*1 of Minnesota determined the di The district court did not District abuse its dis- residency program Mayo of the rector determining cretion in appellants were not for and Re Foundation Medical Education to attorney respect entitled fees with Foundation) Rochester, (Mayo search summary the government’s judg- second ” Minnesota, was the ‘boss’ of “overall the opposition ment motion and to appellants’ in that and thus program, residents the judgment summary motions. Foundation Mayo was the residents’ em I, Mayo ployer. F.Supp.2d 1012- III. CONCLUSION The fact government 13. was unsuc We affirm. in arguing hospitals employed cessful residents in Mayo Foundation resi dency program preclude gov did not making argument from
ernment similar residency program a different in a
about
different case before a different district One district court not
court. bound reasoning decision or another dis involving trict court other with the parties America, UNITED STATES issue. See same also U.S.C. Plaintiff-Appellee, 7430(c)(4)(B)(iii) (“In determining § ... position United whether States DALE, L. Michael Defendant- justified, substantially the court
was shall Appellant. into account take whether United appeal has lost in courts of America, United States of substantially circuits on other similar is Plaintiff-Appellee, added)). (emphasis sues.” Finally, appellants claim the substantially justified in taking
was Dyshawn Johnson, Defendant- position qualify that CFM did not as a Appellant. “school, college, university” or for pur 08-3172, Nos. 08-3246. poses of the student exception because designated hospital CFM as a United States Court of Appeals, research organization medical rather than Eighth Circuit. an educational institution for charitable Sept. Submitted: 2009. purposes contribution under U.S.C. 170(b)(1)(A)(ii) (iii). § Having re July Filed: 2010. government’s in support viewed brief Rehearing and En Banc Rehearing summary judgment, parties’ argu Denied Sept. ments, statutory and the provi relevant regulations, sions we conclude the
government’s position substantially
justified because “it a reasonable ha[d]
basis both law and fact.”7 Kaffenber
ger,
7. Effective college, university. the IRS definition of a 170(b)(1)(A)(ii)’s incorporate § 26 U.S.C. (b)(10)-2(c). defi § See 26 C.F.R. 31.3121 of an nition educational institution into the *6 Rios,
Anthony who also was known as or “Snap” “Snapper,” was found on his on back the kitchen floor. Police found several bricks of marijuana and cocaine in home. phone Rios’s Rios’s records re- that the vealed last call made or received Gaddy, Gaddy, Geiger W. Brian & by Rios was to Dyshawn Johnson at 7:21 PC, MO, City, argued, Brown Kansas for on p.m. December appellant Dale. The speak last witness to or see to the Newton, AZ, Sedona, argued Jerald W. victims, Paul Lupercio, visited Rios’s (Alan home CA, Fester, Beverly Hills, on the Friday on evening, December brief), for appellant Johnson. p.m. time, about 7:30 At that Lupercio Mahoney, D. Atty., Kathleen Asst. U.S. stopped home to arrange victims’ (Matt MO, City, argued Kansas J. Whit- drug Lupercio deal with Rios. testified worth, Atty., U.S. R. Acting Gregg Coon- always that he called before going to rod, brief), Atty., on Asst. U.S. house to a drug Rios’s conduct deal. Lu- appellee. percio Raya testified that sitting was on BYE, SMITH, Before ARNOLD and time, the couch writing gradua- out Circuit Judges. thank-you cards, tion and that gave she him a card while was at the house. BYE, Judge. Circuit $20,000 Lupercio gave Rios cash for a Appellants Dy- Michael L. cocaine, which, kilogram of Lupercio testi- joint shawn at a convicted fied, he going stop by pick up trial of of first-degree two counts murder However, that evening. later Rios never conspiracy distribute cocaine. Dale phone answered his night later that and Johnson raise arguments numerous back, him called which Lupercio testified appeal challenging their convictions. We unusual for Rios. *7 affirm. 12, 2003, February On North Kansas police City stopped I officers Johnson for speeding driving while he a was Yukon 21, 2002, Anthony On December Rios He Denali. was then found to be driving Raya and Olivia found murdered license, awith revoked at which time he home, City, Missouri, their Kansas both was arrested. Police searched Johnson multiple gunshot victims wounds. On his Yukon arrest, and Denali incident to December at 7:57 p.m., about $2,355 in and recovered: Rios, grandfather Francisco of Antho- currency pants from pocket; Johnson’s Rios, ny Anthony went the home of Rios $3,500 in United currency from his Hardesty, and Olivia at Raya Kansas shoe; a $6,000 left Cartier watch valued Missouri, City, to check on them because Johnson; by a ring diamond valued at neither he nor his wife had seen Rios or $4,500 by Johnson; a silver cross with a Raya Rios, all day. Francisco who lived $10,000 Johnson; chain valued at a door, door, next through went the back $4,000 earring diamond valued unlocked, which John- and both vic- found son; small marijuana; amount of Raya sitting tims shot several to death. on a money $14,700; order living receipts totaling room couch where she had been and thank-you writing out cards a Southwest travel graduation receipt for Airlines gifts, pen 20, with a still in purchased her left hand. name Johnson’s December Johnson, Rios, and cash, drugs dealt that from 2002, travel with $595.00 together. on Angeles drugs December and Dale sold City Kansas to Los Johnson in the spring Burton also that testified police executed April On they he Dale at a club and ran into home. Po- Johnson’s search warrant for “the Mexicans.” had conversation about scales, wrappers and kilo lice recovered that “the Mexican was Dale told Burton residue, and ammunition. tape with cocaine told Burton that slippin’.” Dale also theory on Investigators began to focus game go. “That’s how No different had murdered Rios that Dale Johnson and Somebody you catch you. from me and gone bad. Raya drug and in a deal you.” they gonna do slippin’, that’s how testify by called to A series of witnesses he called Burton also John- testified explain gov- prosecution helped Rios/Raya and him son asked about case. of the theory ernment’s murders. told Burton that he Johnson * known testified had Anthony Smith Snapper’s