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Leffel v. State (8/25/2017) ap-2564

Leffel v. State (8/25/2017) ap-2564

                                                  NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

        Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  



                                 303 K Street, Anchorage, Alaska  99501
  

                                           Fax:  (907) 264-0878
  

                                    E-mail:  corrections @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JAMES WILLIAM LEFFEL,  

                                                                 Court of Appeals No. A-11916  

                                  Appellant,                   Trial Court No. 3AN-12-2785 CR  



                          v.  

                                                                           O P I N I O N  

STATE OF ALASKA,  



                                  Appellee.                      No. 2564 - August 25, 2017  



                 Appeal  f                                      

                             rom  the  Superior  Court,   Third  Judicial  District,  

                 Anchorage, Jack Smith, Judge.  



                 Appearances:  Jason A. Gazewood, Gazewood & Weiner, PC,  

                                                                                           

                 Anchorage, for the Appellant.  Terisia K. Chleborad, Assistant  

                 Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                     

                 Craig W. Richards, Attorney General, Juneau, for the Appellee.  

                                                      



                 Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                     

                 Superior Court Judge. *  



                 Judge SUDDOCK.  



    *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                                                                                                                                                                                                                                                                                                                                                                                                                                1  

                                                                             James William Leffel was convicted of first-degree assault                                                                                                                                                                                                                                                                                              for stabbing   



  another man in the leg during a confrontation outside the Buckaroo Club, an Anchorage                                                                                                                                                                                                                                                                                                                                                      



 bar.   



                                                                             In this appeal, Leffel argues that the prosecutor improperly commented on                                                                                                                                                                                                                                                                                                                                        



 Leffel's post-arrest silence.                                                                                                                               We agree that the prosecutor should not have characterized                                                                                                                                                                                                         



 Leffel's claim of self-defense as "new information," thus implying that Leffel had not                                                                                                                                                                                                                                                                                                                                                                                                  



  disclosed this information to the police.                                                                                                                                                                                         However, for the reasons we explain here, we                                                                                                                                                                                                             



  conclude that this implied reference to Leffel's post-arrest silence was harmless beyond                                                                                                                                                                                                                                                                                                                                                                        



  a reasonable doubt.                                                                                              



                                                                             We also hold that the prosecutor should not have suggested that Leffel was                                                                                                                                                                                                                                                                                                                               



  able to "tailor" his testimony because he had reviewed the State's discovery materials,                                                                                                                                                                                                                                                                                                                                                           



 but we conclude that this error was harmless.                                                                                                                                                                                                                      



                                                                             Lastly, Leffel challenges the trial judge's admission of testimony about the                                                                                                                                                                                                                                                                                                                                    



 Hells Angels motorcycle club, of which Leffel was a member.                                                                                                                                                                                                                                                                                                      The record supports the                                                                                                    



judge's ruling.                                                                        



                                       Background facts and proceedings                                                                                                



                                                                             During an evening of drinking, Jens Schurig and three friends went to the                                                                                                                                                                                                                                                                                                                                       



 Buckaroo Club in Anchorage.                                                                                                                                                 They left the bar around midnight to await a cab.                                                                                                                                                                                                                                      As the   



 men   stood   outside   the   bar,   they   commented   upon   a   three-wheel   Harley   Davidson  



 motorcycle parked by the bar's entrance.                                                                                                                                            



                                                                             TheBuckaroo'sbouncer,Anders Ekstrand,                                                                                                                                                                                                            was alsostanding outsideofthe                                                                                                                                  



 bar.   When Ekstrand heard Schurig and his friends discussing the motorcycle, Ekstrand                                                                                                                                                                                                                                                                                                                                                                  



                     1                 AS 11.41.200(a)(1).  



                                                                                                                                                                                                                                          - 2 -                                                                                                                                                                                                                                     2564
  


----------------------- Page 3-----------------------

ordered them not to touch it, nor even to look at it, on pain of a beating.   Schurig  

                                                                                                                        



responded profanely and suggested that three-wheel motorcycles were less than manly.  

                                                                                                                           



                    Leffel - the motorcycle's owner and a member of the Alaska chapter of  

                                                                                                                                  



the Hells Angels motorcycle club - had by this point emerged from the bar to smoke  

                                                                                                            



a cigar.  He was holding a pocket knife to cut the tip off of the cigar prior to lighting up.  

