USA v. Chris McCann

Filing

USA v. Chris McCann

Doc. 0

Case: 09-30550

Document: 00511187565

Page: 1

Date Filed: 07/28/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

FILED
N o . 09-30550 July 28, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. C H R I S LAMONT MCCANN, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Louisiana

B e fo r e GARWOOD, STEWART, and CLEMENT, Circuit Judges. G A R W O O D , Circuit Judge: O n March 17, 2009, a jury found defendant-appellant, Chris Lamont M c C a n n , guilty of having been a felon in possession of a firearm, in violation of 1 8 U.S.C. § 922(g). He was sentenced to 100 months' imprisonment on June 17, 2 0 0 9 . He appeals his conviction and his sentence, arguing that the district court e r r e d by refusing to grant a mistrial based on certain statements made by the p r o s e c u t o r s during closing arguments, by admitting prejudicial evidence, and by e n h a n c in g his sentence without consulting documents it was required to consult

Dockets.Justia.com

Case: 09-30550

Document: 00511187565

Page: 2

Date Filed: 07/28/2010

under Shepard v. United States, 125 S.Ct. 1254 (2005).

For the following

r e a s o n s , we affirm McCann's conviction but vacate his sentence and remand for r e s e n te n c in g . F A C T S AND PROCEEDINGS BELOW O n the night of June 30, 2008, New Orleans Police Department (NOPD) O ffic e r s Daniel Hunter, Evan Cox, and Troy Black were patrolling a high-crime a r e a of the city when they encountered McCann, McCoy Walker, and Stephon M c G e e , Jr. At trial, McCann and the Government disagreed over the details of t h is encounter. T h e officers testified that they spotted McCann, Walker, and McGee u n d e r n e a t h a streetlight outside Taylor Park, standing at the rear of a vehicle w it h an open trunk, talking. Officer Cox saw a handgun in Walker's waistband a n d alerted the other two officers. Officer Hunter responded by lighting up the t r io with the patrol car's spotlight. Startled by the light, Walker pulled the gun o u t of his waistband and bolted for the park. Officer Cox jumped out of the m o v in g patrol car and chased him. After the patrol car came to a stop, McGee r e m o v e d a gun from his pocket and also ran into the park. Officer Black chased a ft e r him. Inside the park, both Walker and McGee threw their guns into a s w im m in g pool and surrendered. M e a n w h ile , Officer Hunter had been left alone with McCann. Officer H u n te r testified that McCann reached behind his back. Officer Hunter drew his w e a p o n and ordered McCann to show his hands. McCann then tossed a

h a n d g u n he had drawn from the back of his waistband into the open trunk of the v e h ic le , closed the trunk, and put his hands up. After all three suspects had b e e n handcuffed, the officers opened the trunk, which they testified still had the k e y s in its keyhole, and discovered a loaded Glock 17 pistol inside. Officer Black t h e n jumped into the pool and recovered the other two guns. 2

Case: 09-30550

Document: 00511187565

Page: 3

Date Filed: 07/28/2010

McCann called two eye-witnesses at trial, who told a different story. One w a s McGee, who pleaded guilty to being a felon in possession of a firearm before M c C a n n 's trial took place. The other was Mitchell Phillips, a man who lived in t h e neighborhood and who testified that he had been in the park on the night of t h e arrests watching some of the neighborhood youths play basketball. Neither M c C a n n nor Walker testified. M c G e e testified that he, Walker, and McCann had been inside the park t a lk in g to some other people when the police arrived, not outside it standing a r o u n d a car, as the officers had testified. He said that when the officers walked u p , several people ran away, and he and Walker immediately threw their guns in t o the park pool. He stated that he had not run from the police, because he w a s already close enough to the pool to toss his gun into it. He testified that M c C a n n did not have a gun on him that night and that the gun McCann was c h a r g e d with possessing had not appeared until the trio arrived at the police s t a t io n . His testimony strongly implied that the police had framed McCann.1 P h illip s corroborated some portions of McGee's testimony. He testified t h a t he had come to the park about two hours before the arrests to watch the n e ig h b o r h o o d youths play basketball. He said that nobody had been outside the p a r k when the officers arrived. According to him, the officers entered the park, a n d several people started running. He said that two officers chased some of the p e o p l e who were running, while one officer remained behind and immediately a r r e s t e d McCann, who had not been running. It is not contested that McCann became extremely angry after he was

However, McGee's testimony was seriously impeached by the prosecution, which demonstrated that his statements at McCann's trial were irreconcilable with the factual basis he had signed as part of his guilty plea. McCann claimed he had not read the factual basis, even though he had stated under oath that he agreed with its content, at his plea.

1

3

Case: 09-30550

Document: 00511187565

Page: 4

Date Filed: 07/28/2010

arrested. At the police station, he kicked chairs and yelled at Officer Hunter, the o n ly person who claimed to have seen him in possession of a firearm, that he c o u ld n 't wait for the charges against him to be dropped and that " [m ]o th e r fu c k e r , I hope you have a big vest under that shirt because that's your a s s ." Officer Hunter interpreted this statement as meaning that McCann was t h r e a te n in g 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 g u ilt y and was tried before a jury on March 16 and 17, 2009. At trial, the d e fe n s e 's theory of the case was that the police had framed McCann. I n his cross-examinations of the officers, McCann's counsel repeatedly and c le a r ly implied the officers were lying. On redirect, one of the prosecutors asked

2

18 U.S.C. § 922 provides, in relevant part:

"§ 922. Unlawful Acts *** (g) It shall be unlawful for any person-- (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; *** to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C.A. § 922(g)(1) (West 2000) (emphasis in original).
3

18 U.S.C. § 924 provides, in relevant part:

"§ 924. Penalties (a) . . . *** (2) Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both." 18 U.S.C.A. § 924(a)(2) (West 2000 & Supp. 2010) (emphasis in original).