somebody took over house Smith testified eighteen years. Dale for cocaine, and “about purchase some prison Dale were in he and while m*therf*cker up, time he looked went Dale admitted murder- together in crazy got to shootin’.” “the Smith also testified Mexicans.” * bought Eric that he Noel testified ten drug to a accompanied that he had from kilograms of cocaine month John- deal with Johnson. son. * currently Terry Taylor serving * ten-year selling cocaine. He sentence for Henry Abrought testified that he introduced him to testified that Johnson weekly. bought cocaine from Johnson purchasing purpose Dale in for the * Curry Jonni testified cocaine. further testified that he Taylor cash, and drugs, weapons, stored other crack cocaine twice a bought two ounces of further equipment at her She tes- house. months, to nine eight week from Dale for weigh tified Johnson would cocaine at Fi- and that source was Johnson. Dale’s bags, it into package her house and nally, that Dale Taylor testified admitted buy supplies that she would behalf of him Mexican and the that he shot the Johnson. messing woman with some cards. who was * Levington testified that he Charles an indictment was 2005—before Dale in
purchased cocaine from present handed down in the case—Dale *8 that the drugs supplied Johnson. jail in unrelated awaiting was trial on crim- Levington testified that Dale ad- further charges distribution conspiracy, inal of of Raya. to shooting mitted Rios and cocaine, a possession and of fire- unlawful * that persuaded Powell testified he dealt arm. Law officials Mitchell enforcement from drugs purchased drugs Smith, with Dale and Anthony in who was incarcerated further testified that Johnson. Powell Dale, a facility the same as to wear wire shooting Raya. Rios Dale admitted to and probe relating and Dale for information to * Rios/Raya Investigators ar- murders. Bryant originally Burton was a code- placed to be in ranged Dale and Smith Johnson, fendant and testi- with Dale but while Smith prison together vehicle wore pursuant cooperation agreement fied to a Smith, with a wire. While in the vehicle pleading guilty with the after Government Johnson, and Dale incriminated himself conspiracy to to distribute cocaine. Bur- admitting in the murders. bought from involvement drugs ton testified that he grand Taylor and questioning a federal Powell February On about Missouri in District of the Western involvement in an Dale’s unrelated murder charging indictment returned four-count court, in charge state the Torrez Rodri- in three counts: con Dale and Johnson case, reasoning murder guez that such tes- of kilograms five co spiracy to distribute timony unduly prejudicial would be to of fifty grams caine or more cocaine and Dale. 841(a)(1), base, §§ in of U.S.C. violation case, the time of in the present At trial 846; (b)(1)(A), each and two counts and in was a drug use of a firearm furtherance Powell co-defendant Dale in the in trafficking doing, committing and so Rodriguez Although Torrez murder case. murder, in first-degree violation of 18 was testimony Johnson not able elicit (2).1 2, 924(c)(1),(j)(1), §§ U.S.C. and hoped from Powell that Powell testifying leniency result in would mur- pretrial hearing, At a Dale moved to state suppress obtained the recorded statement der proceedings, during Powell did state through cooperation, arguing Smith’s cross-examination that he hope did to re- acquired statement was violation leniency yet ceive another unrelated right process Fifth his Amendment to due charge. Specifically, Powell testified three right and Amendment his Sixth counsel. during times cross-examination he recommendation, report mag- In a and in a pleaded guilty drug had federal con- judge2 istrate found Dale’s statement case, spiracy he which faced a minimum been voluntary, Smith had twenty-year sentence, and that he was there was no violation of Dale’s Sixth for a hoping departure downward on that rights, repre- Amendment because he was case. Although separate sented on a case. Taylor ongo- was not a defendant in the magistrate judge found there was viola- case, Torrez Rodriguez murder but prisoners tion of the detention order that potential trial, At was witness. kept separate, trial to the awaiting be ex- practicable, prisoners, prohibited tent from eliciting testimony sentenced from she the denial Dale’s recommended mo- Taylor Taylor gave from showing inconsis- tion to The court3 suppress. police Taylor tent statements to when adopted report her recommendation. questioned Torrez Rodriguez about However, murder. the district court re- court and Johnson asked the prosecution quired make the proceedings, sever the each de- detec- allowing proceed Taylor fendant to a trial. to whom separate allegedly tive lied avail- The district court denied the motion. as able defense witness for Johnson. a. witness, Johnson called this Detective Bab- trial, court,
During the the district over cock. Babcock testified that in- when he objection, placed a Johnson’s limitation on Taylor, gave Taylor terviewed inconsistent Johnson’s witnesses cross-examination of his changed story answers several Terry Taylor and Mitchell The Powell. prohibited district court Johnson from times. *9 discussed, co-defendant, previously Hays, As W. 2. The Honorable Sarah United Burton, Magistrate Bryant charged Judge for the was in Count One States Western Dis- Johnson, of Missouri. additionally with trict Dale and and possession by Count Four of a with firearm pleaded guilty convicted Burton Whipple, felon. before 3. The Honorable Dean United cooperation pursuant agreement Judge trial to and Senior District for the Western testified of for the at trial. District Missouri. to day I can fair both sides. of JUROR: be morning the second the
On with the dis- trial, speak juror asked to you think can be THE You COURT: judge: court trict fair? concern, your THE What’s COURT: Absolutely. JUROR: [JUROR]? Mr. you have no concern THE So COURT: impartial. I I feel can’t be JUROR: deliberating? retiring and about say WTiy you would THE COURT: No. JUROR:
