United States of America, Appellee, v. Ben J. Mullins, Appellant.
No. 05-2420
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: December 13, 2005 Filed: May 1, 2006 (Corrected: 5/8/06)
Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
COLLOTON, Circuit Judge.
I.
On October 14, 2002, Jonathan Drackett, a student minister at the Calvary Temple Church
There was no dispute at trial that Mullins was a convicted felon, and the jury found that his possession of the starter gun was possession of a “firearm.” Mullins argues that the starter gun is not a firearm within the meaning of
II.
Mullins first contends that the evidence was insufficient to show that the starter gun met the statutory definition of a firearm. Under
At trial, the government‘s expert witness, Richard Vasquez, a firearms enforcement officer of the Bureau of Alcohol, Tobacco, and Firearms (“ATF“) testified that he had examined the starter gun and found that it could readily be converted to expel a projectile. He testified that the gun could be converted by cutting off the barrel with a hack saw and opening up the cylinder holes with a Dremel tool. (T. Tr. at 43-44). According to Vasquez, it would take “easily less than an hour” to perform the conversion without any specialized knowledge, and that he personally could do it in “a matter of minutes if Murphy‘s law doesn‘t occur and everything goes right.” (Id. at 62, 141).
Vasquez also testified that the firearms technology branch of the ATF had examined the same make and model of gun in 1968, and determined that the gun in question met the federal definition of firearm. (Id. at 42, 47). On cross-examination, however, Vasquez conceded that the evaluation in 1968 was based on a Mondial-Brevettata 1938 (999) “starter and tear gas gun,” whereas Mullins‘s gun was described as a Mondial-Brevettata 1938 model .22 caliber “starter gun.” (Id. at 56-57; see also id. at 102-03). Mullins contends that the evidence of the evaluation in 1968 is not probative, because the gun examined was not available for inspection, and because there was no evidence that the specimen gun was identical to Mullins‘s gun. He asserts that a “tear gas gun” likely had a barrel that was unobstructed, while the gun he possessed had a hardened pin obstructing the barrel. When questioned on this point, Vasquez said that the gun evaluated in 1968 was the “same model” as the gun seized from Mullins, and that it was “the frame of that starter pistol” that was “determined to be a firearm, not what is at the end of the barrel.” (Id. at 56).
We conclude that Vasquez‘s expert testimony was sufficient to sustain the conviction. Vasquez is qualified as an expert in firearms. His experience included five years working at the firearms technology branch of the ATF, during which time he examined three starter guns, converted two starter guns to firearms, and instructed
Vasquez visually inspected the specific gun possessed by Mullins. (T. Tr. at 43, 48, 61-62). Based on his examination, Vasquez “visually made a determination” that the gun could be converted to expel a projectile, without any specialized knowledge, in less than an hour, and in minutes by an expert. (Id. at 43, 62). He further rendered an opinion that the starter gun was a firearm as defined by federal law. (Id. at 44). A gun that can be modified in the amount of time described by Vasquez may be considered “readily convertible.” See United States v. Reed, 114 F.3d 1053, 1056-57 (10th Cir. 1997) (upholding firearms conviction where the defense expert testified that the gun was workable after fifteen to twenty minutes of manipulation); United States v. 16,179 Molso Italian .22 Caliber Winlee Derringer Convertible Starter Guns, 443 F.2d 463, 465 (2d Cir. 1971) (holding that starter guns that could be converted to fire live ammunition in twelve minutes or less are “readily convertible” under
We are not persuaded by Mullins‘s contention that the district court abused its discretion by allowing the government‘s expert testimony. Expert testimony is admissible “if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
Mullins also argues that the jury may have convicted him based on a theory that the starter gun could function as a firearm “as is,” because the residue expelled from the gun could be considered a projectile. This notion, which was advanced briefly by the prosecutor in closing argument, was based on testimony by Mullins‘s own expert that “people have been killed with starter pistols,” and that “a famous actor a few years ago was killed with a starter pistol from the residue from the blank because it was so close to his head, went into a vital area and I believe perforated the rear and killed him.” (T. Tr. at 125). Mullins contends that this evidence concerning the deadly expulsion of residue is insufficient as a matter of law to qualify his starter gun as a “firearm.”
