                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0251n.06

                                           No. 16-1773

                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                              May 02, 2017
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )     ON APPEAL FROM THE
v.                                                       )     UNITED STATES DISTRICT
                                                         )     COURT FOR THE EASTERN
GINO LITTLES,                                            )     DISTRICT OF MICHIGAN
                                                         )
       Defendant-Appellant.                              )
                                                         )

BEFORE: SUHRHEINRICH, WHITE, and STRANCH, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.              A jury convicted defendant-appellant Gino

Littles of two counts of carjacking, 18 U.S.C. § 2119(1), two counts of using and carrying a

firearm during a crime of violence, 18 U.S.C. § 924(c), and one count of felon in possession of a

firearm 18 U.S.C. § 922 (g)(1). Littles appeals, arguing that the district court erred in admitting

evidence as res gestae; the Government’s injection of “other bad acts” evidence deprived Littles

of a fair trial; and certain of the Government’s statements during the trial constituted

prosecutorial misconduct. We AFFIRM.

                                         I. Background

       This case arises out of a series of robberies committed between the evening of March 18,

2014, and the early morning hours of March 20, 2014. The Government’s theory is that on

March 18, defendant-appellant Littles and co-defendant Sherrod Houston robbed two persons at
No. 16-1773, United States v. Littles


gunpoint outside the Spotlight Liquor Store in Detroit,1 and stole a pair of expensive Cartier

sunglasses, among other items. On March 19, Houston, who was wearing the Cartier sunglasses,

and Littles visited co-defendant Vercell Coney. After Houston explained to Coney that he

acquired the sunglasses through the March 18 robbery, Coney stated that he wanted to participate

in future robberies; Coney then purchased a firearm for this purpose.

       During the evening of March 19, Houston and Littles stole a Chevrolet Camaro to use in

that night’s robberies. After assisting in stealing the Camaro, Houston decided not to participate

further in the March 19 robberies. Littles picked Coney up in the Camaro, but Coney refused to

use the Camaro in the robberies because it was loud and smelled strongly of gasoline. Littles and

Coney abandoned the Camaro and instead stole a white minivan. They drove the white minivan

to Spotlight Liquor Store and robbed someone, but only obtained $9.00 from the victim. Littles

and Coney then drove to a gas station and stole two cars at gunpoint, a Jeep and a Chevrolet

Impala. They abandoned the Impala, but stashed the stolen Jeep in a motel parking lot.

       On March 20, Coney and Littles located a buyer for the Jeep and offered Houston, the

only one of the three with a driver’s license, $200 to drive the Jeep to the buyer. Coney and

Littles followed Houston in a car driven by Coney’s girlfriend. However, the Detroit Police had

been surveilling the Jeep and arrested Coney, Littles, and Houston on the drive to the buyer.

        For the gas station robbery, Littles and Coney were each charged with two counts of

carjacking, 18 U.S.C. § 2119(1), and two counts of using a firearm during a crime of violence,

18 U.S.C. § 924(c). By superseding indictment, Littles was also charged with being a felon in

possession of a firearm. 18 U.S.C. § 922(g)(1). Houston was charged as an accessory-after-the-

fact. 18 U.S.C. § 3. Houston and Coney pleaded guilty and agreed to testify against Littles.

       1
           Neither Houston nor Littles has been charged with this robbery.


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No. 16-1773, United States v. Littles


        At Littles’s jury trial, Houston and Coney testified consistently with the above narrative.

The jury returned a verdict of guilty on all counts, and the district court imposed a sentence of

408 months of imprisonment, consisting of 24 months’ concurrent imprisonment on the two

carjacking counts and the felon-in-possession count (below the bottom of the Guidelines range of

130 months’ imprisonment for those counts), 84 months’ consecutive imprisonment on the

first § 924 (c) count (the statutory mandatory minimum), and 300 months’ consecutive

imprisonment on the second § 924 (c) count (the statutory mandatory minimum).

        On appeal, Littles argues that the district court erred in admitting evidence of the March

18 robbery committed by Littles and Houston. Littles further argues that he is entitled to a

mistrial due to prosecutorial misconduct and the Government’s injection of “other bad acts”

evidence into the trial.

