap-
peared on both the government’s and Gant’s witness lists,
and therefore was not exclusively within the power of the
government to produce. Gant argues that the district
court erred in declining to give this instruction because
“defendants are generally without the significant re-
sources available to the government with respect to crim-
inal prosecutions and trials.”
“To establish entitlement to a missing witness instruc-
tion, a defendant must prove two things: first, that the
absent witness was peculiarly within the government’s
power to produce; and second, that the testimony would
have elucidated issues in the case and would not merely
have been cumulative.” United States v. Valles, 41 F.3d 355,
360 (7th Cir. 1994) (citations omitted). The district court
has broad discretion in determining whether to give this
instruction. Hoffman v. Caterpillar, Inc., 368 F.3d 709, 716
(7th Cir. 2004); Valles, 41 F.3d at 360.
Gant asserts that an individual is more likely to re-
spond to a summons from the government than from a
criminal defendant. He has not contended, however, that he
attempted to subpoena Motley as a witness nor has
he offered a satisfactory explanation for failing to do so.
Gant has not established that Motley was “peculiarly within
the government’s power to produce,” and the district court
did not err in declining to give the missing witness instruc-
(...continued)
the following Comment with this instruction: “It is the view of the
Committee that a missing witness instruction should not be
given.” Seventh Circuit Pattern Jury Instr. 3.24 (1999). “For the
unusual circumstances where the court might find it appropriate,”
the Committee recommended that the court use the language
requested by Gant. Id.8 No. 04-1970
tion. See United States v. Huels, 31 F.3d 476, 480 (7th Cir.
1994) (holding that district court did not err in refusing to
give a missing witness instruction where the defendant
“was free to subpoena [witness] if he wished to elicit his
testimony”).
III. Conclusion
For the foregoing reasons, the conviction is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-1-05