United States v. Houston

110 F. App'x 536

Opinions

DAUGHTREY, Circuit Judge.

At the time of his arrest by Memphis police, defendant Patrick Houston was apparently a popular rap musician who had recorded best-selling CDs under the name “Project Pat.” He was charged on two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was subsequently convicted by a jury on both counts. He now appeals, contending that the district court committed numerous errors at trial that— collectively, if not individually — were sufficiently serious to require a retrial. These included (1) questioning prospective jurors during voir dire concerning their acquaintance with “gangsta rap,” (2) permitting references to the defendant’s parole status, (3) failing to declare a mistrial when the prosecutor cross-examined a defense witness about lyrics in a song recorded by Houston, and (4) making certain errors in the jury instructions. After a careful review of the record on appeal and the trial record, we find no reversible error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In a published opinion denying the defendant’s motion for a judgment of acquittal or, in the alternative, a new trial, the district court summarized the evidence against the defendant as follows:

On the morning of January 19, 2001, Defendant Patrick Houston was driving his black Cadillac Escalade SUV and was stopped by an officer of the Memphis, Tennessee Police Department because he was exceeding the speed limit and because there had been a general police alert concerning “several Cadillac Escalades” recently reported as stolen from local dealerships. As the officer approached the driver’s door, he saw through the rear seat’s window what appeared to be the butt of a firearm protruding from the map or storage pocket situated on the back of the driver’s seat.

Without alerting Houston to what he had seen, the officer asked Houston to step from the vehicle. After receiving Houston’s identification and having some preliminary discussion at or near the police car, the officer asked for permission to search the vehicle, and Houston consented. The officer retrieved the firearm and brought it to the police car. Another officer came to the scene and in doing a more complete search found a second, smaller firearm hidden under the floor mat at the driver’s feet. Both firearms were loaded. After being given Miranda warnings, and confronted with the evidence, Houston admitted that the guns were his and said that he “needed them” for personal protection since the business he was in, making rap music, was “dangerous.” He claimed to have bought one gun “off the street” and the other through a girlfriend. He expressed concern about his parents finding out, and worried aloud that this event would ruin the chances for success of his next recording, soon to be released, and violate his parole.

At trial, Houston chose not to testify, but produced the original purchasers of the firearms, both of whom were longtime friends of Defendant and occasional employees of Defendant’s recording company. The witnesses said that Tobert Carruthers had been in possession of Houston’s vehicle from the previous day because Houston did not want a certain woman to see Houston’s vehicle at Houston’s house, and thus learn that he was at home. The witnesses said that Clarence Edwards was picked up by Carruthers at his house and then they both proceeded to pick up Houston. They all then drove to a Memphis mall to visit a tuxedo rental store.

Both Edwards and Carruthers testified that they had lawfully purchased the firearms. Carruthers testified that he had carried his firearm to the vehicle the previous evening while preparing to drive his wife and young children to dinner and a movie, then hid the firearm under the floor mat and forgot it was there. He said that he did not tell either Houston or Edwards that the firearm was present.

Edwards testified that he brought his firearm out to the vehicle that morning, partially concealing it in a zippered calendar or “day-planner” case. He had it because he intended to go to a practice range later that day and use it; he said that this was first time in the years since he had purchased the gun that he had brought it out of his house. He said he did not tell Carruthers or Houston about the firearm being present.

United States v. Houston, 205 F.Supp.2d 856, 859-60 (W.D.Tenn.2002).

In addition to the evidence summarized by the district court, it is significant that in rebuttal, the government offered the testimony of Shaneka Moss, the manager of the tuxedo shop that Garruthers and Edwards said they had visited on January 19, 2001, the morning of defendant’s arrest. Moss testified that the bride and groom did not register at the tuxedo shop until February 3, 2001, and that Carruthers was scheduled for a tuxedo fitting on February 5, 2001, not January 19.

The jury convicted Houston on both counts of the indictment, and the district court subsequently denied his motion for judgment of acquittal, commenting that “the Carruthers/Edwards story about their separate, simultaneous placement of two guns in one vehicle was ... a much-too-convenient coincidence, and transparently false.” Id. at 862.