                                                                                                                                      



Leffel's friend, fellow Hells Angel Thomas Moore, joined him.  Ekstrand recognized  

                                                                                                                    



both men as Hells Angels and as frequent patrons of the Buckaroo Club.  

                                                                                                       



                    When   Leffel   heard   Schurig   denigrate   Leffel's   motorcycle,   Leffel  

                                                                                                                          



approached Schurig and stabbed himin the upper thigh, opening Schurig's femoral vein.  

                                                                                                                                      



Bleeding profusely, Schurig soon lost consciousness.  Leffel remained outside the bar,  

                                                                                                                               



smoking, until the police arrived and took him into custody.  

                                                                                



                    Leffel testified at trial, claiming self-defense. He testified that as he walked  

                                                                                                                          



toward his motorcycle to retrieve a lighter for his cigar, Schurig threw a punch at him.  

                                                                                                                                      



Feeling outnumbered and vulnerable to attack by Schurig and his three friends, Leffel  

                                                          



stabbed Schurig's leg.  

                                     



                    Both Ekstrand(thebouncer) andMoore(Leffel's friend and fellowmember  

                                                                                                                         



of the Hells Angels) testified in support of Leffel.  

                                                                              



                    The jury rejected Leffel's claim of self-defense and found him guilty of  

                                                                                                                                  



first-degree assault.  

                                



           Why we conclude that the prosecutor's comment on Leffel's post-arrest  

                                                                                                          

          silence was harmless error  

                                             



                    After Leffeloffered his exculpatory versionofevents at trial, theprosecutor  

                                                                                                                     



asked him, "Now, what we're hearing today, we're hearing it for the first time, right?"  

                                                                                                                                      



The defense attorney immediately objected, and the attorneys approached the bench.  

                                                                                                                                    



                                                               -  3 -                                                         2564
  


----------------------- Page 4-----------------------

                         The prosecutor told the trial judge that he intended to elicit that Leffel at no                                                     



time contacted the district attorney's office to explain his side of the story - a clear                                                                 

violation of Leffel's right not to talk to the authorities about the pending charge.                                                                   2  The  



                                                                                                                                               

trial judge forbade the prosecutor from asking his proposed question, but he authorized  



                                                                                                                                                            

the prosecutor to establish that Leffel's claimof self-defense was "new information" that  



                                                                        

he was publicly revealing for the first time:  



                                                                                                                             

                                      The Court:   I think [that the prosecutor] can ask to  

                                                                                                                                      

                         [what]  extent  that  this  is  new  information.  ...  I  mean,  it  

                                                                                                                                

                         doesn't  [implicate  Leffel's]  right  to  remain  silent.                                             [The  

                                                                                                                              

                         prosecutor] can [ask whether] this is the first  time we've  

                                                                                                                            

                         heard this.  Now certainly, [the prosecutor] can't go beyond  

                                   

                         that.  



                                                                                                                                                     

After receiving this ruling, the prosecutor asked Leffel:  "This whole story that you've  



                                                                                                       

testified [to] here today is new information, correct?"  



                                                                                                                                                    

                         On appeal, Leffel argues that the prosecutor should not have been allowed  



                                                                                                                                               

to ask this question, because it was an improper comment on Leffel's right to post-arrest  



                                                                                                                                                                

silence.   We agree.   In a similar case, Adams v. State , the prosecutor impeached a  



                                                                                                                                                              

defendant through questions that alerted the jury that the defendant failed to offer an  



                                                                                                                       3 

                                             

exculpatory account of events to the authorities after his arrest.   The Alaska Supreme  



                                                                                                                       4  

                                                                                                                                                     

Court held that such questions are normally constitutional error.                                                         An exception applies  



                                                                                                                                                      

when a defendant places their silence at issue by asserting at trial that the police denied  



      2     See, e.g.,  Adams v. State , 261 P.3d 758, 770 (Alaska 2011) (citing Alaska Const. art.  



1,  9; Alaska Evid. R. 403).  



      3      261 P.3d 758, 762-63 (Alaska 2011).  



      4     Id. at 767, 774.  



                                                                             - 4 -                                                                        2564
  


----------------------- Page 5-----------------------

                                                                                             5  

them an opportunity to tell their side of the story.                                            A prosecutor may then comment on                                



thedefendant's earlier opportunity to, and voluntary decision not to, offer an exculpatory                                                    



                                  6  

version of events.                    



