537 F.3d 951 (8th Cir. 2008), 07-2162, United States v. Richardson

Docket Nº:07-2162.
Citation:537 F.3d 951
Party Name:UNITED STATES of America, Appellee, v. Carl Lee RICHARDSON, Appellant.
Case Date:August 12, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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537 F.3d 951 (8th Cir. 2008)

UNITED STATES of America, Appellee,


Carl Lee RICHARDSON, Appellant.

No. 07-2162.

United States Court of Appeals, Eighth Circuit.

August 12, 2008

Submitted: Dec. 12, 2007.

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[Copyrighted Material Omitted]

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Jordan S. Kushner, argued, Minneapolis, MN, for appellant.

Timothy Christopher Rank, AUSA, argued, Tracy T. Braun, AUSA, on the brief, Minneapolis, MN, for appellee.

Before BYE, ARNOLD, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Carl Lee Richardson appeals from his conviction, following a jury trial where he was found guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, Richardson argues the district court 1 erred by (1) admitting

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evidence obtained from an allegedly unconstitutional seizure, (2) failing to dismiss the indictment with prejudice after a violation of the Speedy Trial Act, (3) holding trial on the same day the court dismissed the indictment for the speedy-trial violation and a new indictment was filed, (4) holding trial in and choosing a jury pool from a geographic region other than where the offense occurred, and (5) allowing expert testimony from a scientist other than the one who performed the scientific tests, allegedly in violation of the Confrontation Clause and the Federal Rules of Evidence. We affirm.

I. Background

A. The Arrest

Officer Jamie Sipes of the St. Paul Police Department arrested Richardson when he was on foot on the night of March 10, 2006. Officer Sipes first observed Richardson when Richardson was driving and the headlights on his vehicle “dipped" when Officer Sipes's marked police car pulled into the intersection. Officer Sipes testified that dipping of headlights indicates a sudden stop and that he suspected the driver of the car had stopped his car suddenly because he saw the marked police car.

Officer Sipes investigated the situation. He testified: “I could see the driver's door was opening, and with my headlights I could see a taller figure that was wearing black pants, black sweatshirt, or a black upper top, and had gotten out of the car and was walking behind the car towards the sidewalk." Officer Sipes testified he drove past the car. As he did so, he could tell the figure was a black male. The male was Richardson, who was walking on the sidewalk. Officer Sipes continued driving, and then made a U-turn to see Richardson walking away from him. Officer Sipes lost sight of him for “a couple seconds" as Richardson walked behind a construction dumpster.

Officer Sipes parked his car and approached Richardson on foot. Officer Sipes was in police uniform, which included a badge and a gun. Officer Sipes approached Richardson while shining a light on him. Officer Sipes asked Richardson why he pulled over quickly upon seeing the police car. Richardson responded that he did not have a valid driver's license and did not want to get another ticket. Officer Sipes testified he noticed Richardson “beginning to get animated," meaning “his hands were kind of going back and forth." Officer Sipes testified that Richardson “appeared to be getting nervous because he was backing away from me." Officer Sipes asked Richardson for his identification, which Richardson did not have. Richardson told Officer Sipes his name and date of birth, and Officer Sipes used this information to verify Richardson's identity. Officer Sipes told Richardson he would be getting a ticket and asked Richardson to sit in the police car. Officer Sipes patted down Richardson for weapons before Richardson got in the car. Officer Sipes then gave Richardson a ticket.

In the police car, Officer Sipes asked Richardson why he parked his car where he did. Richardson responded that he lived about six blocks away and that he parked his car there whenever he visited his girlfriend because he did not want his other girlfriend to know.

While Richardson was at the scene, Officer Sipes went to where Richardson had been when Officer Sipes lost sight of him behind the dumpster. There, Officer Sipes found a handgun at the base of a tree. Officer Sipes testified he also found a glove two steps away from the firearm. The handgun was dry, unlike other metal objects around the area, which were covered

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in dew. Officer Sipes put his hand near the gun, and it was warm.

Officer Sipes then called a canine officer, who brought a dog to the scene. Based on the dog's tracking, the canine officer told Richardson the gun had recently been laid there. The dog also appeared to make a connection between Richardson's vehicle and the gun. Officer Sipes approached Richardson, asking him if he had been arrested before. Richardson admitted he had a felony conviction. Officer Sipes then arrested Richardson for being a felon in possession of a firearm.