4

Case: 09-30550

Document: 00511187565

Page: 5

Date Filed: 07/28/2010

Officer Cox if he and the other officers had framed McCann or given false t e s t im o n y : " Q : Did you ever get together to try to concoct a false story or lie so t h a t 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 a m o u n t 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 th in g s . Q : And what would you face, according to police officer regulations a n d the law to the best of your knowledge, if you and your fellow o ffic e r s falsely created evidence, falsely planted evidence, lied in c o u r t to falsely implicate individuals with crimes that they did not c o m m it ; what consequences would you face? *** T H E WITNESS: You could lose your job and be charged with federal c r im e s of, I would imagine, perjury and civil rights violations." McCann objected to this line of questioning, but the district court overruled the o b je c t i o n . During the trial, the district court allowed Officer Hunter to testify about t h e threat McCann had made after he was arrested. McCann had objected to t h is evidence in limine, but the court had decided to allow it. The district court a ls o admitted a photograph of Phillips over McCann's objection that had id e n tific a t io n details written under it that made it resemble a mug shot or a w a n t e d poster. D u r in g closing arguments, one of the prosecutors made several comments in response to the defense counsel's theory of the case that drew objections and m o t io n s for mistrial from the defense. The first comment was made after one of t h e prosecutors listed reasons why the jurors should not credit the testimony of

5

Case: 09-30550

Document: 00511187565

Page: 6

Date Filed: 07/28/2010

the defense witnesses: " L a d ie s and gentlemen, they also effectively have said, These p o lic e officers are liars. This is a frame-up. Let me tell you s o m e t h in g . You saw those men testify. For a police officer to stand b e fo r e you and lie and put evidence on people that was not ju s t ifia b ly there, they would risk their life, their family, their future, t h e ir career, everything that they had worked for." During the defense's closing arguments, McCann's counsel continued to a d v a n c e the theory that he had been framed. McCann's counsel stated that the p o lic e officers "don't face any sanction here. If they lied there's nothing that will h a p p e n to them. This agency won't prosecute them nor will any other. Okay?" McCann's counsel also accused the prosecution of engaging in "theatrics": " A n o th e r part of the theatrics of the case. These officers that s a t right here on the front row so that they want to say to you, Look a t these officers, and, You have to support these officers. That's w h a t undergirds or that's what underpins some of what the g o v e r n m e n t 's argument is. And what I'll suggest to you, that's in a p p r o p r ia t e . 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 c o m m e n t to which McCann objected, moving for a mistrial: " O n cross-examination yesterday, again of Officer Cox, I don't r e m e m b e r exactly what the question that [defense counsel] asked, b u t he apologized -- excuse me. Mr. Cox said, I'm sorry. And [d e fe n s e counsel] says, There's no need for an apology. I disagree. I think there is a need to apologize, to apologize to NOPD officers w h o wear bulletproof vests because they have to worry about getting s h o t at on the street and then they come in here in court and they g e t shot at again. They don't deserve that. They came in here and t e s t ifie d about what they did. T h e s e are guys who run into that (indicating) on a regular b a s is -- by the way, I know these photos didn't show up very well on t h e screen. . . . These guys run into that (indicating) after guys with g u n s . And then because the defendant is caught red-handed, they 6

Case: 09-30550

Document: 00511187565

Page: 7

Date Filed: 07/28/2010

get call [sic] liars." The district court overruled McCann's objections to both of the prosecutors' c o m m e n ts and denied his motions for mistrial. The jury found McCann guilty on March 17, 2009. The district court s e n te n c e d him to 100 months' imprisonment on June 17, 2009. The district court a p p lie d the highest offense level under §2K2.14 of the November 2008 United S t a te s Sentencing Commission's Guidelines Manual (Sentencing Guidelines) a f t e r determining that McCann had been convicted of two felonies involving c r im e s of violence or controlled substance offenses. One of these convictions was a 1997 Louisiana conviction for manslaughter, to which McCann had pleaded g u ilt y . However, in determining that this manslaughter had been a crime of v io le n c e , the district court relied entirely on McCann's Pre-Sentence I n v e s t i g a t i o n Report (PSR). It did not consult the Louisiana manslaughter s t a t u t e under which he had been convicted or any conclusive records made or u s e d in adjudicating his guilt. McCann did not object to the court's failure to c o n s u lt the statute or the conclusive records. H e timely filed his notice of appeal on June 25, 2009.

The United States Sentencing Commission, Guidelines Manual, §2K2.1 (Nov. 2008), provides, in relevant part: "§2K2.1. Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition (a) Base Offense Level (Apply the Greatest): (1) 26, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a); and (B) the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense . . . ." USSG §2K2.1(a)(1) (emphasis in original).