                                                                                                                                                          

                         In Leffel's case, the State concedes that the prosecutor's question about  



                                                                                                                                                           

"new information" would have been error if offered to prove Leffel's guilt. But the State  



                                                                                                                                                              

argues that Leffel opened the door to questions about his post-arrest silence by his  



                                                                                                                                                      

response to a question inquiring why he did not retrieve his knife from the ground  



                                               

following the stabbing:  



                                                                                                                                     

                                      Leffel :  Well, I glanced around for it, but by then the  

                                                                                                                                     

                         police were there, and they pretty well had every little red  

                                                                                                                             

                         light  in  Anchorage  on  my  chest,  and  you  know,  they're  

                                                                                                                                

                         telling me to throw down the cigar, and you know, I could  

                                                                                                                                     

                         see things weren't going good.  So I resigned myself to the  

                                                                                                                                    

                         fact that they really didn't want to hear anything I had to say,  

                                                                                                                         

                         and I needed to contact my attorney immediately.  



                                                                                                                                                                 

Based on this testimony, the State contends (1) that Leffel volunteered that he chose to  



                                                                                                                                                               

contact an attorney rather than speak to the police, and (2) that Leffel implied that the  



                                                                                                                                                                      

police refused to listen to him, thus opening the door to cross-examination on that point.  



                                                                                                                                                             

                         Butnothingin Leffel'sanswersuggestedthat thepoliceactively denied him  



                                                                                                                                                              

an opportunity to recount his version of events.  Rather, Leffel stated that, given the  



                                                                                                                                                                 

circumstances, he decided that it was not an opportune time for him to justify himself to  



                                                                                                                                                               

police, and that it would be better to consult an attorney.  Leffel's brief reference to his  



      5     Id.   at  767-68   &   n.46  (citing  United  States  v.  Robinson,  485  U.S.  25,  32  (1988)  



(permitting  a  prosecutor  to  comment  on  the  defendant's   choice  not  to  testify when                                                                 the  

defense argued during closing that the government had "breached its duty to be fair" by                                                    

denying the defendant the opportunity to explain his actions)).  



      6     Id.  



                                                                             -  5 -                                                                         2564
  


----------------------- Page 6-----------------------

post-arrest silence did not justify the prosecutor's question suggesting that Leffel's self-                                                          

defense claim might be false because it was first disclosed at trial.                                                  7  



                                                                                                                                          

                        Because  the  prosecutor  improperly  commented  on  Leffel's  post-arrest  



                                                                                                                                                       

silence, Leffel's conviction must be reversed unless the State can show that the error was  



                                                                   8  

                                                        

harmless beyond a reasonable doubt. 



                                                                                                                                                       

                        Adams  sets forth the relevant harmless error factors for this case:   (1)  



                                                                                                                                                

whether Leffel's conviction depended primarily on the jury's assessment of the relative  



                                                                                                                                                        

credibility of Leffel's testimony versus the testimony of other witnesses; (2) whether the  



                                                                                                                                                

prosecutor's questions directly elicited the testimony about Leffel's post-arrest silence;  



                                                                                                                                                         

(3)  whether  the  adverse  comment  on  Leffel's  post-arrest  silence  was  "express"  as  



                                                                                                                                                

opposed to "brief and passing;" and (4) whether the prosecutor accentuated the adverse  



                                                                                           9  

                                                                                              

                                                                          

comment by repeating it during closing argument. 



                                                                                                                                                  

                        Here, the first factor weighs in Leffel's favor. In large part, this case turned  



                                                                                                                                                       

on the relative credibility of Leffel and his two supporting witnesses versus Schurig and  



                                                                                                                                                      

his companions.  But the remaining factors weigh against a finding of prejudice.  The  



                                                                                                                                                      

prosecutor only briefly questioned Leffel about whether his claim of self-defense was  



                                                                                                                                                     

"new  information."                      And  as  we  have  explained,  it  was  Leffel  himself  who  first  



                                                                                                                                         

volunteered that he decided not to explain matters to the police, and to consult  an  



                                                                                                                                                 

attorney instead. Lastly, the prosecutor made no reference to Leffel's post-arrest silence  



                                                                                                   

or to "new information" during his closing argument.  



