In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3675

United States of America,

Plaintiff-Appellee,

v.

Edgar C. Richmond, Jr.,

Defendant-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-CR-47--Rudolph T. Randa, Judge.


Argued May 8, 2000--Decided July 24, 2000



  Before Posner, Chief Judge, and Bauer and Diane P.
Wood, Circuit Judges.

  Bauer, Circuit Judge. On July 1, 1999, a jury
returned a verdict of guilty against Edgar
Richmond, Jr. on one count of conspiracy for
making false statements to obtain a firearm in
violation of Title 18, United States Code,
Section 371 and six counts of aiding and abetting
the making of a false statement to obtain a
firearm in violation of Title 18, United States
Code, Section 922(a)(6). Richmond was sentenced
to a 37-month term of imprisonment as to each
count, to run concurrently, followed by three
years of supervised release and a $100 special
assessment as to each count.

  Richmond purchased a total of nine guns from
Badger Guns, which were later recovered by police
from third parties. For each purchase, Richmond
would state on Federal Form 4473 that he was the
actual purchaser of the weapon when in fact he
was not. In a practice called straw purchasing,
he would buy the guns and then sell them to
individuals who could not legally purchase guns.
In this case, Richmond sold the guns to either
Charles Holley or Robert Mallette.

  Richmond raises two arguments on appeal. First,
that the district court abused its discretion in
denying his motion for a continuance based on
pretrial publicity. Richmond argues that the pre-
trial publicity inflamed and confused the jury
making it impossible for him to receive a fair
trial. Second, he argues that the district court
abused its discretion in admitting evidence
regarding the criminal circumstances surrounding
the recovery of the guns.

  The newspaper articles in the weeks preceding
the trial focused on the problems of straw
purchasing and recent school shootings.
Approximately ten articles ran between May 9 and
May 18 when Richmond filed a motion for a
continuance based on pretrial publicity, which
was denied on May 27, 1999. Specifically, the
defendant refers to the May 16, 1999, article in
the Milwaukee Journal Sentinel in which Mallette
discussed the conspiracy. The article mentions
that both would stand trial on June 1, 1999, on
federal charges that they were straw buyers. The
other articles only generally refer to the
crackdown on straw purchasers and the need for
more stringent prosecution and stricter laws.
Neither Richmond nor the trial were mentioned in
any of those articles.

  We will only reverse a district court’s denial
of a motion to continue for an abuse of
discretion. United States v. Depoister, 

, 294 (7th Cir. 1997). An abuse occurs when
the district judge makes a decision not within
the "range of permissible options" afforded him
under the given circumstances. 

court denied the motion to
continue finding that there was no evidence that
the publicity was so inflammatory that an
impartial jury could not be selected. Because of
scheduling conflicts, the trial was ultimately
postponed for four weeks to June 29, 1999. On the
morning of the trial, Richmond renewed his motion
for a continuance and again it was denied. In
support of his motion, he presented an article
which appeared in that morning’s paper titled
"State Pounces on Thwarted Weapons Sale." The
article discusses another straw purchaser but at
no time refers to Richmond or the trial. The
court stated that:

"It’s getting to the point where the emphasis in
the media on weapons is such that articles in the
paper are appearing just like articles on sexual
assaults. And it’s becoming so commonplace that
I think the effect--any prejudicial affect is the
same as reporting on sexual assaults, or armed
robberies, or bank robberies, or something like
that. It’s becoming so commonplace."

The court conducted voir dire to ensure the
selection of an impartial jury and to get any
biases out in the open. The court then instructed
the jury on three separate occasions that they
were only to consider the evidence presented in
the courtroom.

  The Supreme Court found in Irvin v. Dowd that
to have an impartial jury does not mean the
jurors must be completely ignorant of the issues
and events of the case as long as they can put
aside their impressions and render a fair
verdict. 

, 722, 

, 1642,

(1961). The defendant must show
that actual prejudice resulted from the pretrial
publicity. 

In this case, Richmond has
failed to demonstrate that the pretrial publicity
denied him a fair trial.

  The district court conducted an extensive voir
dire of the jurors and cautioned them several
times on the importance of listening only to the
evidence presented at trial. Further, only one
article related to the specifics of this case; it
mentioned Richmond, the charges against him, and
statements from Mallette that were not so
inflammatory as to have denied him a fair trial.
Richmond speculates as to the overwhelming
community prejudice to guns and gangs but offers
no actual proof of it. Finally, the case was
ultimately continued for a month despite the
denial of the original motion. The district court
acted within the range of permissible options
under the circumstances and did not abuse its
discretion.

  Richmond next argues that the district court
abused its discretion in admitting evidence that
was irrelevant and highly prejudicial.
Specifically, evidence regarding the recovery of
the firearms and his association with gang
members. Evidence is admissible to complete "the
story of the crime on trial" or when it is "so
blended or connected that it tends to prove any
element of the charged crime." United States v.
Akinrinade, 

, 1285 (7th Cir. 1995).
In other words, evidence that is so intricately
related to the conspiracy is admissible provided
the probative value outweighs the prejudicial
value. United States v. Zarnes, 

,
1468 (7th Cir. 1994).

  While the district court allowed the government
to present the circumstances under which the
weapons were found, a detailed examination of
those crime scenes was not allowed. The evidence
established that the firearms purchased by
Richmond were recovered at several crime scenes,
including three associated with Charles Holley.
One gun was found lying next to Holley’s body
after he had been shot to death. The fact that
the firearms were found at several different
crime scenes is probative of the fact that
Richmond was purchasing guns for others. Some of
the guns were recovered by police shortly after
they were bought, destroying Richmond’s theory
that they were stolen from him at one time. The
circumstances of the recovery of the firearms
linked the government’s case together. It
provided the jury with the complete story of the
crime and explained the circumstances surrounding
the relationships of the people involved in the
conspiracy. The recovery of the weapons was so
completely related to the conspiracy that the
district court admitted the testimony.

  Evidence of gang involvement must be considered
carefully to avoid undue prejudice. United States
v. Rodriguez, 

, 1053 (7th Cir.
1991). The court must consider whether the
probative value of the evidence outweighs its
prejudicial value. Cook v. Hoppin, 

,
689 (7th Cir. 1986). Gang membership has been
admissible in cases where the interplay between
the people is central to proving the elements of
the conspiracy. United States v. Thomas, 

, 652 (7th Cir. 1996).

  The testimony of Mallette, a co-conspirator,
established the reasons Richmond purchased the
guns. Richmond purchased handguns for Mallette
and Holley, members of the Brothers of Struggle
(BOS) street gang. Both were under 21 and could
not buy handguns themselves. The BOS were
involved in a war with the rival street gang, the
2-4’s, and needed guns. While Richmond was not
apart of the BOS, Mallette testified that he used
the BOS handshake with Mallette’s BOS friends.
Evidence of their associations was necessary to
explain that Richmond purchased the firearms to
assist Mallette and Holley in their war against
the 2-4’s. The probative value of this evidence
outweighs its prejudicial value and establishes
an important link needed to establish the
elements of the conspiracy.

  Finally, the admission of the circumstances of
the recovery of the guns and the gang connection
was supported by an audio tape of Richmond
indicating that he purchased guns for other
people. The district court did not abuse its
discretion in the admission of the above
evidence.

Affirmed.