The federal government indicted Richardson for the federal crime of being a felon in possession of a firearm. Richardson had at least three prior convictions for violent felonies or serious drug offenses. He was convicted of Aggravated Battery with Great Bodily Harm in 1996 and of Aggravated Kidnaping and two counts of Aggravated Battery in 2000.

B. Pretrial Motions

Richardson filed several motions to suppress evidence, alleging that Officer Sipes unlawfully seized him and that all physical evidence and statements should be suppressed. The magistrate judge 2 determined that suppression of the evidence obtained pursuant to the pedestrian stop was not required because Richardson was not seized. The district court upheld the magistrate judge's recommendation to deny Richardson's motions to suppress the evidence and statements, finding that Richardson was not seized.

Richardson also filed a motion to dismiss under 18 U.S.C. § 3162(a)(2) because the government did not bring him to trial within seventy days of his arraignment, as required by the Speedy Trial Act, 18 U.S.C. § 3161. At a hearing on January 31, 2007, the court told the parties it was inclined to grant Richardson's motion to dismiss, but it would nevertheless start Richardson's trial on February 5, 2007, if the government had secured re-indictment that day. Richardson did not object to holding trial on February 5. On February 5, the court dismissed the original indictment without prejudice. Richardson was re-indicted the same day. He moved for a thirty-day continuance. The district court denied the motion, and the trial commenced.

C. DNA Experts

At trial, the government called Alyssa Bance, a forensic scientist with the Minnesota Bureau of Criminal Apprehension, to testify about DNA evidence linking Richardson to the firearm. Specifically, Bance testified about DNA testing performed by another scientist in the office, Jacquelyn Kuriger. Bance testified that she personally “didn't actually receive the evidence in this case," but instead “received the case file with [Kuriger's] notes and results." Bance did, however, perform a peer review, in which she “look[ed] for basically everything down to that the i's are dotted and the t's are crossed. And if there's anything crossed out, are they initialed." Bance looked to make sure “everything is ... complete from the start of the case in the analysis to the end of the DNA results and the report." Bance testified, generally, the role of the peer reviewer is to “go through all of the case notes and documentation" the initial scientist did “to be sure that everything has been done properly and documented properly." Bance testified that “[t]he peer reviewer in a DNA case also does a second independent analysis

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of the DNA data and compares" it to the first scientist's review “to be sure that the two scientists agree in all aspects of the DNA testing."

Bance did not perform or witness any DNA testing of the samples in this case, but rather testified as to the tests Kuriger performed and the procedures and controls Kuriger used, as well as the results of Bance's own independent analysis of Kuriger's data. When asked what controls were used during the DNA extraction and testing, Bance asked to refer to the case file. At this point, the defense attorney objected for lack of foundation and hearsay. The district court overruled the objection. Bance continued to testify about the tests Kuriger performed, Kuriger's analysis, and the results. Bance admitted her only knowledge of the tests was from reviewing the paperwork Kuriger generated, conducting a second independent analysis of Kuriger's data, and comparing her analysis of the data with Kuriger's analysis of the same data. Defense counsel raised hearsay objections multiple times throughout Bance's testimony. The district court overruled these objections. Defense counsel did not object to the admission of this testimony on constitutional grounds.

II. Discussion

Richardson raises numerous arguments in this appeal, relating to pre-trial motions, trial scheduling, and the trial itself. We reject these arguments and affirm his conviction.

A. Seizure

Richardson argues broadly that all evidence must be suppressed under the Fourth Amendment. In reviewing the district court's denial of Richardson's suppression motions, we review for clear error the district court's factual findings and determine de novo whether the Fourth Amendment was violated. United States v. Bell, 480 F.3d 860, 863 (8th Cir.2007).

At a hearing on these motions, Richardson testified Officer Sipes initially stopped him by telling him to “[c]ome here" in a “[p]olice tone of voice." The district court found: “Sipes did not expressly order the man to stop, but the officer stated that he would like to speak with him and asked why he had abruptly stopped his vehicle and got out when he saw the police car." This factual finding is consistent with the testimony and is thus not clearly erroneous. See United States v. Frencher, 503 F.3d 701, 701 (8th Cir.2007) (noting that a district court's...

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