Even assuming the evidence was insufficient to show that the starter gun could expel a projectile without modification, that conclusion would not undermine the verdict. “When the district court submits to the jury two or more grounds for conviction, for one of which there was insufficient evidence, and it is impossible to tell on what grounds the jury decided the
The Supreme Court‘s decision in Griffin also forecloses Mullins‘s challenge to the district court‘s refusal to give a requested jury instruction concerning sufficiency of the evidence. Mullins asked the court to instruct the jury that the starter gun was not a firearm in its existing condition, and that a finding of guilt could be based only on proof beyond a reasonable doubt that the gun could readily be converted to expel a projectile. The court instead read Jury Instruction Number 15, which set forth the essential elements of the charged offense, and defined the term “firearm” as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” This is a correct statement of the law.
In Griffin, the Court opined that “if the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury‘s consideration.” 502 U.S. at 60. At the same time, however, the Court held that “the refusal to do so . . . does not provide an independent basis for reversing an otherwise valid conviction.” Id. (emphasis added). Therefore, whether or not there was sufficient evidence to show that the starter gun was a firearm in its existing condition, the district court did not commit reversible error in declining to give the instruction proffered by Mullins. United States v. Hanzlicek, 187 F.3d 1228, 1235-36 (10th Cir. 1999); United States v. Stone, 9 F.3d 934, 937-42 (11th Cir. 1993).
III.
Mullins next contends that he was denied a fair trial by improper comments made by the prosecutor during closing argument. The district court has broad discretion in controlling closing arguments, and we will not reverse absent an abuse of discretion. United States v. Beckman, 222 F.3d 512, 526 (8th Cir. 2000). To obtain a reversal based on prosecutorial misconduct, the defendant must show that (1) the prosecutor‘s remarks or conduct were improper, and (2) the remarks or conduct prejudicially affected the defendant‘s substantial rights so as to deprive him of a fair trial. Id. If the remarks are improper, we determine whether they deprived the defendant of a fair trial by examining the cumulative effect of the misconduct, the strength of the properly admitted evidence of the defendant‘s guilt, and any curative actions taken by the trial court. United States v. Holmes, 413 F.3d 770, 774-75 (8th Cir. 2005). The relevant question ultimately is whether the prosecutor‘s comments, if improper, “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
On appeal, Mullins claims that twelve statements made by the prosecutor during closing argument were improper. He objected to only one of these statements at trial, and we examine that point first.
During closing argument, the prosecutor addressed the fact that Mullins‘s
We are not convinced that the disputed statement is improper. The prosecutor did not argue that Mullins was on his way to rob a gas station. The thrust of the argument was that because there are members of the criminal element who would not be deterred from converting the firearm to expel a projectile, the starter gun could “readily be converted.” The government was not required to prove that Mullins himself intended to convert the starter gun, but only that the gun, as an objective matter, could readily be converted. Because the defense raised the point that it may be dangerous to align the components of the starter gun to expel a projectile, we think it was fair argument for the government to hypothesize situations in which the gun could and would readily be converted by a person in possession of the gun. We see no abuse of discretion in the district court‘s ruling on the objection.
Because there was no contemporaneous objection to the remaining comments raised on appeal, we review them in accordance with the plain error doctrine. To obtain relief, Mullins must show that there was an error, that is plain, and that affected his substantial rights. If all three conditions are met, we may exercise our discretion to correct a forfeited error, but only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-67 (1997). We bear in mind that fleeting comments that passed without objection during the rough-and-tumble of closing argument in the trial court should not be unduly magnified when the printed transcript is subjected to painstaking review in the reflective quiet of an appellate judge‘s chambers. Consequently, “[i]f an arguably improper statement made during closing argument is not objected to by defense counsel, we will only reverse under exceptional circumstances.” United States v. Eldridge, 984 F.2d 943, 947 (8th Cir. 1993) (internal quotation omitted).
