Appeal from United States District Court for the Southern District of Iowa - Des Moines
The opinion of the court was delivered by: Benton, Circuit Judge.
Submitted: September 21, 2012
Before MELLOY, BEAM, and BENTON, Circuit Judges.
A jury convicted Robbie Dean Fetters of two counts of being a felon in possession of a firearm and ammunition, conspiracy to distribute methamphetamine, two counts of meth distribution, possession of meth with intent to distribute, and possession of a firearm in furtherance of a drug trafficking crime - in violation of 18 U.S.C. §§ 922(g)(1), 924(c) and 21 U.S.C. §§ 846, 841(a)(1). Fetters appeals, arguing the district court*fn1 erred in denying (1) his motions for a mistrial and new trial based on improper testimony and (2) his motion for judgment of acquittal on three counts based on insufficiency of the evidence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
"This court states the facts most favorably to the jury's verdict." United States v. Moya, 690 F.3d 944, 947 (8th Cir. 2012).
On January 6, 2010, police and federal agents executed a search warrant at Fetters's residence. An agent found a .22 caliber revolver and holster hidden in the front bedroom vent, with ammunition throughout the house.
In March, agents used an informant for two controlled buys of meth from Fetters. Three days after the second buy, officers arrested Fetters for a hit-and-run and driving-with-a-suspended-license. On him was around $2,800 in cash and an empty holster. Officers discovered the car's license plate belonged to a different vehicle. They found a .38 caliber revolver under the front passenger seat. The booking officer found 11.73 grams of 73% pure meth on Fetters.
At trial, witnesses testified about Fetters's meth dealing and firearm possessions. Fetters did not testify and stipulated to being convicted of a crime punishable by imprisonment for more than one year. Three government witnesses referenced his criminal history. After the jury's verdict on seven counts, the court denied motions for a mistrial and new trial.
Fetters argues that improper testimony required a mistrial or new trial. This court reviews denials of motions for a mistrial and new trial for abuse of discretion. United States v. Garrett, 648 F.3d 618, 624 (8th Cir. 2011); United States v. Rice, 449 F.3d 887, 893 (8th Cir. 2006). "Motions for new trials are generally disfavored and will be granted only where a serious miscarriage of justice may have occurred." Id. (internal citations omitted). "The prejudicial effect of any improper testimony is determined by examining the context of the error and the strength of the evidence of the defendant's guilt." United States v. Hollins, 432 F.3d 809, 812 (8th Cir. 2005). Generally, remedial instructions cure improper statements, and substantial evidence of guilt "precludes . . . reversing the district court." United States v. Molina-Perez, 595 F.3d 854, 861-62 (8th Cir. 2010).
Fetters contends that three references to his criminal history were unfairly prejudicial because they violated the trial stipulation and he did not testify. First, defense counsel asked a government witness the last time he saw Fetters before agreeing to be an informant. He responded, "Last time I seen him was . . . before he got locked up for some kind of gun charge." Fetters did not object but later moved for a mistrial. In its instructions, the court admonished, "Other than the stipulation . . . there is no evidence of any criminal conviction of the defendant for any other crime." Second, asked why he had Fetters remove his shirt, the booking officer said, "I worked at the jail for almost three years now, dealt with Inmate Fetters on several occasions inside of the jail. I know he has health problems." The court immediately struck this testimony, instructing the jury to disregard it. Finally, a narcotics officer testified that a drug dealer might change the license plate on a vehicle because it was stolen. The prosecutor next sought to clarify that the officer was not saying that Fetters was driving a stolen vehicle. The court promptly struck the testimony, instructing the jury to disregard it.
These isolated comments were "fleeting" and remedied by the district court. See United States v. Sherman, 440 F.3d 982, 988 (8th Cir. 2006). Evidence of Fetters's guilt was substantial, including recordings of two controlled meth purchases, testimony from multiple witnesses about meth dealing and firearm possessions, and the arrest with a gun and meth in his possession. There was no evidence of misconduct or inappropriate questioning by the prosecutor. The "three comments . . in the context of the entire trial . . . [were not] so egregious as to warrant a conclusion that the district court abused its discretion in refusing to grant a mistrial" or new trial. Id.; cf. United States v. Beeks, 224 F.3d 741, 747 (8th Cir. 2000) ("[T]he government's case . . . was not strong . . . but it was substantially bolstered by the prosecutor's inappropriate questioning.").
Fetters claims the district court erred in denying his motion for judgment of acquittal, because insufficient evidence supported his convictions for (1) being a felon in possession of the .22 and ammunition, (2) possession of meth with intent to distribute, and (3) possession of the .38 in furtherance of a drug trafficking crime. This court reviews de novo denial of a motion for judgment of acquittal, "viewing evidence in the light most favorable to the . . . verdict . . . [and] revers[ing] only if no reasonable jury could have ...