                                           II. Analysis

                                        A. Standard of review

        Evidentiary rulings, including a district court’s decision to admit evidence as res gestae,

are reviewed for abuse of discretion. United States v. Martinez, 430 F.3d 317, 335 (6th Cir.

2005). A district court’s decision not to grant a mistrial is also reviewed for abuse of discretion.

United States v. Forrest, 17 F.3d 916, 919 (6th Cir. 1994). Whether “statements amount to

prosecutorial misconduct and whether they rendered the trial fundamentally unfair are mixed

questions of law and fact and are therefore reviewed de novo.” United States v. Francis,

170 F.3d 546, 549 (6th Cir. 1999). However, improper remarks made by the prosecutor without

objection are reviewed only for plain error. United States v. Carroll, 26 F.3d 1380, 1383 (6th

Cir. 1994).




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No. 16-1773, United States v. Littles


                                        B. Res Gestae Evidence

        Littles contends that the district court erred by allowing Houston and Coney to testify

about the March 18 robbery and carjacking. The district court, after determining that this

evidence was not admissible under Federal Rule of Evidence 404(b), concluded that it was

intrinsic to the crime and thus admissible as res gestae evidence.

        Res gestae or “background” evidence is admissible when it is “inextricably intertwined

with the charged offense.” United States v. Clay, 667 F.3d 689, 697 (6th Cir. 2012) (internal

quotation marks omitted).     Res gestae evidence must have a “causal, temporal or spatial

connection with the charged offense.” United States v. Hardy, 228 F.3d 745, 748 (6th Cir.

2000). This includes “evidence that is a prelude to the charged offense, is directly probative of

the charged offense, arises from the same events as the charged offense, forms an integral part of

the witness’s testimony, or completes the story of the charged offense.” United States v. Churn,

800 F.3d 768, 779 (6th Cir. 2015), reh’g denied (Oct. 23, 2015) (quoting United States v.

Grooms, 566 Fed. App’x. 485, 491 (6th Cir. 2014)). Prosecutors are permitted to provide the

jury with a “natural narrative of events," and are not limited to a “sanitized recounting of the

facts.” United States v. Gibbs, 797 F.3d 416, 424 (6th Cir. 2015) (internal quotation marks

omitted). However, res gestae is “not an open ended basis to admit any and all other act evidence

the proponent wishes to introduce.” Hardy, 228 F.3d at 748 (holding that the district court

abused its discretion in admitting testimony of drug transactions occurring six years before the

date of the charged conspiracy that involved different parties than those named in the

conspiracy); see also Gibbs, 797 F.3d at 423 (“Retaliation that occurred one month after the

shooting is not at all necessary to determine whether Defendant possessed ammunition at that

earlier time.”).



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No. 16-1773, United States v. Littles


       Here, the challenged evidence consists of Coney’s testimony that on March 19, Houston

went to Coney’s mother’s apartment to receive a hair cut from Coney; that Littles accompanied

Houston on this outing; and that Houston was wearing high-end Cartier glasses that Houston and

Littles had stolen. It also includes Houston’s more specific testimony that on March 18, he and

Littles committed an armed robbery outside the Spotlight Liquor Store using a .25 caliber

handgun; that Houston had handled the gun during the robbery; that they had driven to Spotlight

Liquor Store in a stolen Dodge Durango; and that they obtained a pair of expensive Cartier

glasses from the victim. The Government made a motion in limine for admission of this

testimony, and the district court found that testimony regarding the March 18 car theft and the

subsequent armed robbery was “intrinsic to the crime; interconnected, intertwined, interrelated as

part of an ongoing sort of series of activities that the jury is entitled to know the entire story

of[.]” R. 104, PID 588.