4

7

Case: 09-30550

Document: 00511187565

Page: 8

Date Filed: 07/28/2010

DISCUSSION M c C a n n argues that the district court erred (1) by declining to grant a m is t r ia l based on the prosecutors' statements in closing arguments, (2) by a llo w in g the jury to hear evidence of the death threat he made after he was a r r e s t e d , (3) by failing to redact the textual portion of the photographic exhibit d e p ic t in g Phillips that made the document resemble a police record, and (4) by c o n s id e r in g only the PSR in determining whether or not his prior manslaughter c o n v ic t io n was a crime of violence within the meaning of §2K2.1 of the S e n te n c in g Guidelines. We discuss each issue in turn. I . Prosecutorial Misconduct M c C a n n argues that the district court erred by refusing to grant him a m is t r ia l based on two comments made by the prosecutors that he asserts were im p r o p e r . The first was made during the prosecution's closing argument: " L a d ie s and gentlemen, they also effectively have said, These p o lic e officers are liars. This is a frame-up. Let me tell you s o m e t h in g . You saw those men testify. For a police officer to stand b e fo r e you and lie and put evidence on people that was not ju s t ifia b ly there, they would risk their life, their family, their future, t h e ir career, everything that they had worked for." For convenience, we will refer to this comment as the "Closing Comment." The s e c o n d comment McCann cites as grounds for a mistrial was made during the p r o s e c u t io n 's rebuttal: " O n cross-examination yesterday, again of Officer Cox, I don't r e m e m b e r exactly what the question that [defense counsel] asked, b u t he apologized -- excuse me. Mr. Cox said, I'm sorry. And [d e fe n s e counsel] says, There's no need for an apology. I disagree. I think there is a need to apologize, to apologize to NOPD officers w h o wear bulletproof vests because they have to worry about getting s h o t at on the street and then they come in here in court and they g e t shot at again. They don't deserve that. They came in here and t e s t ifie d about what they did. 8

Case: 09-30550

Document: 00511187565

Page: 9

Date Filed: 07/28/2010

These are guys who run into that (indicating) on a regular b a s is -- by the way, I know these photos didn't show up very well on t h e screen. . . . These guys run into that (indicating) after guys with g u n s . And then because the defendant is caught red-handed, they g e t call [sic] liars." For convenience, we will refer to this comment as the "Rebuttal Comment." McCann argues that the Closing and Rebuttal Comments impermissibly b o ls t e r e d the credibility of the officers and that the district court reversibly erred b y refusing to grant him a mistrial. A. Standard of Review M c C a n n argues that we review the propriety of a prosecutor's closing a r g u m e n t s de novo. This is technically true, but it encompasses only half of the n e c e s s a r y analysis. We review assertions of prosecutorial misconduct in two s t e p s . United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999). "First, we . . . initially decide whether or not the prosecutor made an improper r e m a r k ." Id. Second, "[i]f an improper remark was made, we must then

e v a lu a te whether the remark affected the substantial rights of the defendant." Id. While McCann is correct that we review the propriety of the prosecution's a r g u m e n t s de novo, we review the question of whether or not the defendant's s u b s t a n t ia l rights were affected under the abuse of discretion standard. See U n ite d States v. Munoz, 150 F.3d 401, 414­15 (5th Cir. 1998) ("We initially d e c id e whether or not the prosecutor made an improper remark. . . . If we find t h a t the prosecutor made an inappropriate comment, then we consider whether o r not it prejudiced the defendant's substantive rights. . . . The trial judge's . . . assessment of the prejudicial effect, if any, carries considerable weight."); U n ite d States v. Rocha, 916 F.2d 219, 234 (5th Cir. 1990) ("[T]he district court is in the best position to decide whether it is necessary to grant a mistrial on the b a s is of alleged prosecutorial misconduct. Absent an abuse of discretion, the 9

Case: 09-30550

Document: 00511187565

Page: 10

Date Filed: 07/28/2010

district court's ruling will not be set aside on appeal."). A district court abuses it s discretion when it bases its decision on an erroneous view of the law or a c le a r ly erroneous assessment of the evidence. United States v. Caldwell, 586 F .3 d 338, 341 (5th Cir. 2009). B. Propriety Analysis W e begin our two-step analysis of McCann's assertion of prosecutorial m is c o n d u c t by determining whether or not the Closing and Rebuttal Comments w e r e proper. "A prosecutor is confined in closing argument to discussing

p r o p e r ly admitted evidence and any reasonable inferences or conclusions that c a n be drawn from that evidence." United States v. Vargas, 580 F.3d 274, 278 (5 t h Cir. 2009). "A prosecutor may argue fair inferences from the evidence that a witness has no motive to lie, but cannot express a personal opinion on the c r e d ib ilit y of witnesses." United States v. Gracia, 522 F.3d 597, 601 (5th Cir. 2 0 0 8 ). The test for improper vouching for the credibility of a witness is "whether t h e prosecutor's expression might reasonably lead the jury to believe that there is other evidence, unknown or unavailable to the jury, on which the prosecutor w a s convinced of the accused's guilt." United States v. Ellis, 547 F.2d 863, 869 (5 t h Cir. 1977) (quoting McMillian v. United States, 363 F.2d 165, 169 (5th Cir. 1 9 6 6 )). We have held that "it is impermissible per se for a prosecutor to offer p e r s o n a l assurances to the jury that government witnesses are telling the truth . . . or to tell the jury that law enforcement witnesses should be believed simply b e c a u s e they were doing their job . . . ." Gracia, 522 F.3d at 601. However, "[i]n d e t e r m in in g whether a prosecutor's comment was improper, it is necessary to lo o k at the comment in context." United States v. Insaulgarat, 378 F.3d 456, 461 (5 t h Cir. 2004). "The prosecutor may . . . present what amounts to a bolstering a r g u m e n t if it is specifically done in rebuttal to assertions made by defense 10

Case: 09-30550

Document: 00511187565

Page: 11

Date Filed: 07/28/2010

counsel in order to remove any stigma cast upon him or his witnesses." United S ta te s v. Dorr, 636 F.2d 117, 120 (5th Cir. Unit A Feb. 1981). M c C a n n argues that the Closing and Rebuttal Comments were grounds fo r a mistrial, because they improperly bolstered the credibility of the arresting o ffic e r s . The Government responds that both comments were an "invited

r e s p o n s e " to the accusations of framing and lying made by McCann's counsel. See generally United States v. Young, 105 S.Ct. 1038, 1045 (1985) ("[I]f the p r o s e c u t o r 's remarks were `invited,' and did no more than respond substantially in order to `right the scale,' such comments would not warrant reversing a c o n v ic t io n ." ). We hold that the Closing Comment was proper. In United States v.

