NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0769n.06
Filed: September 1, 2005
No. 03-4222
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
ELIJAH DEXTER DUKES, Southern District of Ohio.
Defendant-Appellant.
/
BEFORE: RYAN, MOORE, and COOK, Circuit Judges.
RYAN, Circuit Judge. Elijah Dexter Dukes was convicted of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and sentenced to a term of
37 months’ imprisonment. In this direct appeal, Dukes alleges prosecutorial misconduct
and argues that the government presented evidence and argument to the jury to suggest
that Dukes should be found “guilty by association” because he was arrested in a
neighborhood well known to the jurors to be a local high crime area. We find no error and
we will affirm Dukes’s conviction. However, in light of United States v. Booker, 125 S. Ct.
738 (2005), we must vacate Dukes’s sentence and remand for resentencing. The
government concedes that resentencing is necessary because Dukes was sentenced at
the bottom of his Guideline range and nothing in the record rebuts the presumption that he
was prejudiced by the court’s belief that the Guidelines were mandatory. United States v.
Barnett, 398 F.3d 516, 526-29 (6th Cir. 2005), petition for cert. filed, No. 04-1690, 73 USLW
(No. 03-4222) -2-
3735 (U.S. June 16, 2005). Because Dukes will be resentenced, we need not address the
other alleged sentencing errors he raises.
Undercover Cincinnati police officer Howard Fox testified that on September 11,
2002, he saw Dukes placing a gun in his waistband while crossing the street in the
neighborhood north of downtown Cincinnati, Ohio, known to locals as Over the Rhine.
Officer Fox called for uniformed backup to help him investigate. Shortly thereafter, at least
one uniformed officer approached Dukes, identified himself, and told Dukes to drop to the
ground. Dukes fled, and was seen throwing the gun near some trash cans. He was
eventually arrested and the pistol was retrieved from the area where it had been thrown.
After being advised of his rights, Dukes, on two separate occasions, admitted to
possession of the pistol, and his admissions were later received into evidence. At trial, the
only issue submitted to the jury was whether Dukes possessed the weapon. There was
extensive reference during the trial, by the prosecutor, the prosecution witnesses, and the
defense counsel, to the relevant events having occurred in the area known as Over the
Rhine, and to the character of the neighborhood as a violent, high crime area. The
defendant did not object to these references, perhaps because the area’s reputation would
have been well known to Cincinnati area jurors, and because the violent/high crime/drug
trafficking character of the area could lend some credibility to the defense counsel’s
argument that it would not be unusual for a discarded handgun to be found among trash
cans.
But now, on appeal, and for the first time, Dukes argues that the prosecutor’s
repeated references to Over the Rhine as a violent, high crime, high vice area had the
(No. 03-4222) -3-
intended effect of suggesting Dukes was “guilty by association” and thus denied him a fair
trial.
There having been no objection at trial, we review the trial court’s receiving the
testimony and allowing the non-testimony references to which Dukes now objects, for plain
error. To establish plain error, Dukes must show: (1) an error occurred at trial, (2) the error
was plain, i.e., obvious or clear, (3) the error affected his substantial rights, and (4) the plain
error seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. Johnson v. United States, 520 U.S. 461, 467 (1997). “‘Plain error is defined
as an egregious error, one that directly leads to a miscarriage of justice.’” United States
v. Camejo, 333 F.3d 669, 672 (6th Cir. 2003) (citation omitted).
The district court did not err, plainly or otherwise, in permitting the witnesses to refer
to the neighborhood in which Dukes was arrested in Cincinnati, widely known as Over the
Rhine, and its character as a high crime area. This testimony served primarily as
permissible background evidence, necessary to tell the story of Dukes’s offense, see
United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000), including the reason plainclothes
vice squad officers were working the area midday, alert to potential criminal activity. Indeed
it was Dukes’s counsel who first broached the subject of crime in the area when he inquired
of Officer Fox, on cross-examination concerning police response to complaints of
prostitution. It is obvious, on reading the transcript, that Dukes hoped to benefit by
introducing evidence that Over the Rhine was a high crime neighborhood. This is borne
out in Dukes’s counsel’s closing remarks to the jury, in which he argued the officers’
testimony that Dukes discarded the gun should not be believed (presumably neither should
(No. 03-4222) -4-
his two confessions), because it would not be uncommon to find a discarded gun lying
amidst trash cans in the Over the Rhine area.
It was not error, plain or otherwise, for the district court to permit the testimony and
argument Dukes now challenges on appeal. And, perforce, the Assistant U.S. Attorney
was not guilty of prosecutorial misconduct in referring to the area and its high crime
character during closing argument.
For the foregoing reasons, we AFFIRM Dukes’s conviction, but VACATE his
sentence and REMAND for resentencing, because, as the government concedes, the
sentence offends United States v. Barnett, 398 F.3d at 526-29.