                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1292
                                  ___________

United States of America,            *
                                     *
                   Appellee,         *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * District of Minnesota.
Nickolas James Conrad,               *
                                     *
                   Appellant.        *
                                     *
                                  ___________

                             Submitted: August 20, 2002

                                 Filed: February 28, 2003
                                  ___________

Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Nickolas James Conrad was charged in a one count indictment with possession
of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. A
jury convicted him of the charge. Conrad appeals his conviction arguing
prosecutorial misconduct in the opening statement and closing argument. In addition,
Conrad appeals the court’s decision to allow the government to introduce into
evidence certain drug paraphernalia found in his apartment. For the reasons stated
below, we reverse and remand for a new trial.
        This court has directly addressed the impropriety of discussing the purpose of
the gun control statute during trial. See United States v. Norton, 639 F.2d 427 (8th
Cir. 1981). As stated in Norton: “This court has previously held that testimony
concerning the purpose of the Gun Control Act has little or no probative value in a
trial for a violation of the Act.” Id. at 429 (citing United States v. Bell, 573 F.2d
1040, 1045 (8th Cir. 1978); United States v. Fullmer, 457 F.2d 447, 449 (7th Cir.
1972)). In Norton, the defendant was convicted for possession of a firearm by a felon
and for possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. §§
5861(d) and 5871. Id. at 427. During closing arguments, the prosecutor argued about
the purpose of the statute and, over the objection of defense counsel, the court
allowed the prosecutor to continue. On appeal to this court, we stated:

      This statement was clearly improper. This Court has previously held
      that testimony concerning the purpose of the Gun Control Act has little
      or no probative value in a trial for a violation of the Act. There is even
      less justification for allowing the prosecutor to “testify” in closing
      argument about the statute’s purpose. Moreover, the government admits
      that the only proper issue for the jury’s consideration was whether
      Norton was in possession of the weapon; indeed, the prosecutor so
      stated in her closing argument. Even at the time she made the remark
      about the statute’s purpose, therefore, the prosecutor knew that it had
      absolutely no relevance to the issue at trial. Its sole purpose was to
      create prejudice in the minds of the jurors, and the trial court erred in
      permitting it to be made.

Norton, 639 F.2d at 429 (internal citations and footnote omitted). We reach the same
conclusion in this appeal.

       Conrad rented the upstairs apartment of a two-story duplex. Prior to moving
into that apartment, Conrad lived in the downstairs apartment with his friend Dale
Johnson. In the months of January, February, and early March of 2001, Johnson, on
a sporadic basis, stayed in the upstairs apartment rented by Conrad. Johnson would


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sleep on a futon owned by Conrad. On the morning of March 7, 2001, the St. Paul
Police Department and the Minnesota Gang Strike Force executed a search warrant
on Conrad’s residence. Johnson and Conrad remained outside the duplex during the
search. While outside, an officer asked Conrad and Johnson if there were any
weapons inside the house. Conrad responded: “There is a sawed-off shotgun in the
bedroom closet upstairs.” During the search, the gun was found in the closet. Conrad
contends the gun belonged to Johnson.

       We first address Conrad’s prosecutorial misconduct allegation. The comments
at issue in this case were made by the prosecutor in his opening statement, in eliciting
testimony from a witness, and in his closing argument. The comments pertained to
the purpose of the charging statute. In his opening statement the prosecutor described
the expected testimony of an ATF agent and indicated the agent would testify as to
why the weapon is regulated. The prosecutor stated:

      Mr. Steinkamp: But you’ll also hear from Special Agent David Nygren.
      He’ll talk to you about the firearm that was seized in the execution of the
      warrant. He’ll tell you that it was working, that it fired without a
      problem, and he’ll talk to you a little bit about sawed-off shotguns
      versus shotguns, why they’re illegal –

                                         ***

      Mr. Scott: Objection, your Honor, objection. Improper argument.

      The Court: I think anything further as to the rationale behind the law
      would be inappropriate.

(Trial Transcript Day 1 at 118-19).

      When the agent was on the stand, the prosecutor sought to elicit testimony
regarding the shot pattern of the illegal weapon:


                                           3
      Mr. Steinkamp: And can you explain to the jury how when you fire a
      shell through a sawed-off shotgun, the pattern of the BBs, if you will,
      differs from shooting from a regular-length shotgun?

