The Honorable E. Richard Webber, United States District 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 United

States

v. * District Court for the

* Eastern District of

Missouri.

Kenneth D. Sills, *

*

Appellant. *

___________

Submitted: June 10, 1997

 Filed: August 14, 1997

___________

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior

Circuit Judge, and 

 WOLLMAN, Circuit Judge.

___________

HENLEY, Senior Circuit Judge.

Kenneth Sills appeals from a judgment entered in the

district court upon a jury 1
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verdict finding him guilty of possession of an

unregistered firearm, in violation of 26 U.S.C. §§

5861(d) and 5871. We affirm.

Background

On March 30, 1995, St. Louis, Missouri police officer

Dan Dell received a telephone call from an informant, who

had provided reliable information in the past. The

informant told Dell that Sills had been involved in a

gang-related shooting and, because Sills was fearing

reprisals, had a sawed-off shotgun in his car. The

informant described the car as a brown Cadillac and gave

Dell the license plate number of the car. On the same

day, Dell and officers Moore and Deeba went to Sills'

home. After Sills came to the door, the officers told

him that they had heard he was fearing reprisals

following a gang-related shooting and asked whether they

could help. Sills became irate, telling the officers,

"I'll handle it my own way." After Sills went back into

the house, the officers drove to the alley behind the

house and saw the brown Cadillac. About forty-five

minutes later, while patrolling the neighborhood, the

officers saw Sills driving the Cadillac. The officers

stopped the car and asked Sills, who was alone, to get

out of the car. Sills refused and displayed a

belligerent 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 the
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driver's seat. Moore also searched the car and found

some drugs. The officers arrested Sills and informed him

of his constitutional rights. While he was in the police

car, Sills told the officers to keep the drugs and the

gun and let him go because he did not want another gun

charge.

 

At trial, in addition to the testimony of Dell and

Moore, the government presented testimony relating to

gangs. Sergeant Michael Lauer, who had been assigned 
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to the police department's "gang unit," testified that in

a 1992 interview Sills stated he was a member of the 19th

Street Long Beach Crips gang. Detective Robert Ogilvie,

who was also with the gang unit, testified, among other

things, that graffiti on the shotgun seized from the

Cadillac indicated animosity towards several rival gangs

of the Long Beach Crips. In addition, Frank Stubits, a

police department firearms examiner, testified that

shotguns were sawed off to achieve "concealability and

compactness." He also stated that because he had not

been requested to test for fingerprints on the seized

shotgun, he had not done so, which was in accordance with

standard practice.

On Sills' behalf, Cortez Clark disputed the officers'

testimony. Clark testified that he was with Sills when

the officers stopped them and arrested Sills. Clark

further testified that the officers had not searched the

car and, because the driver's seat was low to the floor,

a shotgun could not have fit under the seat. In

addition, a private investigator, who had examined and

taken photographs of the Cadillac which were admitted

into evidence, testified that there was only an inch

between the driver's seat and the floor.

Issues

On appeal, Sills first argues that the district court

erred in denying his motion to suppress. The court did

not err. Based on the details supplied by the reliable
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informant, the officers' corroboration of many of the

details, and Sills' responses to the officers at his

house and in the car, the district court correctly held

that the officers had a reasonable suspicion to stop the

car. See, e.g., United States v. Hughes, 15 F.3d 798,

801-02 (8th Cir. 1994) (stop justified where officers

found car described by informant parked in front of the

address given by informant and defendant appeared 
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nervous when officers followed him in the car). "Once

engaged in a lawful investigatory stop, the officers were

entitled to conduct a protective search of the

surrounding area [including the interior of the car] for

weapons, given [their] reasonable belief that [Sills]

posed a danger." United States v. Cox, 942 F.2d 1282,

1285 (8th Cir. 1991), cert. denied, 503 U.S. 921 (1992).