that? Does either side have THE COURT: just went home and I—I JUROR: that? any concern about time, long and I this for a thought about Nothing gov- from the PROSECUTOR: juror. impartial I can be an don’t think ernment, Your Honor. Well, good that’s not a THE COURT: Mr. you, Thank [JU- THE COURT: have to enough going You’re answer. ROR], you I it thought giving were the I’ll and hear evidence. stay and sit you thought. You looked like more end of the trial. you again the ask attention, you so I’ll paying let Okay. JUROR: you very continue to deliberate. Thank you, But I would ask THE COURT: much. and listen keep open mind again, to evidence, and then we’ll discuss to the questioning was no additional There later, you I don’t want to excuse this but juror by any court. party the the Now, the evi- point. at this because government’s During the course the may it be may be hard and dis- dence case-in-chief, for Dale and Johnson counsel necessarily it turbing you, shouldn’t mistrial, made motions for a each of six I am away your impartiality, take but by the district court. which was denied further, any I’m to lecture going argue appeal the appellants Because on stay, you please. to ask going grant a failing erred in district court Okay. JUROR: mistrial, briefly explore we must testi- juror requested the The defense be dis- object. mony they to which jury panel based on his missed from trial, day begin- On third request The court denied the comments. ning testimony, Special Agent FBI of his juror jury. on the After and the remained worked, Robert Plant was asked where examination, voir dire the court indi- agent “I’m a as- replied, special and he juror it did not believe the cated that one, squad signed squad which is the court, being implying with the sincere At the bench con- gang task force.” next actually juror by motivated a desire to ference, an- prosecutor stated she had duty closing avoid his serve. After Plant ticipated that would have said Agent deliberation, arguments, before the district unit.” Dale’s counsel asked “narcotics juror ques- the same back and court called gang reference upon a mistrial based following exchange him. The took tioned Plant, courtroom, presence Agent request in the of made which place single juror being questioned, joined. The subsequently counsel, and judge, defendants: ad- court the mistrial motion under took you THE had remaining testimony COURT: You stated The visement. you could be fair. What’s didn’t feel Agent Plant other officers focused now? your feeling two solely drug conspiracy very impartial. I’m murders, JUROR: no further mention charged *10 activity. The impartial? “gang” gang of Very THE the word COURT: eventually quested court a grounds denied defense mistrial on the that the motion for a mistrial. counsels’ charged conspiracy extended from Janu- 1, 2002, ary and, until August presentation During recording the of the therefore, Abrought’s drug purchases out- Smith, with of Dale’s conversation the con- the period side of of conspiracy the were briefly versation touched on criminal prejudicial. irrelevant and The district gangs. exchange The was as follows: again court grant declined to a mistrial. they bringin’ up DALE: Fuzzy’s What What, they name for man? what bring- During Curry’s Jonni testimony, Curry ing up all those names for? testified how she met first Johnson in Shhhh, cuz, I don’t even SMITH: know Curry 1999. was subsequently asked what Fifty man. First to Four Tre to Deuce thought she Johnson for living. did ... Tre to 12th Street to Crips Bloods upon statements, Based previous govern- ... I man I ... said don’t I said man expected ment counsel her answer to be I’ve I ... I gone been man. don’t don’t estate, that Johnson inwas real or that he niggers know these man. I only Man Instead, rehabilitated houses. Curry re- hung man, one nigger my bro.” sponded that Johnson was a drug dealer. objected Defense counsel to the refer- Johnson’s counsel for a asked mistrial on Crips. ence Bloods and The district the grounds Curry’s statement im- again court denied counsels’ motion plied in engaged illegal activity mistrial. period before the of charged conspira- cy. The district court denied the motion
Later in the Dale-Smith recording, for a mistrial. and Dale large Smith discuss the number in of unsolved homicides Kansas City During Evans, of testimony Brad (55:37) and that police pressing officer, City Kansas police prosecutor (56:24). Smith for information At asked the physical officer describe evi- (56:54) mark, says the name “Desh- dence that had been recovered in a search unintelligible followed an awn” state- warrant from Johnson’s Kan- residence transcript ment referred to in the as City, sas Missouri. Officer Evans de- following day, The fourth day “[UI].” a bag scribed which fifty contained about trial, requested of Johnson’s counsel a mis- rounds of ammunition. Officer Evans trial because the name ap- “DeShawn” identified of the some ammunition as .40- peared transcript displayed that was rounds, Hydroshock said, caliber which jury. to the The district court denied the certain type “are a of bullet that was actu- trial, motion. At the close the district ally outlawed for a while because jury: court instructed the “You have heard damage it’s if it body done enters the tape recording of a conversation between parts....” point At this coun- Johnson’s Anthony Smith and defendant Michael objected, sel the district court sustained During Dale. the recording a reference objection, and the was instructed made to ‘DeShawn.’ reference This disregard portion Officer Evans’s individual named ‘DeShawn’ not testimony pertaining legality to the of the Dyshawn the defendant Johnson.” ammunition. During testimony Henry closing argument on behalf of John- Abrought, prosecution Abrought asked son, said, “Now, defense ... counsel let’s purchased how often he powder cocaine drug conspiracy talk about Count 1 [the Abrought from Johnson. answered that ... purchases piece there is one of evi- count] had occurred once a week from 2002 Johnson’s counsel re- dence that has been introduced this case
953 law, applicable of or 1.” In an erroneous view the proves Count that or establishes record, in court is argued light rebut- in entire this response, prosecution waiting why hear a firm and definite conviction that tal: I been left with “And have ” dealer, a drug is not Dyshawn Johnson a has been made.’ United mistake (8th It 1. is guilty 932, how not of Count he is 356 F.3d 935 Welerford, States v. physical is absolutely Cir.2004) that there no false (quoting v. Van United States Cir.2002)). of the rebut- At the conclusion horn, 713, evidence.” 296 F.3d 717 ap- tal counsel for Johnson argument, fac the district court’s This court reviews a mistri- and asked for proached court findings for clear error and reviews de tual prosecution that the had shifted alleging al question of novo the ultimate whether The district to the defendant. burden a violation. there was Fourth Amendment a mistrial. grant court did White, 865, United States case, Following government’s John- judgment of ac- son made motion for in rele provides, Amendment The Sixth legally quittal, arguing evidence was prosecu vant all criminal part, “[i]n convictions for support insufficient his tions, enjoy the ... right the accused shall cocaine, and for to distribute conspiracy of counsel for his to have assistance a firearm in furtherance knowingly using defence.” U.S. Const. amend. VI. crime, in do- drug trafficking of a so in argues Dale that because he was
ing, murder. The committing first-degree mat jail awaiting trial on another criminal motion. district court denied the ter, presence to the he entitled six-day jury trial which the After inter before the could counsel thirty-five wit- government presented rogate government responds him. The nesses, Dale convicted and John- yet Dale had not arguing because charged. as On son on all three counts charged with crimes at been indicted or sen- September the district court in this his Amendment appeal, issue Sixth Dale each to three tenced and Johnson right implicated. was not to counsel consecutive life sentences. Wisconsin, In McNeil v. U.S. timely appeal notice of Johnson filed 175, 111 S.Ct. L.Ed.2d Dale September on 2008. filed time- (1991), Supreme Court stated ly September notice of appeal of- right Amendment ... is “[t]he Sixth specific. fense It cannot be invoked once II prosecutions, for all future it does not arguments appeal, On Dale renews commenced, attach prosecution until sup- he of his motion to support made is, adver- ‘at or after initiation of Dale statement press. contends the sary judicial proceedings criminal —wheth- made, surreptitiously by law en- recorded by way charge, preliminary er formal Smith, forcement officers and violated his indictment, information, ar- hearing, right Sixth Amendment to counsel and ” raignment.’ (quoting Id. right confront these process. to due We Gouveia, U.S. 104 S.Ct. arguments turn. (1984)). 2292, L.Ed.2d 146 A case, for the prosecution this yet present offenses had not commenced This will affirm a district court incriminating his state- when he made denying a motion court’s order defendant’s “ Therefore, we conclude unsup ments to Smith. ‘unless the decision is suppress evidence, protections on that Dale’s Sixth Amendment ported by substantial is based *12 954 attached, and the admission of little yet support argument
had not for the that he made to the out-of-court statements government’s violation the detention or- not Sixth Amend- did violate Dale’s Smith egregiousness der rose to the level of re- to right ment counsel. See, quired for due process violation. Larson, 762, e.g.,Anderson v. 770
B Cir.2003) (8th (holding that an officer’s argues Dale that the executive con violation of Iowa’s solicitation statute did in placing duct in this him a vehicle by not process case— itself amount to a due tricking with purpose Smith for the and, violation, therefore, suppression was himself incriminating Dale into and violat an appropriate remedy); not ing the district court’s detention order4— Clarke, 612, Cir.1997) 110 v. F.3d 615 his right process. violated to due (holding failing bring that to a defendant magistrate before a as required by the provides The Fifth Amendment Rules of Criminal Procedure did not person relevant that no shall de part be life, liberty, or amount to due prived property, process trigger- “of without violation Const, due process law.” U.S. amend. suppression). V. Convictions based on evidence ob case, In agree this with the district by tained “so methods are brutal and court’s conclusion that the conduct on the they so offensive to human dignity” that part government using of the a prisoner — the conscience” violate “shoc[k] the Due to incriminating record statements and California, Process Rochin v. Clause. 342 placing pretrial detainee in the same 172, 174, 205, U.S. 72 S.Ct. 96 L.Ed. a prisoner vehicle as violation of a valid (1952) 183 (overturning conviction based detention order—did not rise the level by involuntary evidence obtained stom required implicate process Dale’s due ach pumping). Breithaupt See also rights. Therefore, Dale’s constitutional Abram, 352 U.S. S.Ct. rights not violated the admission (1957) (reiterating L.Ed.2d 448 evi of Smith’s statement.5 dence through obtained conduct may “shock[s] conscience” be used Ill conviction). criminal support a Next, we must confront Johnson’s hand, government On other argument that the admission as evidence agents permitted are subterfuge use of Dale’s recorded incriminating state investigation of crimes. United States right ments violated Johnson’s to cross- Wright, F.2d 604-05 Cir. trial, Dale examine in violation of the 1981). addition, Supreme Court has Sixth Amendment. deception held that mere will not violate a trial, joint At the testify. Dale did not person’s process rights. due Moran v. result, Burbine, argued As 475 U.S. S.Ct. (1986). Further,
89 L.Ed.2d
there
court that
tape-re-
admission of the
4. The district court had
issued
or-
earlier
failure
follow
the district court's detention
(such
stating
prisoner
der
that sentenced
as
order. We need not confront this issue be-
Smith)
kept separated
should be
from those
arguing
cause
isDale not
that the violation of
(such
Dale)
awaiting trial
as
"to the extent
should,
itself,
trigger
the detention order
practicable.”
Rather,
suppression.
argues
Dale
order, together
of the
violation
detention
spends
good
portion
5. The
factors,
other
amounted to a violation of due
its
discussing
applicability
brief
of the
process,
requires suppression.
which
exclusionary
light
government's
rule in
of the
lates
co-defendant’s Confrontation
between
conversation
corded
incriminating
a curative
rights, notwithstanding
Clause
including statements
Smith—
*13
135-36,
Amend-
S.Ct. 1620.
Sixth
instruction.
Id.
