THOMPSON, Circuit Judge.
Sometime on or around March 22, 2014 — all dates here are in that year, by the way — Shayne Parker committed two legal no-nos: he possessed 50 rounds of 38-caliber ammo while being a convicted felon, and he transported a SCCY Model CXP 9-mm pistol into his state of residence without a license. Or so a federal grand jury in Massachusetts alleged in an indictment charging him with violating 18 U.S.C. §§ 922(g)(1) and (a)(3). Parker pleaded not guilty. But a trial jury found him guilty as charged. And a district judge sentenced him to 60 months in prison and 3 years of supervised release.
Parker now appeals only his conviction, arguing that the judge triply erred — first, by not individually voir diring prospective jurors about their feelings toward race; then, by admitting evidence of other gun and ammo purchases (what we will call "other-acts evidence"); and, finally, by instructing the jury on willful blindness.
On March 21, Parker drove with Ronald Scott from Massachusetts (their state of residence) to New Hampshire and checked into the Keene Inn in Keene, New Hampshire. The room was registered in Parker's name. There they hooked up with Mitchell Riddell, a drug customer of Scott's. And Riddell talked to Scott — in Parker's presence — about buying guns.
The trio got together again the next day, March 22, this time joined by Melanie LaMott. Turns out LaMott could legally buy firearms in the Granite State and had agreed with Riddell to act as a straw buyer.
The foursome first went to the Alstead Gun Shop in Alstead, New Hampshire.
The gang then headed to the Sporting and Hunting Depot in Charlestown, New Hampshire, with Parker driving Scott in a Subaru and Riddell driving LaMott in a Toyota. After they all entered the store, LaMott bought a bunch of firearms, one of which was a SCCY Model CXP 9-mm pistol. Satisfied with the purchases, the group went to LaMott's Keene apartment, where Scott gave Riddell and LaMott crack cocaine as a partial payment for their services. Parker and Scott handled the firearms and said how pleased they were with them.
The quartet set out for Boston, Massachusetts — Riddell and LaMott in Riddell's car, and Parker and Scott in the Subaru — but stopped en route at Dick's Sporting Goods Store in Keene so Scott and LaMott could buy ammunition, including the 38-caliber ammunition. Once in Boston, Parker and Scott examined the guns and ammo. And Scott gave Riddell and LaMott the rest of the drugs they were owed for helping out.
At some point, the police caught wind of what was going on. And Parker's arrest, indictment, and conviction followed apace. As we said, his brief on appeal advances three claims of error — though all are without merit, for reasons we explain in the pages that follow.
After Parker elected to go to trial, the parties geared up to select an impartial jury. As part of that process, Parker's counsel asked the judge if he planned on conducting any individual voir dire. "Only at sidebar, if someone raises [a] hand" in response to a group question, the judge said — though, he stressed, "we're not going to do individualized voir dire in the sense of ... doing it in the lobby or doing it segregated." But Parker's lawyer believed the judge's proposed approach would not do enough to uncover potential jurors holding racist views. And so he pushed for individual voir dire, arguing to the judge as follows:
Relying on these reasons — offered without any evidence (like, say, a social-science study) to back them up — counsel asked the judge to ask these five questions (the bracketed numbers are ours):
Responding to counsel's request, the judge said that it is "by no means clear" that "people will be inhibited from simply raising their hands in a crowd full of strangers without uttering a word for fear of being shamed into admitting racial prejudice," but "will freely admit racial prejudice to a judicial officer in a black robe with lawyers and court reporters and law clerks present." So he denied the call for individual voir dire. "This is a relatively routine case," the judge then stressed — "not a death penalty case, not a murder case, not a highly publicized case." Because "[t]here's no racial angle to it" — "like a victim and a perpetrator being of different races" — and because "[n]othing about it particularly w[ould] evoke a strong emotional response or a racially charged response," the judge saw no reason "to take the highly unusual and time-consuming and resource-consuming step of individual voir dire." Asked by the defense to reconsider, the judge adhered to his ruling — despite counsel's insistence that Donald Trump's recent victory in the Massachusetts Republican primary had "engendered serious racial polarization" and that individual voir dire would add only "a couple of extra hours" to the process.