       This court’s decision in Churn is instructive. In Churn, the defendant, the owner of a

construction company, had been convicted of seven counts of bank fraud arising from his receipt

of bank loans to construct houses and his subsequent failure to perform the work. 800 F.3d at

771. On appeal, the defendant argued that the district court abused its discretion by “admitting

evidence about a real-estate deal that did not underlie his charged offenses.” Id. at 777. The

challenged real-estate deal involved an investor that had participated in one of the charged real-

estate transactions, and the uncharged deal was “set up the same” as the charged transaction. Id.

at 779. This court affirmed the district court, holding that the testimony about the unindicted

transaction was res gestae because it “explain[ed] the relationship between the witness and the

defendant and the nature of their business relationship and the course of their business dealings”

and was “closely related in both time and nature to the crime charged.” Id. at 779.



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No. 16-1773, United States v. Littles


       Like the evidence in Churn, the testimony about the March 18 robbery explained the

relationship between Coney, Houston, and Littles, and how they were involved in the charged

conduct. The conduct on March 18 was also closely related in nature to that on March 19—both

were largely unplanned, involved two robbers, and utilized handguns and stolen cars in the

commission of the robberies. It is immaterial that the cars and handguns used on each night were

different, as “we only require that the facts are ‘closely related.’” Id. (finding it immaterial that

the uncharged real-estate deal, unlike the charged transactions, did not involve a bank loan).

Additionally, the res gestae evidence possesses a temporal proximity to the charged carjackings;

the March 18 robberies occurred the night prior to the charged offenses. See Clay, 667 F.3d at

698.

       Finally, the district court did not abuse its discretion in finding that the probative value of

the testimony was not substantially outweighed by its potential for unfair prejudice. Fed. R.

Evid. 403. “Broad discretion is given to district courts in determinations of admissibility based

on considerations of relevance and prejudice, and those decisions will not be lightly overturned.”

United States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008) (quoting United States v. Chambers,

441 F.3d 438, 455 (6th Cir. 2006)). The March 18 testimony was a small portion of the evidence

offered against Littles and did not include inflammatory statements likely to unfairly prejudice

the jury. Since the evidence “completes the story of the charged offense[s],” Churn, 800 F.3d at

779, and its probative value is not substantially outweighed by its prejudicial impact, the district

court did not abuse its discretion in admitting the evidence.




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No. 16-1773, United States v. Littles


                                   C. Other Bad Acts Evidence

       Littles also argues that the district court should have granted a mistrial because of

improper testimony given during the Government’s direct examination of Houston. The entirety

of the challenged exchange is as follows:

               [Government:] Is [the Cartier glasses robbery] the only robbery that you did that
               night with the defendant?
               [Houston:] No.
               [Government:] You did one other?
               [Houston:] Yes.

R. 109, PID 1487. Littles immediately moved for a mistrial. Although the district court noted

that the testimony was a surprise and not the subject of a motion in limine, it nevertheless denied

the motion and issued a curative instruction: “Ladies and gentlemen, I’m going to instruct you to

disregard counsel’s question concerning what happened after the incident at the Spotlight Liquor

Store with the Cartier glasses. Put it out of your mind entirely, okay?” R. 109, PID 1489.

       A new trial should only be granted if the improper evidence was so prejudicial “that the

jury could not be trusted to disregard it.” United States v. Ursery, 109 F.3d 1129, 1134 (6th Cir.

1997). “The primary concern is fairness to the defendant.” United States v. Forrest 17 F.3d 916,

919 (6th Cir. 1994). We consider five factors in determining whether to grant a mistrial due to

improper testimony: “(1) whether the remark was unsolicited; (2) whether the government’s line

of questioning was reasonable; (3) whether the limiting instruction was immediate, clear, and

forceful, (4) whether any bad faith was evidenced by the government, and (5) whether the

remark was only a small part of the evidence against the defendant.” Zuern v. Tate, 336 F.3d

478, 485 (6th Cir. 2003).

       Assuming that the statements were improper, the first two factors favor Littles. The

Government intentionally solicited the challenged testimony, and, given that the testimony was



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No. 16-1773, United States v. Littles


outside the scope of the Government’s motions in limine and was a surprise to both Littles and

the district court, the line of questioning was not reasonable. The questioning did not violate any

specific instruction from the district court, and it is thus unclear whether it was done in bad faith.