Mullins claims that the prosecutor made improper inflammatory statements, misstatements of the law, and remarks constituting improper vouching during closing arguments. While some of these remarks were phrased inartfully, and a few straddle or cross the line of propriety, we conclude that when the comments are considered cumulatively and in the context of the trial, there is no plain error warranting relief.
Mullins contends that the prosecutor improperly stated that it is “[n]ot very often the government has two pastors from
It is improper for a prosecutor to make comments that are likely to inflame bias in the jury and to result in a verdict based on something other than the evidence. United States v. Cannon, 88 F.3d 1495, 1502-03 (8th Cir. 1996). But a prosecutor‘s obligation to seek justice rather than merely to win a case does not preclude him from offering a spirited statement of the grounds for conviction based on the evidence. “So long as prosecutors do not stray from the evidence and the reasonable inferences that may be drawn from it, they, no less than defense counsel, are free to use colorful and forceful language in their arguments to the jury.” United States v. Robinson, 110 F.3d 1320, 1327 (8th Cir. 1997).
Viewed in context, we believe the prosecutor‘s mention of the pastors in the church was a proper argument addressing the credibility of important witnesses in the case. See United States v. Beaman, 361 F.3d 1061, 1065 (8th Cir. 2004) (holding that a prosecutor referring to witnesses during closing argument as “two nice ladies” properly addressed the credibility of crucial witnesses). We note that Mullins‘s counsel argued the credibility of the defense expert even more directly, characterizing him as “an honorable, credible man,” and even saying that “his testimony, I believe, showed you he is very honorable, very credible.” (Closing Arg. Tr. at 10). Cf. United States v. White, 241 F.3d 1015, 1023 (8th Cir. 2001) (“As a general rule, a prosecutor may not express a personal opinion about a defendant‘s veracity.“).
The prosecutor‘s statement that an “ordinary person” has no need to convert a starter pistol was uttered in the context of the discussion about why the starter gun could readily be converted despite the purported danger of aligning the chamber. Again, we find no impropriety in the prosecutor explaining that because a felon, unlike an “ordinary person,” cannot legally purchase a firearm, there are persons who would be willing to look down the barrel of the starter gun in order to convert it to a firearm.
The prosecutor‘s remark that Congress enacted
Mullins next complains about an argument of the prosecutor, based on the testimony of the defense expert, that the potential for deadly expulsion of residue from a starter pistol means that the starter pistol constitutes a “firearm” without any conversion. Mullins points to the statements that “this gun does work and as such the defendant is guilty of this crime,”
“Well, one man‘s residue is another man‘s really small projectile . . . . Based on what their expert said, this weapon is good to go as is, don‘t need to cut it, don‘t need to drill. Don‘t need to grind it. Don‘t even need real bullets according to what their expert said. Right now this gun, put a blank in it can kill you with residue. Well, the residue of a 22 caliber shell casing is called a bullet. Most people call that a projectile. They said that. They told you this gun as is is a firearm.”
(Closing Arg. Tr. at 15-16).
We are doubtful about the merit of the prosecutor‘s argument, for it would seem to suggest that any starter pistol is a firearm. But we cannot meaningfully distinguish the propriety of this argument from any other potentially losing argument advanced by the government concerning the sufficiency of evidence to sustain a conviction. If the government argues that certain evidence shows that elements of an offense are satisfied, and the court later concludes as a matter of law that the evidence is insufficient, this does not mean that the prosecutorial argument was improper. It simply means that a conviction necessarily based on that argument about the evidence cannot stand. We already have explained why the government‘s argument based on the defense expert‘s testimony about the deadly expulsion of residue does not require reversal of the jury‘s general verdict. Given that the court properly instructed the jury on the elements of the offense, see Jury Instruction No. 15, and instructed the jury that arguments of counsel are not evidence, see Lingar v. Bowersox, 176 F.3d 453, 461 (8th Cir. 1999), there is no plain error warranting relief.
Mullins also argues that the prosecutor improperly vouched for the government‘s expert witness in various respects. Improper vouching occurs when a prosecutor refers to facts outside the record, implies that a witness‘s testimony is supported by facts not available to the jury, gives an implied guarantee of truthfulness, or expresses a personal opinion regarding witness credibility. Beaman, 361 F.3d at 1065. A prosecutor may not place the prestige of the government behind a witness. United States v. Beasley, 102 F.3d 1440, 1449 (8th Cir. 1996). The prosecutor must limit the closing argument to “the evidence and reasonable inferences that may be drawn from it,” although the prosecutor may use colorful language and argue “a personal interpretation of the evidence.” White, 241 F.3d at 1023.
Mullins first complains that the prosecutor used the phrase, “I submit to you,” to preface remarks during closing argument. We have said that use of this phrase is “a questionable practice because, depending on the context, it may either properly suggest how the jury should view the trial evidence, or improperly suggest that the government knows more than the jury has heard.” Beaman, 361 F.3d at 1065. In Beaman, we found no plain error where the prosecutor, in the course of arguments that properly focused on the evidence, used the phrase eighteen times, while defense counsel used the phrase seven times. Likewise here, where the prosecutor used the phrase only three times and defense counsel used it once, we conclude that the arguments properly focused on the evidence at trial, and there was no plain error by the district court in failing to interrupt sua sponte to criticize the practice.
Mullins also claims the prosecutor impermissibly vouched for its expert witness. In one disputed comment, the prosecutor stated, “[a]nd you heard from two experts. You heard from Richard Vasquez who told you – and he wasn‘t here, he doesn‘t get paid extra if he finds a certain gun is a starter pistol or a firearm.” (Closing Arg. Tr. at 4). Later in that section of the argument, the prosecutor contrasted the two expert witnesses:
You are also going to be asked to consider the motivation for each of these two experts coming and testifying. The one expert is paid by the government. He is paid by the government not to wrongfully convict people. He is paid by the government to take a look at starter pistols, whether it‘s a criminal case like this or if someone at the factory wanted to know if their gun was going to be a starter pistol they could send one . . . .
Their expert was paid quite a bit of money, fifty dollars an hour just to travel. He wouldn‘t have made that return trip if he found this was a firearm.
(Closing Arg. Tr. at 6).
These arguments are perhaps the most troubling. There was no evidence presented about how Mr. Vasquez was compensated, so while it would not be improper to point out that a witness has no bias due to financial incentives, the prosecutor failed to lay the foundation for that argument during his examination of the witness. The argument that Vasquez was “paid by the government not to wrongfully convict people” does not, as Mullins asserts, imply a guarantee of truthful testimony by the witness. Merely stating that the witness‘s job is to avoid wrongful convictions does not vouch to the jury that the witness is always correct or inherently credible. But again, the disputed comment does seek to address the witness‘s motives based on evidence not in the record. In describing his duties, Vasquez simply said that ATF agents “work for the public.” (T. Tr. at 37). There was no evidence that the government employs him to avoid wrongful convictions any more than it pays him to support aggressive prosecution of gun crime. Any public servant in law enforcement hopefully considers it part of his professional responsibility to avoid inculpating the innocent, but unless there is evidence to support a more specific assertion, a prosecutor ought not suggest to the jury that a law enforcement agent has a specialized duty to avoid wrongful convictions.
Viewed in the context of the entire trial, we conclude that the prosecutorial comments to which Mullins now objects do not alone, or in combination, warrant a new trial. The jury was instructed that “[s]tatements, arguments, questions and comments by lawyers representing the parties are not evidence,” (Jury Instruction Nos. 2, 11), and this instruction served to alleviate any risk of unfair prejudice. Robinson, 110 F.3d at 1326-27. The prosecutor‘s closing argument was based largely on evidence presented during the trial and reasonable inferences that could be drawn from it. None of the disputed comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.
IV.
Mullins argues finally that the district court erred by enhancing Mullins‘s sentence based on facts of prior convictions that were neither proved beyond a reasonable doubt to a jury nor admitted by Mullins. This argument is foreclosed by existing precedent. See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 240-47 (1998); United States v. Strong, 415 F.3d 902, 907 (8th Cir. 2005); United States v. Bach, 400 F.3d 622, 634 (8th Cir. 2005).
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The judgment of the district court is affirmed.