B e r m e a , we found that a prosecutor had not personally vouched for the c r e d ib ilit y of a witness by asserting that government informants were fired if t h e y were found to have lied to law enforcement officers, because the record s h o w e d that the prosecutor had merely repeated the testimony of a witness in m a k in g this assertion. 30 F.3d 1539, 1564­65 (5th Cir. 1994). Similarly, in this c a s e , the factual contents of the Closing Comment were limited to evidence that w a s in the record. In response to McCann's counsel's repeated assertions that t h e officers were lying, the prosecutor had asked Officer Cox on redirect to d e s c r ib e the consequences he would face if he were found to have framed M c C a n n . In the Closing Comment, the prosecutor merely repeated the contents o f this testimony in the course of arguing that the defense counsel's accusations w e r e without merit. Thus, the Closing Comment did not give the jury any r e a s o n to believe that the prosecutor was aware of facts not in evidence that c o n v in c e d him that the police were telling the truth. The factual representations

11

Case: 09-30550

Document: 00511187565

Page: 12

Date Filed: 07/28/2010

he made were all in evidence. Therefore, we hold that the district court did not e r r in declining to grant a mistrial based on the Closing Comment. H o w e v e r , the Rebuttal Comment was a largely emotional appeal to the ju r y to credit the arresting officers' testimony because they were police officers. As such, it was improper. See Gracia, 522 F.3d at 601 ("[I]t is impermissible per s e for a prosecutor to . . . tell the jury that law enforcement witnesses should be b e lie v e d simply because they were doing their job . . . ."). That McCann's counsel h a d accused the arresting officers of lying does not of itself entirely purge the p r o s e c u t o r 's challenged Rebuttal Comment of impropriety. The defense was e n tit le d to challenge the credibility of the officers, just as it was entitled to c h a lle n g e the credibility of any other witness (although not on the basis of m a t t e r s not in evidence, as the defense did here). Accordingly, we hold that the R e b u t t a l Comment was improper. C . Substantial Rights Analysis B e c a u s e we hold that the Rebuttal Comment was improper, we must p r o c e e d to the second step of our prosecutorial misconduct analysis and d e t e r m in e whether or not it affected McCann's substantial rights. See GallardoT r a p e r o , 185 F.3d at 320. Ordinarily, a defendant's substantial rights are

a ffe c t e d only where the error in question "affected the outcome of the district c o u r t proceedings." United States v. Marcus, 130 S.Ct. 2159, 2164 (2010)

(q u o ta t io n omitted). In determining whether the outcome of the district court p r o c e e d in g s was affected by an improper statement, we assess "(1) the m a g n it u d e of the statement's prejudice, (2) the effect of any cautionary in s t r u c t io n s given, and (3) the strength of the evidence of the defendant's guilt." Gallardo-Trapero, 185 F.3d at 320 (quoting Munoz, 150 F.3d at 415). "The magnitude of the prejudicial effect is tested by looking at the p r o s e c u t o r 's remarks in the context of the trial in which they were made and 12

Case: 09-30550

Document: 00511187565

Page: 13

Date Filed: 07/28/2010

attempting to elucidate their intended effect." Munoz, 150 F.3d at 415 (quoting U n ite d States v. Fields, 72 F.3d 1200, 1207 (5th Cir. 1996)). "[T]he remarks m u s t be examined within the context of the trial to determine whether the p r o s e c u t o r 's behavior amounted to prejudicial error. . . . In this context, defense c o u n s e l's conduct, as well as the nature of the prosecutor's response, is relevant." Young, 105 S.Ct. at 1044. "While prosecutorial vouching for government

w it n e s s e s is never desirable, . . . to the extent the prosecutor's remarks are in v it e d by similar remarks from the defense, we must `not only weigh the impact o f the prosecutor's remarks, but must also take into account defense counsel's o p e n in g salvo.'" United States v. Ramirez-Velasquez, 322 F.3d 868, 874 (5th Cir. 2 0 0 3 ) (quoting Young, 105 S.Ct. at 1045). It is possible "to purge the taint of a prosecutor's prejudicial comments w it h merely generic cautionary instructions." Gracia, 522 F.3d at 604. Such in s t r u c t io n s are presumed to be followed unless there is an overwhelming p r o b a b ilit y that the jury will be unable to follow them. Id. However,

" g e n e r a liz e d instructions" to the jury to "[r]emember that any statements, o b je c t io n s or arguments made by the lawyers are not evidence" and to remember t h a t "[w]hat the lawyers say is not binding" only moderately reduce the degree o f prejudice of highly improper remarks. See id. (alterations in original). Where there is a great deal of inculpatory evidence presented against a d e fe n d a n t , we often find that improper statements were harmless error. See, e .g ., Young, 105 S.Ct. at 1048 ("[T]he overwhelming evidence of respondent's in t e n t to defraud . . . eliminates any lingering doubt that the prosecutor's r e m a r k s unfairly prejudiced the jury's deliberations . . . ."); Ramirez-Velasquez, 3 2 2 F.3d at 875 ("Further weighing against reversal of Ramirez's conviction is s u b s t a n t ia l evidence pointing to his guilt."); Gallardo-Trapero, 185 F.3d at 321