See, e.g., Forrest, 17 F.3d at 921 (finding bad faith when the testimony “directly contravened the

judge’s specific warning, which he had directed the prosecutor to convey to his witness”). The

fourth factor is therefore a wash.

       However, the district court issued an immediate and clear limiting instruction, and

“[j]uries are presumed to understand and follow such directions from the court.” Id. at 920–21.

The third factor thus weighs strongly in favor of the Government. Moreover, the challenged

testimony was brief—Houston uttered only two words—and it is doubtful that the outcome of

the trial was affected by the improper statements; the fifth and final factor clearly weighs in favor

of the Government. Thus, although the Government acted improperly in eliciting the challenged

statements, the testimony did not deprive Littles of a fair trial.

                                     D. Prosecutorial Misconduct

       Littles’s final argument is that the Government improperly shifted the burden of proof at

two points during the trial. “For the prosecutor’s misconduct to be found to violate defendant’s

constitutional rights this court must determine that the prosecutor’s actions so infected the trial

with unfairness as to make the resulting conviction a denial of due process.” Hill v. Brigano,

199 F.3d 833, 847 (6th Cir. 1999) (internal quotation marks omitted). We use a two-part test to

determine whether a prosecutor’s conduct warrants a new trial. Cristini v. McKee, 526 F.3d 888,

899 (6th Cir. 2008). First, we must decide whether the challenged conduct was improper.

United States v. Warshak, 631 F.3d 266, 302 (6th Cir. 2010). Then, if the conduct was improper,

we employ a four-factor test to determine whether the impropriety was flagrant and mandates



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reversal. Id. The four factors include: “(1) whether the conduct and remarks of the prosecutor

tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were

isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and

(4) whether the evidence against the defendant was strong.” Id. quoting Cristini, 526 F.3d at

899. Finally, if conduct is improper but not flagrant, we will only reverse a conviction if

(1) proof of the defendant’s guilt is not overwhelming; (2) defense counsel objected to the

conduct; and (3) the trial judge did not cure the impropriety through an admonishment to the

jury. United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999).

       First, Littles challenges the Government’s cross-examination of Julianne Cuneo, a private

investigator hired by Littles. On direct examination, Cuneo testified that she had been hired to

investigate the phone records from March 19 and March 20 of phone numbers associated with

Coney and Littles. This was relevant to corroborate testimony that Coney and Littles had called

Houston—via Houston’s girlfriend’s phone—for a ride after committing the charged carjackings.

Cuneo was provided with telephone logs for three phone numbers that had been identified by the

Government as belonging to either Coney or Littles, and used grand jury testimony and FBI 302

reports to determine which phone number was associated with each defendant.2

       Cuneo testified that she did not find Houston’s girlfriend’s phone number in the call logs

of either Littles’s or Coney’s phones; Littles offered the lack of evidence of phone calls made or

received on his phone to create reasonable doubt as to whether it was Houston, rather than



       2
           The identities of the owners of the different phone numbers was the subject of much
debate at trial. Two phones associated with Vercell Coney were recovered from Coney’s
girlfriend’s car after the co-defendants were arrested. The rest of the phone numbers were
identified through witness testimony and the owners of the various phone numbers were
disputed. Littles contended that the Government was “guessing” as to the identities of the phone
numbers because “[t]hey don’t have any records.” R. 112, PID 2081.


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No. 16-1773, United States v. Littles


Littles, who committed the March 19 robberies. On cross-examination, the Government asked

Cuneo if she had interviewed Houston’s girlfriend and if she had subpoenaed the phone company

regarding the phone numbers associated with Houston’s girlfriend. After Cuneo stated that she

had not sent out subpoenas, the Government asked: “You recognize that through [defense

counsel] you have subpoena powers, correct?” R. 111, PID 1995. After Cuneo answered

affirmatively, the Government asked: “And you recognize that you can use those subpoena

powers just like the Government can[?]” R. 111, PID 1994.