88
Johnson’s
Johnson —violated
The
Dale at trial.
confront
right
ment
to
case,
makes
government
In this
court,
con-
light
in
Johnson’s
district
distinguishing Bruton.
arguments
three
all
cerns,
redact
prosecution
ordered the
(1) that Bruton
government
The
contends:
transcript.
in the
references to
case
apply in
context of this
does not
addition,
court instructed
In
the district
statements to Smith were
because Dale’s
conversa-
tape-recorded
that the
(2) that,
non-testimonial,
assuming Dale’s
Johnson.
against
tion
not admissible
testimonial,
were
statements
by omitting
reviews Confrontation
with Bruton
complied
This court
court
objections
of evi
admission
recording
Clause
from the
Johnson’s name
Davis,
United
v.
(3)
dence de novo.
and,
assuming Bruton was
transcript,
(8th Cir.2006).
842,
A viola
449
847
F.3d
violated,
prejudiced
not
Johnson was
also
tion
Clause is
Confrontation
agree Dale’s state
the error. Because we
analysis. Bar
error
subject
harmless
non-testimonial,
we address
ments
Acevedo,
1155,
1164
rett v.
only
government’s argu
the first of the
ments.
123,
States,
Bruton v.
391 U.S.
United
In the landmark case of Crawford
1620,
(1968), pro-
20
476
88
L.Ed.2d
S.Ct.
Washington,
Supreme
held
v.
Court
analy-
starting point
a useful
to our
vides
prohibits
the Confrontation Clause
are similar— n
in
sis. The facts
Bruton
of out-of-court
the admission of evidence
not
facts of this
though
identical—to the
against a criminal
“testimonial” statements
Bruton,
defendants,
In
one of the
case.
defendant,
is unavail
unless the defendant
Evans,
during
interrogation
confessed
an
had a
testify
able to
the defendant
accomplice
that he
had committed
to cross-examine the de
prior opportunity
124,
robbery.
88
1620.
armed
Id.
S.Ct.
36, 53-54,
541
124 S.Ct.
clarant.
U.S.
believed Evans’s accom-
The
(2004).
It
now
Bruton the incriminating statement was
harassment,
things,
prejudice,
of
confusion
product
of a
interrogation
formal
issues,
safety,
or inter
witnesses]
testimonial,
therefore
incriminating
rogation
only margin
that is repetitive statements made
Dale here were made
ally
Arsdall,
relevant.” Delaware v. Van
unwittingly, and not
in anticipation by
475 U.S.
89
Dale of future
S.Ct.
use
the statements at
(1986).
trial.
our
L.Ed.2d
A
present understanding
Under
Confrontation
right, governed
confrontation
by Craw- Clause violation is shown
when
defen-
Put
that case.
departure
a downward
jury
a reasonable
dant demonstrates
was al
way, counsel for Johnson
differ
another
significantly
might have received
hope
credibility
put
Powell’s
a witness’s
lowed to
before
impression
ent
pursue
leniency
in another serious matter
permitted
for
had counsel been
Har
against
Johnson.
exchange
testifying
line of cross-examination.
proposed
(8th
Iowa,
im
permitted
Johnson was
rington v.
Because
Cir.1997).
to limit
way,
A
decision
credibility
trial court’s
this
peach Powell’s
un
will not be reversed
say the district court abused its
cross-examination
cannot
abuse of discre
clear
limiting
less there has been
cross-ex
discretion
Johnson’s
showing
prejudice to the
tion and a
amination of Powell. See United States v.
Brown,
defendant. United
Cir.
Purkey, 428 F.3d
753-54
2005) (“Here,
F.3d
Purkey’s
conclu
Mr.
counsel
by other means
sively demonstrated
correctly points out that
testify by a
driven to
witness] was
[the
*15
from ex
criminal defendant
prohibiting
leniency.”);
desire for
to lie violates
a witness’s motive
ploring
(8th Cir.2007).
876,
483 F.3d
882
Lightfoot,
See Davis v. Alas
the
Amendment.
Sixth
1105,
ka,
308, 318, 94 S.Ct.
39
415 U.S.
same conclusion
We reach the
(1974) (“[D]efense counsel
L.Ed.2d 347
Taylor.
wished to
respect
to
Johnson
to
permitted
expose to
have
should
been
testimony
impeach Taylor by eliciting
jurors, as
from which
the
the
the facts
Taylor
police
questioned
lied to
when
credibility,
of fact and
could
sole triers
Rodriguez
about the Torrez
murder case.
relating
inferences
to
appropriately draw
But
have held that where the defen
witness.”);
reliability
the
Delaware
im
given
dant is
an alternative means of
673,
Arsdall, 475
106
v. Van
U.S.
S.Ct.
peachment,
there
no Confrontation
(1986)
1431,
(holding
674
89 L.Ed.2d
Lightfoot,
F.3d at
violation.
483
Clause
inqui
all
“prohibited
the trial court
where
Here,
to elic
permitted
882.
Johnson was
ry
possibility
[the witness]
into
testimony
Babcock.
it
from Detective
as a result of the State’s
would be biased
testified that when
interviewed
Babcock
pending public
of his
drunken
dismissal
case,
Taylor
Rodriguez
the Torrez
about
charge
ruling
ness
...
court’s
violated Taylor gave
answers and
inconsistent
rights secured
[the defendant’s
story
his
several times. There
changed
Clause”) (emphasis in origi
Confrontation
fore,
impeach Taylor’s
was able to
Johnson
227,
nal);
232,
488
Kentucky,
Olden
U.S.
credibility through Detective Babcock
(1988)
(per
109
A denial of a motion to sever
appellant
will not be reversed “unless the
however,
Both appellants,
al
demonstrates
abuse of discretion result
lege another Bruton violation6 occurred
prejudice.”
clear
United States v.
trial,
which independently entitled them
Flores,
(8th Cir.2004)
362 F.3d
Bryant
severance. When
Burton took
(citing
Pherigo,
United States v.
stand,
pursuant
cooperation
Cir.2003)).
