                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4943



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KINDALE TYRONE CROCKTON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-78-F)


Argued:   January 31, 2007                 Decided:   April 16, 2007


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Anne Margaret
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Raleigh, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Robert E. Skiver, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina; Susanna M.
Ringler, Third Year Law Student, WAKE FOREST UNIVERSITY SCHOOL OF
LAW, Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Kindale Crockton was tried and convicted for one count of

possession of a firearm by a felon.       On appeal he asserts that he

is entitled to a new trial because the district court erroneously

admitted a police record into evidence.         Although it was error to

admit the record, the error was harmless.           We therefore affirm

Crockton’s conviction.      Crockton also asserts that the district

court committed Sixth Amendment error because the facts underlying

a sentencing enhancement he received were neither admitted by him

nor proved to a jury beyond a reasonable doubt.          We conclude that

any Sixth Amendment error, if it occurred, was harmless because the

district court announced an identical, alternative sentence.             We

therefore affirm Crockton’s sentence.



                                   I.

            On the morning of July, 18, 2003, Officer William Holland

of   the   Fayetteville,   North   Carolina,    Police    Department    was

conducting surveillance of a house on Progress Street in response

to   complaints   about    prostitution   and    drug    dealing   in   the

neighborhood.     Officer Holland saw Carl McLaughlin and Terrence

McNeill engaged in what he believed to be a drug sale.             Shortly

thereafter, Crockton arrived at the house by car.          When he exited

the car, he went up to McLaughlin and McNeill and appeared to hand

them something.    Crockton then left on foot.      Shortly thereafter,


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Officer Holland watched as Crockton returned carrying “some type of

long firearm wrapped in a white plastic bag.”                   J.A. 289.      This

time, Crockton walked around to the backyard where McNeill and

McLaughlin were standing and handed the gun to McNeill.                    McNeill

unloaded and reloaded the weapon before hiding it under some

bushes.    Crockton then drove off.        At this point, Officer Holland

called for backup, approached the house, and placed McNeill and

McLaughlin in handcuffs while he retrieved the firearm, a 12-gauge

shotgun.    Minutes later, Crockton returned to the house on foot.

Officer Holland told him to be seated with McNeill and McLaughlin

but did not place him in handcuffs.            Although no one was arrested

at the time, Holland filled out field interview cards on all three

men.

            On March, 17, 2004, Crockton was charged with one count

of   being a convicted felon in possession of a firearm in violation

of   18   U.S.C.   §§   922(g)(1)   and    924.    During      Officer   Holland’s

testimony    at    trial,   the   government      moved   to    admit    the   field

interview card that Holland had completed with respect to Crockton.

Defense counsel objected to the card’s admissibility under Fed. R.

Evid. 803(8)(B), and the court held a bench conference.                    Defense

counsel asserted that the card was an inadmissible police report.

Looking only at the front side of the card, the district court

disagreed, stating that the card was “just a straight identity

record with the name [and] address” of the defendant.                    J.A. 313.


                                       3
The district court did not comment on the section on the front of

the card titled “Sus Act” under which boxes next to the words

“Narcotics” and “Weapons” had been checked.                       J.A. 691.        The

district court was unaware that the back of the card also contained

notations by Officer Holland. Under the header “Demeanor,” Officer

Holland had checked “Nervous.”                   Similarly, under “Drug Type”

Holland had checked “Cocaine” and under “Weapon/Tool” he had marked

“Rifle/Pistol.” In a section of the card titled “Remarks,” Officer

Holland wrote, “Dealing narcotics & possessing firearm by a felon.”

J.A. 692.

            Following the bench conference, the prosecutor resumed

the examination of Officer Holland, asking “[T]hat information on

there is what you got from him on the front side of the card?”

J.A.   314.       Officer    Holland       replied      affirmatively,     and     the

prosecutor then asked, “What was the purpose in obtaining that

information?” Holland answered, “Basically our records keeping,

knowing who’s on -- who was on the scene. That’s for biographical

information purposes.” J.A. 314. The court then admitted the card

into evidence.

            In    addition    to       Officer    Holland,      both   McNeill     and

McLaughlin    testified      against      Crockton.        McNeill     stated     that

Crockton    had   asked     him   to    hold     (or   store)   the    shotgun,    and

McLaughlin corroborated Officer Holland’s account of the manner in

which Crockton carried the shotgun and how it had been wrapped in


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plastic.    McNeill and McLaughlin further testified that Crockton

had pressured them not to implicate him in the gun possession.