      7     See  Adams,  261  P.3d  at  767-68  (holding  that  the  defense  attorney's  tangential  



references to silence did not "open the door" to prosecutorial comment on silence).  



      8     Id. at 773; Chapman v. California, 386 U.S. 18, 23 (1967).  



      9     See Moreno v. State, 341 P.3d 1134, 1147 (Alaska 2015);                                           Adams , 261 P.3d at 774-75.   



                                                                          -  6 -                                                                     2564
  


----------------------- Page 7-----------------------

                          We conclude that there is no reasonable possibility that the prosecutor's                                            



brief questions about "new information" affected the jury's verdict. Thus, the error was                                                                        

harmless beyond a reasonable doubt.                                     10  



                                                                                                                                                      

              Why we conclude that the prosecutor should not have been allowed to  

                                                                                                                                                            

             comment  on  Leffel's  review  of  the  pretrial  discovery,  but  that  the  

                                                                                     

            prosecutor's comment was harmless error  



                                                                                                                                                                

                          On appeal, Leffel contends that the prosecutor improperly implied that  



                                                                                                                                                                 

Leffel  deliberately  conformed  his  testimony  to  the  pretrial  discovery.                                                                   During  the  



                                                                                                                                                                    

prosecutor's cross-examination of him, Leffel asserted that he was providing "pieces to  



                                                                                                                                                                         

the  puzzle"  so  that  the  jury  could  understand  what  had  happened  outside  the  bar.  



                                                                                                                                                         

Without objection, theprosecutorasked, "Andyou'reputtingthepieces together because  



                                                                                                                                                                 

you've read [the pretrial] discovery, correct?" The prosecutor then asked Leffel if he had  



                                                                                                                                                                       

reviewed the police reports in the case.  Leffel confirmed that he had read the reports.  



                                                                                                                                                                 

                          Although Leffel's attorney did not object at thetime, Leffel now argues that  



                                                                                                                                                 

the prosecutor's questions about Leffel's review of the pretrial discovery, in conjunction  



                                                                                                                                                             

with the prosecutor's earlier comment that Leffel's claim of self-defense was "new  



                                                                                                                                                         

information," was an improper comment on Leffel's post-arrest silence.  Leffel reasons  



                                                                                                                                                            

that the prosecutor could only assert that Leffel had tailored his testimony to the police  



                                                                                                                                                                

reports  because  Leffel  had  remained  silent  following  his  arrest  - and  so  had  not  



                                                                                                                                                                

committed himself to a particular defense until the time of trial. Thus, Leffel argues that  



                                                                                                                                                                   

the prosecution's implication of tailored testimony amounted to an indirect comment on  



                                       

Leffel's post-arrest silence.  



                                                                                                                                                               

                          The State analogizes this case to the United States Supreme Court case  



                                                                                                                                                      

Portuondo v. Agard, where the court declared that a prosecutor could properly comment  



       10    See Adams, 261 P.3d at 773.  



                                                                               -  7 -                                                                         2564
  


----------------------- Page 8-----------------------

on the fact that a defendant's continuous presence in the courtroom during trial afforded                                                             

the defendant an opportunity to tailor their testimony to that of the preceding witnesses.                                                                          11  



                                                                                                                                                                    12  

                                                                                                                                                                        

In  Adams  v.  State ,  the  Alaska  Supreme  Court  cited  Portuondo  with  approval. 



                                                                                                                                                                

However, our supreme court added the caveat that a prosecutor may not frame the  



                                                                                                                                                                  

"advantage of going second" argument in such a manner that it becomes a comment on  



                                                                                                       13  

                                                                                         

the tactical advantages of pre- and post-arrest silence. 



                                                                                                                                                      

                          Because Leffel did not object at trial, we review the prosecutor's question  



                                                                                                              14  

                                                                                                                  

about Leffel's access to pretrial discovery for plain error. 



                                                                                                                                                            

                          Although the prosecutor questioned Leffel about the advantage of being  



                                                                                                                                                               

able  to  review  the  police  reports  and  witness  statements  before  he  testified,  the  



                                                                                                                                              

prosecutor did not return to this theme during closing argument.  And the prosecutor's  



questioning on this point did not explicitly suggest that Leffel gained an advantage by  



                                                                                

remaining silent at the time of his arrest.  