DISCUSSION

1. The Challenge to Voir Dire

Perhaps the most controversial aspects of the defendant’s trial stemmed from his involvement as a rap musician. He complains, for example, that the district court questioned prospective jurors about their knowledge of and reaction to the existence of rap music and, specifically “gangsta rap,” a genre of rap music that concerns and apparently even extols street violence. The defendant contends, in particular, that references to “gangsta rap” were extraneous and therefore prejudicial to his right to an impartial jury. He also complains, as discussed below, that the district court allowed questioning about certain song lyrics concerning the use of guns and the commission of violent crimes.

Had the defendant been charged with a non-violent offense such as bank fraud, or tax evasion, these complaints might well provide grounds for relief on appeal. However, the charges against Houston involved the possession of firearms, and the arresting police officer testified that when he discovered the guns in the Escalade Houston was driving (and in which he was the only occupant), Houston stated that he needed “protection” because he was in the “dangerous business” of rap music. His defense at trial, that the guns were not his and that he was completely ignorant of their location in his vehicle, made the circumstances of his connection with “gangsta rap” relevant.

The district judge knew that concerns involving Houston’s involvement in the rap music industry and his possible connection with “gangsta rap” might arise during voir dire, because the case had gone to trial two months earlier and had resulted in a mistrial when the jury was unable to agree on a verdict due, apparently, to juror misconduct. See Houston, 205 F.Supp.2d. at 869, n. 12. A reading of the transcript of jury selection at this second trial reveals that the judge was at great pains to make sure that the jurors would not be swayed one way or the other simply by the fact of the defendant’s status in the world of popular music. For example, one prospective juror was the manager of a music store who, when asked if he had any knowledge of a group called “Three 6 Mafia” (the defendant’s group) or “a particular performer called ... Project Pat,” indicated that he did because he had to “demo” it to his customers. He also indicated that he “d[id]n’t like that kind of music,” causing the district judge to ask, “Is there is anything about that genre of music, that category of music or any of the topics that are contained within that [kind] of music that causes you to think in any way that you would be unable ... to fairly assess the evidence in this trial?” When the juror answered in the negative, the district judge then asked, “All right. So you’ve never had any particularly difficult experiences or particularly favorable experiences in connection with this music of customers that are associated with that music?”

We think it is clear from this exchange that the district court’s questioning during voir dire was directed at securing an impartial jury and that it did not inject extraneous or prejudicial issues into the selection process. Reviewing this issue for abuse of discretion, we simply find none.

2. References to the Defendant’s Parole Status

The defendant next argues that the district court should have prohibited testimony concerning his parole status at trial because such references were both irrelevant and unfairly prejudicial and, therefore, inadmissible under Federal Rules of Evidence 401, 403, and 404(b). We also review this decision for abuse of discretion and, once again, find none.

The jury was aware that the defendant had a felony conviction because Houston was being prosecuted under 18 U.S.C. § 922(g)(1), which prohibits convicted felons from possessing firearms. As a result, the fact that the defendant had a prior criminal record was relevant under Rule 401. Moreover, Houston’s statement to the police at the time of his arrest that being found in possession of a weapon would violate his parole status necessarily injected the issue into the trial. As the district court found, the statement had significant probative value because it “indicated immediate consciousness of guilt, ie., the statement showed that Defendant understood that he was prohibited from firearm possession.” Houston, 205 F.Supp.2d at 867. Houston now argues that the relevance of his parole status is outweighed by its possible prejudice, based on his theory that the fact of parole would lead the jury to believe that his prior conviction, even if relevant, was perhaps more serious than it actually was.

In this regard, Houston points to Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), and argues that the reference to his parole status went beyond the stipulation introduced by agreement that he was a convicted felon. In Old Chief, the Supreme Court held that a district court must accept a defendant’s offer to stipulate the existence of a prior offense in a felon-in-possession case, if the nature of the prior conviction raises the risk of improper considerations by the jury and if the only rationale for admitting evidence of the offense is to prove that the defendant meets the relevant criterion of 18 U.S.C. § 922(g)(1). Id. at 190-91. We conclude that the defendant’s reliance on Old Chief is misplaced. The most that the fact of parole added to the stipulation in this case was that Houston’s prior conviction was relatively recent. However, this fact alone would not be sufficient to outweigh the otherwise probative weight of the defendant’s statement to police reflecting his consciousness of guilt.