      Mr. Scott: I’m going to object, your Honor. One relevance, two, 403.

      The Court: Overruled. . . .

                                        ***

      Agent Nygren: [T]he shorter the barrel, the pattern is going to disperse
      more rapidly from a shorter barrel, because as it exits the barrel it’s
      going to spread out, disperse, and cause a larger pattern than if you had
      a longer shotgun barrel. Because the longer the barrel, the longer the
      pattern is going to stay together. . . .

(Trial Transcript Day 1 at 207). In addition, the agent testified about how the weapon
could be carried and the potential for concealment. The court allowed the testimony
over an objection from defense counsel. However, the court struck the agent’s
testimony regarding concealment and cautioned the jury to disregard that portion of
the agent’s testimony.

      In closing arguments, the prosecutor again went into the purpose of regulating
the weapon at issue after the court instructed him not to:

      Mr. Stenkamp: Why? Why regulate a gun like (indicating) this? This
      is a gun that can be worn on the shoulder, it fires a 12-gauge shotgun
      round –

      Mr. Scott: Your Honor, I’m going to object to the why. It appeals to
      passion and prejudice.

      The Court: Overruled at this point.

      Mr. Steinkamp: There’s a reason why this gun is regulated and a

                                          4
      shotgun isn’t. There’s a reason why this gun is regulated and a nine-
      millimeter handgun isn’t.

      Mr. Scott: I’m going to object again your Honor, from the same grounds.

      The Court: I think at this point you’re going beyond the permissible
      bounds of argument. Sustained.

                                        ***

      Mr. Steinkamp: It could put a pattern about this (indicating) big from
      nine feet away.

(Trial Transcript Day 3, at 8-9, 14).

       The trial court has broad discretion in controlling the direction of opening
statements and closing arguments, “and this court will not reverse absent a showing
of abuse of discretion.” United States v. Johnson, 968 F.2d. 768, 769 (8th Cir. 1992).
On appeal, we review the facts of each case in order to determine if the prosecutor’s
remarks unduly prejudiced the defendant’s opportunity for a fair trial. Id. at 770. We
will reverse the conviction if we conclude the jury’s verdict could reasonably have
been affected by the prosecutor’s improper comments. Id.

       This court has established a two-part test for reversible prosecutorial
misconduct: (1) the prosecutor’s remarks or conduct must have been improper, and
(2) such remarks or conduct must have prejudicially affected the defendant’s
substantial rights so as to deprive the defendant of a fair trial. See United States v.
McGuire, 45 F.3d 1177, 1189 (8th Cir. 1995); United States v. Hernandez, 779 F.2d
456, 458 (8th Cir. 1985). We employ the following three factors to determine the
prejudicial effect of prosecutorial misconduct: “(1) the cumulative effect of such
misconduct; (2) the strength of the properly admitted evidence of the defendant’s
guilt; and (3) the curative actions taken by the court.” Hernandez, 779 F.2d at 460;
see also United States v. Eldridge, 984 F.2d 943, 946-47 (8th Cir. 1993).


                                          5
        We reject the government’s argument that the statements were nothing more
than an attempt to describe the statute, distinguish the weapon, and meet the burden
of proof. The comments made in the opening statement and closing argument had
little or no probative value on any issue at trial. The comments did not relate to an
element of the offense nor did the comments aid the fact finder. Why Congress has
chosen to prohibit the possession of a sawed off shotgun is simply not relevant to
issues of whether the defendant possessed such a weapon. The prejudicial effect of
the prosecutor’s comments and the testimony elicited from the ATF Special Agent
substantially outweighed its probative value. Therefore, we find the comments made
by the prosecutor were improper.