                                                                                                                                                                 

                          An astute legal analyst might interpret the prosecutor's questions as an  



                                                                                                                                                                

implied comment on Leffel's pretrial silence. But we consider it highly unlikely that any  



                                                                 

of the jurors drew this inference.  



                                                                                                                                                           

                          We are nonetheless troubled by the fact that in virtually every case where  



                                                                                                                                                                  

a defendant testifies,  the defendant will likely  have read the pretrial discovery.                                                                              A  



                                                                                                                               

prosecutor could plant doubts about the veracity of a defendant's testimony merely by  



                                                                                                                                                         

eliciting the fact that the defendant had earlier reviewed the pretrial discovery.  



       11    Portuondo v. Agard, 529 U.S. 61, 73 (2000).  



       12    Adams , 261 P.3d at 769 n.54.  



       13    Id. at 769.  



       14    See id. at 764.  



                                                                              -  8 -                                                                         2564
  


----------------------- Page 9-----------------------

                          It is true that our supreme court has authorized prosecutors to comment on                                                              



the fact that a defendant enjoyed the advantage of hearing the State's witnesses prior to                                                                          



                    15  

testifying.                                                                                                                                                     

                          But  the  jurors  will  themselves  have  heard  the  same  testimony  as  the  



                                                                                                                                                                

defendant.              Thus,  jurors will be able to  evaluate the strength  (or  weakness)  of the  



                                                                                                                                                                

prosecutor's implication that the defendant's testimony may have been tailored to the  



                                         

testimony that came before.  



                                                                                                                                                                 

                          The same cannot be said as to pretrial discovery materials furnished to the  



                                                                                                                                                                

defense. Jurors have no way of knowing what information this discovery contained, and  



                                                                                                                                                             

so can not independently evaluate an accusation that the defendant conformed their  



                                                                                                                                                                   

testimony to that material.  For lack of a factual context, there will be little relevance to  



                                                                                                                                                                 

a prosecutor's generalized questions or comments regarding a defendant's review of the  



                                     

pretrial discovery.  



                                                                                                                                                     

                          We conclude that  prosecutors should  generally  not comment (through  



                                                                                                                                                            

cross-examination  or  during  final  argument)  upon  a  testifying  defendant's  prior  



                                                                                                                                                                  

opportunity to review pretrial discovery material.  If a defendant's prior knowledge of  



                                                                                                                                                          

particular information in thediscovery has case-specificrelevance, theprosecutorshould  



                                                                                                              

ask the trial judge for permission to pursue that inquiry.  



                                                                                                                                            

             The trial court's denial of a pretrial motion to preclude mention of Leffel's  

                                                                                            

             membership in the Hells Angels was not error  



                                                                                                                                                           

                          Leffel's attorney filed a motion in limine to preclude testimony about  



                                                                                                                                                       

Leffel's membership in the Alaska chapter of the Hells Angels.  The defense attorney  



                                                                                                                                                                 

argued  that  this  evidence  was  more  prejudicial  than  probative  and  thus  should  be  



                                                                                     

excluded under Alaska Evidence Rule 403.  



       15    Id. ; see also Gray v. State, 463 P.2d 897, 907 (Alaska 1970).  



                                                                              -  9 -                                                                         2564
  


----------------------- Page 10-----------------------

                    In the State's opposition to this motion, the prosecutor surmised that the  

                                                                                                                                



defense would call two witnesses:  Thomas Moore (Leffel's friend and fellow member  

                                                                                                                         



of the Hells Angels) and Anders Ekstrand (the bouncer at the Buckaroo Club who  

                                                                                                                              



instigated theconfrontation by orderingSchurigto leaveLeffel's motorcyclealone). The  

                                                                                                                                



prosecutor argued that these witnesses were biased in Leffel's favor because of their  

                                                                                                                              



association with the Hells Angels. The prosecutor also argued that Leffel's membership  

                                                                                                                  



in  the  Hells  Angels  was  relevant  to  explain  why  he  reacted  violently  to  Schurig's  

                                                                                                                      



comments denigrating Leffel's motorcycle.  