Because defen
agreement with the government, he testi
jointly
dants who are
indicted on similar
fied that both Dale and
implicat
evidence from the
same
related events
ed themselves and the other
defendant
normally
together,
should
be tried
to war
the murders of
Raya.
Rios and
Specifi
rant severance
defendant must show cally, Burton stated that he ran into Dale
prejudice,”
is,
“real
something more
at a club in
that time Dale
than the mere fact that he would have had made statements
suggesting Dale’s in
a better
for acquittal
chance
had he been
volvement in the murders.
respect
With
separately.
tried
United States v. Mickel
Johnson,
Burton testified that he called
son,
F.3d
817-18
phone,
Johnson on the
and that Johnson
The Supreme Court has held that sever
told Burton that he took somebody over
*16
ance
granted “only
should be
if there is a
to Snapper’s
purchase
house to
some co
joint
a
serious risk that
trial would com
caine, and “about the time
up,
he looked
promise a specific
right
trial
of properly
a
the m*therf*cker
crazy
went
and got to
joined
or prevent
jury
defendant
the
from
shootin’.”
rejected
The district court
the
making
judgment
guilt
a reliable
about
government’s argument
that Dale and
States,
innocence.”
v. United
Zafiro
Johnson’s statements to Burton were co-
U.S.
113 S.Ct.
122 L.Ed.2d
conspirator
statements made
further
(1993).
joint
general,
In
a
“gives
trial
conspiracy pursuant
ance
a
to Fed.
the
the
perspective
best
on
all
the
801(d)(2)(E). Therefore,
R.Evid.
the dis
evidence
therefore increases the likeli
trict court instructed the jury that Bur
hood of a correct outcome.” United States
testimony
ton’s
inculpating Johnson was
Darden,
(8th
v.
70 F.3d
1527-28
Cir.
Johnson,
only against
admissible
and Bur
1995).
testimony
ton’s
inculpating Dale was ad
Dale and Johnson argue Confrontation
against
only
missible
Dale.
Clause
during
support
violations
trial
their
We conclude no Bruton violation oc-
position that the district court should have
during
testimony.
curred
Burton’s
Our
severed the trial. Johnson renews his ar-
reasoning parallels our analysis of Dale’s
gument that the introduction of
tape
Dale’s
Smith,
recorded statement
to
see supra
recorded statement made to Smith ran
Part
III. Reading
light
Bruton in
However,
afoul of Bruton.
because we
Crawford, we concluded that a
already
have
concluded the
Bruton vio-
introduction of
predicated
the
lation must be
recorded statement did not violate
a testimonial
Amendment, it
Sixth
follows that
out-of-court
implicating
Johnson
statement
a co-de-
prejudice
cannot
entitling
show clear
him fendant. And as we concluded with re-
Bruton,
discussed,
previously
as
stands for
co-defendant’s Confrontation Clause
proposition
joint
that the
a
admission at
rights, notwithstanding a curative instruction.
nontestifying
trial of a
defendant's
Bruton,
testimonial
135-36,
when
court’s decision
for the district
basis
say
Dale or John
we
Again,
cannot
no
of dis
juror,
there is
abuse
retain
Burton,
statements
son, making
Wilcox,
v.
United States
cretion.
expect
statements]
reasonably
[the
“would
(8th Cir.1995).
showing
a
Absent
Crawford, 541
prosecutorially,”
to be used
part
prospective
on the
of a
of actual bias
51-52,
Nor can we
VI argument, but before the close of After deliberation, again ques- court argue next the district Appellants juror. juror again once tioned the The it to dismiss a court erred when declined answer, unequivocal time gave this as- reversal. of gang Evidence affiliation “is serting impartiality: his not admissible where it merely is meant prejudice you prove
THE
You had
the defendant or
guilt
COURT:
stated that
his
you
by
feel
didn’t
could be fair.
unsavory
What’s
association with
characters.”
feeling
your
now?
v. McKay,
United States
(8th Cir.2005).
I’m
very
example,
For
impartial.
JUROR:
Unit
Street,
ed States v.
we found
abuse
THE
Very impartial?
COURT:
discretion and reversible error
where
I can be fair to
JUROR:
both sides.
witness
allowed to offer
are
juror
We
satisfied that
testimony concerning the “violent tenden
sufficiently
rehabilitated
the dis
cies and criminal dispositions of gangs in
court,
trict
and that the district court did
general
and
the Kansas
El
City
Fo
its
declining
not abuse
discretion in
rasteros in particular
....
including atti
juror.
dismiss the
In reaching this conclu
women,
tudes toward
hazing prac
brutal
sion, however,
emphasize
unique
we
tices, outlaw tattoos
markings,
and
and
case, especially
juror’s
facts of this
trafficking
motorcycles.”
in stolen
repudiation
clear
position.
his earlier
F.3d
631-32
See also
presence
The
of a biased
constitutes a
Roark,
fundamental,
F.2d
structural defect that affects
(8th Cir.1991)
(finding
Gray
the entire conduct of the
error
trial.
where
Mississippi, 481 U.S.
district court
testimony
S.Ct.
allowed
re
(1987).