Sills also argues that the district court erred in

allowing testimony concerning gang-related activities

under Fed. R. Evid. 404(b), which provides that evidence

of "other crimes, wrongs, or acts" is inadmissible "to

prove the character of a person in order to show action

in conformance therewith" but is admissible to prove,

among other things, "motive, opportunity, intent,

preparation, plan, [and] knowledge." Specifically, "[t]o

be admissible as Rule 404(b) evidence, the evidence must

be: '(1) relevant to a material issue; (2) proved by a

preponderance of the evidence; (3) higher in probative

value than in prejudicial effect; and (4) similar in kind

and close in time to the crime charged.' " United States

v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995) (quoting

United States 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 relevant

to any issue at trial. We disagree. We have held that

Rule 404(b) "evidence is admissible when a defendant

places his state of mind and intent at issue." United
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States v. Jones, 110 F.3d 34, 36 (8th Cir. 1997). In

this case, Sills "specifically put his knowledge and

intent at issue." Id. Not only did he deny knowing that

the shotgun was in his car, he denied that the shotgun

was in his car. In addition, as the government argues,

the evidence would have been relevant to establish motive

and opportunity. See United States v. Jobson, 102 
-8-

F.3d 214, 221 (6th Cir. 1996) ("defendant's gang

membership would be admissible to establish his

opportunity to commit the crime"). Moreover, we note

that without Ogilvie's testimony concerning the markings

on the shotgun, "the jury probably could not have

understood the meaning of the graffiti." United States

v. Sparks, 949 F.2d 1023, 1026 (8th Cir. 1991), cert.

denied, 504 U.S. 927 (1992) ; see also United States v.

Williams, 81 F.3d 1434, 1441 (7th Cir. 1996) (upholding

admission of 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 no

specific number of years beyond which prior bad acts are

no longer relevant to the issue of intent.' " Shoffner,

71 F.3d at 1432 (quoting United States v. Burkett, 821

F.2d 1306, 1310 (8th Cir. 1987)). Rather, "[t]o

determine if evidence is too remote, 'the court applies

a reasonableness standard and examines the facts and

circumstances 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, including

testimony that gang membership is for life, "a lapse of

[three] years is not so remote as to render the . . .

evidence inadmissible." Id. at 1433.

We also reject Sills' argument that the district
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court erred in admitting the gang-related evidence

because its probative value was outweighed by its

prejudicial effect. "In this context, 'unfair prejudice

. . . means an undue tendency to suggest decision on an

improper basis.' " United States v. Johnson, 28 F.3d

1487, 1497 (8th Cir. 1994), cert. denied, 513 U.S. 1098

(1995) (quoting Fed. R. Evid. 403, Adv. Comm. Note).

Although a defendant may not be "convicted of a [] crime

through his association with" 
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a gang, "[s]pecific and circumscribed evidence of gang

association may be necessary in a trial to show 'the

nature and extent of [the defendant's] association, which

in turn bears'" on his guilt of the crime charged. Id.

(quoting Sparks, 949 F.2d at 1026). Although the

government's evidence "linked [Sills] with gangs, it fell

far short of establishing that [he] w[as] guilty . . . by

association." Id. Moreover, the district court

instructed the jury to consider the gang-related evidence

only as to whether Sills "knowingly possessed a sawed-off

shotgun." 

Sills also argues that the district court erred in

denying his motion for a mistrial. On cross-examination,

the government asked Sills' mother, Vesteria Withers,

whether the shotgun had any markings on it referring to

"Crips killer." The mother responded that "I can't read

it. I don't know how to read it." Sills moved for

mistrial, contending that the question violated the

spirit of the district court's pretrial ruling

prohibiting the government's witnesses from referring to

facts "from which the jury might conclude that [Sills] is

a killer." Although, as the government argues, the

question did not technically violate the court's ruling,

we agree with Sills and the district court that the

question violated 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 any

further reference made to this witness or anyone else
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unless the court is first advised about Crips killers."

However, even if the reference violated the pretrial

order, the court did not abuse its discretion in denying

the motion for a mistrial. "We will affirm a district

court's decision not to grant a mistrial absent an 'abuse

of discretion 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.

Withers did not directly answer the question, and

considering the 
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evidence of Sills' guilt the reference to "Crips killer"

did "not taint[] [the] trial to such an extent as to

require a mistrial." United States v. Byler, 98 F.3d

391, 394 (8th Cir. 1996). 

We have reviewed Sills' other arguments and have

found them without merit. 

Accordingly, we affirm the judgment of the district

court.

A true copy.

 Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT