*

The HONORABLE JOHN A. JARVEY, United States District Judge for the

Southern District of Iowa, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-1439

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri

Steve L. Wright, Jr., *

*

Defendant - Appellant. *

___________

Submitted: January 15, 2008

Filed: August 4, 2008

___________

Before LOKEN, Chief Judge, MURPHY, Circuit Judge, and JARVEY,*

 District

Judge.

___________

LOKEN, Chief Judge.

After an eleven-day trial, a federal jury convicted Steve L. Wright of fourteen

counts of conspiracy to distribute cocaine base, ecstacy, marijuana, PCP, and

Diazepam; possession, attempted possession, and aiding and abetting the possession

with intent to distribute cocaine base, cocaine, ecstasy, marijuana, PCP, and

methamphetamine; use of a firearm in relation to drug trafficking crimes resulting in

two deaths; aiding and abetting the possession of firearms in furtherance of drug
1

The HONORABLE FERNANDO J. GAITAN, JR., Chief Judge of the United

States District Court for the Western District of Missouri. 

2

The HONORABLE ROBERT E. LARSEN, United States Magistrate Judge

for the Western District of Missouri. 

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trafficking crimes; and aiding and abetting the killing of a potential witness in

violation of 18 U.S.C. § 1512(a)(1)(C). The district court1

 sentenced Wright to life

in prison plus 110 years. On appeal, Wright’s attorney argues that the district court

committed a jury voir dire error related to Wright’s membership in the “51st Street

Crips” Kansas City street gang. In a pro se supplemental brief, Wright argues that his

Confrontation Clause rights were violated by the admission of hearsay statements of

a deceased victim, Michael Birks, and that the government failed to prove that he

aided and abetted the killing of Birks with the intent to prevent Birks from

communicating with law enforcement about possible federal offenses, an element of

the § 1512(a)(1)(C) offense. We affirm. 

I. The Jury Voir Dire Issue

Prior to voir dire, the district court mailed prospective jurors 113 questions

prepared by counsel. One question, proposed by Wright, asked: 

If an individual has been identified as a member of any group that might

be called a “street gang”, do you believe that this person is more likely

to be prone to violence or to crime than an individual who is not a

member of a “street gang”?

Of the 134 prospective jurors who responded, 106 answered yes to this question.

Wright moved to strike all 106 for cause, arguing that the affirmative answer “clearly

indicates a presumption of bias and prejudice against the Defendant who will be

identified as a member of a street gang.” The magistrate judge2

 recommended that the

106 not be struck because their answers did not establish inability to render a fair and
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just verdict, and recommended that the district court at voir dire inquire whether each

of the 106 would be able to follow the law as instructed and render a verdict based on

the law and the facts as found. Wright objected, arguing that all 106 should be struck

for cause. The district court overruled this objection, advised that the court would

conduct voir dire limited to follow-up questions based on the jurors’ prior responses,

and invited counsel to submit proposed follow-up voir dire questions. 

In response, Wright requested that the court ask 43 supplemental voir dire

questions, 25 of which related to street gangs, and conduct “individual and separate”

voir dire of each prospective juror. Before the start of voir dire, the district court

advised that follow-up questions would be limited to those recommended by the

magistrate judge and invited counsel to request more or otherwise make a record after

this questioning. At the start of each day of the two-day voir dire, the court asked the

entire panel whether any member’s judgment would be affected by the race of the

defendant; none responded. The court then separated the panel into groups of six or

seven and asked each potential juror who answered the street gang question

affirmatively whether he or she could keep an open mind and wait until all the

evidence was presented before deciding whether the government met its burden of

proof. The court refused defense counsel’s requests that particular panel members be

asked additional questions concerning gang membership. All jurors whose answers

evidenced even the slightest possible anti-gang bias were stricken for cause. 

On appeal, Wright argues that the court deprived him of the right to obtain a fair

and impartial jury when it refused to ask prospective jurors who answered the gang

question affirmatively extensive follow-up questions regarding possible gang-related

bias. Wright does not challenge the fairness of any person selected as a juror. He

does not argue that any specific prospective juror was not asked particular questions.