       Having determined the comments were improper, we now must decide whether
the prosecutor’s remarks prejudicially affected the defendant’s substantial rights such
that the defendant was deprived of a fair trial. Hernandez, 779 F.3d at 460. In
making this determination, we first examine the cumulative effect of the alleged
misconduct. United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir. 1996). In this
case, the prosecutor’s comments were not limited to one phase of the trial. The
prosecutor commented on the purpose of the statute in his opening statement and
closing argument. In addition, during direct examination of ATF Special Agent
David Nygren, the prosecutor sought to elicit improper testimony regarding the
purpose of the statute, and other information not relevant to the elements of the
charge. In examining the cumulative effect of the improper comments, we conclude
that the pervasiveness of the improper comments substantially impaired the
defendant’s right to a fair trial. See Berger v. United States 295 U.S. 78, 89 (1935)
(“[W]e have not here a case where the misconduct of the prosecuting attorney was
slight or confined to a single instance, but one where such misconduct was
pronounced and persistent, with a probable cumulative effect upon the jury which
cannot be disregarded as inconsequential.”).




                                          6
       Next, we examine the strength of the properly admitted evidence of the
defendant’s guilt. Hernandez, 779 F.3d at 460. Evidence retrieved from Conrad’s
residence consisted of the firearm, shotgun shells, 9mm ammunition, .40 caliber
ammunition, a gun cleaning kit, drug paraphernalia, and the defendant’s pants
containing his driver’s license. In addition, the evidence included statements by
Conrad to his landlord about the firearm. The government contends the evidence
against the defendant was overwhelming and that the prosecutor’s comments could
not have prejudiced the defendant or affected the jury verdict. We disagree. While
the evidence is strong in this case, the tenor of the prosecution severely prejudiced the
defendant. The evidence indicated Conrad was aware the weapon was in the
apartment. However, the evidence also indicated that Conrad did not have exclusive
control of the apartment. Absent the prejudicial comments, a fair conclusion may
have supported Conrad’s defense, that is, that despite his knowledge of the gun’s
presence, he did not have actual or constructive possession of the gun. It is
reasonable to conclude that the jury verdict could have been affected by the
prosecutor’s comments. See Norton, 639 F.2d at 429 (“Our review of the record
compels us to conclude that the jury verdict could reasonably have been affected by
the improper argument.”) (citation omitted).

       Finally, we turn to the curative actions taken by the court. Hernandez, 779
F.3d at 460. The government contends that the defendant’s objections were twice
sustained and that the preliminary instructions given by the court reduced the
cumulative effect of any misconduct. The government directs us to several
instructions. First, the government cites to the following preliminary instruction,
which was reiterated in the court’s final instructions: “It’s important that you
remember throughout this entire trial that the questions, remarks, and the arguments
of the lawyers are not evidence in this case.” Next, the government points to this
preliminary instruction:




                                           7
      If you should not consider the evidence, I will sustain an objection. If
      an answer is given to which an objection is both made and sustained, I
      may order that that answer be stricken from the record and direct that
      you should disregard that answer. If you should consider the evidence,
      I will overrule the objection.

(Trial Transcript Day 1, at 109). We do not believe the standard preliminary
instructions have a significant curative effect on the statements made by the
prosecutor. See Norton, 639 F.2d at 429 n.2 (“The government contends that, even
if the district court erred in permitting the prosecutor to tell the jury about the purpose
of the statute, the error was corrected by the court’s charge. While discussing the
elements of a violation of the Gun Control Act, the court stated, in passing, ‘Now you
need not concern yourself as jurors with the reason for this particular statute.’ Under
the circumstances of this case, this statement was not sufficient to prevent Norton
from being prejudiced by the improper argument.”). Consequently, the curative
actions taken by the court were insufficient to protect the defendant’s right to a fair
trial.

        Because the improper remarks were communicated in both the opening
statement and closing argument, as well as during testimony of the ATF agent, we
conclude the cumulative effect of the statements substantially impaired Conrad’s
opportunity for a fair trial. See Berger 295 U.S. at 89. The strength of the properly
admitted evidence and the curative actions taken by the court failed to negate the
cumulative effect of the improper comments and testimony. The improper comments
have prejudicially affected Conrad’s substantial rights and worked to deprive him of
a fair trial. Accordingly, we reverse the conviction and remand for a new trial.