The judge proceeded to empanel the jury. And per his usual practice, the judge told the prospective jurors that "[i]t is very important that you give truthful responses." And then the judge said:
The judge started voir dire off with some basic icebreaking questions. For instance, after mentioning the names of the potential witnesses, the judge asked, "Do any of you know or are you related to ... or acquainted" with "any of those people?" A few potential jurors raised their hands, just like the judge had asked them to do. And after calling them to sidebar, the judge asked some probing follow-up questions.
Before turning to the issue of racial bias, the judge noted that "it can be difficult sometimes for people to talk openly about [race] or to be honest or open about whatever feelings they may have on [that] subject[], but your duties and obligations as citizens and as potential jurors require you to be completely honest with me." Having said that, the judge asked the group if anyone had "any feelings of any kind that may affect your ability in any way to be fair and impartial in the trial of an African-American defendant because of his race." No one raised a hand.
At sidebar, Parker's lawyer restated his position that group questions answered with a show of hands did not suffice because "there's no way anybody is going to come forward on that." "All right," the judge said, "[o]ther than individualized voir dire, is there any particular question you want me to ask that I have not asked to the group?" Defense counsel identified two, which the judge posed to the group: "[D]o any of you believe that it is more likely that the defendant is guilty of the crime because he is African-American?" And "[h]ave any of you had an experience
As Parker sees it, the judge not only had to voir dire potential jurors about possible racial prejudice, but he also had an obligation to question them individually rather than collectively — and to speak with each one outside the presence of the others. For support, Parker's brief talks about
The government counters that "the circumstances" of Parker's "case" did not require the judge to question prospective jurors about racial bias. So, the government adds, the judge actually went above and beyond what was required because he did quiz them on prejudice. And, the government insists, Parker has not shown that the judge's decision to question collectively rather than individually infracted any constitutional command.
Our review of the judge's voir dire decision looks only for abuses of discretion.
A defendant has a constitutional right to trial by an impartial jury,
Having said all this, however, we need not referee the parties' duel over whether the judge had to ask voir dire questions to smoke out possible racial bias. And this is because even if we assume (without deciding) that he had to explore the issue during the jury-selection process, the judge did exactly that — asking (as we detailed above) the group of potential jurors not one but three questions designed to weed out racial bias (including two questions suggested by defense counsel). Fairly viewed, the judge's questions during group voir dire captured the essence of what Parker wanted asked during the hoped-for individual voir dire, even if they did not match up word for word — certainly they showed the judge's sensitivity to racial-prejudice concerns. Perhaps that is why Parker spends most of his time arguing that the judge should have done an individual voir dire, talking to each potential juror outside of the others' earshot. Though forcefully presented by able counsel, his argument does not persuade.
Trial judges enjoy much discretion about how to conduct voir dire, including
Trying to convince us that his case is anything but ordinary, Parker turns to a concurrence in a nearly 30-year-old Eleventh Circuit opinion,
To over-simplify (slightly) for present purposes, the district judge there concluded that a state court's decision to deny Berryhill's request "for a sequestered" individual voir dire violated his fair-trial rights.
As we understand his brief, Parker is claiming that the "inhibiting effect" concept gives some oomph to his core contention that people will not answer race questions honestly during a group voir dire. Like the concurring judge in
Summarizing succinctly, given the particulars of Parker's case, we believe that the tack taken by the experienced judge passes the abuse-of-discretion test with room to spare.
Before the trial kicked off, the government moved in limine seeking permission to introduce evidence of gun and ammo purchases beyond the ones that formed the bases of the indictment's counts. Zeroing in on other straw buys that went down on March 22, as well as buys that occurred on March 10 and 16 (more on these in a bit), the government argued, first, that this other-acts evidence showed Parker's "knowledge and intent to transport and receive the firearms in the state of Massachusetts," and, second, that the other-acts evidence's probative worth outweighed any unfairly prejudicial effect. Parker opposed the motion.
Having gotten the green light from the judge, the government introduced evidence at trial that on March 10, Parker and Scott got the straw purchasers to buy multiple firearms at the Alstead Gun Shop: Parker drove Scott in the Subaru to New Hampshire, where they met with Riddell and a woman named Sandra Egbert. Scott gave Riddell money and general instructions on what guns to buy. The four — Parker, Scott, Riddell, and Egbert — entered the store. Egbert bought three guns. At some point, the guns ended up in the Subaru. And Parker said that he really liked one of them — "a silver and black SCCY 9 millimeter handgun" — and that he wanted to buy "more like it."