We first consider the conten recording the Dale-Smith prejudi was not tion, by Johnson, made both Dale and that cial to Johnson because the district court the admission of two gang references— jury instructed that the “DeShawn” did Agent FBI testimony Plant’s he that not refer to force, a Johnson. The same holds true gang worked in task and Smith’s for testimony. offhanded comment Officer Evans’s about to When Ev “Bloods Crips” require course of the trial ans testified that some of the seized am- —in
961 court VIII illegal, district munition was state of the effect prejudicial blunted the argument we confront Johnson’s Finally, jury disregard to instructing the ment to legally insufficient evidence was Sherman, 440 v. it. States See United conspiracy and murder drug his support (“The Cir.2006) (8th expo 982, 987 F.3d convictions. testimony improper ordi a sure of reviews the suffi The court less drastic is measures narily cured United ciency evidence de novo. of the mistrial, as an instruction such than a (8th 938, 941 Pliego, 578 F.3d v. States ”). testimony.... disregard the jury to Cir.2009). in the The evidence is viewed addition, fleeting references the two verdict, con to the light most favorable activity outside the illegal Johnson’s govern in favor of the flicts are resolved testimony charged conspiracy Abrought’s — ment, from and all reasonable inferences into drugs from Johnson purchased accepted. United jury’s verdict are testimony that Johnson Curry’s Castro-Gaxiola, 479 F.3d v. warrant drug a dealer—did not de (8th Cir.2007) (citing v. United States ranging the wide claring mistrial. Given (8th Cir.2002)). Cruz, 692, 697 285 F.3d drug implicating testimony interpretation if upheld any The verdict is say the state we cannot two conspiracy, could lead reasonable of the evidence error. prejudicial amounted ments Cf. beyond a guilty jury to find the defendant Flores, 73 F.3d 831- States v. United Id.; v. United States reasonable doubt. Cir.1996) (8th (holding that one state Cir.2007). (8th Carter, 481 F.3d referring prior bad from a witness ment standard, accept all reason Using we this mistrial when grounds was not for a acts support the verdict. inferences able evidence); against the other evaluated 824, 828 Alyass, v. United States Muza, F.2d United States Cir.1986) (same). Finally, 1312-13 argument claim respect Johnson’s A during clos misconduct ing prosecutorial conspiracy con support To argument, agree with the viction, must show that: government imper did not court that (1) illegal pur for an conspiracy existed missibly proof burden to the shift the (2) the con defendant knew of pose; Rather, stating “[i]t defendant. (3) knowingly the defendant spiracy; no physical that there is absolutely false Becker, it. joined in conspiracy supporting evidence” (8th Cir.2008). Direct or F.3d merely rebut charge, prosecutor may provide evidence circumstantial the con defense counsel’s assertion to ting conspiracy conviction. United basis *19 prosecutor trary. closing argument, Oleson, 1085, 1089 310 F.3d response a fair and is entitled make McCracken, Cir.2002); gov attacks the rebuttal when the defense 110 F.3d States v. Zies ernment’s case. See United case, Taylor Levington In this and (8th Cir.2005).
man, 954-955 they cocaine on bought testified reasons, Dale, foregoing the district and that Dale regular For the basis from deny- in Powell testified supplied court did not abuse its discretion Johnson. Dale, that a crack house with operated motions for a mis- he Dale and Johnson’s Dale, when and that supplied trial. buy could not supplier, any from his usual being human other than him iswho as a go-between would act and killed, assist Pow- is in murder degree. first purchasing ell in cocaine from Johnson. 1111(a). § 18 U.S.C. Burton testified that Johnson and Dale Finally, § U.S.C. delineates the “hustling together,” which he scope accomplice of liability under federal selling drugs together, meant and that he law: “Whoever commits an against offense (Burton) drugs also sold with Johnson. aids, abets, counsels, United States or Curry testified that Burton assisted John- commands, induces or procures its com- son in counting and packaging drugs at mission, punishable as a principal.” Abrought her house. and Noel testified case, In this the district court correctly they brought large quantities of co- jury instructed the on the elements of both caine from years. Johnson and Burton for principal accomplice and theory of use testimony, a Given this jury reasonable aof firearm in furtherance drug of traf- joined could conclude Johnson a conspiracy ficking and in so doing, committing pre- to distribute cocaine. meditated first-degree murder. The dis- trict court instructed:
B The crime of or Using Carrying a Fire- presented The jury was with two arm During and in Relation a Drug first-degree theories of murder for each Trafficking Crime which Results killing, pre-meditated murder aiding Murder, Degree First as charged in abetting premeditated murder. indictment, Count Three of the has five who, person “A in the course of [using elements, essential which are: or carrying a firearm during and in rela One, the defendant committed the crime to any tion or drug crime violence traf of Conspiracy to Distribute a Controlled crime], ficking causes the death a per Substance, charged One; as in Count firearm, son through the use of shall ... Two, during and in relation to the com- (as if killing ais murder defined in crime, mission of that the defendant 1111), section punished be by death or by knowingly firearm; used or carried a imprisonment any years term of or for Three, during and in relation to the § life.” 18 924(j)(1). U.S.C. commission Conspiracy to Distribute turn, Section murder defines as: Kilograms Five or More of Cocaine and killing unlawful of a human being knowingly using while carrying or a fire- aforethought. malice Every mur- arm, the defendant used the firearm to perpetrated by der poison, lying wait, cause death of Raya; [Rios or] Olivia willful, any deliberate, other kind of Four, the defendant did so with malice malicious, premeditated killing; or ...; and perpetration of, committed in the or at- Five, the killing premeditated.... tempt perpetrate, any arson, escape, respect With accomplice liability, murder, treason, kidnapping, espionage, district court correctly instructed the sabotage, aggravated sexual abuse or as follows: abuse, abuse, sexual child burglary, or robbery; or perpetrated part as person may of a A also be guilty found *20 pattern practice or of assault or Using torture or Carrying a During Firearm children; against a child or or perpetrat- Drug and in Relation a Trafficking to premeditated from design ed unlawful- Crime which Results in Degree a First ly maliciously Murder, and to effect the death of as charged of Count Three concedes government The did not indictment, personally if he even the record no evidence in there is direct constituting offense every act do premeditation by Johnson. Of showing and abetted he aided charged, if course, prove is entitled to Carrying a Fire- Using or commission of evidence. through case circumstantial Drug to a its in Relation During arm and States v. Blue United in a As stated which Results Crime Trafficking Thunder, Degree Murder. First of events before and On the basis and abetted to have aided order of fact will crime, killing, time of the the trier defendant of
commission
this
infer that the
be entitled to
sometimes
must:
actually premeditated and de-
defendant
(1)
the offense of Us-
have known that
killing.
liberated his intentional
Three
During
a Firearm
and
Carrying
or
important
are
for
categories of evidence
Drug Trafficking
to
Crime
in Relation
(1)
about how and
purpose:
this
facts
Degree
in a First
Murder
which Results
actu-
prior
did
to the
what
defendant
going
or
to be
being committed
engaged in
killing
al
which show he was
committed; and
activity
killing,
toward the
directed
(2)
way
in some
knowingly
have
acted
(2)
is,
activity;
facts
Planning
about
causing, encouraging,
purpose
for
con-
prior relationship and
defendant’s
Using
aiding the
or
commission
Motive
duct with the victim from which
and in Rela-
Carrying
During
a Firearm
(3)
inferred;
may
and
facts about the
be
Drug Trafficking
which
tion to
Crime
killing
may
it
Nature of the
from which
Degree Murder
Results in the First
killing
be inferred that
manner
Raya; and
or] Olivia
[Rios
exacting that the
particular
was so
and
(3)
aforethought,
malice
have acted with
intentionally
must have
killed
defendant
No.
as
in Instruction
defined
according
preconceived design.
ato
premeditation, as defined in Instruction
(8th Cir.1979)
(citing
[Rios
No.
in relation
the death of
W.
Raya.
Jr.,
§
Scott,
or] Olivia
& A.
Criminal Law 73
LaFave
(1972)).
p.
Thus, the district court’s instruction on
taking
note at
the core We
the outset
accomplice liability embodied
light
proved in the
most
guilty
prin-
“to find
circumstances
principle that
one
as
must,
government,
to the
as we
ground that he was an aider
favorable
cipal on the
abettor,
competing
to two
inferences drawn
proven
it must be
leads
same
Under one infer-
princi-
criminal intent
from the
evidence.
of the
shared
”
States,
ence,
planned
and Dale
murder
Johnson
United
Johnson
pal....
(8th Cir.1952).
him,
Raya in
Rios and rob
and murdered
F.2d
any
The cir-
order to eliminate
witnesses.
gov-
argues
appeal
that the
Johnson
however,
support
also
proved,
cumstances
presented insufficient evidence
ernment
that Dale and Johnson
a second inference:
beyond a
doubt
prove
reasonable
drug
went Rios’s house
consummate
premeditation,
es-
acted
Johnson
transaction,
Raya
and Dale shot Rios and
principal
under both the
sential element
any
knowledge by John-
without
advance
first-degree
theories of
accomplice
son.
After
review of the
murder.
a careful
conclude that the inference the
record,
was suffi- We
we conclude the evidence
and Dale went
support
a conviction
first-de-
drew—that
cient
murder him was
Raya.
Rios’s house to rob and
murder of Rios and
gree
*21
supported
the record.
Johnson had
this case that Mr.
pre
Johnson committed
drugs with Rios for
number of
dealt
might
meditated murder
support
well
years, and had never before taken an ac-
carry
day
inference sufficient to
under
instance,
complice. In this
Johnson took a
preponderance-of-the-evidence
standard,
Dale,
conspirator,
wearing gloves
who was
I
but
don’t think that
the inference is
physical
and who was armed. The
evi-
strong enough to allow a finding
guilt
dence at the scene showed there was no beyond
particular,
a reasonable
doubt.
sign
any struggle indeed,
while the
—
the ease that Mr. Johnson intended to kill
times,
multiple
victims were each shot
Raya
Mr.
and Ms.
Rios
when he and Mr.
only
they
defense
offered was to raise
home,
Dale went to their
formed
weapon.
their hands
front of the murder
there,
intent after he arrived
relatively
Raya
significantly
had time to bleed
before
any
weak and so
inference drawn from it is
being
again.
shot
So
Johnson
while
told
words,
weak as well. In other
even draw
crazy
Burton that the “m*therf*cker went
ing every inference in
govern
favor of the
shooting,”
shooting
started
went
case,
ment’s
view the
see United States
time,
rooms,
on for
in two
some
different
Foxx,
(8th
943,
v.
Cir.2008),
544 F.3d
multiple
each victim was shot
times.
—
denied,
-,
cert.
U.S.
130 S.Ct.
drugs
Then the cash and
were removed
(2009),
IX Affirmed.
ARNOLD, Judge, concurring Circuit dissenting.
I concur all of the opinion court’s VIII(B),
except upholds Dy- Part which Shawn Johnson’s conviction for committing BANJO, Del Petitioner-Appellant, murder, I think because that the evidence was insufficient for a person reasonable v. conclude that Mr. Johnson was guilty AYERS, Jr., Warden, L. Robert San may A jury any
that crime. draw infer Quentin Prison, Respondent- reasonable, ence from the that is evidence Appellee. an opposite even if or different inference is reasonable, more see United No. 08-56512.
Mack, Cir.2003), 343 F.3d of Appeals, Court denied, cert. 540 U.S. 124 S.Ct. Ninth Circuit. (2004); L.Ed.2d but unless the inference that it chooses to draw is suffi Argued 6,May and Submitted 2010. ciently strong to support guilty verdict Filed June (a beyond a reasonable doubt standard to advert), guilty which the court does not
verdict based on that inference cannot
stand, Cruz, see United States The evidence