And he does not argue that he lacked information needed in exercising his peremptory

challenges as to specific jurors. Compare United States v. Blom, 242 F.3d 799, 804-

06 (8th Cir.), cert. denied, 534 U.S. 880 (2001). 
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Absent “substantial indications of the likelihood of racial or ethnic prejudice

affecting the jurors in a particular case . . . . the Constitution leaves it to the trial court,

and the judicial system within which that court operates, to determine the need for”

voir dire questions probing possible juror bias or prejudice. Rosales-Lopez v. United

States, 451 U.S. 182, 190 (1981) (plurality opinion); see Mu’Min v. Virginia, 500

U.S. 415, 422-27 (1991). In general, a district court should, if requested, ask voir dire

questions designed to detect a prejudice that may be relevant to the impending trial,

but the extent and nature of that inquiry is left to the court’s discretion. See, e.g.,

United States v. Spaar, 748 F.2d 1249, 1252-54 (8th Cir. 1984). Here, the district

court adopted procedures for the lengthy jury selection process that we approved in

a recent capital case from this District, United States v. Ortiz, 315 F.3d 873, 888-89

(8th Cir. 2002), cert. denied, 538 U.S. 1042 (2003). By including a gang-related

question in the initial questionnaire, the court honored Wright’s request to inquire into

that possible prejudice. No such inquiry was made in People v. Jimenez, 672 N.E.2d

914, 916-17 (Ill. App. 1996), the case on which Wright primarily relies. Moreover,

at voir dire, the district court was careful to ask the kind of follow-up question that the

dissenters concluded should have been asked in Gardner v. Barnett, 199 F.3d 915, 924

(7th Cir. 1999) (en banc) (Cudahy, J., dissenting), cert. denied, 529 U.S. 1079 (2000).

There was no abuse of discretion. 

II. The Confrontation Clause Issue 

Count Six charged Wright with aiding and abetting William Williams and

Rashawn Long in shooting and wounding Anthony Conaway and Justin Hill during

an attempted PCP robbery on February 1, 2001. Before Conaway testified, Wright

objected that testimony relating what Michael Birks said to Conaway that evening

would violate Wright’s Sixth Amendment Confrontation Clause rights because Birks

was murdered later that night and therefore was unavailable and had not been subject

to cross examination. The district court overruled the objection, and Conaway

testified that Birks told him who had participated in the shooting. 
3

This argument was strengthened by the Supreme Court’s recent decision in

Giles v. California, 128 S. Ct. 2678, 2688-93 (2008). We note that the common law

exception at issue in Giles is not necessarily co-extensive with the forfeiture-bywrongdoing hearsay exception codified in Rule 804(b)(6) of the Federal Rule of

Evidence. Wright did not raise Rule 804(b)(6) in the district court, and therefore we

do not consider it. See generally United States v. Emery, 186 F.3d 921, 926-27 (8th

Cir. 1999), cert. denied, 528 U.S. 1130 (2000). 

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On appeal, Wright argues that this testimony violated his Confrontation Clause

rights as construed in Crawford v. Washington, 541 U.S. 36 (2004). Crawford

recognized a common law “forfeiture by wrongdoing” exception to the right of

confrontation, id. at 62, but the exception does not apply, Wright contends, because

the government failed to prove that Birks was murdered for the purpose of preventing

him from testifying.3

 However, the Confrontation Clause only bars “admission of

testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had had a prior opportunity for crossexamination.” Davis v. Washington, 547 U.S. 813, 821 (2006) (emphasis added),

quoting Crawford, 541 U.S. at 53-54. Thus, the threshold Confrontation Clause issue

is whether Birks’s statement to Conaway was “testimonial.” 

The Supreme Court has not comprehensively defined “testimonial” statements.

In Davis, it held that statements made in a 911 call “to describe current circumstances

requiring police assistance” are not testimonial. 547 U.S. at 827. Applying Davis, we

held in United States v. Johnson, 495 F.3d 951, 976 (8th Cir. 2007), that remarks

about murders made by one inmate to another “fall safely outside the scope of

testimonial hearsay.” And in Giles, the Court recently observed in dicta that

“[s]tatements to friends and neighbors about abuse and intimidation, and statements

to physicians in the course of receiving treatment,” are not testimonial. 128 S. Ct. at

2692-93. Reviewing the statements made by Birks to Conaway in the context of these

decisions, we agree with the government that the statements were not testimonial.

Therefore, Wright’s Confrontation Clause rights were not violated. 
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III. Sufficiency of the Evidence on Count Seven 

Count Seven charged Wright with aiding and abetting Williams and Long in

murdering Michael Birks to prevent him from communicating with law enforcement

officials regarding possible federal offenses in violation of 18 U.S.C. § 1512(a)(1)(C).

Wright argues that we must vacate his conviction and life sentence on Count Seven

because the government failed to prove that the murder of Birks was committed with

the requisite intent. In resolving this issue, we review the evidence in the light most

favorable to the jury’s verdict, giving the government the benefit of all reasonable

inferences. “We must uphold the conviction unless no reasonable jury could find

[Wright] guilty.” United States v. Marquez, 462 F.3d 826, 828 (8th Cir. 2006)

(quotation omitted). 

To prove a violation of § 1512(a)(1)(C), the government need not prove that the

defendant knew a federal investigation was underway, or even contemplated, or that

defendant intended to prevent the victim from communicating with federal officials.