13

Case: 09-30550

Document: 00511187565

Page: 14

Date Filed: 07/28/2010

("[W]e find that the remark by the government during closing argument does not o u tw e ig h the strength of the multifaceted evidence and testimony presented d u r in g trial."); Rocha, 916 F.2d at 236 ("Considering the limiting instructions g iv e n and the strength of the evidence against the defendants, we find that the p r o s e c u t o r 's remarks did not infringe upon the substantial rights of any d e fe n d a n t ." ). However, the opposite is also true. Where there is relatively little in c u lp a t o r y evidence other than the testimony of the witnesses whose credibility w a s bolstered, we are more likely to find that a defendant's substantial rights w e r e prejudiced. See Gracia, 522 F.3d at 604­07. M c C a n n argues that United States v. Gracia controls this case. In Gracia, w e found that the prosecution's improper bolstering of law enforcement w it n e s s e s ' credibility had prejudiced the defendant's substantial rights where t h e ir testimony was the only inculpatory evidence presented at trial. Id. at 6 0 4 ­ 6 0 6 . This prejudice was not cured by "the minor mitigating effect" of a g e n e r ic cautionary instruction. Id. at 605. It was also not excused by the d e fe n s e counsel's accusations that the police officers were misrepresenting the t r u t h . Id. at 602­03. We found that the plain error standard was satisfied and r e v e r s e d and remanded for a new trial. Id. at 604­607. McCann is correct that his case shares some similarities with Gracia. In M c C a n n 's case, the only inculpatory evidence was the testimony of the law e n fo r c e m e n t witnesses whose credibility the prosecution improperly bolstered in the Rebuttal Comment. As in Gracia, the only cautionary instruction given b y the district court in McCann's case was a generic one. In addition to these s im ila r it ie s , the heightened standard of review in Gracia, which McCann does n o t face, suggests that less compelling facts would warrant reversal in his case.

14

Case: 09-30550

Document: 00511187565

Page: 15

Date Filed: 07/28/2010

However, we do not agree that McCann's case is controlled by Gracia, b e c a u s e the remarks made by the defense counsel in Gracia do not appear to h a v e been improper, and we find that McCann's counsel made at least one im p r o p e r remark that was prejudicial enough to counterbalance the Rebuttal C o m m e n t . In Gracia, the defense counsel argued several times in closing that t h e Government agents were incorrectly recalling the facts. Id. at 602­03 & n .1 7 . This conduct was materially different from that of McCann's counsel, who n o t only accused the arresting officers of intentionally lying, but also told the ju r y that the Government would support their perjury by refusing to prosecute t h e m . This argument had no support in the record. While it was permissible to c h a lle n g e the officers' credibility, it was highly improper to tell the jury that the G o v e r n m e n t would not prosecute officers who had committed perjury and fr a m e d an innocent man. Moreover, contrary to McCann's counsel's argument, t h e r e was nothing "inappropriate" in the officers being present in the courtroom d u r in g closing arguments or to suggest that this was part of prosecutorial " t h e a tr ic s ." Therefore, we hold that McCann's counsel reached a level of

im p r o p r ie t y that was not present in Gracia when he told the jury that the a r r e s t in g officers "don't face any sanction here. If they lied there's nothing that w ill happen to them. This agency won't prosecute them nor will any other." Accordingly, the prosecutorial misconduct of the Rebuttal Comment must be b a l a n c e d against a much heavier counterweight of improper defense conduct t h a n was present in Gracia. Although the only cautionary instruction given in McCann's case was a g e n e r ic one, and although there was relatively little inculpatory evidence against M c C a n n other than the testimony of the witnesses whose credibility was b o ls t e r e d , we find that the context in which the Rebuttal Comment was made s u p p o r t s the district court's decision to proceed with the trial. Any effect that 15

Case: 09-30550

Document: 00511187565

Page: 16

Date Filed: 07/28/2010

the remark might have had on the outcome of the case was counterbalanced by t h e defense counsel's improper remarks. Therefore, we hold that McCann's s u b s t a n t ia l rights were not prejudiced and that the district court did not abuse it s discretion by declining to grant a mistrial. II. Death Threat Testimony M c C a n n 's second assignment of error is the district court's decision to a d m it testimony describing the death threat he shouted at Officer Hunter after h is arrest. McCann argues that the admission of this testimony violated Rule 4 0 35 of the Federal Rules of Evidence. A . Standard of Review W e review the district court's decision to admit the testimony describing M c C a n n 's death threat for abuse of discretion. See United States v. Clark, 577 F .3 d 273, 287 (5th Cir.), cert. denied, 130 S.Ct. 809 (2009) ("We review the d is t r ic t court's evidentiary rulings for abuse of discretion." (quoting Freeman v. U n ite d States, 556 F.3d 326, 341 (5th Cir.), cert. denied, 130 S.Ct. 154 (2009))). However, even if we find that the district court abused its discretion, the h a r m le s s error doctrine applies. Clark, 577 F.3d at 287. Under the harmless e r r o r doctrine, an error is reversible only if it affected a party's substantial r ig h t s . Id. B. Analysis M c C a n n objected to the admission of the death threat testimony in limine. He argued that the evidence should be excluded under Rule 403 because its

5

Rule 403 provides:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403.

