                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0852n.06
                           Filed: October 18, 2005

                                           No. 03-3519

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
BENJAMIN MCCULLOUGH,                              )   SOUTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellant.                       )


       Before: KENNEDY, COOK, and GRIFFIN, Circuit Judges.


       COOK, Circuit Judge. Benjamin McCullough was convicted of possession of a firearm by

a convicted felon in violation of 18 U.S.C. § 922(g). He appeals his conviction and sentence on

several grounds: the district court erred in admitting hearsay evidence and overly-prejudicial

evidence against him; the prosecution committed misconduct; the district court improperly instructed

the jury; and the evidence as a whole was insufficient to support his conviction. McCullough also

contends that the court sentenced him in violation of United States v. Booker, 125 S. Ct. 738 (2005).

We affirm his conviction but vacate and remand his sentence for re-sentencing according to the

principles in United States v. Barnett, 398 F.3d 516 (6th Cir. 2005).


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No. 03-3519
United States of America v. McCullough


       According to testimony at trial, McCullough entered Martin’s Bar in Cincinnati on the night

of March 11, 2002. Adrian Battle, a security guard at Martin’s, was in the bar at the time but off-

duty. Battle noticed a bulge in McCullough’s jacket and suspected that McCullough was carrying

a gun. He approached McCullough, restrained him, reached inside McCullough’s jacket, and pulled

out a nine-millimeter, semi-automatic handgun. Battle detained McCullough until the police arrived.


       Several witnesses testified at trial, including Battle, bar patron Darlene Harris, and the

arresting officer, Iris Kelley. On November 15, 2002, the jury convicted McCullough of possession

of a firearm by a convicted felon. On March 31, 2003, the district court sentenced him to 92 months

in prison, followed by three years of supervised release. This appeal followed.


                                                II


                                  A. Admissibility of Evidence


       McCullough challenges the district court’s evidentiary rulings on two fronts. First,

McCullough contends that the court erroneously admitted certain statements in Darlene Harris’s

testimony under the excited utterance exception to the hearsay rule, FED. R. EVID. 803(2); second,

McCullough contends that the court erred by admitting any evidence of his motive, alleging that

such evidence was more prejudicial than probative. We typically review a district court’s

evidentiary rulings for an abuse of discretion. United States v. Brown, 367 F.3d 549, 554 (6th Cir.

2004). Because McCullough did not object to the motive evidence at trial, however, we review the



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district court’s admission of motive evidence, the target of McCullough’s second argument, for plain

error. United States v. Combs, 369 F.3d 925, 938 (6th Cir. 2004).


                                        1. Excited Utterance


       Harris testified that after the police arrested McCullough, another man who had accompanied

McCullough returned to the bar and appeared “very upset.” She reported the companion saying that

“he had came down to the bar to get the guys that jumped him,” that “he was sorry he got his friend

in trouble,” and that “he just got out of jail not too long ago, and they didn’t even run into who they

were looking for.” Harris testified that the man “wouldn’t calm down” and eventually had to be

escorted out of the bar. Over McCullough’s objection, the district court admitted Harris’s testimony

regarding the companion’s statements as excited utterances.


       The companion’s statements were not testimonial, and thus are not barred outright by the

Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 50-51 (2004) (Confrontation

Clause bars admission of testimonial statements, such as “formal statement[s] to government

officers,” but not “off-hand, overheard remark[s]” or “casual remark[s] to an acquaintance”). As

non-testimonial hearsay, the companion’s statements must satisfy three elements to be admitted as

excited utterances: “1. There must be an event startling enough to cause nervous excitement; 2. The

statement[s] must be made before there is time to contrive or misrepresent; and 3. The statement[s]

must be made while the person is under the stress of the excitement caused by the event.” United

States v. Arnold, 410 F.3d 895, 900 (6th Cir. 2005).

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       The statements here satisfy these criteria. Regarding the first criterion, we find that

witnessing McCullough’s arrest was sufficiently startling to cause nervous excitement. Cf. United

States v. Wolak, 923 F.2d 1193, 1196 (6th Cir. 1991) (holding that a statement reacting to an arrest

was not an excited utterance, in part because the declarant was not present at the arrest). It is of no

moment that witnessing an arrest would not startle all persons in all circumstances, because we

determine whether an event is startling by considering its likely effect upon the particular declarant.

See United States v. Napier, 518 F.2d 316 (9th Cir.), cert. denied 423 U.S. 895 (1975) (finding an

excited utterance where the victim, following seven weeks of hospitalization necessitated by an

assault, was merely shown a newspaper photograph of her alleged attacker and said, “He killed me,

he killed me.”) The inquiry is not subjective per se, but objective based upon the totality of the

circumstances.    In this case, however, such circumstances may not include the fact that

McCullough’s companion considered himself to be at fault for McCullough’s arrest, for an excited

utterance can not establish its own underlying event. Cf. Idaho v. Wright, 497 U.S. 805, 823 (1990)

(holding that “bootstrapping” on other evidence to support a hearsay statement’s “particularized

guarantees of trustworthiness” would violate the Confrontation Clause); People v. Burton, 445

N.W.2d 133, 139 (Mich. 1989) (interpreting language identical to the Federal Rules to prohibit an

excited utterance itself from establishing its underlying event). We thus find that the circumstances

surrounding the companion’s statements—McCullough’s arrest, resistance, and detention for

possession of a firearm—were sufficiently startling to cause nervous excitement, and to allow us to




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uphold the district court’s exercise of its discretion in admitting Harris’s hearsay testimony

regarding the statements.