This testimony was corroborated by another witness who stated that

Crockton   told    him    about    his   attempts    to    influence     McNeill’s

testimony through threats.

            In an effort to impeach McNeill and McLaughlin, the

defense called Officer Gregory Guilder, a dispatcher for the

Fayetteville Police Department.               Officer Guilder testified that

computer aided dispatch reports (CAD reports) made of Holland’s

radio    transmissions     on     July   18    concerned    only      McNeill    and

McLaughlin. During closing argument, defense counsel asserted that

the fact that Crockton’s name had not been put out over the radio

was significant and implied that Holland may have fabricated

Crockton’s involvement with the gun. The prosecutor addressed this

argument on rebuttal, stating:

       Now, some remarks made about the CAD reports and that
       only Mr. McNeill and Mr. McLaughlin was there on the CAD
       report. . . . we know from . . . these field interview
       cards, we know exactly what Officer Holland was
       investigating because it says it on the back. . . . we
       look at Mr. Crockton’s [field interview card], filled out
       at the time this event took place.         Says: dealing
       narcotics and possessing a firearm by a felon. Obviously
       Officer Holland’s contemporaneous notes on 6,7, and 8
       [the respective exhibit numbers for Crockton, McNeill,
       and McLaughlin’s field interview cards] support his
       version of the facts. He couldn’t go back and make those
       later. Those were made at the time. That was his
       testimony.

J.A.    639.      The    defense   did   not     object    to   the    mention   of

information contained on the back of the card. However, after the

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jury   left    the   courtroom,    the       district   court   expressed    its

frustration with the government’s line of argument, stating:

       Apologize for the ignorance. . . . I had no idea there
       was a charge written on the back. . . . It says what he
       was doing. You may have a basis for appeal, I will let
       it go to the jury but I will tell you it’s all I can do
       to contain myself to find this out at the end of the
       case.

J.A. 646. The district court then issued a curative instruction to

the jury, stating that the cards, which had not been published to

the jury, were not to be considered substantive evidence with

regard to the defendant’s guilt or innocence and would not be sent

to the jury room.

              The jury returned a guilty verdict.               At Crockton’s

sentencing hearing on October 20, 2004, the defense raised an

objection under Blakely v. Washington, 542 U.S. 296 (2004), to the

two-point enhancement for committing the current offense within two

years of release from custody.           The objection was overruled.        The

district court sentenced Crockton to 120 months’ imprisonment to be

followed by a three-year term of supervised release.              The district

court announced an identical, alternate sentence pursuant to 18

U.S.C. § 3553(a).

              Crockton appeals his conviction and sentence. He argues

that   the    district   court’s   erroneous       admission    of   his    field

interview card and the prosecution’s comments to the jury about the

contents of that card entitle him to a new trial.                Crockton also



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argues that his enhanced sentence violates the Sixth Amendment. We

address both issues in turn.



                                      II.

            We begin with the question of whether the district court

erred in admitting Crockton’s field interview card into evidence.

While Fed. R. Evid. 803(8) allows certain public records and

reports to be admitted into evidence as hearsay exceptions, subpart

(B) of the rule explicitly excludes “in criminal cases” written

reports    of   “matters   observed     by    police    officers.”        Police

investigative reports are inadmissible because they are generally

crafted with an eye toward prosecution, and their “use against the

accused in a criminal case” would bring about “the almost certain

collision   with   confrontation      rights.”        Fed.   R.   Evid.    803(8)

advisory    committee’s    note.      We     review    the   district     court’s

evidentiary ruling for abuse of discretion, United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997), keeping in mind that any

“error . . . that does not affect substantial rights must be

disregarded,” Fed. R. Crim. P. 52(a).

            The district court admitted Crockton’s field interview

card because it believed that the card contained only “straight

identity” information.      J.A. 313.       But the front of the card also

contained Officer Holland’s notations about Crockton’s alleged

activities in the section titled “Sus Act.”            Holland’s check marks


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next   to    “Narcotics”        and    “Weapons”    are   written     recordings    of

observations made during a criminal investigation.                     Accordingly,

the district court abused its discretion in failing to exclude the

card under Rule 803(8)(B).