3. Failure to Declare a Mistrial

The defendant contends that the district court should have declared a mistrial when the prosecutor, in cross-examining defense witness Tobert Carruthers, asked if Carruthers knew whether the defendant “like[d] guns” or had written songs about guns. When Carruthers, who had known the defendant for more than a dozen years, had worked part-time for the defendant’s recording company, and had acted as his driver on tour, responded that he “didn’t know” whether or not the defendant liked guns and that the song lyrics he was familiar with concerned women, not guns, the prosecutor asked about a particular Houston song, “Murderers and Robbers.” Arguably, this reference was, as counsel for the defendant now describes it, “beyond the pale.” However, when counsel objected to the question at trial, the prosecutor promptly dropped this entire line of questioning.

In view of the prosecutor’s immediate response and the strength of the evidence introduced at trial, we conclude that this isolated reference was not so egregious as to require the declaration of a mistrial, when measured by the standards set out in United States v. Green, 305 F.3d 422, 429-30 (6th Cir.2002). In reaching this conclusion, we note that the cautionary instruction given the jury was particularly well-developed:

You heard at one point a few questions of a witness that dealt with what were supposed to have been certain rap music lyrics or CD titles. Keep in mind that questions by an attorney — the questions by an attorney do not form the evidence in the case and that anything that is said by an attorney that is not supported by evidence or by common sense must be disregarded. So if there is no actual evidence in the case regarding rap music lyrics or CD titles, then the substance of an attorney’s questions on those points should be disregarded.

Also, please — on this point of rap music, titles and so forth, please avoid using in your deliberations any possible preconceived notions of your own or of anyone else regarding rap music performers, musicians or others in that business. Rumors or possible suspicions about character and behavior are not proper evidence in a court case....

Taking the record as a whole, as we are required to do under United States v. Francis, 170 F.3d 546, 552 (6th Cir.1999) (“The determination of whether a prosecutor’s behavior constituted prejudicial error must be made in the context of the whole trial.”), we decline to find reversible error in connection with the district court’s ruling on the request for a mistrial. Indeed, we agree with the district court’s assessment that “there was no unfair prejudice that substantially outweighed the proper and probative purpose of the government being allowed to try to challenge the credibility of an important defense witness’s direct testimony that the defendant had no knowledge of the two guns in the vehicle.” Houston, 205 F.Supp.2d at 867.

4. The Jury Instructions

The defendant challenges three portions of the district court’s instructions to the jury, two of which produced no objection at trial and are therefore reviewed only for plain error. See United States v. King, 169 F.3d 1035, 1040 (6th Cir.1999). The first of these came during the court’s discussion on the weighing of witness credibility, when the district judge used a hypothetical example concerning a traffic accident and told the jurors that in asking themselves whether a witness had “something to gain or lose from testifying,” they could consider the witness’s relationship to the parties, ie., whether the witness to a traffic accident was “the driver’s nephew or other close relative or childhood friend.” The defendant now contends that the mention of a “childhood friend” was an unduly prejudicial reference to Tobert Carruthers, the defense witness who testified that he had known Houston for 13 years. We simply fail to see how this instruction constituted plain error.

We likewise fail no find plain error in connection with the district court’s statement that the defendant’s theory of the case was neither “the Court’s position” nor “the position of the law,” but was “merely the statement of the defense.” This instruction followed the judge’s reading of the defense theory and explained what that statement constituted.

Finally, the defendant objects to statements that the district judge made to the jury concerning comments by both the prosecutor and the defense attorney regarding legal standards for the search of a vehicle. Defense counsel complained at the time that he had been singled out and disparaged when the district court referred to him by name. In response, the district court told the jurors that they need not consider the issue of whether the search of the defendant’s car was legally proper and that the instruction “applied] to all the lawyers.” There is no evidence in the record that the judge’s remarks reflected a bias against the defendant, nor was there any indication that his evenhanded and relatively mild statements to the jury were meant to be personal to the defendant’s lawyer or that they were unfairly critical of him in either tone or content.

CONCLUSION

For the reasons set out above, we find that none of the alleged errors cited by the defendant warrants reversal of his conviction. In addition, recognizing that “[e]rrors that might not be so prejudicial as to amount to a deprivation for due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair,” United States v. Pierce, 62 F.3d 818, 834-35 (6th Cir.1995), we have also weighed the alleged errors cumulatively and, nevertheless, find no basis on which to overturn the defendant’s conviction. We therefore AFFIRM the judgment of the district court in all respects.