       Littles did not object to this line of questioning but now argues that these questions

improperly suggested that he had an obligation to affirmatively prove his innocence. Since

Littles failed to object to the Government’s cross-examination of Cuneo, we review this claim

for plain error. Carroll, 26 F.3d at 1383. The district court did not plainly err in permitting the

cross-examination. Littles called Cuneo to offer substantive testimony about the call logs, and

the Government’s questioning was directed at discrediting this testimony by questioning the

thoroughness of Cuneo’s investigation. The Government did not suggest that Littles had an

obligation to produce this, or any, evidence.

       Similarly, Littles challenges the Government’s conduct during its closing statements.

There, the Government stated: “He also talks about [how] we don’t have the defendant’s phone

records. But you heard the testimony. Both parties have subpoena powers . . . You know who’s

sitting at that table right there? The defense counsel has the same subpoena powers I do.” R.

112, PID 2105. Littles objected to this argument as improperly shifting the burden of proof, and

the district court sustained the objection and issued a curative instruction:

       Remember, ladies and gentlemen, my instruction. The Government has the
       burden of proof from the very beginning of the case right to the very end of the
       case. The defendant has no burden to prove anything to you. . . . In truth, the



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No. 16-1773, United States v. Littles


       defendant has no obligation to present evidence at all. They can, they might, if
       they wish.

R. 112, PID 2106. However, the district court reversed course in its opinion denying Littles’s

motion for a judgment of acquittal or for a new trial. There, the district court found that Littles

had invited the Government’s statements by stating that the jury “can find reasonable doubt

based on evidence or the lack of evidence.” R. 112, PID 2101. Littles had further asked the jury,

“[w]ouldn’t you like to know if cell tower information showed Gino Littles’ phone was not in

that vehicle? I wish I had [it] to give it to you. We don’t have it. The Government has not

presented it.” R. 112, PID 2102. Since the Government’s statements were made in response to

Littles’s implication that the Government intentionally withheld the phone record evidence, the

district court concluded that the Government did not improperly shift the burden to the defense.

       The district court correctly determined that the Government’s statements about the

defense’s ability to subpoena phone records were not improper. While the Government is not

permitted to suggest that the defendant bears the burden of proving his or her innocence, the

Government may state that the defense has the power to introduce evidence when “the defense’s

assertions . . . opened the door to the rebuttal.” United States v. Wimbley, 553 F.3d 455, 461 (6th

Cir. 2009) (internal quotation marks and modifications omitted).        In Wimbley, the defense

counsel stated in his closing argument that the Government failed to prove its case because it did

not conduct DNA or fingerprint testing on bags of crack cocaine that had been purchased from

the defendant. Id. at 457–59. The Government responded that

        the Defendant didn’t try to [have it tested] or have [the tests] done. The
       Defendant has the ability to have these things tested, too, for fingerprints and
       DNA. If it was such a big deal to him, why didn’t he have it tested, if he thought
       it would help him?




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No. 16-1773, United States v. Littles


Id. at 459. This court found that the Government’s statements “were a proper response to

defense counsel’s statements that the government had not performed proper testing of the

evidence.” Id. at 462. See also United States v. Clark, 982 F.2d 965, 969 (6th Cir. 1993) (“The

government’s rebuttal argument [that Defendant could have called the second agent as a witness]

did not imply in any way that the burden of proof was on the defendant to prove his innocence.

It was, instead, fair comment designed to meet the defense counsel’s argument that the

government omitted to call the second agent because he would have testified in favor of

[Defendant].”).

       Here, the Government’s statements regarding Littles’s ability to subpoena the phone

records did not improperly shift the burden of proof.          Littles opened the door to the

Government’s rebuttal by emphasizing the Government’s failure to produce the phone records.

In its response, the Government did not suggest that Littles had an obligation to produce any

evidence in his favor, merely that Littles had the power to do so. Moreover, the district court

gave an immediate and forceful curative instruction, thus further assuring us that Littles was not

deprived of a fair trial. Since we find the Government’s statements to have been proper, we need

not reach the flagrancy analysis.

                                        IV. Conclusion

       For these reasons, we AFFIRM Littles’s conviction.




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