       The second criterion, that the statements must have been made before there was time to

contrive, was established by evidence that the companion’s statements were made within a short

time of McCullough’s arrest. Harris testified that she remained in the bar for approximately three

hours after the arrest and that the companion talked for “at least half an hour.” The time between

the arrest and declarant’s statements thus could not have been longer than two-and-a-half hours. If

the record offered no evidence of the time between the incident and the statements, then the district

court would have abused its discretion by admitting the statements. See Arnold, 410 F.3d at 900

(finding an abuse of discretion where “the record reveal[ed] no evidence as to when the alleged

incident . . . occurred”). But because McCullough’s companion made his statements within a short,

albeit uncertain time of the arrest, we conclude that the district court did not abuse its discretion in

concluding that the statements “were made before there was time to contrive or misrepresent.” See

United States v. Baggett, 251 F.3d 1087, 1090 n.1 (6th Cir. 2001) (finding admissible statements

regarding spouse abuse that were made several hours after the abuse occurred).


       The third criterion is also satisfied. Harris testified that McCullough’s companion was “very

upset” and would not “calm down” in reaction to McCullough’s arrest. Again, the district court

could not have relied upon the companion’s statements to conclude that his stress was caused by the

event. But the record presents ample evidence to support the conclusion that a causal connection



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existed. The fact that the declarant appeared to be McCullough’s companion and was very upset

immediately following the arrest supports the inference that he was “under the stress of the

excitement caused by the event” when he made his statements. Arnold, 410 F.3d at 900. We

accordingly find that the district court did not abuse its discretion regarding the third criterion, and

did not abuse its discretion by admitting the companion’s statements as excited utterances.


                                         2. Motive Evidence


        We also conclude that the district court did not commit plain error by admitting evidence of

McCullough’s motive. The motive evidence, that McCullough had entered the bar looking to shoot

someone, was clearly probative of whether McCullough was carrying a gun, so McCullough’s only

argument is that it was overly-prejudicial: that it may have led the jury to “decide[] the case not on

whether the Appellant actually had possession, but whether the Appellant was a danger to the

community.” We disagree that the motive evidence was overly-prejudicial, and we hold that the

district court did not commit plain error by admitting it.


        McCullough first challenges the admission of Harris’s hearsay testimony that McCullough

had come to the bar to take revenge on someone. McCullough’s brief refers to one statement that

the court instructed the jury to ignore—that McCullough planned to “jump” another person—but

he presumably intends to draw our attention to later statements in Harris’s testimony that the jury

could consider—the statements discussed in section II.A.1 above. Yet we disagree that the inclusion

of those statements represented plain error. Harris, after all, testified that she personally saw

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McCullough with the gun, so it is unlikely that the jury thought him any more of a “danger to the

community” because of evidence that he had a reason for carrying it. Moreover, the district court

instructed the jury that “the defendant is only on trial for the particular crime charged in the

indictment,” and that its duty was “limited to deciding whether the government has proven the crime

charged.”


       McCullough also challenges two statements that the court specifically instructed the jury to

ignore: Battle’s testimony that McCullough’s companion had stated that McCullough came to

Martin’s to “shoot someone,” and the prosecution’s reminder to the jury (during its closing

argument) that it had “heard testimony that [McCullough] was [at Martin’s] to take care of some

business.” The district court sustained McCullough’s timely objection to—and instructed the jury

to ignore—Battle’s statement. And, since the testimony that was the basis for the prosecution’s

closing statement—i.e., Harris’s testimony—was not itself overly-prejudicial, neither was the mere

reference to that testimony in the closing argument. Indeed, the district court reduced any

prejudicial effect of the prosecution’s closing statement by instructing the jury that closing

arguments were not evidence and therefore should not be considered in reaching the verdict. We

conclude that the district court did not commit plain error in either instance.


                                   B. Prosecutorial Misconduct


       McCullough next contends that he was prejudiced by prosecutorial misconduct during

closing arguments. McCullough failed to object to the alleged misconduct at trial, so again we

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review the district court’s conduct for plain error. Combs, 369 F.3d at 938. In reviewing a claim

of prosecutorial misconduct, we first determine whether the challenged conduct was improper. If

so, we then consider four factors to determine whether the impropriety was “flagrant”:


       (1) whether the remarks tended to mislead the jury or to prejudice the accused
       [including whether the trial judge gave an appropriate cautionary instruction to the
       jury];
       (2) whether they were isolated or extensive;
       (3) whether they were deliberately or accidentally placed before the jury; and
       (4) the strength of the evidence against the accused.
United States v. Cobleigh, 75 F.3d 242, 247 (6th Cir. 1996) (citations omitted). Because we find

that none of the challenged conduct here rises to the level of flagrant misconduct, we deny

McCullough’s claims of prejudice.