The government also introduced evidence of the straw purchases that happened less than a week later, on March 16: Before the buy, Parker and Scott headed to New Hampshire and stayed at the Keene Inn in a room registered to Parker. They met with Riddell and LaMott. Parker again said that he wanted more "SCCY" guns. And using Scott's money, LaMott then bought three firearms (one of which was an "SCCY" handgun) at the Sporting and Hunting Depot in Charlestown. After stopping at LaMott's Keene apartment, the group drove to Boston (Riddell drove LaMott in his car). Parker handled the guns back at the Boston apartment. And Riddell and LaMott returned to New Hampshire after getting crack cocaine as payment for their services.
And, finally, the government introduced evidence of the March 22 gun buy — one that occurred contemporaneously with the purchase of the SCCY Model CXP 9-mm pistol that was the subject of the indictment: At the Sporting and Hunting Depot, Parker told Riddell that he and Scott wanted an assault rifle hanging on the wall. And Parker and Scott then gave Riddell money to buy the weapon. LaMott made the purchase (again, at the same time she bought the SCCY Model CXP 9-mm
Importantly, at various points in the trial the judge instructed the jury regarding the purposes for which the other-acts evidence was introduced. Here is a perfect example of the kind of instructions he gave (the judge gave this one the first time he admitted the evidence):
Hard on the heels of this instruction, the judge — at defense counsel's request — told the jury that "another way of framing ... the same concept is you may not conclude that [Parker] had a propensity to commit a crime and, therefore, committed the crime, that he acted in accordance with bad character, so to speak." And to give another example, in his final jury charge the judge gave this reminder:
Parker thinks the judge reversibly erred here because (by his lights) the "uncharged crimes" evidence constituted "prejudicial" other-acts evidence that the government used to fill lots of trial time merely to portray him as bad man, thus "creating [a] significant risk" that the jury convicted him "based on his propensity to commit a crime."
Our review of the judge's decision to admit other-acts evidence is for abuse of discretion only.
No one doubts that prosecutors can offer evidence of uncharged crimes so long as the evidence goes to proving something other than the defendant's bad character, like proving his intent or knowledge.
The government is exactly right that prosecutors used the other-acts evidence not to show Parker's bad character but to show his intent and knowledge. Take the other-acts evidence of the March 22 purchases. Parker's expressing an interest in the assault-style rifle, giving money to help buy it, and handling it back in Boston (on the very day of the charged criminal purchases) showed his awareness of — and his participation in — the group's gun/ammo-purchasing project. Ditto for the other-acts evidence of the March 10 and 16 purchases, since those other acts not only occurred just before the charged acts, they also closely allied with the types of crimes Parker was on trial for — similarities include stays at the Keene Inn, in a room registered to Parker; the shuttling of guns and ammo from New Hampshire to Massachusetts; and the giving of drugs to straw buyers as payment for their services. All of this showed that Parker was a knowledgeable scheme member and not simply an "unknowing" innocent.
The long and the short of it is that the judge did not abuse his discretion by admitting the other-acts evidence.
Two issues down, one to go.
At a charge conference held before the close of evidence, the judge asked the parties if he should give a willful-blindness instruction and if so, why.
The prosecutor responded that yes, the judge should give the charge. For support, the prosecutor pointed to Parker's post-arrest statement to law enforcement that Scott had paid him $200 "like three times" to drive him to New Hampshire but that "each time, when we stayed in the hotel, when we came back to Boston, the only thing we came back with was marijuana." Parker added that he "didn't want to know" what else Scott was up to — and though Scott once went to the car to get "stuff," a word Parker took to mean guns, Parker claimed that he left the room because he "didn't want to know about nothing." According to the prosecutor, Parker's comments show "that he's willfully blind by attempting to close his eyes to the conduct." "I think it's fairly presented in the evidence or it certainly will be when the government introduces [the] statement tomorrow," the prosecutor stressed.
Parker's lawyer saw things differently, to put it mildly. The government does not "have to" put Parker's statement in evidence, counsel said. "We're not putting any evidence in" on the lack-of-knowledge issue, he added. And, he noted, the prosecutor "can't put [the statement] in and then say I want to get a particular instruction that otherwise would be inappropriate." Focusing on the proposed instruction's language, counsel complained that the judge could not use it because it would have "the effect of shifting the burden of proof" on the questions of Parker's knowledge and intent.
The government rested its case that same day. The defense, in turn, rested too — without calling any witnesses. The attorneys then made their closing arguments. And the judge gave the final charge to the jury.
