United States v. Michael Curtis Keys

899 F.2d 983, 30 Fed. R. Serv. 52, 1990 U.S. App. LEXIS 4605, 1990 WL 34544
CourtCourt of Appeals for the Tenth Circuit
DecidedMarch 30, 1990
Docket89-6104
StatusPublished
Cited by81 cases

This text of 899 F.2d 983 (United States v. Michael Curtis Keys) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael Curtis Keys, 899 F.2d 983, 30 Fed. R. Serv. 52, 1990 U.S. App. LEXIS 4605, 1990 WL 34544 (10th Cir. 1990).

Opinion

*985 TACHA, Circuit Judge.

Michael Curtis Keys appeals his conviction and sentence for knowingly possessing a weapon while an inmate of a federal correctional institution in violation of 18 U.S.C. section 1791(a)(2). Keys contends that the district court erred by: (1) failing to exclude evidence of his prison gang membership; (2) permitting the testimony of two government witnesses to be reread during jury deliberations; (3) adding two levels to his base offense level for obstruction of justice; and (4) departing upward from the Sentencing Guidelines due to his prison disciplinary record. We affirm.

I.

Keys is a federal inmate currently serving twenty years for bank robbery. On July 8, 1988, Keys was notified that he would be transferred to another range of the cell block and that he should gather his belongings. Keys packed his belongings in a pillowcase. Fifteen or twenty minutes later, after all of the other inmates in the range had been locked down, an officer handcuffed Keys, let him out of his cell, and then handed him the pillowcase containing his personal belongings. Keys and two officers went downstairs to the lower range. Pursuant to institutional policy, the officers conducted a search of Keys’ clothing and belongings. In the pillowcase the officers discovered a bundle of envelopes, including one which was sealed. When questioned about the envelope, Keys said it contained his toothpowder. The officer opened the envelope and found a “shank” —a razor blade melted into a toothbrush handle to form a knife.

Following this incident, Keys was involved in several altercations with prison officials. In December 1988, in. an incident with officer Jim Eisenhour, Keys stated that he was a Crips member with sixty soldiers in the prison system who would do favors for him; that Eisenhour was a dead man; and that Keys would spread the word to his Crips brothers to kill Eisenhour. Officer Bob Logsdon was present and heard Keys make these statements to Eisenhour. On January 6, 1989, Keys attempted to assault the warden and assistant warden, requiring eight officers to subdue him. Prison authorities also intercepted a letter from Keys to another inmate, Johnny Molina. The letter implicitly invited Molina to perjure himself by describing, in precise detail, Eisenhour’s alleged threats and abuse of Keys and asking Molina and two other inmates to testify to these alleged events.

At trial, the jury found Keys guilty of possessing the knife, rejecting Keys’ defense that the knife had been placed in his possession without his knowledge. The district court, after reviewing the presen-tence report and hearing the arguments of both sides, enhanced Keys’ base offense level by two levels for obstruction of. justice, finding that Keys had testified untruthfully at trial. The district court also departed upwards from the Guidelines, finding that Keys’ criminal history category underrepresented the seriousness of his past conduct because the Guidelines calculation did not include Keys’ assaultive conduct while in prison. The district court sentenced Keys to fifty months imprisonment followed by three years of supervised release.

II.

The first issue on appeal is the propriety of the district court’s decision to admit Keys’ statements about gang membership into evidence. We review the district court’s decision for abuse of discretion. See United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988).

The manner in which the case against Keys developed at trial is crucial to understanding why the district court admitted Keys’ statements concerning gang membership. The government sought to show that Keys was in knowing possession of the knife because he packed the envelope containing the knife into the pillowcase containing his personal belongings. Keys’ defense was that his possession was not “knowing” because someone else had placed the knife in the toothpowder envelope and left the envelope on Keys’ side of the cell. Keys argued that when the *986 range orderly, an inmate named Steve Kin-nison, went back to the cell to retrieve some items that Keys had left behind, Keys’ cellmate, Kelly Ward, gathered up everything on Keys’ side of the cell and gave the envelope, among other items, to Kinnison. Kinnison then gave the items to Keys, who placed them in his pillowcase.

On cross examination, the government asked Keys about his statements during the altercation with officer Eisenhour that he was a member of a prison gang and had sixty soldiers who would do him favors, including breaking the law. 1 Keys denied making the statements. The government also asked Kinnison and Ward if they were gang members. Both Kinnison and Ward denied that they were gang members.

In rebuttal, the government called officers Eisenhour and Logsdon to testify that Keys had made the statement about gang membership and having sixty soldiers who would do him favors, including breaking the law. The district judge permitted this testimony over objection, but instructed the jury that:

Ladies and Gentlemen, in regard to [officer Eisenhour’s] testimony, it is only being admitted — [Keys is] not on trial for being a member of a gang. As you know, he’s on trial in regard to possession of a weapon. But, this testimony is admitted only so far as you may consider it relevant as to the credibility of other witnesses that have testified in the case.

On appeal, the government contends that admission of Keys’ statement about gang membership was probative of bias by the inmate witnesses in Keys’ favor. Keys objected on the grounds that the information was irrelevant and unfairly prejudicial.

A. Bias Due to Common Membership in a Group

United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984), discusses the admissibility of gang membership to show the bias of a witness. In Abel, the government sought to prove the bias of a defense witness through cross-examination and extrinsic evidence showing that the defendant and the defense witness were members of the same prison gang, and that the tenets of the gang required members to “lie, cheat, steal, [and] kill” to protect each other. Id. at 48, 105 S.Ct. at 467. The Court held that “[a] witness’ and a party’s common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias.” Id. at 52, 105 S.Ct. at 469. The Court also rejected the argument that the district court should cut off the description of the type of gang because evidence of the gang’s tenets was unfairly prejudicial. The Court observed:

This argument ignores the fact that the type of organization in which a witness and a party share membership may be relevant to show bias_ The attributes of the Aryan Brotherhood — a secret prison sect sworn to perjury and self-protection — bore directly not only on the fact

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Bluebook (online)
899 F.2d 983, 30 Fed. R. Serv. 52, 1990 U.S. App. LEXIS 4605, 1990 WL 34544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-curtis-keys-ca10-1990.