      Because we reverse and remand for a new trial, we must address the
evidentiary issues presented in this appeal. See Manning v. Bowersox, 310 F.3d 571,
574 n.3, (8th Cir. 2002) (“Our decision on Manning’s right to counsel claim is
dispositive, but we still address the precharging delay and pretrial identification

                                            8
claims because these issues are likely to come up again if the government pursues a
new trial.” (citation omitted)). Conrad argues that the district court erred by admitting
evidence of drug paraphernalia found in his apartment. The court allowed the
evidence pursuant to Federal Rule of Evidence 404(b) after the defendant testified.
We review a district court’s ruling on the admission of evidence for an abuse of
discretion. United States v. Lemon, 239 F.3d 968, 971 (8th Cir. 2001). We reverse
“when it is clear that the evidence has no bearing on the case,” United States v.
Williams, 895 F.2d 1202, 1205 (8th Cir. 1990) (citations omitted), and “was
introduced solely to prove the defendant’s propensity to commit criminal acts.”
United States v. Brown, 148 F.3d 1003, 1009 (8th Cir. 1998) (citation omitted).

       The government sought to introduce evidence of the defendant’s drug use
during its case in chief on the theory of a close connection between drugs and
firearms. See United States v. Fuller, 887 F.2d 144, 147 (8th Cir. 1989).
Specifically, the government attempted to introduce items found in Conrad’s
apartment, including an anti-freeze bottle containing syringes, a bong, and a shooter
pipe. The government asserts the items were all in plain view and presented
testimony to support the claim. The district court reserved judgment on the
government’s motion, but cautioned:

      [I]f there is additional evidence introduced of multiple occupants,
      dwellers, evidence of who else may have been in that apartment and
      what other evidence might tie to other individuals in the apartment, at
      that point the probative value of the defendant’s background and items
      that appear to be his, that is, in terms of narcotic evidence may well be
      admissible. (Trial Transcript, Day 1, at 232.)

      Conrad took the stand himself and testified that he did not have exclusive
control over the residence and that the gun did not belong to him. Another witness,
Gigi Romig, also testified and supported Conrad’s claim that he did not have
exclusive control over the residence. The district court then allowed the evidence of
drug use to come in. Conrad contends the evidence prejudiced his right to a fair trial.

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       Federal Rule of Evidence 404(b) provides: “Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show action in
conformity therewith. It may . . . be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . .” For Rule 404(b) evidence to be admissible, “the evidence
must be ‘(1) relevant to a material issue; (2) proved by a preponderance of the
evidence; (3) higher in probative value than in prejudicial effect; and (4) similar in
kind and close in time to the crime charged.’” United States v. Shoffner, 71 F.3d
1429, 1432 (8th Cir. 1995) (quoting United States v. Jones, 990 F.2d 1047, 1050 (8th
Cir. 1993)). The district court admitted the evidence of drug paraphernalia when
Conrad testified that Dale Johnson was also in control and possession of the upstairs
apartment.

       We have serious reservations about whether the possession of drug
paraphernalia without evidence of drug trafficking is admissible to show possession
of an illegal weapon. However, in United States v. Fuller, 887 F.2d 144 (8th Cir.
1989), a panel of this court relying on Eighth Circuit precedent admitted evidence of
drug paraphernalia in the prosecution of a federal firearms violation. Id. at 147
(citing United States v. Simon, 767 F.2d 524, 527 (8th Cir. 1985)). In Fuller, this
court concluded that in addition to the drug paraphernalia being properly admitted to
impeach a defense witness, it was also admissible under Rule 404(b) as probative on
the issue of motive to possess a firearm. Id. Typically, the cases in which this type
of evidence is admitted are drug trafficking cases and the evidence is admitted to
show the “close and well-known connection between firearms and drugs.” Id.; see
also United States v. Claxton, 276 F.3d 420, 423 (8th Cir. 2002) (same). While the
evidence supporting the ‘well-known’ connection between drug trafficking and
possession of a gun is absent in this case, we do not find the district court abused its
discretion in admitting the evidence of drug paraphernalia. The district court
admitted the evidence to prove possession and control of the apartment, and in doing
so did not abuse its discretion. See United States v. Richards, 967 F.2d 1189, 1192-

                                          10
93 (8th Cir. 1992) (drug paraphernalia admitted when the prosecution introduced the
evidence to link the defendant to other items found in the defendant’s trunk and to
raise the inference that the defendant knew the guns were in the trunk).

      The conviction is reversed and the case is remanded for a new trial.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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