                                        1. Opinion on Guilt


       McCullough first challenges the following statement in the prosecution’s closing argument:


       You will be given a verdict sheet. On that verdict sheet, as the judge has instructed
       you, you have a choice. We seek a responsible verdict. Guilty or not guilty? I filled
       mine out. The one I have is a copy. We don’t put anything more on this sheet, and
       we don’t put anything less on this sheet. And I’m not asking you to mark anything
       more or less than I did in the beginning, and that is to mark “guilty.”
As McCullough correctly notes, a prosecutor may not express his personal opinion regarding a

defendant’s guilt. “[S]uch comments can convey the impression that evidence not presented to the

jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize

the defendant's right to be tried solely on the basis of the evidence presented to the jury.” United

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States v. Young, 470 U.S. 1, 18 (1985). But when nothing in a prosecutor’s statement suggests that

he or she relies on information outside the evidence presented at trial, the risk of prejudice

dissipates. Id. at 19. Such is the case here. The prosecutor’s statement, casting himself as a juror,

was neutral on the question of outside evidence, and could even be read as his suggesting how he

would decide based only on the evidence presented at trial. And the likelihood that the statement

prejudiced McCullough was further reduced by the court’s directions to the jury to consider only

the evidence presented at trial. Finding no plain error, we accordingly reject McCullough’s

challenge.


        McCullough       objects      to   other    statements   in    the   prosecutor’s    closing

argument—“apologiz[ing] for the defense’s cross-examination of [Battle],” and “indicating that

[Battle] should not have had to endure such cross-examination.” McCullough’s cause for complaint

is unclear, but we presume that he considers the prosecutor by such statements to have improperly

vouched for Battle’s credibility. We again disagree. The prosecution hoped to focus the jury on the

crime (and the defendant) at issue, and not on Battle’s own criminal record, the target of much of

the defense’s cross-examination; the “apology”—which in fact was directed at Battle (“I apologize

to that man”)—was a rhetorical aside designed to differentiate the two. We doubt that any prejudice

resulted, let alone plain error.


                                   2. Comments on Failure to Testify




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United States of America v. McCullough


       McCullough contends that the prosecutor, also in his closing argument, improperly

commented on McCullough’s failure to testify at trial—causing McCullough further prejudice. In

particular, the prosecutor asked the jury, “Does the defendant say, have you heard any testimony,

‘Whoops, wrong jacket, because this can’t be my jacket[?]’” We disagree that this statement was

flagrantly improper. The context indicates that the prosecutor was simply asking rhetorically

whether the defense had presented any evidence that the jacket containing the gun was not

McCullough’s. Moreover, it appears that with the words “have you heard any testimony” the

prosecutor intended to reformulate his question as one about the testimony in general, rather than

McCullough’s decision not to testify in particular. We find that the court did not commit plain error

by failing to bar the statement sua sponte.


                           3. Argument Based on Facts not in Evidence


       McCullough’s third charge of prosecutorial misconduct alleges that statements in the

prosecutor’s closing argument presented “facts which were not part of the evidence presented.” In

fact, the challenged statements merely referred to an argument that the defense had made to impeach

Battle. We find no prejudice by their inclusion and accordingly no error by the district court.


                                        C. Jury Experiments


       In the midst of its deliberations, the jury asked whether the court could provide “something

of similar weight to the clip and the bullets that go in [the seized gun]”; the court denied the request



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but did not specifically instruct the jury not to conduct experiments. McCullough contends that this

was plain error, but we disagree. The court responded to the request by instructing the jury to “rely

on the evidence that has been admitted.” This instruction was in no way erroneous. Indeed, in

context the instruction arguably implied that the jury should not conduct its own experiments. We

reject McCullough’s contention that he was prejudiced by the lack of specificity.


                                     D. Sufficiency of Evidence


       In his final allegation of trial error, McCullough argues that insufficient evidence supported

his conviction. This court reviews challenges to the sufficiency of evidence to determine “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” United States v.

Avery, 128 F.3d 966, 971 (6th Cir. 1997) (citations omitted). “[C]hallenges to the credibility of

witnesses are not . . . challenges to the sufficiency of the evidence, but are instead challenges to the

quality of the government’s evidence,” a matter to be assessed by the jury. United States v. Latouf,

132 F.3d 320, 330-31 (6th Cir. 1997). McCullough’s sufficiency-of-the-evidence challenge amounts

to no more than an attack on Battle’s and Officer Kelly’s credibility. We find that sufficient

evidence supported McCullough’s opinion and reject his challenge accordingly.


                                              E. Booker




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       In light of United States v. Booker, 125 S. Ct. 738 (2005), McCullough argues that the

district court erred in sentencing him under mandatory guidelines. The government conceded this

error in oral argument. We accordingly vacate McCullough’s sentence and remand for re-sentencing

according to the principles in United States v. Barnett, 398 F.3d 516 (6th Cir. 2005).


                                                III


       We affirm McCullough’s conviction, vacate his sentence, and remand for re-sentencing.




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