16

Case: 09-30550

Document: 00511187565

Page: 17

Date Filed: 07/28/2010

probative value was substantially outweighed by its unfairly prejudicial effect. He makes the same argument on appeal. The Government does not appear to contest that the comment might have c r e a t e d some danger of prejudice to McCann, but it does argue that any such d a n g e r was outweighed by the evidence's probative value. The Government a r g u e s that the threat had significant probative value because it was directed a g a in s t the only witness who saw McCann in possession of a firearm, Officer H u n te r . The Government contends that this makes the situation comparable to t h e one we analyzed in United States v. Rocha, where we held that a death t h r e a t is admissible to show the defendant's consciousness of guilt when it is m a d e against a key witness for the prosecution. 916 F.2d at 241. The

G o v e r n m e n t also contends that the language of the threat, which suggested that O ffic e r Hunter would soon be in need of a bulletproof vest, strongly implied that M c C a n n had access to firearms.6 M c C a n n argues that the death threat had no probative value. He argues t h a t it did not establish consciousness of guilt because "[a] person who is being fr a m e d is even more likely to be angry than a person who is legitimately a r r e s t e d ." He also argues that the threat implied that he "could obtain [a

Additionally, the Government argues that the death threat was intrinsic to McCann's crime of being a felon in possession of a firearm. "[R]ule 403 should generally not be used to exclude intrinsic evidence . . . ." United States v. Sudeen, 434 F.3d 384, 389 (5th Cir. 2005) (emphasis in original). Evidence of another act is intrinsic to the charged crime when the evidence of the other act and the evidence of the crime charged are inextricably intertwined, when both acts are part of a single criminal episode, or when the other act was a necessary preliminary to the crime charged. United States v. Stephens, 571 F.3d 401, 410 (5th Cir. 2009). McCann's death threat occurred after he was under arrest and being held at the police station. Thus, it was not a necessary preliminary to the crime charged, and his criminal episode was over. The evidence of the crime charged and the evidence of the death threat are not inextricably intertwined. Although the arrest provoked the threat, the threat had nothing to do with the reason McCann was arrested. Therefore, we hold that the death threat was not intrinsic to McCann's charged offense.

6

17

Case: 09-30550

Document: 00511187565

Page: 18

Date Filed: 07/28/2010

firearm] at an unspecified time in the future," not that he had possessed one on t h e night of his arrest. Neither argument is convincing. That a statement can b e interpreted in two different ways does not negate its probative value. On the issue of unfair prejudice, McCann argues that this case is c o n t r o lle d by United States v. Grimes, 244 F.3d 375 (5th Cir. 2001). He asserts t h a t Grimes stands for the proposition that "[t]he risk of unfair prejudice o u tw e ig h s probative value when the disputed evidence involves conduct more s e r io u s than the charged offense." We do not agree that Grimes stands for this p r o p o s itio n . In Grimes, the defendant was charged with possessing child pornography. Id. at 377. During his trial, in addition to introducing the pictures the defendant w a s charged with possessing, the prosecution introduced paper copies of two e x p lic it stories that had been stored on his computer's hard drive, which d e s c r ib e d raping children in lurid, graphic detail. Id. at 379, 385. We found that t h e unfair prejudice inherent in introducing these "vile" stories into evidence o u tw e ig h e d their probative value. Id. at 385. The basis for our decision was not t h a t possessing the stories was a more serious offense than possessing child p o r n o g r a p h y . See id. Possessing the stories was legal. Id. The basis for our d e c is io n was that the stories were extremely inflammatory. Id. The court even n o te d that the stories might be admissible in the defendant's new trial if the p r o s e c u t io n redacted the "gruesome violence." Id. W h ile Grimes does not support McCann's argument, he is correct that e v id e n c e that a defendant engaged in conduct more serious than the charged o ffe n s e can create substantial unfair prejudice. See United States v. Adair, 436 F .3 d 520, 527 (5th Cir. 2006) ("We also conclude that [the] testimony had little o p p o r t u n it y of creating unfair prejudice because . . . the prior scheme was not a

18

Case: 09-30550

Document: 00511187565

Page: 19

Date Filed: 07/28/2010

more serious offense than the offense with which Adair was charged . . . ."). However, McCann's threat was not a more serious offense than being a felon in p o s s e s s io n of a firearm. Under Louisiana law, threatening a public officer or a w it n e s s is punishable by not more than five years' imprisonment. See LA. REV. S TAT. ANN. § 14:122 (2004). A felon in possession of a firearm can be sentenced t o as much as ten years' imprisonment. See 18 U.S.C.A. § 924(a)(2) (West 2000). Nevertheless, we agree that the evidence of the death threat created a m o d e r a t e risk of unfair prejudice, even though this risk was not as great as it w o u ld have been if the threat had been a more serious crime than that charged. McCann was not charged with attempting to kill Officer Hunter. He was

c h a r g e d with possessing a firearm. The threat had the potential to distract the ju r y from the issue it was supposed to decide. s t a t e m e n t had material probative value. But we also hold that the

It suggested that McCann was

c o n s c io u s of his guilt and wanted to intimidate the principal witness against h im . See Rocha, 916 F.2d at 241. On the balance, we cannot say that the d is t r ic t court abused its discretion by holding that the material probative value o u tw e ig h e d the risk of unfair prejudice. Therefore, we hold that the district c o u r t did not err by refusing to exclude the death threat evidence. I I I . Photographic Exhibit D u r in g the trial, the prosecution called Officer Steven Gaudet to rebut the t e s t im o n y of Phillips. Officer Guadet's testimony was offered to show that P h illip s had not arrived in the park to watch the neighborhood youths play b a s k e t b a ll as early as he had testified that he had, because Officer Gaudet had q u e s t io n e d him several blocks away in connection with a drug investigation a b o u t an hour before McCann's arrest. During Officer Gaudet's direct

e x a m in a t io n , the Government introduced a photograph of Phillips (who was no lo n g e r in the courtroom) into evidence for Officer Gaudet to use in identifying 19