See § 1512(e)-(g); United States v. Harris, 498 F.3d 278, 284-86 (4th Cir. 2007), cert.

denied, 128 S. Ct. 1703 (2008). But there must be proof “that at least some part of a

defendant’s motive in killing that victim” was to prevent communication with law

enforcement officials in the investigation of a possible federal crime. Emery, 186

F.3d at 925. The district court instructed, without objection, that the government must

prove either Wright, “or others whom he was then aiding and abetting,” murdered

Birks with this intent. 

Government witness Marlin Brown testified that he met with Wright, Williams,

Long, and Birks on the evening of January 31, 2001. Birks urged the group to rob and

kill competing drug dealer Conaway, who Birks believed was carrying $10,000 and

nine ounces of PCP. Birks arranged a drug buy with Conaway, and the five drove to

the meeting place. After waiting twenty minutes, Wright and Long left in a separate

vehicle. When Conaway arrived in a car driven by Hill, Birks walked to the vehicle
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and handed Conaway money for vials of PCP. Williams pulled his car alongside

Conaway’s and began firing, seriously wounding Conaway and Hill before driving

away with Brown. Birks ran from Conaway’s vehicle to avoid gunfire from Conaway

but told Williams and Brown to leave him at the scene.

After riding with Williams to a friend’s house, Brown called Birks on his cell

phone. Birks said he had driven Conaway to the hospital and was waiting for Wright

and Long to pick him up. Some time later, Wright, Long, and Birks arrived. Birks

went upstairs to change his clothes, which were covered with Conaway’s blood. Long

told Williams to kill Birks because he told Conaway that Williams was the shooter.

Birks came downstairs and suggested they attempt to recover Conaway’s money and

PCP. When that effort failed, the five drove Birks to where he had hidden money and

marijuana a few hours earlier. When Birks left to retrieve the items, Long told

Williams to shoot Birks. Birks returned, and Williams opened fire. Wounded, Birks

begged for his life. Long executed Birks at close range with a handgun Wright gave

him earlier in the evening. Long robbed Birks’s body, and the four left. 

Brown testified that Long told Williams to kill Birks because Birks had told

Conaway that Williams shot him. Therefore, Wright argues, the evidence only

established that Birks was killed because Williams feared retaliation by Conaway, a

rival gang member and drug dealer, not to prevent communication with law

enforcement officials. But the evidence viewed in the light most favorable to the

jury’s verdict points in another direction. Williams, at Long’s urging, initially shot

Birks, but it was Long who executed the wounded Birks as he pleaded for his life.

Conaway testified that Birks identified the four assailants -- Wright, Long, Williams,

and Brown -- but never said who did the shooting. Long and Wright then drove Birks

to where Brown and Williams were waiting. The jury could have inferred that, during

this drive, Birks told Wright and Long what he had disclosed to Conaway. Killing

Birks would not protect the group from revenge by Conaway, but it would eliminate

Birks, a now-proven “snitch,” who was eyewitness to the drug theft and shooting of
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Conaway, crimes that were later charged as Counts Five and Six of this federal

indictment. The statute does not require proof that a federal investigation was

underway at the time of the killing, only that Long and/or Wright believed that Birks

was a potential witness against them. See United States v. Davis, 357 F.3d 726, 728

(8th Cir. 2004), vacated on other grounds, 543 U.S. 1099 (2005). 

There was additional circumstantial evidence that Wright and his associates

killed Birks to prevent communication with law enforcement officials concerning

federal offenses. After the killing, Marlin Brown sensed danger, ran from the others,

and hid until daylight. Five days later, he told the police about the killing. One month

after that, Brown saw Long for the first time since the killing at a nightclub. When

Brown and his friends got in their car to leave, Long approached and began shooting

with an assault rifle. Hit three times, Brown is now paralyzed from the waist down.

In addition, Wright was arrested numerous times for gun, drug, and driving offenses

in the thirteen months prior to the shooting of Birks. John Roberts, also a member of

the 51st Street Crips, testified that in March 2000 he saw Wright fire into a parked

vehicle from the passenger side of the car in which Wright was riding. Wright later

told Roberts that he shot at the driver of the other vehicle, a drug dealer named Gerald,

because he was a “snitch.” Gerald Johnson later testified that he had been cooperating

with the police at the time of the shooting, and “[p]eople in the streets knew.” 

Viewing this evidence in its entirety, it was reasonable for the jury to find that

Wright and/or Long and Williams murdered Birks to prevent his communication with

law enforcement officials about the shooting of Conaway and Hill, or about the gang

members’ other on-going federal drug and firearm offenses. See United States v.

Rose, 362 F.3d 1059, 1067-68 (8th Cir. 2004). 

The judgment of the district court is affirmed. 

______________________________