                                                                    



                    The  trial  judge  agreed  with  the  prosecutor  that  evidence  of  Leffel's  

                                                                                                                        



membership in the Hells Angels was relevant to Moore's potential bias.  The judge also  

                                                                                                                               



ruled that evidence of Leffel's membership in the Hells Angels was relevant to explain  

                                                                                                                          



Leffel's reaction to Schurig's disrespectful comment about the motorcycle.  The judge  

                                                                                                                             



offered to give a limiting instruction so that the jurors would not misuse this information,  

                                                                                                                                      



but the defense did not request such an instruction.  

                                                                                



                    During Leffel's testimony, he volunteered details about his membership in  

                                                                                                                                  



the motorcycle club.  He claimed that his motorcycle was immune to theft due to the  

                                                                                                                                



Hells Angels' intimidating reputation.  He boasted that the Hells Angels do not tolerate  

                                                                                                                          



disrespectful behavior.  With little prompting, Leffel explained that the Hells Angels  

                                                                                                                 



control the street where their clubhouse is located.  

                                                                               



                    Thomas Moore testified as a defense witness.  During cross-examination,  

                                                                                                        



the prosecutor asked Moore about the criteria for membership in the Hells Angels, about  

                                                                                                                             



Moore's own participation in club activities, about his loyalty to the club, and about the  

                                                                                                                                 



value that Moore placed on his reputation.  

                                                                   



                    During   his   closing   statement,   the   prosecutor   argued   that   Leffel's  

                                                                                                                       



membership in theHells Angelsexplainedhis reaction to Schurig's disrespectofLeffel's  

                                                                                                                         



three-wheel motorcycle.  

                    



                                                              -  10 -                                                         2564
  


----------------------- Page 11-----------------------

                                     Leffel now contends that the prosecutor demagogically focused the jury's                                                                                                                   



attention on the Hells Angels. But the record does not support this claim. Rather, it was                                                                                                                                          



Leffel who volunteered information about the nature and activities of the club and its                                                                                                                                                   



importance to his identity.                                               Leffel volunteered that club membership confers an aura of                                                                                                      



intimidating toughness that engenders deference from the public. Leffel's attachment to                                                                                                                                                    



that aura of toughness potentially explained his assaultive reaction to Schurig's drunken                                                                                                                                



taunt that the owner of a three-wheel motorcycle must be less than manly.                                                                                                                                      



                                     We review a judge's decision to admit or exclude evidence under Rule 403                                                                                                                         

for abuse of discretion.16                                                                                                                                                                                

                                                                       We conclude that the trial judge did not abuse his discretion  



                                                                                                                                                                                                                                

when he allowed the prosecutor to elicit testimony about the Hells Angels to show  



                                                                    17  

                                                                                                                                                                                                                   

Moore's  potential  bias,                                                   and  to  explain  Leffel's  assaultive  reaction  to  Schurig's  



                                                                                           18  

                                                                                                                                                                                                                         

                                                                                                    We also conclude that any irrelevant or unfairly  

comment about the motorcycle. 



                                                                                                                                                                                                                                

prejudicial testimony about the Hells Angels was volunteered by Leffel himself.  



                   Conclusion  



                                                                                                                                                             

                                     We AFFIRM the judgment of the superior court.  



          16       See Howard v. State, 239 P.3d 426, 429 (Alaska App. 2010).  



          17       See Smith v. State, 431 P.2d 507, 508-09 (Alaska 1967) (allowing cross-examination   



into business relationship between two defense witnesses and the defendant).  See also Evans  

v. State, 550 P.2d 830, 836-37 & n.11 (Alaska 1976) (citing                                                                                                 Smith and other cases as support  

for the point that trial courts should liberally permit cross-examination on witness bias).  



          18  

                                            

                   See, e.g., United States v. LaFond, 783 F.3d 1216, 1222 (11th Cir. 2015) (approving  

                                                                         

introduction of evidence of defendant's gang membership to show motive and bias); United  

                                                                                                                                                                                                             

States v. Teran, 496 F.App'x 287, 292-93 (4th Cir. 2012);  United States v. Gordon, 496  

                                                                                    

F.App'x 579, 582-83 (6th Cir. 2012);  United States v. Montgomery, 390 F.3d 1013, 1018  

(7th Cir. 2004);  United States v. Sills, 120 F.3d 917, 920 (8th Cir. 1997); United States v.  

Santiago, 46 F.3d 885, 889 (9th Cir. 1995).  



                                                                                                                -  11 -                                                                                                             2564
  

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