              Of course, when the district court realized that the back

of the card contained the statement “Dealing narcotics & possessing

firearm      by   a    felon,”    the    court     recognized   its    mistake     and

immediately issued a curative instruction to the jury.                    Given the

curative instruction, the fact that the card was never published to

the jury, and the strong case presented against Crockton, the

government argues that the error was harmless.

              Crockton contends that admission of the field interview

card was not harmless.            He argues that the prosecutor in closing

argument attempted “to capitalize on the inadmissible information”

contained in the card by turning it into “an accusation against Mr.

Crockton for a crime for which he did not stand trial:                     ‘dealing

narcotics.’”          Appellant’s Br. at 23.        Crockton contends that such

an accusation constitutes prosecutorial misconduct.                    Crockton did

not object to the prosecutor’s argument at trial.                      Moreover, on

appeal      Crockton     does    not    raise    his   prosecutorial     misconduct

argument as a stand alone claim. Instead, he argues that admission

of the card was not harmless because it led to and facilitated

prosecutorial misconduct during the government’s closing argument.

Thus, if the prosecutor’s comments do not rise to the level of


                                            8
reversible prosecutorial misconduct, the district court’s error in

admitting the card would have to be viewed as harmless.

           Our court applies “a two-pronged test for determining

whether a prosecutor’s misconduct in closing argument ‘so infected

the trial with unfairness as to make the resulting conviction a

denial of due process.’”   United States v. Wilson, 135 F.3d 291,

297 (4th Cir. 1998) (quoting Darden v. Wainwright, 477 U.S. 168,

181 (1986)).    A defendant must show “[1] that the [prosecutor’s]

remarks were improper and [2] that they prejudicially affected the

defendant’s substantial rights so as to deprive him of a fair

trial.”   Id. (quoting United States v. Adam, 70 F.3d 776, 780 (4th

Cir. 1995)). While the prosecutor’s remark may have been improper,

Crockton’s substantial rights were not “prejudiced to the point of

denying him a fair trial.”     Id. at 299.    We have identified a

number of factors, no single one determinative, that are relevant

to the prejudice inquiry, including:

     (1) the degree to which the prosecutor’s remarks have a
     tendency to mislead the jury and to prejudice the
     accused; (2) whether the remarks were isolated or
     extensive; (3) absent the remarks, the strength of
     competent proof introduced to establish the guilt of the
     accused; and (4) whether the comments were deliberately
     placed before the jury to divert attention to extraneous
     matters.

Id. (quoting Adam, 70 F.3d at 780).    “We also consider (5) whether

the prosecutor’s remarks were invited by improper conduct of

defense counsel, and (6) whether curative instructions were given

to the jury.”   Id. at 299 (citing United States v. Young, 470 U.S.

                                 9
1, 12-13 (1985) and United States v. Harrison, 716 F.2d 1050, 1053

(4th Cir. 1983)). Taken together, these considerations convince us

that Crockton was not denied a fair trial.     Any tendency toward

prejudice caused by the prosecutor’s mention of Officer Holland’s

accusation of drug dealing is outweighed by the single mention of

that allegation, the strength of the government’s case, and the

curative instruction given to the jury.   Because we conclude that

the government’s closing argument did not prejudice Crockton’s

substantial rights, we must also conclude that the district court’s

decision to admit the field interview card was ultimately harmless.

We therefore affirm Crockton’s conviction.



                               III.

          We turn last to Crockton’s challenge to his sentence.

Our decision in United States v. Revels, 455 F.3d 448 (4th Cir.

2006), controls and requires us to affirm the sentence.    We need

not reach the question of whether Crockton’s sentence was enhanced

in violation of the Sixth Amendment because even if that was the

case, “the district court indicated that if the Guidelines were

non-mandatory, it would have imposed the same 120-month sentence

pursuant to the factors in 18 U.S.C. § 3553(a).”   Id. at 452.   As

such, any Sixth Amendment error is harmless because it did not

“actually affect[] the outcome of the proceedings.”   Id. (quoting

United States v. Hughes, 401 F.3d 450, 458 (4th Cir. 2005)).


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                                 * * *

          For   the   reasons   stated,   Crockton’s   conviction   and

sentence are

                                                             AFFIRMED.




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