Case: 09-30550

Document: 00511187565

Page: 20

Date Filed: 07/28/2010

him. The photograph was printed on a sheet of paper above a written list of id e n tific a t io n details arguably like what one might think are typically found in p o lic e records. The writing on the photograph also included the words "Profile o n Mitchell Phillips Source: Orleans CSO, LA." 7 M c C a n n objected to the admission of the written information, requesting t h a t the text be redacted from the photograph to allow Officer Gaudet to identify P h illip s without the danger of unfairly prejudicing the defense by implying that P h illip s had been arrested or was otherwise known to the police. The district c o u r t overruled the objection, and McCann argues on appeal that this was r e v e r s ib le error. A . Standard of Review W e review a district court's evidentiary rulings for abuse of discretion. Clark, 577 F.3d at 287. If we find that an abuse of discretion occurred, we apply t h e harmless error doctrine. Id. Thus, the district court's decision to admit the p h o to g r a p h without redacting the text is only reversible if it affected McCann's s u b s t a n t ia l rights. Id. B . Analysis A lt h o u g h he did not cite it by number, the basis for McCann's objection to t h e text below the photograph appears to have been Rule 403. On appeal, he a r g u e s that the text's probative value was heavily outweighed by the danger that it would have an unfairly prejudicial effect. He cites several of our opinions that h o ld that there is a great risk of unfair prejudice from evidence that suggests to t h e jury that uncharged criminal conduct occurred. United States v. Aragon, 962 F .2 d 439, 442 (5th Cir. 1992); United States v. Beechum, 582 F.2d 898, 909­14 (5 t h Cir. 1978) (en banc). However, these opinions all dealt with instances in

7

We are told that "CSO" stands for "Criminal Sheriff's Office."

20

Case: 09-30550

Document: 00511187565

Page: 21

Date Filed: 07/28/2010

which the defendant had committed the uncharged criminal conduct at issue. Phillips was merely a defense witness, not the defendant. T h e Government contends that the unfair prejudice that could have been c a u s e d by the text was minimal. It notes that the district court stated it saw n o th in g wrong with the biographical information. It argues that the probative v a lu e of the text was its confirmation that Phillips was the subject of the p h o to g r a p h , which prevented McCann from arguing that a different individual w a s depicted. The Government also notes that the defense clarified through its cr o s s -e x a m in a t io n of Officer Gaudet that he had not arrested Phillips that night. The Government argues that the exhibit could not have adversely affected M c C a n n 's substantial rights because, after it was introduced, the Government n e v e r referred to it again. It also argues that any unfair prejudice would have b e e n removed by the district court's generic limiting instructions regarding w it n e s s testimony. W e have reviewed the exhibit. The effect of the text is to make an

o t h e r w is e unremarkable photograph arguably resemble a mug shot or a wanted p o s t e r . Without the text redacted, the exhibit may have implied that Phillips w a s some kind of criminal. We also note that the probative value of the text was r e la t iv e ly minor.8 H o w e v e r , we need not decide whether the district court abused its d is c r e t io n in admitting the exhibit, because we find that McCann cannot e s t a b lis h that the district court's refusal to redact the text affected his

While we note that it may have been unlikely that defense counsel, aware of the existence of the written material in the original document, would have raised the identification issue in cross-examination of Gaudet, counsel may well have raised it in some oblique way in final argument after the evidence closed. The defense never offered to stipulate that the person Gaudet testified he detained was the same Phillips who had testified earlier in the case.

8

21

Case: 09-30550

Document: 00511187565

Page: 22

Date Filed: 07/28/2010

substantial rights.

Neither side referred to the exhibit again after it was

a d m it t e d . Neither side ever informed the jury or the district court that "CSO" s t o o d for "Criminal Sheriff's Office."9 Indeed, Officer Gaudet's entire testimony a p p e a r s to have been little more than a tangential aside in McCann's trial. We d o not think that the outcome of McCann's case was affected by a minor exhibit t h a t may have implied that one of his witnesses had a criminal history. Therefore, we hold that, even if the district court abused its discretion in a d m it t in g the text, any such error would have been harmless. IV. Sentencing Guidelines Enhancement T h e district court found that McCann's offense level under §2K2.1(a)(1) of t h e Sentencing Guidelines was twenty-six, because it found that he had "at least t w o felony convictions of either a crime of violence or a controlled substance o ffe n s e ." USSG §2K2.1(a)(1). One of the two felony convictions cited by the d is t r ic t court was a Louisiana conviction for manslaughter. In concluding that t h is conviction was for a crime of violence, the district court relied only on the P S R and did not consult the Louisiana statute. McCann argues on appeal that t h is was error and that his sentence must be vacated and remanded. A . Standard of Review M c C a n n did not object to the district court's exclusive reliance on the PSR a t sentencing. Accordingly, he and the Government agree that his sentence s h o u ld be reviewed for plain error. See United States v. Ochoa-Cruz, 442 F.3d 8 6 5 , 866 (5th Cir. 2006) (per curiam). Plain error exists where (1) there was an error, (2) it was clear or obvious, a n d (3) it affected the defendant's substantial rights. Id. Even if these three

The district court stated that it saw nothing prejudicial about the picture, noting that it "doesn't say anything except describes him."

9

22

Case: 09-30550

Document: 00511187565

Page: 23

Date Filed: 07/28/2010

conditions are met, we may only exercise our discretion to reverse if the error s e r io u s ly affects the fairness, integrity, or public reputation of judicial p r o c e e d in g s . Id. at 867. B. Analysis S o m e Sentencing Guidelines provisions, like those found in §2K2.1(a), c r e a t e incremental offense levels that are triggered by prior convictions. See U S S G §2K2.1(a). Under these types of guidelines, the higher offense levels can b e applied only where the prior convictions meet certain stated requirements, lik e being for "crimes of violence" or "drug trafficking offenses." See id. When a n a ly z in g a prior conviction to determine whether it meets the requirements n e e d e d to trigger a particular offense level, the district court must confine its e x a m in a t io n to the elements of the statute under which the prior conviction was o b ta in e d . Ochoa-Cruz, 442 F.3d at 867 (citing Shepard, 125 S.Ct. at 1257; T a y lo r v. United States, 110 S.Ct. 2143, 2160 (1990)). This practice of confining t h e sentencing court's analysis to the statutory elements of the defendant's prior c o n v ic t io n is known as the "categorical approach." Shepard, 125 S.Ct. at 1258.