Pertinently for our purposes, the judge instructed the jury that it "may infer" Parker "had knowledge of a fact if" it found Parker "deliberately closed his eyes to a fact that otherwise would have been obvious to him." "[T]o make such an inference," the judge explained, the jury had to "find two things: [f]irst, that [Parker] was aware of a high probability of the fact in question; and, [s]econd, that [he] consciously and deliberately avoided learning that fact — that is to say, he willfully made himself blind to that fact." And, the judge emphasized, whether Parker "deliberately closed his eyes to [a] fact, and, if so, what inference, if any, should be drawn," was "entirely up to you." Also, the judge cautioned the jury that Parker "must have consciously and deliberately avoided learning the fact" — neither "[m]ere negligence, recklessness or mistake in failing to learn the fact," nor "[t]he fact that a reasonable person in [Parker's] position would have known the fact," sufficed. Plus, the judge warned that a finding that Parker "made himself willfully blind to one or more facts" was not alone "sufficient to find him guilty of a crime." Rather, the prosecution had to "prove[] all of the elements of the crimes as charged in the indictment" — something the judge stressed after referring to Parker's presumption of innocence and the prosecution's burden to prove beyond a reasonable doubt the elements of each offense.
Parker's attorney renewed his objection to the willful-blindness instruction after the judge gave the charge.
Parker writes that the judge should not have given a willful-blindness instruction because (a) he "introduced no affirmative evidence" of his "lack of knowledge"; (b) the evidence "did not suggest a conscious course of deliberate ignorance" on his part; and (c) the charge relieved the government of its burden to prove his "knowledge" of the illegal scheme. For its part, the government argues that Parker waived the claim by not properly developing it in his appellate papers. If not waived, says the government, his argument is dead wrong on each front. And on top of that, the government claims that even if the evidence did not justify a willful-blindness instruction, any error was harmless because "the evidence was sufficient for the jury to find that Parker had actual knowledge of the firearms purchase scheme."
Some older cases — as the government suggests — imply that uncertainty surrounds what standard of review applies in assessing a judge's decision to give a willful-blindness instruction.
Because we can uphold the judge's willful-blindness charge on the merits, we need not decide whether Parker waived the issue because of inadequate briefing. To the merits then.
Lots of "criminal statutes require proof that a defendant acted knowingly," our judicial superiors tell us.
A willful-blindness instruction is appropriate only when (a) the defendant alleges he lacked knowledge, (b) the evidence — examined in the light most flattering to the prosecution — shows he deliberately closed his eyes to the true facts, and (c) the instruction, viewed in context, does not suggest that an inference of knowledge is required rather than permitted.
As for part (a), Parker's big argument is that he offered "no affirmative evidence" of his "lack of knowledge." True, Parker never testified at trial and so did not put his lack of guilty knowledge directly in issue. But "that circumstance is not dispositive."
To begin, Parker's post-arrest statement — admitted into evidence without objection — suggests an attempt on his part to convince the authorities that he had no idea what the people around him were doing. And Parker offers no developed argument as to why the judge could not rely on this evidence in his willful-blindness ruling. More, the trial transcript shows that Parker staked his defense on convincing the jury that he did not personally buy or transport the firearms, and was not there when others bought or talked about them — a defensive theme reflected by his counsel's questions on cross-examination and by his counsel's comments during closing
Parker fares no better under the part (b) of the test. The government offered direct evidence that he consciously averted his eyes to the group's illegal escapades. We are again talking about Parker's post-arrest statement in which he claimed that he "didn't want to know about nothing" and that he left the room when Scott went to the car to bring the guns into the Boston apartment (Scott had said that he was going to get "stuff," but Parker knew "stuff" meant "guns"). That is enough to satisfy this part of the test.
Finally, regarding the test's part (c), Parker makes no effort to explain why he thinks the judge's willful-blindness instruction mandated an inference of knowledge. Maybe that is because the judge took care to avoid giving the impression that such an inference was mandatory rather than permissive. Recall, for example, how the judge told the jurors that it was "entirely up to you to determine whether [Parker] deliberately closed his eyes to [a] fact, and, if so, what inference, if any, should be drawn." Add to this the other parts of the judge's final charge (highlighted above) and we think Parker's claim that the instruction improperly implied that a guilty-knowledge inference was obligatory is a no-go.
The bottom line is that we see no reversible error with this aspect of the case.
Our work over, we affirm Parker's conviction.