United States v. Kenneth D. Sills ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-1170
___________
United States of America, *
*
Appellee, *
* Appeal from the United
States
v. * District Court for the
* Eastern District of
Missouri.
Kenneth D. Sills, *
*
Appellant. *
___________
Submitted: June 10, 1997
Filed: August 14, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior
Circuit Judge, and
WOLLMAN, Circuit Judge.
___________
HENLEY, Senior Circuit Judge.
Kenneth Sills appeals from a judgment entered in the
district court1 upon a jury
1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
verdict finding him guilty of possession of an
unregistered firearm, in violation of 26 U.S.C. §§
5861(d) and 5871. We affirm.
Background
On March 30, 1995, St. Louis, Missouri police officer
Dan Dell received a telephone call from an informant, who
had provided reliable information in the past. The
informant told Dell that Sills had been involved in a
gang-related shooting and, because Sills was fearing
reprisals, had a sawed-off shotgun in his car. The
informant described the car as a brown Cadillac and gave
Dell the license plate number of the car. On the same
day, Dell and officers Moore and Deeba went to Sills'
home. After Sills came to the door, the officers told
him that they had heard he was fearing reprisals
following a gang-related shooting and asked whether they
could help. Sills became irate, telling the officers,
"I'll handle it my own way." After Sills went back into
the house, the officers drove to the alley behind the
house and saw the brown Cadillac. About forty-five
minutes later, while patrolling the neighborhood, the
officers saw Sills driving the Cadillac. The officers
stopped the car and asked Sills, who was alone, to get
out of the car. Sills refused and displayed a
belligerent attitude. The officers then drew their guns
and Sills got out of the car. Dell searched the interior
of the car and found a sawed-off shotgun under the
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driver's seat. Moore also searched the car and found
some drugs. The officers arrested Sills and informed him
of his constitutional rights. While he was in the police
car, Sills told the officers to keep the drugs and the
gun and let him go because he did not want another gun
charge.
At trial, in addition to the testimony of Dell and
Moore, the government presented testimony relating to
gangs. Sergeant Michael Lauer, who had been assigned
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to the police department's "gang unit," testified that in
a 1992 interview Sills stated he was a member of the 19th
Street Long Beach Crips gang. Detective Robert Ogilvie,
who was also with the gang unit, testified, among other
things, that graffiti on the shotgun seized from the
Cadillac indicated animosity towards several rival gangs
of the Long Beach Crips. In addition, Frank Stubits, a
police department firearms examiner, testified that
shotguns were sawed off to achieve "concealability and
compactness." He also stated that because he had not
been requested to test for fingerprints on the seized
shotgun, he had not done so, which was in accordance with
standard practice.
On Sills' behalf, Cortez Clark disputed the officers'
testimony. Clark testified that he was with Sills when
the officers stopped them and arrested Sills. Clark
further testified that the officers had not searched the
car and, because the driver's seat was low to the floor,
a shotgun could not have fit under the seat. In
addition, a private investigator, who had examined and
taken photographs of the Cadillac which were admitted
into evidence, testified that there was only an inch
between the driver's seat and the floor.
Issues
On appeal, Sills first argues that the district court
erred in denying his motion to suppress. The court did
not err. Based on the details supplied by the reliable
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informant, the officers' corroboration of many of the
details, and Sills' responses to the officers at his
house and in the car, the district court correctly held
that the officers had a reasonable suspicion to stop the
car. See, e.g., United States v. Hughes, 15 F.3d 798,
801-02 (8th Cir. 1994) (stop justified where officers
found car described by informant parked in front of the
address given by informant and defendant appeared
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nervous when officers followed him in the car). "Once
engaged in a lawful investigatory stop, the officers were
entitled to conduct a protective search of the
surrounding area [including the interior of the car] for
weapons, given [their] reasonable belief that [Sills]
posed a danger." United States v. Cox, 942 F.2d 1282,
1285 (8th Cir. 1991), cert. denied, 503 U.S. 921 (1992).
Sills also argues that the district court erred in
allowing testimony concerning gang-related activities
under Fed. R. Evid. 404(b), which provides that evidence
of "other crimes, wrongs, or acts" is inadmissible "to
prove the character of a person in order to show action
in conformance therewith" but is admissible to prove,
among other things, "motive, opportunity, intent,
preparation, plan, [and] knowledge." Specifically, "[t]o
be admissible as Rule 404(b) evidence, the evidence must
be: '(1) relevant to a material issue; (2) proved by a
preponderance of the evidence; (3) higher in probative
value than in prejudicial effect; and (4) similar in kind
and close in time to the crime charged.' " United States
v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995) (quoting
United States v. Jones, 990 F.2d 1047, 1050 (8th Cir.
1993), cert. denied, 510 U.S. 1048 (1994)).
Sills first argues that the evidence was not relevant
to any issue at trial. We disagree. We have held that
Rule 404(b) "evidence is admissible when a defendant
places his state of mind and intent at issue." United
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States v. Jones, 110 F.3d 34, 36 (8th Cir. 1997). In
this case, Sills "specifically put his knowledge and
intent at issue." Id. Not only did he deny knowing that
the shotgun was in his car, he denied that the shotgun
was in his car. In addition, as the government argues,
the evidence would have been relevant to establish motive
and opportunity. See United States v. Jobson, 102
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F.3d 214, 221 (6th Cir. 1996) ("defendant's gang
membership would be admissible to establish his
opportunity to commit the crime"). Moreover, we note
that without Ogilvie's testimony concerning the markings
on the shotgun, "the jury probably could not have
understood the meaning of the graffiti." United States
v. Sparks, 949 F.2d 1023, 1026 (8th Cir. 1991), cert.
denied, 504 U.S. 927 (1992) ; see also United States v.
Williams, 81 F.3d 1434, 1441 (7th Cir. 1996) (upholding
admission of evidence relating to meaning of gang's
code).
Also without merit is Sills' argument that Lauer's
testimony concerning his gang membership in 1992 was too
remote in time. We have observed that " 'there is no
specific number of years beyond which prior bad acts are
no longer relevant to the issue of intent.' " Shoffner,
71 F.3d at 1432 (quoting United States v. Burkett, 821
F.2d 1306, 1310 (8th Cir. 1987)). Rather, "[t]o
determine if evidence is too remote, 'the court applies
a reasonableness standard and examines the facts and
circumstances of each case.' '' Id. at 1432-33 (quoting
United States v. Engelman, 648 F.2d 473, 479 (8th Cir.
1981)). Given the facts of this case, including
testimony that gang membership is for life, "a lapse of
[three] years is not so remote as to render the . . .
evidence inadmissible." Id. at 1433.
We also reject Sills' argument that the district
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court erred in admitting the gang-related evidence
because its probative value was outweighed by its
prejudicial effect. "In this context, 'unfair prejudice
. . . means an undue tendency to suggest decision on an
improper basis.' " United States v. Johnson, 28 F.3d
1487, 1497 (8th Cir. 1994), cert. denied, 513 U.S. 1098
(1995) (quoting Fed. R. Evid. 403, Adv. Comm. Note).
Although a defendant may not be "convicted of a [] crime
through his association with"
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a gang, "[s]pecific and circumscribed evidence of gang
association may be necessary in a trial to show 'the
nature and extent of [the defendant's] association, which
in turn bears'" on his guilt of the crime charged. Id.
(quoting Sparks, 949 F.2d at 1026). Although the
government's evidence "linked [Sills] with gangs, it fell
far short of establishing that [he] w[as] guilty . . . by
association." Id. Moreover, the district court
instructed the jury to consider the gang-related evidence
only as to whether Sills "knowingly possessed a sawed-off
shotgun."
Sills also argues that the district court erred in
denying his motion for a mistrial. On cross-examination,
the government asked Sills' mother, Vesteria Withers,
whether the shotgun had any markings on it referring to
"Crips killer." The mother responded that "I can't read
it. I don't know how to read it." Sills moved for
mistrial, contending that the question violated the
spirit of the district court's pretrial ruling
prohibiting the government's witnesses from referring to
facts "from which the jury might conclude that [Sills] is
a killer." Although, as the government argues, the
question did not technically violate the court's ruling,
we agree with Sills and the district court that the
question violated the spirit of the ruling. Indeed, the
court admonished the government's counsel, stating: "I
want to make it very clear that there's not to be any
further reference made to this witness or anyone else
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unless the court is first advised about Crips killers."
However, even if the reference violated the pretrial
order, the court did not abuse its discretion in denying
the motion for a mistrial. "We will affirm a district
court's decision not to grant a mistrial absent an 'abuse
of discretion resulting in clear prejudice.' '' United
States v. Rhodenizer, 106 F.3d 222, 225 (8th Cir. 1997)
(quoting United States v. Koskela, 86 F.3d 122, 125 (8th
Cir. 1996)). Here, there was no abuse of discretion.
Withers did not directly answer the question, and
considering the
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evidence of Sills' guilt the reference to "Crips killer"
did "not taint[] [the] trial to such an extent as to
require a mistrial." United States v. Byler, 98 F.3d
391, 394 (8th Cir. 1996).
We have reviewed Sills' other arguments and have
found them without merit.
Accordingly, we affirm the judgment of the district
court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
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