A limited exception to the categorical approach allows sentencing courts t o look further than the statutory elements of the prior conviction where the p r io r conviction was obtained under a statute that criminalizes a broader range o f conduct than the conduct to which a given offense level applies. Id. Under t h is exception, a district court may apply the offense level only in the "narrow r a n g e of cases" where it can be shown, based on "conclusive records made or used in adjudicating guilt," that the facts of the defendant's particular crime satisfied e v e r y requirement of the assigned offense level. Id. at 1258­60. In Shepard, the S u p r e m e Court held that, in cases where the prior conviction was obtained t h r o u g h a guilty plea, the conclusive records that allow a district court to 23

Case: 09-30550

Document: 00511187565

Page: 24

Date Filed: 07/28/2010

implement this exception to the categorical approach are limited to "the terms o f the charging document, the terms of a plea agreement or transcript of colloquy b e tw e e n judge and defendant in which the factual basis for the plea was c o n fir m e d by the defendant, or to some comparable judicial record of this in fo r m a t io n ." Id. at 1263. Due to Shepard, a district court may not apply a particular offense level b a s e d solely on the PSR's conclusory characterization of a prior conviction as h a v in g been for a "crime of violence." Ochoa-Cruz, 442 F.3d at 867. When a c o u r t thus relies on the PSR alone, it makes an error that is clear and obvious. Id. It is uncontested that the district court relied solely on McCann's PSR at his s e n te n c in g . Therefore, the district court plainly erred. A "crime of violence" for the purposes of §2K2.1 is defined in §4B1.2(a). USSG §2K2.1, comment (n.1). According to §4B1.2(a): " T h e term `crime of violence' means any offense under federal or s t a t e law, punishable by imprisonment for a term exceeding one y e a r , that -- (1) h a s as an element the use, attempted use, or t h r e a t e n e d use of physical force against the person of a n o t h e r , or (2 ) is burglary of a dwelling, arson, or extortion, involves u s e of explosives, or otherwise involves conduct that p r e s e n t s a serious potential risk of physical injury to a n o t h e r ." Louisiana's manslaughter statute criminalizes conduct that is broader t h a n the range of conduct that satisfies §2K2.1(a)(1)'s "crime of violence" p r e r e q u is it e . Under the Louisiana statute, "manslaughter" includes: " (2 ) A homicide committed, without any intent to cause death o r great bodily harm. ( a ) When the offender is engaged in the perpetration or a t t e m p t e d perpetration of any felony not enumerated in Article 30 o r 30.1, or of any intentional misdemeanor directly affecting the 24

Case: 09-30550

Document: 00511187565

Page: 25

Date Filed: 07/28/2010

person; or (b ) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are s u c h that the killing would not be murder under Article 30 or 30.1." LA. REV. STAT. ANN. § 14:31(A). Thus, it is possible to be convicted of manslaughter in Louisiana if a death o c c u r r e d during a non-violent offense like a theft. See LA. REV. STAT. ANN. § 1 4 :6 7 .1 0 ; State v. Bowers, 965 So.2d 959, 965­66 (La. Ct. App. 2007) (affirming a manslaughter conviction where the defendant attempted to drive away from a supermarket where she had just committed theft and hit an employee who was g a t h e r in g shopping carts in the parking lot). B e c a u s e a defendant can be convicted under the Louisiana manslaughter s t a t u t e for offenses that would not be crimes of violence under §2K2.1, at M c C a n n 's sentencing, the Government needed to show through the exception to t h e categorical approach that his manslaughter conviction was based on conduct t h a t constituted a crime of violence. McCann pleaded guilty to the manslaughter o ffe n s e , so the Government was limited to proving that it was a crime of violence b y referring the district court to "the terms of the charging document, the terms o f a plea agreement or transcript of colloquy between judge and defendant in w h ic h the factual basis for the plea was confirmed by the defendant, or to some c o m p a r a b le judicial record of this information." Shepard, 125 S.Ct. at 1263. At oral argument, the Government admitted that all of the documents s a n c t io n e d by Shepard that could have conclusively demonstrated the specific fa c t s of McCann's manslaughter offense were lost in Hurricane Katrina. Thus, if the district court had followed the correct procedure at his sentencing hearing, it would have been required to apply a lower offense level than §2K2.1(a)(1)'s,

25

Case: 09-30550

Document: 00511187565

Page: 26

Date Filed: 07/28/2010

and McCann would have received a much lower guideline sentencing range.10 A c c o r d in g ly , we find that the district court's error affected his substantial rights. We also hold that this is an error that seriously affects the fairness, integrity, or p u b lic reputation of judicial proceedings. Therefore, we vacate McCann's

s e n te n c e and remand for re-sentencing in accordance with this opinion.11 C O N C L U S IO N F o r the foregoing reasons, we affirm McCann's conviction, but vacate his s e n te n c e and remand his case for a new sentencing hearing. A F F I R M E D in part, VACATED and REMANDED in part.

As calculated by the district court, McCann's guideline range was 92 to 115 months. If his manslaughter conviction had not been counted as a crime of violence, the range would have fallen by four offense levels to 63 to 78 months. We also note that, if the Government recovers the lost documents needed to satisfy the requirements of Shepard after our remand, nothing in this opinion should be read to prevent their introduction at McCann's sentencing hearing.
11

10

26