The Honorable E. Richard Webber, United States Dis trict Judge for the Eastern 1 District of Missouri. 

## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 97-1170

___________ United States of America, * * Appellee, * * Appeal from the Unite d States v. * District Court for the * Eastern District o f Missouri. Kenneth D. Sills, * * Appellant. *

___________ Submitted: June 10, 1997 Filed: August 14, 1997

___________ Befo re RICHARD S. ARNOLD, Chief Judge, HENLEY, Senio r Circuit Judge, and WOLLMAN, Circuit Judge.

___________ HENLEY, Senior Circuit Judge. Kenneth Sills appeal s from a judgment entered in the district court upon a jury 1-2-

verd ict finding him guilty of possession of a n unreg isteredfirearm, in violation of 26 U.S.C. § § 5861(d) and 5871. We affirm.
Background OnMarch 30, 1995, St. Louis, Missouri police office r Dan Dell received a telephone call from an in formant, who had p rovided reliable information in the past. Th e infor mant told Dell that Sills had been involved in a gang -relatedshooting and, because Sills was fearin g rep risals, had a sawed-off shotgun in his car. Th e informant described the car as a brown Cadil lac and gave Dell the license plate number of the car. On the sam e day, Dell and officers Moore and Deeba went to Sills ' home. After Sills came to the door, the officers tol d himth at they had heard he was fearing reprisal s following a gang-related shooting and asked whether they coul dhelp. Sills became irate, telling the officers , "I'll hand le it my own way." After Sills went back into the h ouse, the officers drove to the alley behind th e hous e and saw the brown Cadillac. About forty-fiv e minut es later, while patrolling the neighborhood, th e offi cers saw Sills driving the Cadillac. The officer s stoppedthe car and asked Sills, who was alone, to ge t out of the car. Sills refused and displayed a belligeren t attitude. The officers then drew their guns and Sills got out of the car. Dell searched the interior of the car and found a sawed-off shotgun under th e-3-

drive r's seat. Moore also searched the car and foun d some drugs. The officers arrested Sills and informed him of his constitutional rights. While he was i n the police car, Sills told the officers to keep the drugs and th e gun a nd let him go because he did not want another gu n charge.

At tr ial, in addition to the testimony of Dell an d Moore , the government presented testimony relating t o gangs. Sergeant Michael Lauer, who had been assigned-4-

to the police department's "gang unit," testi fied that in a 1992 interview Sills stated he was a member of the 19th Street Lon g Beach Crips gang. Detective Robert Ogilvie, who was also with the gang unit, testified, among othe r th ings, that graffiti on the shotgun seized from th e Cadillac i ndicated animosity towards several rival gangs of th e Long Beach Crips. In addition, Frank Stubits, a police department firearms examiner, testified tha t shot guns were sawed off to achieve "concealability an d compa ctness." He also stated that because he had no t been re quested to test for fingerprints on the seize d shotgun, he had not done so, which was in acc ordance with standard practice.

OnSills' behalf, Cortez Clark disputed the officers ' testimo ny. Clark testified that he was with Sills whe n th e officers stopped them and arrested Sills. Clar k further te stified that the officers had not searched the car and, b ecause the driver's seat was low to the floor,
a shotgun could not have fit under the seat. I n addi tion, a private investigator, who had examined an d take nphotographs of the Cadillac which were admitte d in to evidence, testified that there was only an inc h between the driver's seat and the floor. Issues Onappeal, Sills first argues that the district cour t erred in denying his motion to suppress. The court di d not e rr. Based on the details supplied by the reliabl e-5-

info rmant, the officers' corroboration of many of th e de tails, and Sills' responses to the officers at hi s house and in the car, the district court correctly held that the officers had a reasonable suspicionto stop the
car. See , e.g. , United States v. Hughes , 15 F.3d 798 , 801- 02 (8th Cir. 1994) (stop justified where officer s found c ar described by informant parked in front of th e address given by informant and defendant appeared-6-

nervous when officers followed him in the car). "Onc e engaged in a lawful investigatory stop, the o fficers were enti tledto conduct a protective search of th e surroundin g area [including the interior of the car] for weapo ns, given [their] reasonable belief that [Sills ] poseda danger." United States v. Cox , 942 F.2d 1282 , 1285 (8th Cir. 1991), cert. denied , 503 U.S. 921 (1992).

Si lls also argues that the district court erred i n allowing testimony concerning gang-related activitie s under Fed. R. Evid. 404(b), which provides that evidence of " other crimes, wrongs, or acts" is inadmissible "t o prove the character of a person in order to show actio n in c onformance therewith" but is admissible to prove , among other things, "motive, opportunity, intent , preparation, plan, [and] knowledge." Specifi cally, "[t]o be admissi ble as Rule 404(b) evidence, the evidence must be: '(1) relevant to a material issue; (2) proved by a prep onderance of the evidence; (3) higher in probativ e value than in prejudicial effect; and (4) sim ilar in kind and close in time to the crime charged.' " United States v. Shoffne r , 71 F.3d 1429, 1432 (8th Cir. 1995) (quoting Unite dStates v. Jones , 990 F.2d 1047, 1050 (8th Cir
. 1993), cert. denied , 510 U.S. 1048 (1994)). Sills first argues that the evidence was not relevan t to any issue at trial. We disagree. We have held tha t Rule 404(b) "evidence is admissible when a defendan t pla ces his state of mind and intent at issue." Unite d-7-

States v. Jones , 110 F.3d 34, 36 (8th Cir. 1997). I n this case, Sills "specifically put his knowledge an d intent at issue." Id. Not only did he deny knowing that the shotgun was in his car, he denied that the shotgu n was i n his car. In addition, as the government argues , the evidence would have been relevant to esta blish motive and opportunity. See United States v. Jobson , 102-8-

F.3d 214, 221 (6th Cir. 1996) ("defendant's gan g membe rship would be admissible to establish hi s opportu nityto commit the crime"). Moreover, we not e that witho ut Ogilvie's testimony concerning the markings
on the shotgun, "the jury probably could not hav e understood the meaning of the graffiti." United State s
v. Sp arks , 949 F.2d 1023, 1026 (8th Cir. 1991), cert
. denie d , 504 U.S. 927 (1992) ; see also United States v
. Williams , 81 F.3d 1434, 1441 (7th Cir. 1996) (upholdin g admi ssionof evidence relating to meaning of gang' s code).

Also without merit is Sills' argument that Lauer' s testimony concerning his gang membership in 1992 was too remote in time. We have observed that " 'there is n o specific n umber of years beyond which prior bad acts are no longer relevant to the issue of intent.' " Shoffner , 71 F.3 d at 1432 (quoting United States v. Burkett , 82 1 F.2d 1 306, 1310 (8th Cir. 1987)). Rather, "[t] o determine if evidence is too remote, 'the court applie s a re asonableness standard and examines the facts an d circumstan ces of each case.' '' Id. at 1432-33 (quoting United States v. Engelman , 648 F.2d 473, 479 (8th Cir
. 1981))
. Given the facts of this case, includin g testimo nythat gang membership is for life, "a lapse o f [three] yea rs is not so remote as to render the . .
. evidence inadmissible." Id. at 1433. We also reject Sills' argument that the distric t-9-

co urt erred in admitting the gang-related evidenc e beca use its probative value was outweighed by it s prejudicia l effect. "In this context, 'unfair prejudice

. . . means an undue tendency to suggest decision on a n impro per basis.' " United States v. Johnson , 28 F.3 d 1487, 1 497 (8th Cir. 1994), cert. denied , 513 U.S. 109 8 (1995 ) (quoting Fed. R. Evid. 403, Adv. Comm. Note)
. Although a defendant may not be "convicted of a [] crime through his association with"-10-

a ga ng, "[s]pecific and circumscribed evidence of gan g asso ciationmay be necessary in a trial to show 'th e nature and extent of [the defendant's] associ ation, which in turn bears'" on his guilt of the crime charged. Id
. (q uoting Sparks , 949 F.2d at 1026). Although th e government's evidence "linked [Sills] with ga ngs, it fell far short of establishing that [he] w[as] gui lty . . . by
ass ociation." Id. Moreover, the district cour t instructed the jury to consider the gang-rela ted evidence only as to whether Sills "knowingly possesseda sawed-off shotgun." Si lls also argues that the district court erred i n denying his motion for a mistrial. On cross- examination, the g overnment asked Sills' mother, Vesteria Withers , whether the shotgun had any markings on it referring t o "Crips kil ler." The mother responded that "I can't read it. I do n't know how to read it." Sills moved fo r mis trial, contending that the question violated th e spir it of the district court's pretrial rulin g prohibitin g the government's witnesses from referring to facts "from which the jury might conclude tha t [Sills] is
a kil ler." Although, as the government argues, th e question d id not technically violate the court's ruling,
we agree with Sills and the district court that th e question v iolated the spirit of the ruling. Indeed, the court admonished the government's counsel, stating: " I want to make it very clear that there's not to be an y further reference made to this witness or anyone els e-11-

unless the court is first advised about Crips killers. " Howe ver, even if the reference violated the pretria l order, the court did not abuse its discretion in denying the motion for a mistrial. "We will affirm a distric t court's decision not to grant a mistrial abse nt an 'abuse of discret ion resulting in clear prejudice.' '' United States v. Rhodenizer , 106 F.3d 222, 225 (8th Cir. 1997 ) (quoting United States v. Koskela , 86 F.3d 122, 125 (8th Cir. 1996)). Here, there was no abuse of discretion
. With ers did not directly answer the question, an d considering the-12-

evidence o f Sills' guilt the reference to "Crips killer" did"not taint[] [the] trial to such an extent as t o requi re a mistrial." United States v. Byler , 98 F.3 d 391, 394 (8th Cir. 1996).

We have reviewed Sills' other arguments and hav e found them without merit.
Accordingly, we affirm the judgment of the distric t court.
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUI T